The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No. 175 OF 2015
                   (ARISING OUT OF SLP(Crl.) No.8715/2014)

      Balu S/o Onkar Pund & Others             Appellant(s)


                             VERSUS


The State of Maharashtra                      Respondent(s)

                       WITH

                     CRIMINAL APPEAL Nos.166-167 OF 2015
               (ARISING OUT OF SLP(Crl.) Nos.10109-10110/2014)
                                     AND
                     CRIMINAL APPEAL Nos.164-165 OF 2015
                (ARISING OUT OF SLP(Crl.) Nos.9524-9525/2014)

                               J U D G M E N T
Abhay Manohar Sapre, J.
1.    These appeals are filed by the accused persons  against  the  judgment
and order dated 03.02.2014 passed   by  the  High  Court  of  Judicature  at
Bombay, Bench at Aurangabad in Criminal Appeal Nos. 215  and   225  of  2011
which arise out of judgment/order dated 11.04.2011 passed  by  the  Sessions
Judge, Parbhani in Sessions Trial No.80 of 2008.
2.    Accused Nos. 5, 8, 9 & 10 have filed appeal @ SLP(Crl.)  No.  8715  of
2014   whereas  appeals  @  SLP(Crl.)  Nos.10109-10110/2014  are  filed   by
accused Nos.1 and 4 and appeals @ SLP(Crl.) Nos.  9524-9525/2014  are  filed
by accused Nos. 2, 3 and 6.
3.    By impugned judgment, the High  Court  confirmed  the  conviction  and
sentences awarded to the appellants by the learned trial Judge.  Suffice  it
to state here that the appellants, apart from other offences were  convicted
under Section 302 read with Section 149 of the IPC and sentenced  to  suffer
life imprisonment and to  pay  fine  of  Rs.10,000/-  each,  in  default  of
payment of fine, to undergo further six months rigorous  imprisonment.   The
sentences imposed in respect of other offences are of below 7 years and  all
the sentences have been directed to run concurrently.
4.    The question, regard being had to  the  submissions  advanced  by  the
learned counsel for the appellants, is whether the learned  trial  Judge  as
well as the High Court was justified  in  convicting  the  appellants  under
Section 302 read with Section 149 IPC considering the genesis of  occurrence
and the facts in entirety or they should have been convicted  under  Section
304 Part-I, IPC.
5.    In order to appreciate the issue involved  in  these  appeals,  it  is
necessary to state the relevant facts in brief.
6.    Apparao Rajaram Pund (A-1) and Madhavrao Rangnathrao  Range  (PW-  3),
both resident of village Itlapur in District Parbhani,  were  good  friends.
Both were agriculturists. Savitribai-the deceased was the wife of  Madhavrao
Range.  Around 25-30 years back, Madhavarao  had  purchased  two  kathas  of
land from Apparao for his cattle shed in the same village and  he  was  also
placed in its possession. However, no sale deed was  executed  between  them
yet Madhavrao continued to remain in possession of cattle shed all through.
7.    In  course  of  time,  both  entered  in  politics  and  formed  their
respective panels to contest the elections for the post of Sarpanch  of  the
village. In the election, panel led by Madhavrao  Range  won  whereas  panel
led by Apparao Pund lost. Due to this  event,  the  relations  between  them
were not as cordial as they used to be  in  the  past.   Thereafter  Apparao
started pressurizing Madhavrao Range to vacate the land and  hand  over  the
possession  of  cattle  shed  else  he  was  threatened  to  face  the  dire
consequences.
8.    On 15.01.2008, the appellants around 7.30  to  8.00  A.M.  armed  with
weapons barged in the cattle shed  and  started  removing  the  iron  sheets
fixed on the roof.  Madhavrao requested the appellants  not  to  remove  the
sheets. Since the appellants did not listen to Madhavrao  and  continued  in
their operation in removing the sheets, Madhavrao resisted and made  attempt
to stop them. At that time,  Savitribai and  Madhavrao's  son  -  Udhav  (PW
-5), who were  also  present  on  the  spot,  intervened  and  resisted  the
appellants from removing the sheets. This led to scuffle between  Apparao  (
A-1), Sachin-( A-4), Achyut (A-3) and Madhavrao (PW-3).  Accused Nos.  1,  3
and 4 beat Madhavrao with fist blows and leg kicks  and  threw  him  out  of
cattle shed.  Apparao(A-1),  who  was  having  bottle  containing  kerosene,
poured the entire kerosene on cattle shed and Sachin ( A-4) set  the  cattle
shed on fire.  Savitribai, who was  resisting  the  appellants,  caught   in
contact of fire  and  received  severe  burn  injuries.  On  noticing  this,
Madhavrao tried to enter in cattle shed to save his  wife-Savitribai.  Gopal
(A-2) then inflicted an axe  blow  on  Madhavrao's  head  due  to  which  he
sustained bleeding injury. When Madhavrao cried for help, Navnath and  other
persons reached there and tried to extinguish  the  fire.   Thereafter  they
wrapped Savitribai in a piece of cloth and took her to  the  civil  hospital
around 10 A.M.
9.    In the meantime, Mohammad Bashir  Sheikh  Umar  (PW-2)-  Inspector  on
duty to the Nanal Peth Police Station, got an information that a  lady  with
burn injuries was admitted to the Hospital.  Therefore,  he  rushed  to  the
hospital to record her statement.   After  getting  certification  from  the
doctors that Savitribai was in a fit condition to give her  statement,  PW-2
recorded her statement (Ex-45). In the  meantime,  Kishore  Achyut  Deshmukh
(PW-1), In-charge Tahsildar of the area also reached  to  the  hospital  and
recorded the statement of Savitribai (Ex-P-42).
10.   Annasahab Gholap - Assistant Police Inspector (PW-16) then  registered
the crime being Crime No. 6 of 2008 and started investigation.  On the  same
day, five accused were  arrested,   panchnama  (Ex-P-58)  was  prepared  and
several articles were recovered from the spot.  On 16.01.2008 at 6.15  a.m.,
Savitribai succumbed to her injuries while in  the  Hospital.  This  led  to
arrest of some other accused persons and also led to  registration  of  case
of offence punishable under Section 302 of  the   Indian  Penal  Code,  1860
(hereinafter referred to as "IPC")  along  with  other  offences  punishable
under Sections 147, 148, 323,  324,  436,  440,  448,  506  all   read  with
Section 149 IPC against the appellants and other accused persons.  The  case
was then committed to Sessions for trial. The accused  abjured  their  guilt
and claimed trial. The prosecution examined 16 witnesses. The statements  of
the accused persons were recorded under Section 313 of the Code of  Criminal
Procedure, 1973.
11.   The  Sessions  judge  convicted  the  appellants-accused  and  imposed
punishment to each appellant  as  specified  above.   Challenging  the  said
order, the  appellants  filed  appeals  in  the  High  Court  against  their
conviction. The High Court, by impugned judgment,  dismissed  their  appeals
and confirmed the conviction and sentence awarded  by  the  trial  Court  to
each of the  appellants.   Against  the  said  order,  the  appellants  have
preferred these appeals by way of special leave before this Court.
12.   While assailing the legality and correctness of  the  impugned  order,
Mr. Sudhanshu S. Choudhari, learned Counsel for the  appellants  has  argued
only one point.  According to him, taking the prosecution case on  its  face
value, it was not a case of murder of Savitribai so as to enable the  Courts
to convict the appellants under Section 302 IPC but it was  a  case  falling
under Section 304 Part-I IPC. Learned counsel pointed  out  that  there  was
neither any intention on the part of any of the  appellants  to  commit  the
murder of Savitribai nor the appellants had visited the spot with  any  such
intention. Learned Counsel further pointed out that the  only  intention  of
the appellants was to take possession of the  cattle  shed  and  it  was  in
process of taking forcible possession, the sudden fight ensued  between  the
two groups as  also  cattle  shed  caught  fire  causing  burn  injuries  to
Savitribai, which unfortunately resulted in her death.  It was also  pointed
out that if the appellants had  come  to  the  spot  with  an  intention  to
eliminate Savitribai,  they or any member of their group would have  in  the
first instance targeted Savitribai, who was present on  the  spot  with  her
husband (PW-3) and inflicted injury.  It was not done. According to  learned
Counsel, her death was as a result of burn injuries because she  was  inside
the shed, which caught fire.  Therefore, learned  Counsel  urged  that  this
Court should alter the sentence to that of the one punishable under  Section
304 Part-I IPC instead of under Section 302 IPC because it was  not  a  case
of murder but it was a case of culpable homicide not amounting to murder.
13.   Per contra, learned Counsel for the respondent supported the  impugned
order and urged that two courts have rightly held the appellants guilty  for
committing murder of  Savitribai  and  hence  the  appeals  merit  dismissal
calling no interference.
14.   Having heard the learned Counsel for the parties  and  on  perusal  of
the record of the case, we find force  in  the  submission  of  the  learned
Counsel for the appellants.
15.   Before we examine the factual matrix  of  the  case  in  hand,  it  is
apposite to take note of the law laid down by this Court on the question  as
to when culpable homicide is a murder under Section 300 "thirdly"  and  what
are the elements which the  prosecution  should  establish.  This  Court  in
Virsa Singh v. State of Punjab,  1958  SCR  1495,  examined  this  issue  in
detail.
16.   The learned Judge Vivian Bose in his distinctive style of writing  and
speaking for the Court succinctly stated as under:

"13. In considering whether the intention was to inflict  the  injury  found
to have been inflicted, the enquiry necessarily proceeds on broad lines  as,
for example, whether there was an intention  to  strike  at  a  vital  or  a
dangerous spot, and whether with sufficient  force  to  cause  the  kind  of
injury found to have been inflicted. It is,  of  course,  not  necessary  to
enquire into every last  detail  as,  for  instance,  whether  the  prisoner
intended to have the bowels fall out, or whether he  intended  to  penetrate
the liver or the  kidneys  or  the  heart.  Otherwise,  a  man  who  has  no
knowledge of anatomy could never be convicted, for,  if  he  does  not  know
that there is a heart or a kidney or bowels,  he  cannot  be  said  to  have
intended to injure them. Of course, that is not the kind of enquiry.  It  is
broad-based and simple and based on commonsense: the kind  of  enquiry  that
"twelve good men and true" could readily appreciate and understand.
14. To put it shortly,  the  prosecution  must  prove  the  following  facts
before it can bring a case under Section 300 "thirdly";
15. First, it must establish, quite objectively, that  a  bodily  injury  is
present;
16. Secondly, the nature of the injury must  be  proved;  These  are  purely
objective investigations.
17. Thirdly, it must be proved that there was an intention to  inflict  that
particular bodily injury, that is to say, that  it  was  not  accidental  or
unintentional, or that some other kind of injury was intended.
18. Once these  three  elements  are  proved  to  be  present,  the  enquiry
proceeds further and,
19. Fourthly, it must be proved that the injury of the type  just  described
made up of the three elements set out above is sufficient to cause death  in
the ordinary course of nature. This part of the enquiry is purely  objective
and inferential and has nothing to do with the intention of the offender.
20. Once these four elements are established by  the  prosecution  (and,  of
course, the burden is on the prosecution throughout) the offence  is  murder
under Section 300 "thirdly". It does not matter that there was no  intention
to cause death. It does not matter that  there  was  no  intention  even  to
cause an injury of a kind that is sufficient to cause death in the  ordinary
course of nature (not that there is any real distinction between  the  two).
It does not even matter that there is no knowledge that an act of that  kind
will be likely to cause death.  Once  the  intention  to  cause  the  bodily
injury actually found to be present is proved, the rest of  the  enquiry  is
purely objective and the only question is whether, as  a  matter  of  purely
objective inference, the injury is sufficient  in  the  ordinary  course  of
nature to cause death. No  one  has  a  licence  to  run  around  inflicting
injuries that are sufficient to  cause  death  in  the  ordinary  course  of
nature and claim that they  are  not  guilty  of  murder.  If  they  inflict
injuries of that kind, they must face the consequences; and  they  can  only
escape if it can be shown,  or  reasonably  deduced,  that  the  injury  was
accidental or otherwise unintentional."


17.   Relying on the aforesaid principle of  law,  recently  this  Court  in
Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of  Andhra  Pradesh  (2006)11
SCC 444, again examined the issue as to  what  relevant  factors  should  be
kept in consideration while deciding the question  as  to  whether  case  in
hand falls under Section 302 or 304 Part-I or  Part-II.  Justice  Raveendran
speaking for the Court held in para 29 as under:
"29. Therefore, the court should proceed to decide the pivotal  question  of
intention, with care and caution, as  that  will  decide  whether  the  case
falls under Section 302 or 304  Part  I  or  304  Part  II.  Many  petty  or
insignificant matters - plucking of a fruit, straying of cattle, quarrel  of
children, utterance of a rude word or  even  an  objectionable  glance,  may
lead to altercations and group clashes culminating in deaths. Usual  motives
like revenge, greed, jealousy or suspicion may be  totally  absent  in  such
cases. There may be no intention. There may be no  premeditation.  In  fact,
there may not even be criminality. At the other end of the  spectrum,  there
may be cases of murder where the accused attempts to avoid the  penalty  for
murder by attempting to put forth a case that  there  was  no  intention  to
cause death. It is for the  courts  to  ensure  that  the  cases  of  murder
punishable  under  Section  302,  are  not  [pic]converted   into   offences
punishable under Section 304 Part I/II, or cases of  culpable  homicide  not
amounting to murder, are treated as murder  punishable  under  Section  302.
The intention to cause death can be gathered generally  from  a  combination
of a few or several  of  the  following,  among  other,  circumstances:  (i)
nature of the weapon used; (ii)  whether  the  weapon  was  carried  by  the
accused or was picked up from the spot; (iii) whether the blow is  aimed  at
a vital part of the body; (iv) the  amount  of  force  employed  in  causing
injury; (v) whether the act was in the course of sudden  quarrel  or  sudden
fight or free for all fight; (vi) whether the incident occurs by  chance  or
whether there was any premeditation;  (vii)  whether  there  was  any  prior
enmity or whether the deceased was a stranger; (viii) whether there was  any
grave and sudden provocation, and if so, the  cause  for  such  provocation;
(ix) whether it  was  in  the  heat  of  passion;  (x)  whether  the  person
inflicting the injury has taken undue advantage or has acted in a cruel  and
unusual manner; (xi) whether the accused dealt  a  single  blow  or  several
blows. The above list of circumstances is, of  course,  not  exhaustive  and
there  may  be  several  other  special  circumstances  with  reference   to
individual cases which may throw light on  the  question  of  intention.  Be
that as it may."

18.   Applying the aforesaid principle of law to the facts of  the  case  in
hand and keeping the same in consideration when we examine the  evidence  of
the prosecution, we find that this is a case  where  the  appellants  should
have been convicted for the offence  punishable  under  Section  304  Part-I
instead of Section 302 IPC.
19.   It is for the reason that firstly, neither there was  any  motive  and
nor any intention on  the  part  of  any  of  the  appellants  to  eliminate
Savitribai. Secondly, there was no enmity of any  kind  with  Savitribai  in
person with any of the appellants. Thirdly, the appellants  had  gone  there
to take possession of the cattle shed and not with an intention to kill  any
member of the family of Madhavrao Renge. Fourthly, if at all, if  there  was
some kind of animosity or jealousy then it was towards A-1 whose  panel  had
won the election.  Savitribai had nothing to do with  election  because  she
never contested the election.  Fifthly, despite the  appellants  armed  with
weapons, none of them inflicted any injury or gave blow  to  Savitribai  but
single blow was inflicted  only  on  Madhavrao,  who  fortunately  survived.
Sixthly, Savitribai died due to  sustaining  of  burn  injuries,  which  she
suffered because the appellants ablazed the cattle shed by pouring  kerosene
on it. In other words, if the appellants had not  ablazed  the  cattle  shed
then the incident of death of Savitribai would not have occurred.  Eighthly,
it was a fight on a spur of moment between the two male groups on the  issue
of taking possession of cattle shed with no intention to kill  any  one  and
lastly, in the absence of any overt act attributed to any of the  appellants
towards Savitribai for inflicting any injury to her,  the  appellants  could
not have been convicted for an offence of committing  murder  of  Savitribai
so as to attract the rigour of Section 302 IPC and instead they should  have
been convicted for an offence of culpable homicide not amounting  to  murder
under Section 304 Part I IPC.
20.   In the light of foregoing discussion, we allow the  appeals  in  part.
The appellants are accordingly convicted for  an  offence  punishable  under
Section 304  Part-I  IPC  instead  of  Section  302  IPC  and  each  of  the
appellants is hereby awarded 7 years RI.
21.   So far as the conviction and sentence  awarded  by  the  courts  below
under various other sections, as specified above, are  concerned,  they  are
upheld calling no interference.  All the sentences shall  run  concurrently.

                 .............................................J.
                                  [DIPAK MISRA]


               .................................................J.
                               [ABHAY MANOHAR SAPRE]
      New Delhi;
      February 2, 2015.


-----------------------
18

threefold: Firstly, whether the Court was justified in granting solatium and interest without considering the fact that there is no provision for awarding these under the Requisitioning and Acquisition of Immovable Property Act, 1952; secondly, whether the Court was right in ignoring the fact that the Constitutional validity of non-inclusion of the provision for the payment of solatium and interest in the Act has been upheld by this Court in the case of Hari Krishna Khosla and finally, whether the Court was right in enhancing the compensation from Rs.6/- per sq. yard to Rs.12/- per sq. yard without fully appreciating the Cross Objections and evidence proffered by the Appellant?

                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3137 OF 2010



DEFENCE ESTATE OFFICER                ..      APPELLANT

                                   VERSUS

SYED ABDUL SALEEM AND OTHERS          .. RESPONDENTS

                               J U D G M E N T
VIKRAMAJIT SEN, J.

1     The Appellant has by the pulpit of  this  Civil  Appeal  assailed  the
Judgment and final Order dated 13.3.2007 passed by the  Hon'ble  High  Court
of Judicature, Andhra Pradesh (Hyderabad) in CMA No. 1986 of 2003,  rendered
in the matter of  Syed Abdul Saleem v. The  Government  of  Andhra  Pradesh,
wherein the appeal preferred by the Respondents herein was  allowed  by  the
High Court, which enhanced the rate of  compensation  from  Rs.6/-  per  sq.
yard awarded by the Learned Arbitrator, to Rs.12/- per sq. yard  along  with
the award of 30% solatium and interest at 9% from the  date  of  possession,
i.e.,  28.07.1970.  The  subject  lands,  situated  at  Village  Ibrahimbagh
District, Hyderabad, were acquired for setting up of an Artillery Centre  at
Golconda. The  Ministry  of  Defence,  Government  of  India,  accorded  its
sanction dated 1.12.1969 for the acquisition  of  land  admeasuring  1181.70
acres, at an estimated total cost approximating  Rs.35,45,100/-.  The  lands
of the Respondents, admeasuring 2 acres 28 guntas in  Revenue  Sy.  No.  94,
and 1 acre 27 guntas in Revenue Sy.No. 95, totaling 4 acres and  15  guntas,
were acquired under the provisions of the Requisitioning and Acquisition  of
Immovable Property Act,  1952  by  the  Central  Government.  The  Form  'J'
Notification was published on 22.07.1971.   The Competent  Authority,  viz.,
the Collector, Hyderabad, offered Rs.39,930/- as compensation in respect  of
4 acres 15 guntas, by fixing the rate at Rs.2/- per  sq.  yard.     Further,
the Collector also granted interest at 4% p.a. from the date of  publication
of 'J' Notice to  the  date  of  payment;  an  amount  of  Rs.45,295.90  was
deposited by SDC, LA (Defence) in the Court, vide letter dated 03.02.1975.
2     Dissatisfied with the said compensation,  the  Respondents  thereafter
requested for the appointment of  a  Statutory  Arbitrator.  The  Government
appointed the Arbitrator on 21.10.1980, with a direction to him  to  dispose
of the matter within four months.   As the sole  Arbitrator  was  unable  to
dispose of the matter within the  prescribed  period,  the  Government  once
again appointed an Arbitrator on 11.11.1999 to complete  the  exercise.  The
Arbitrator enhanced the compensation from Rs.2/- per sq. yard to Rs.6/-  per
sq. yard along with solatium of 30% and interest at 9% p.a.  from  the  date
of taking possession of the acquired land, i.e.,  28.07.1970,  up  till  the
date of payment. The  Arbitrator  recorded  in  his  Award  that  after  the
failure of the first Arbitrator to dispose of the matter within a period  of
four months, the Government took 19 years  to  appoint  another  Arbitrator.
The Arbitrator observed: "it is no doubt true that the matter was stayed  by
the Hon'ble High Court for some years on account  of  proceedings  initiated
by the claimants 1 and 2 herein. But, even after the above aspect  is  taken
into consideration, it is very clear that the Government is not diligent  in
prosecuting the matter". The fact of  undue  delay  in  the  institution  of
arbitral proceedings having been  determined,  the  Arbitrator  applied  the
principle enunciated in Union of India v. Hari Krishan Khosla  (1993)  Supp.
2 SCC 149, whereto we  shall  advert  shortly,  and  awarded  the  aforesaid
payment of solatium and interest.
3     Dissatisfied with the Award, the Respondents filed  an  appeal  before
the High Court; Cross Objections were preferred by the Appellant.  The  High
Court allowed the Respondents' Appeal while dismissing the Cross  Objections
of the Appellant and enhanced the compensation from Rs.6/- per sq.  yard  to
Rs.12/- per sq. yard and upheld the Arbitrator's Award granting solatium  of
30% and interest at 9%. The High Court also placed reliance on this  Court's
judgment in Hari Krishna Khosla.
4     The questions of law raised by the Appellant before us are  threefold:
Firstly, whether the Court was justified in granting solatium  and  interest
without considering the fact that there is no provision for  awarding  these
under the Requisitioning and Acquisition of Immovable  Property  Act,  1952;
secondly, whether the  Court  was  right  in  ignoring  the  fact  that  the
Constitutional validity of non-inclusion of the provision  for  the  payment
of solatium and interest in the Act has been upheld by  this  Court  in  the
case of Hari Krishna Khosla and finally, whether  the  Court  was  right  in
enhancing the compensation from Rs.6/- per sq. yard to Rs.12/- per sq.  yard
without fully appreciating the Cross Objections and  evidence  proffered  by
the Appellant?
5     Per contra, the Respondents submit that Hari Krishna Khosla,  and  its
succeeding judgments, all indicate that there is a settled alcove of  equity
in the  jurisprudence  pertaining  to  land  requisition.   This  Court  has
recognized  the  hardships  suffered  by  affected/dispossessed  parties  in
requisition proceedings, in cases of extensive delay  in  the  disbursal  of
compensation, or, as in this case, delay in the initiation  and  eventuation
of proceedings under the  statute,  and  has  equitably  extended  the  twin
ameliorators of solatium and interest  on  compensation,  albeit  their  not
being available under the requisition Statute.
6     The submissions of both parties  hereto  having  been  adumbrated,  we
find  that  the  Appeal  is  without  merit.  The  Appellant   presents   as
exceptionable the High Court's enhancement of compensation. But the  chiefly
objectionable  aspect  to  the  impugned  judgment  and  order  is,  in  the
submission of the Appellant, the High Court's extra-legal Award of  solatium
and interest on the principal statutory  compensation  awardable  under  the
Requisitioning and Acquisition of Immovable Property Act, 1952.  This  Court
has previously, in Hari Krishan Khosla, conducted  a  thorough  analysis  of
the features of the aforementioned Act apropos  the  Land  Acquisition  Act,
1894, and providing cogent  rationales  therefore,  in  our  humble  opinion
rightly labelled as "odious" any attempt to make a  black-letter  comparison
of the  two  enactments.  Whilst  upholding  the  Constitutionality  of  the
Requisitioning Act absent the provisions therein of the  award  of  solatium
and interest, the Court nevertheless, relying upon a previous  pronouncement
in Harbans Singh Shanni Devi v. Union of India [disposed of  by  this  Court
on 11.02.1985 in Civil Appeal Nos. 470 & 471 of 1985],  found  it  just  and
proper to uphold award of both solatium (at 30%)  and  9  %  interest  along
with  the  principal  statutory  compensation,  where  appointment  of   the
Statutory Arbitrator had been delayed by 16 years. "Equity is a mitigant  to
the harshness of common law" is  a  well-known  Common  Law  maxim.  Several
Benches of this Court, from Hari Krishan Khosla in  1993;  the  Constitution
Bench in Union of India v. Chajju Ram (2003) 5 SCC 568, in  the  context  of
the Defence of India Act, 1971; Union of  India v. Parmal   Singh  (2009)  1
SCC 618 and thereafter in Dilawar Singh v. Union  of  India  (2010)  14  SCC
357, have consistently applied mutatis mutandis the equity resting  in  this
maxim to  mitigate  the  harshness  of  this  requisition  statute,  thereby
providing for payment of interest and  solatium  to  affected/  dispossessed
parties in cases of  extensive  protraction,  where  the  statute  ex  facie
provides for neither of these ameliorators. The precedential position  being
unquestionably clear, we find that the facts before us, displaying  dilation
by the Appellant of 19 years in reappointment of the  statutory  Arbitrator,
command and not  merely  commend  the  application  of  the  precedent.  We,
therefore, sustain the Judgment of the High Court, and confirm the award  of
solatium  and  interest  therein,  along  with  the  principal  compensation
amount.
7     Appeal is dismissed.   Since this Appeal stood covered on  all  fours,
the Appellant shall pay costs to the Respondents.


............................................J.
                                                [VIKRAMAJIT SEN]







      .............................................J.
                                                [ SHIVA KIRTI SINGH]
New Delhi,
February 02,  2015.

whether respondent no. 1 - Mahanagar Sudhar Samiti, Akola, an "aghadi" or "front" formed by some of the elected councillors of respondent no. 5 -Akola Municipal Corporation in March, 2013, without its registration under second proviso to Section 31A(2) of the Maharashtra Municipal Corporations Act, 1949 (for short "1949 Act") stood registered and recognized as a party or group for the purposes of representation, and as such whether the petition filed by respondent no.1 before the High Court challenging the Standing Committee constituted under the 1949 Act was maintainable.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.1388 OF 2015
              (Arising out of S.L.P. (Civil) No. 28853 of 2013)

Ajay Ramdas Ramteke and Anr.            ... Appellants

                                   Versus

Mahanagar Sudhar Samiti, Akola & Ors.   ...Respondents


                               J U D G M E N T

Prafulla C. Pant, J.


             Leave granted.





2.    The question involved in this appeal is whether  respondent  no.  1  -
Mahanagar Sudhar Samiti, Akola, an "aghadi" or "front"  formed  by  some  of
the elected councillors of respondent no. 5 -Akola Municipal Corporation  in
March, 2013, without its  registration  under  second  proviso  to   Section
31A(2) of the  Maharashtra  Municipal  Corporations  Act,  1949  (for  short
"1949 Act") stood registered and recognized as a  party  or  group  for  the
purposes of representation, and  as  such  whether  the  petition  filed  by
respondent no.1 before the High Court challenging  the   Standing  Committee
constituted  under the 1949 Act  was maintainable.


3.       Brief facts of the case are that  elections  were  held  for  Akola
Municipal  Corporation  in  February,  2012,  wherein  73  councillors  were
elected to the House.  From amongst elected members, initially  23  members,
and thereafter in all 26 members claimed to  have formed an "aghadi"  (group
of persons) with the name "Mahanagar Sudhar Samiti".   On  5.3.2012,  within
one  month  of  the  election,  leader  of  the  said  group  submitted   an
application before the Divisional Commissioner for  its  registration  under
second proviso to Section 31A(2) of the 1949 Act.  It appears  that  in  the
meantime there was a controversy as to whether two of  the  elected  members
projected to be part of the  group  were  actually  members  of  the  aghadi
(respondent  no.1)  or  another  group  Akola  Vikas   Mahaaghadi   (present
respondent no.6).  The said issue  was  decided  by  the  High  court  by  a
detailed judgment dated 08.05.2012 passed in writ petition no. 1426 of  2012
holding that the aforesaid two members were not part  of  either  respondent
no. 1 or 6.  Thereafter,  the  Divisional  Commissioner  passed  a  detailed
order on 28.08.2012 whereby the application for registration  of  respondent
no.1 as aghadi filed in  March  2012  was  rejected.   Said  order  was  not
challenged by any party.  However,  meanwhile  Resolution  dated  29.04.2013
was  passed  by  the  Akola  Municipal  Corporation  whereby   the   present
appellants and six others (present respondent nos. 9 to 14)  were  nominated
in  the  Standing  Committee  as  members  thereof.   The   Resolution   was
challenged by respondent nos. 1 to 3 by filing a Writ Petition no.  2571  of
2013 before the Nagpur Bench of the High Court of Judicature at  Bombay.   A
preliminary objection was raised on  behalf  of  Mayor  (respondent  no.  4)
before  the  High  Court  that  the  writ  petition  was  not  maintainable.
Defending the Resolution dated 29.04.2013, it was stated that there  was  no
illegality in nominating the members whose names  figured  in  the  Standing
Committee constituted vide Resolution dated 29.04.2013.

4.          After hearing the parties, the High Court  took  the  view  that
since the application for registration, in the register maintained  in  Form
IV as per Rule 5 of Maharashtra Local  Authority  Members'  Disqualification
Rules, 1987 (for short "1987 Rules"), was made within time,  the  respondent
no.1 should have been treated as separate aghadi, and as such  non-inclusion
of names of its members for  proportional  representation  in  the  Standing
Committee invalidates the Resolution dated  29.04.2013.    Accordingly,  the
High Court quashed the Resolution dated  29.04.2013  and  allowed  the  writ
petition.

5.        Aggrieved, by the above order  dated  14.08.2013,  passed  by  the
High Court, in Writ Petition No. 2571 of 2013, this appeal is filed  by  the
appellants who were respondent nos. 6 and 7 before the High  Court,  through
special leave.

6.             It is pleaded on behalf  of  the  appellants  that  the  High
Court has erred in law by accepting the writ petition  filed  by  respondent
nos. 1 to 3 which was not maintainable.  It is stated that  the  High  Court
ignored  the  fact  that  vide  order  dated  28.08.2012,   the   Divisional
Commissioner  had  rejected  the  application  for  registration  moved   by
respondent  No.  1  as  separate  aghadi.   It  is  further   pleaded   that
registration of post-poll group or alliance was mandatory under Section  31A
of  1949  Act  read  with  1987  Rules.    It  is  argued  before  us   that
unregistered aghadi is not an aghadi in  the  eyes  of  law,  and  as  such,
neither the same could have been recognized for its  representation  in  the
Standing Committee nor maintain the writ petition in the High Court.

7.           On the other hand, on behalf of the respondent  nos.  1  to  3,
who were the writ petitioners before the High Court,  contended  that  since
there was no rule or procedure prescribed for  registration  as  such  their
only duty was to   intimate the Divisional  Commissioner  under  Rule  3  of
1987 Rules about the formation of aghadi, and the rest was  the  ministerial
work to be completed. The contesting respondent nos. 1  to  3  placed  their
reliance   in  the  case  of  Jeevan  Chandrabhan  Idnani  and  Another  vs.
Divisional Commissioner, Konkar Bhawan and others (2012) 2 SCC 794.

8.    Before further discussion, we think it just and proper to  mention  as
to what is the meaning  of  word  'Aghadi',  and  for  what  purpose  it  is
constituted by the councillors of Corporation.  Word 'aghadi' is defined  in
Clause  (a)  of  Section  2  of   Maharashtra   Local   Authority   Members'
Disqualification Act, 1986 (for short "1986 Act") which reads as under:
"2.  In this Act unless the context otherwise requires,-

 "aghadi" or "front" means a group of persons  who  have  formed  themselves
into party for the purpose of setting up candidates for election to a  local
authority."

9.      Object of allowing elected members to form an  aghadi  as  post-poll
alliance is to give  proportional  representation  of  its  members  to  the
various   standing   committees   constituted   for   functioning   of   the
Corporations.

10.         Second proviso to sub-section (2) of Section  31A  of  1949  Act
allows the concillors to form an aghadi after the election  to  a  Municipal
Corporation.  Section 31A reads as under:
"31A.  Appointment  by  nomination  on  Committees  to  be  by  proportional
representation - (1) Notwithstanding anything contained in this Act  or  the
rules or bye-laws made thereunder, in the case of the following  committees,
except where it  is  provided  by  this  Act,  that  the  appointment  of  a
Councillor to any Committee shall be by virtue of his  holding  any  office,
appointment of Councillors  to  these  Committees,  whether  in  regular  or
casual  vacancies,  shall  be  made  by  the   Corporation   by   nominating
Councillors in accordance with the provisions of sub-section(2):-

      Standing Committee;

      Transport Committee;

      Any special Committee appointed under section 30;

     Any ad hoc Committee appointed under section 31"


(2)    In nominating the  Councillors  on  the  Committee,  the  Corporation
shall take into account the relative strength of the recognized  parties  or
registered parties or groups and nominate members, as nearly as may  be,  in
proportion to the strength of such parties or  groups  in  the  Corporation,
after consulting the Leader of the House, the Leader of Opposition  and  the
leader of each such party or group:



Provided  that,  the  relative  strength  of  the  recognized   parties   or
registered parties or groups or aghadi  or  front  shall  be  calculated  by
first dividing the total number of Councillors  by  the  total  strength  of
members of the Committee.  The  number  of  Councillors  of  the  recognized
parties or registered parties or groups or aghadi or front shall be  further
divided by the quotient of this division.  The figures so arrived  at  shall
be the relative strength of the respective recognized parties or  registered
parties  or groups or aghadi or front.  The seats shall be allotted  to  the
recognized parties or registered parties or groups or  aghadi  or  front  by
first considering the whole number of their respective relative strength  so
ascertained.   After allotting the seats in this  manner,  if  one  or  more
seats remain to be allotted, the same shall be  allotted  one  each  to  the
recognized parties or registered parties or groups or  aghadi  or  front  in
the descending order of the  fraction  number  in  the  respective  relative
strength  starting  from  the  highest  fraction  number  in  the   relative
strength, till all the seats are allotted:



Provided further that, for the purpose of deciding the relative strength  of
the recognized parties or registered parties or groups under this  Act,  the
recognized parties or registered parties or groups, or  elected  Councillors
not belonging to any such  party  or  group  may,  notwithstanding  anything
contained in the Maharashtra Local Authority Members' Disqualification  Act,
1986 (Mah. XX of 1987), within a period  of  one  month  from  the  date  of
notification of election results, from the  aghadi  or  front  and,  on  its
registration, the provisions of the said Act shall apply to the  members  of
such aghadi or front, as if it is a registered pre-poll aghadi or front.



(3)   If any question arises as regards the  number  of  Councillors  to  be
nominated on behalf of such party or group, the decision of the  Corporation
shall be final".



11.   In Jeevan Chandrabhan Idnani (supra), this Court  has  made  following
observations interpreting the second proviso of  sub-section  2  of  Section
31A:
"26. The second proviso to sub-section  (2)  of  Section  31-A  enables  the
formation of an aghadi or front within a period of one month from  the  date
of notification of the election results. Such an  aghadi  or  front  can  be
formed by various possible combinations of Councillors belonging  to  either
two  or  more  registered  parties  or  recognised  parties  or  independent
Councillors. The proviso categorically stipulates that such a  formation  of
an "aghadi" or "front" is possible  notwithstanding  anything  contained  in
the Disqualification Act. Because an "aghadi" or "front", as  defined  under
the Disqualification Act, clearly, can only be the combination  of  a  group
of persons forming themselves  into  a  party  prior  to  the  election  for
setting up candidates at  an  election  to  a  local  authority  but  not  a
combination of political parties or political parties and individuals.

27. Therefore, the second  proviso  to  Section  31-A(2)  of  the  Municipal
Corporations Act which is a later expression of the will of  the  sovereign,
in contrast to the stipulation as contained under Sections 2(a) and 3(2)  of
the Disqualification Act,  would  enable  the  formation  of  post-electoral
aghadis or fronts. However, such a formation is only  meant  for  a  limited
purpose of enabling such aghadis to  secure  better  representation  in  the
various categories of the  Committees  specified  under  Section  31-A.  The
component parties or individual independent Councillors,  as  the  case  may
be, in the case  of  a  given  front/aghadi  do  not  lose  their  political
identity and merge into the aghadi/front  or  bring  into  existence  a  new
political party. There is no merger  such  as  the  one  contemplated  under
Section 5 of the Disqualification Act.  It  is  further  apparent  from  the
language of the second proviso that on the formation of such  an  aghadi  or
front, the same is  required  to  be  registered.  The  procedure  for  such
registration is  contained  in  the  Maharashtra  Local  Authority  Members'
Disqualification Rules, 1987.

28. Once such an aghadi is registered by a legal fiction created  under  the
proviso, such an aghadi is treated as  if  it  were  a  pre-poll  aghadi  or
front. The proviso further declares that once such a registration  is  made,
the provisions of the Disqualification Act apply  to  the  members  of  such
post-poll aghadi. We do not propose to examine  the  legal  consequences  of
such a declaration as it appears  from  the  record  that  a  complaint  has
already been lodged against Respondents 6 to 13 herein under the  provisions
of the Disqualification Act. [pic]The limited question before us is  whether
the first respondent was legally right in registering  an  aghadi  or  front
formed after the lapse of one month from the date  of  the  notification  of
the election results.

                  XXX           XXX             XXX           XXX

30. In substance, the High Court held that the interpretation of Section 31-
A depends upon the tenor and scheme of the subordinate legislation.  Such  a
principle of statutory construction is not normally resorted to save in  the
case of interpretation of an old enactment where the language is  ambiguous.
We are conscious of the fact that there is some  difference  of  opinion  on
this principle but for the purpose of the present case we do  not  think  it
necessary to examine the  proposition  in  detail  as  in  our  opinion  the
language of Section 31-A is too explicit to require any other  external  aid
for the interpretation of the same.  Subordinate  legislation  made  by  the
executive in exercise of the powers delegated by the legislature,  at  best,
may reflect the understanding of the executive of the scope  of  the  powers
delegated. But there is no inherent guarantee that such an understanding  is
consistent with the true meaning and purport of the parent enactment.

31. Such variations of the relative strength of aghadis would  have  various
legal consequences provided under the Disqualification Act.  Depending  upon
the fact situation in a given  case,  the  variation  might  result  in  the
consequence  of  rendering  some  of  the   Councillors   disqualified   for
continuing as Councillors. Section 31-A of  the  Municipal  Corporation  Act
only enables the formation of an aghadi or front within  a  month  from  the
date of the notification of the results of the  election  to  the  Municipal
Corporation. To permit recognition of variations in  the  relative  strength
of the political parties [pic]beyond the abovementioned period of one  month
would be plainly in violation of the  language  of  the  second  proviso  to
Section 31-A."


12.     We have already discussed that an aghadi formed  after  election  is
required to be registered as provided in sub-section (2) of Section  31A  of
1940 Act. Rule 5 of 1987 Rules, which relates to maintaining a  register  of
information as to councilors and members, provides as under:



"Register of information as to councilors or members.- (1) The  Commissioner
in the case of a councilor of a Municipal Corporation and the Collector,  in
the case of any other councilor or member, shall  maintain  in  Form  IV,  a
register based on the information furnished under rules 4 and 5 in  relation
to the councilor of a municipal party, Zilla Parishad party or, as the  case
may be, member of a Panchayat Samiti Party."


13.          There is no detailed procedure prescribed for  registration  of
an aghadi.  It is evident from Rule 5 quoted above, that power  to  register
vests with the Commissioner.  The word "Commissioner" is defined  in  clause
(c) of Rule 2 of 1986 Act   and the same is reproduced below:

"(c) "Commissioner" means the Commissioner of a revenue  division  appointed
under Section 6 of the Maharashtra Land Revenue Code, 1966".

14.         In earlier round, respondent no. 1 filed writ petition no.  1426
of 2012 challenging Resolution dated 20.03.2012 passed in the  General  Body
Meeting of Akola Municipal Corporation which was decided by the  High  Court
with the following two concluding paragraphs:
"30.   This discussion leads to conclusion that Respondent Nos. 5 & 6  could
not have been treated as members either of Respondent No. 4 or then  of  the
petitioner.    The  proportionate  representation  of   the   Petitioner   &
Respondent No. 4 on Standing Committee needed to be worked out  by  ignoring
them.  The Petitioner therefore, is  rightly  given  5  members.   But  then
there has to  be  proportionate  reduction  in  representation  allotted  to
Respondent 4.  Strength of Respondent No. 4 in general body  of  73  is  33.
It therefore gets 7.23 seats in Standing Committee i.e. 7 seats.   One  seat
remains vacant and decision about it cannot be taken  as  Respondent  No.  3
Divisional  Commissioner  has  still   not   completed   his   exercise   of
verification.   First  proviso  to  Section   31A(2)   does   not   prohibit
Corporation  from filling in such vacancy by  nominating  on  the  Committee
any member not belonging to any such party or group.  If no such  member  is
available, Respondent Nos. 1 to 4 as also Petitioner have to  start  working
with Standing Committee of 15 members only & continue  till  the  Respondent
No. 3 decides on the validity of change or then status of Respondent Nos.  5
& 6.  It is settled position that law does not expect  compliance  with  the
impossibilities.  Holding  of  a  General  Body  Meeting  for  this  limited
purpose is essential.  If Respondent 3 finds  Respondent  Nos.  5  &  6  not
disqualified, Corporation can thereafter, proceed to fill in  the  sixteenth
vacancy.

31.   Accordingly, Respondent No. 4 Aghadi as also Respondent  Nos.  1  &  2
are directed to bring down representation of Respondent No.  4  on  Standing
Committee from 8 to 7.  Proceedings and meeting conducted on 20.03.2012  are
quashed & set-aside to that extent.  Respondent Nos.  1,2  &  4  to  hold  a
general body meeting to  bring  down  the  strength  of  representatives  of
Respondent No. 4 from 8 to 7.  Respondent 1 Corporation is free to  fill  in
resulting vacancy by nominating on the Standing Committee  a  Councillor  as
per first proviso to Section 31A(2) of the Corporation Act in this  meeting.
 Said general body meeting be  held  within   period  of  three  weeks  from
today.  If 16th seat in  Standing  Committee  can  not  be  filled  in,  the
Respondent Nos. 1 to 4 shall function with Standing Committee of 15  members
only.   Petition is thus partly allowed.  Rule is  made  absolute  in  above
terms.  However, there shall be no order as to costs."

But in that round of  litigation,  Divisional  Commissioner  was  neither  a
party, nor any direction was sought against him.

15.         Shri Nikhil Nayyar, learned counsel for  the  respondent  no.  1
referred  to a copy of letter  dated  06.05.2013   (Annexure  R1/5)  annexed
with  the reply on behalf of respondent no. 1 and contended that  respondent
1 was  registered.   Per  contra  on  behalf  of  appellants,  Shri  Shekhar
Naphade, learned senior counsel drew our attention to  the   copy  of  order
dated 28.8.2012 (Annexure  P-5)  whereby  application  for  registration  of
Mahanagar Sudhar Samiti - respondent no. 1 as an aghadi was rejected by  the
Divisional Commissioner, Amravati.

16.         Copy of  communication dated 06.05.2013 (Annexure R-1/5)  issued
by  Municipal Secretary,  Akola  earlier  informing  that  Mahanagar  Sudhar
Samiti as one of the registered aghadi is re-produced below:
                             "O.N.AMNC/NS/25/12
                        Office of Municipal Secretary
                         Akola Municipal Corporation
                             Akola Dated.6/5/13
To  Shri Sunil Meshram
Member, MNC
Ward no.8-A

Subject - Regarding the list of Gatneta and Aghadi  which  are  approved  by
Divisional Commissioner, Amravati.

|S. No |            Name of          |Gatneta                   |
|      |Party/Aghadi/Gat             |                          |
|1)    |Akola Vikas Mahaaghadi       |Shri Madan Babulal Bhargad|
|2)    |Mahanagar Sudhar Samiti      |Shri Harish Ratanlal      |
|      |                             |Alimchandani              |
|3)    |Shivsena                     |Smt. Manusha Sanjay Shelke|
|4)    |Akola Shahar Vikas Aghadi    |Shri Beni Sh. Ganga       |
|      |                             |Beniwale.                 |

The Divisional  Commissioner  Amravati  had  issued  a  letter  bearing  no.
MNC/Namuna 5/akola/MNC/12/2012 Dtd.7/6/2012 by which it is  communicated  to
Municipal Corporation that four Aghadi and Gatneta are registered under  the
provisions of Maharashtra Local  Authorities  Members  Disqualification  Act
and the list of the same is appended herewith

                                             Sd/-
                                     Municipal Secretary Akola"


17.   Before above communication  the  Divisional  Commissioner  had  passed
order dated 28.08.2012, relevant extracts of  the  same  are  reproduced  as
under:
"BEFORE SHRI GANESH  THAKUR,  DIVISIONAL  COMMISSIONER,  AMRAVATI  DIVISION,
AMRAVATI.

                 Case No. 3/Akola M.C/2011-12

   Shri Harish Ratanlalji Alimchandani, Party
   leader, Mahanagar Sudhar Committee,
   Akola, Municipal Corporation, Akola, R/o.
   Aalsi Plots, Tq & Distt. Akola       ....Applicant


  Shri Madan Bodulal Bhargad,
  Party Leader, Akola Vikas
  Mahaaghadi, Municipal Corporation,
  Akola, R/o. Geeta Nagar, Tq &
  Distt. Akola                          ...Applicant


Adv. Milind Vaishnav.... On behalf of Applicant No. 1

                             O R D E R

      As per Maharashtra Local Authority  Membership  Disqualification  Act,
1986 (hereinafter referred to as "Disqualification Act")  and Rule  3(a)  of
the Maharashtra Local  Authority  Membership  Disqualification  Rules,  1987
(hereinafter  referred  to  as  "Disqualification  Rules")  thereunder,   on
05/03/2012 Shri Harish  Ratanlalji  Alimchandani,  Party  Leader,  Mahanagar
Sudhar Samiti, Akola, Municipal Corporation,  Akola  submitted  proposal  in
prescribed form  for  registration  of  "Mahanagar  Sudhar  Samiti,  Akola",
sponsored  by  "  Bhartiya  Janata  Party"  in  the  registration  book   of
Divisional Commissioner  Office.   Alongwith  the  present  application  the
applicant no.1 has  filed  list  of  members  (List  of  Councillors).   The
applicant no.2, Shri  Madan  Bodulal  Bhargad,  Party  Leader,  Akola  Vikas
Aghadi, Municipal Corporation, Akola on  16/03/2012  submitted  proposal  in
prescribed form as per provisions of Disqualification Act  for  registration
of Akola Vikas  Mahaaghadi  sponsored  by  Bhartiya  Rashtriya  Congress  in
registration book of the office of Divisional Commissioner.   Alongwith  the
proposal in prescribed form the applicant has submitted  list  of  total  35
members (List of Councillors).

On scrutiny of both the proposals, it comes  to  the  notice  that,  in  the
proposal submitted by applicant no.1 the name of Shri Sanjay Babulal  Badone
is at Sr.no.20 and name of Sau. Madhuri Sanjay Badone  is  at  Sr.no.21.  So
also, in the proposal filed by applicant no.  2  the  name  of  Shri  Sanjay
Babulal Badone is at Sr.no.(Five)  (2)  and  name  of  Sau.  Madhuri  Sanjay
Badone is at Sr.no.(Five)(3).  As the names of Shri  Sanjay  Babulal  Badone
and Sau. Madhuri Sanjay Badone are mentioned in both  the  lists,  confusion
has been created as to which vanguard/front they  are  members.   Therefore,
by  notice  dt.  23/03/2012  both  the  applicants  and  City  Secretary  of
Municipal Corporation  were  informed  to  remain  present  for  hearing  on
27/03/2012 alongwith original documents and proof.

On 27/03/2012  both  the  applicants  alongwith  their  Advocates  and  City
Secretary of Municipal Corporation Shri Gajanan  Madhusudan  Pande  remained
present for hearing.  In the said case, Adv. G.B. Lohiya  advanced  argument
on behalf of  Municipal Corporation, Akola.  Adv.  Santosh  Rahate  advanced
his argument on behalf of  Shri  Sanjay  Babulal  Badone  and  Sau.  Madhuri
Sanjay Badone.

           _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

           _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _


In the affidavit dt. 14/03/2012 sworn by  Shri  Sanjay  Babulal  Badone  and
Sau. Madhuri Sanjay Badone there is no name  and   signatures  of  witnesses
and on 14/03/2012 the said affidavit has been recorded  at  Sr.no.174/12  by
Notary Shri R.R. Deshpande, Adv.  As per provisions of Indian Evidence  Act,
the said affidavit cannot be held as complete unless  attested.   Therefore,
there is no sufficient scope to treat the  said  affidavit  of  Shri  Sanjay
Babulal Badone and Sau. Madhuri Sanjay Badone as valid.

After considering all the aspects above in totality and on  careful  perusal
of concerned documents filed in the case it comes to the notice  that,  from
the entry made by Stamp Vendor on the stamp papers, the stamp papers  appear
to have been purchased on  23/02/2012  for  the  affidavit  of  Shri  Sanjay
Babulal Badone and Sau. Madhuri Sanjay Badone attached to the  proposal  dt.
05/03/2012 submitted by applicant  no.1  Shri  Harish  Alimchandani  to  the
Divisional  Commissioner  for  registering  the  Mahanagar   Sudhar   Samiti
sponsored by Bhartiya Janta Party  as  per  provisions  of  rule  3  of  the
Disqualification  Rules.    Yet  the  date  of  attestation  being  not   as
'23/02/2012' it is "22/02/2012".   How  the  affidavit  has  been  sworn  on
22/02/2012 by purchasing stamp papers on 23/02/2012 is  an  incomprehensible
aspect.  He filed Xerox copies of said affidavit after receipt of notice  in
the case before the Divisional Commissioner.  It is a notable  aspect  that,
Shri Harish Alimchandani has not submitted  original  copies  of  affidavits
during hearing of present case.


Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone have been  elected
from Prabhag no.  34-A  and  no.34-B  in  the  Akola  Municipal  Corporation
elections as independent candidates.  As the applicant  no.1  and  applicant
no.2 have failed to file any kind of reliable documents in regard as  to  in
which front created in the Akola Municipal Corporation Shri  Sanjay  Babulal
Badone and Sau. Madhuri Sanjay Badone have participated, I have come to  the
conclusion  that  it  does  not  become  clear  that  definitely  to   which
vanguard/Committee/front out of  Mahanagar  Sudhar  Committee  sponsored  by
Bhartiya Janta  Party  or  Akola  Vikas  Mahaaghadi  sponsored  by  Bhartiya
Rashtriya Congress, Shri Sanjay  Babulal  Badone  and  Sau.  Madhuri  Sanjay
Badone are attached.

Therefore, the following order is being passed.

                       ORDER

   As   per   provisions   of   Maharashtra   Local   Authority   Membership
Disqualification Act 1986  and Rule 3(a) of the Maharashtra Local  Authority
Membership Disqualification Rules, 1987,  the  proposal  submitted  by  Shri
Harish Ratanlalji  Alimchandani,  Party  Leader,  Mahanagar  Sudhar  Samiti,
Akola, Municipal Corporation, Akola in prescribed form for  registration  of
"Mahanagar Sudhar Samiti, Akola", sponsored by   Bhartiya  Janata  Party  on
05/03/2012  for  registration  in  the  Register  Book  of  the  office   of
Divisional Commissioner, is hereby rejected.

   As   per   provisions   of   Maharashtra   Local   Authority   Membership
Disqualification Act 1986  and Rule 3(a) of the Maharashtra Local  Authority
Membership Disqualification Rules, 1987,  the  proposal  submitted  by  Shri
Madan  Bodulal  Bhargad,  Party  Leader,   Akola  Vikas  Mahaaghadi,  Akola,
Municipal Corporation, Akola in prescribed form for registration of "  Akola
Vikas Mahaaghadi Akola", sponsored by  Bhartiya Rashtriya Congress Party  on
16/03/2012  for  registration  in  the  Register  Book  of  the  office   of
Divisional Commissioner, is hereby rejected.

The said order passed today on 28th August,  2012  under  my  signature  and
seal.

                              Sd/- 28.08.2012
                              (Ganesh Thakur)
                 Divisional Commissioner, Amravati"

18.         We have gone through  the  above  two  documents.   Order  dated
28.08.2012  passed  by  Divisional  Commissioner,  Amravati,   whereby   the
application for registration was disposed of, shows that the application  of
the writ petitioners was rejected as affidavits  of  Sanjay  Babulal  Badone
(respondent no. 14) and Smt. Madhuri Sanjay Badone were not  complete.   The
two,  who  were  elected  from  Prabhag  no.31  and  Prabhag  no.  34-B   as
independent candidates, failed to file any document  to  show  as  to  which
group they belonged.  Their names figured in two groups.

19.         In the order dated 28.08.2012 the Divisional  Commissioner  also
referred to a serious infirmity in accepting the proposal, as he found  that
the affidavit was sworn to and attested on 22.02.2012,  whereas  the  stamps
were purchased on 23.02.2012 which the Divisional Commissioner  held  to  be
an incomprehensible act of the proposer.   Such  serious  infirmities  which
weighed with the Divisional Commissioner in passing the order  of  rejection
dated 28.08.2012 cannot be found fault with.  Considering the Scheme of  the
1987 Rules, we are convinced that  it  was  incumbent  upon  the  Divisional
Commissioner to hold a meaningful exercise of scrutinizing the proposal  for
registration and pass a positive order of registration and  then  alone  the
exception carved out under Section 31A(2) of the  1949  Act,  even  for  the
limited purpose to get rid of disqualification under the 1987 Rules  can  be
allowed to operate.  Viewed in that respect also the order dated  28.08.2012
assumes greater significance and,  therefore,  unless  and  until  the  said
order was set aside in the manner known to law, the formation of the  aghadi
as claimed by the first respondent could not have come into effect.

20.         It is not disputed  that  no  one  challenged  the  order  dated
28.08.2012 passed by the Divisional  Commissioner,  as  such  the  same  has
attained finality.  That  being  so,  the  Mahanagar  Sudhar  Samiti,  Akola
(respondent no.1) cannot be said to be a registered group as required  under
second proviso of sub-section (2) of Section 31A of the  Act  of  1949.   In
our opinion, the High Court has erred in law by ignoring the above order  of
the Divisional  Commissioner,  and  holding  that  respondent  no.  1  stood
registered.   If there was objection to registration of an  aghadi,  on  the
ground that names of certain members were falsely or wrongly  shown  in  the
list, the Commissioner had no option but to verify the same.  And,  in  such
cases, unless the verification is done, an aghadi can not be  said  to  have
got registered, by merely submitting an  application  within  one  month  of
election to Municipal Corporation.   Had  the  writ  petitioners  challenged
order dated 28.08.2012 passed  by  the  Divisional  Commissioner,  with  the
Resolution dated 29.04.2013, the situation would have been  different.   But
in the present case, order of Divisional Commissioner rejecting  application
for registration has attained finality, and  same  cannot  be  ignored.   As
such, writ petition filed by respondent nos. 1 to 3 questioning validity  of
resolution dated 29.04.2013 was liable to be dismissed.
21.         Therefore, this appeal deserves to be allowed. Accordingly,  the
appeal is allowed and impugned order dated  14.8.2013  passed  by  the  High
Court in Writ Petition no. 2571  of  2013  is  hereby  set  aside,  and  the
Resolution dated 29.04.2013 shall stand restored.  No orders as to costs.


           .....................................................J.
                     [Fakkir Mohamed Ibrahim Kalifulla]

   ......................................................J.
                               [Prafulla C. Pant]

New Delhi;
February 02, 2015.

The Tribunal rightly held that the appellants - service providers discriminated between subscribers of the same class; one on the ground that the call ends with the private parties and another on the ground that the call ends with BSNL/MTNL. The classification of the subscribers into two categories on the basis of calls made by them from private network to another private network and from private network to BSNL/MTNL network is arbitrary as it fails to satisfy the twin test for reasonable classification laid down by this Court in State of West Bengal v. Anwar Ali Sarkar & Anr. AIR 1952 SC 75. Therefore, the Tribunal rightly dismissed the appeal.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.1563 OF 2007


CELLULAR OPERATORS ASSOCIATION
OF INDIA & ORS.                              ... APPELLANTS

                                   VERSUS

TELECOM REGULATORY AUTHORITY
OF INDIA & ORS.                         ... RESPONDENTS

                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.


      This appeal has been preferred by the  appellants  against  the  order
dated 22nd December, 2006  passed  by  the  Telecom  Disputes  Settlement  &
Appellate Tribunal, New Delhi (hereinafter referred to  as  the  'Tribunal')
in Appeal No.2 of 2006 (with M.A. No.58 of 2006).  By  the  impugned  order,
the Tribunal while dismissing the appeal disposed of the M.A.No.58  of  2006
with certain observations.

2.    The factual matrix of the case is as follows:

      Appellant Nos.2 to 10 are  private  GSM  cellular  operators  and  the
first appellant is their Association. They have been issued licences by  the
Central Government, Department of  Telecommunication  (hereinafter  referred
to as 'DoT') under Section 4 of Indian Telegraph  Act,  1885  to  establish,
maintain and  operate  cellular  mobile  telephone  services/unified  access
services  in  their  respective  service  areas.  The  first  respondent  is
Regulatory Authority established under Section 3 of the  Telecom  Regulatory
Authority of India Act, 1997 (hereinafter referred to as 'TRAI Act').

3.     The  first  respondent-Authority  issued  a  directive   dated   27th
February, 2006 wherein appellants - private mobile service providers in  the
four States of Maharashtra, West Bengal, Tamil Nadu and Uttar  Pradesh  were
directed to discontinue differential tariffs levied in  the  aforesaid  four
States for calls terminating in the network of Bharat Sanchar Nigam  Limited
(hereinafter  referred  to  as  'BSNL')/Mahanagar  Telephone  Nigam  Limited
(hereinafter referred to as 'MTNL') as compared to calls terminating in  the
network  of  other  private  operators  in   another   citing   it   to   be
discriminatory and inconsistent with the amended licence condition  notified
by the DoT on 20th May, 2005. The appellants  complied  with  the  directive
dated 27th February, 2006 and submitted compliance report to the Authority.

4.    Subsequently, by its directive  dated  22nd  March,  2007,  the  first
respondent-Authority, inter alia, directed the appellants-service  providers
to assess the total excess amount charged from  the  subscribers;  keep  the
entire amount in a separate Bank Account  and  intimate  the  Authority  the
names of the Banks in which such amount has  been  kept.  After  receipt  of
such notice dated 22nd March, 2007 the appellants preferred an appeal  under
Section 14 read with Section 14A of the TRAI Act challenging  the  direction
dated 27th February, 2006. The challenge was made on  the  ground  that  the
direction was discriminatory  and  inconsistent  with  the  amended  licence
conditions notified by the DoT on 20th May, 2005.  The main plea  raised  by
the appellants justifying  the  differential  half  of  calls  from  private
operator to another private operator vis--vis calls from  private  operator
to BSNL network was that  direct  connectivity  could  be  achieved  between
networks of private operators but it could not be achieved  between  private
operators and BSNL network.

5.    Initially, BSNL/MTNL was not party to the said appeal.   The  Tribunal
having noticed that the appeal pertains to the differential tariff of  calls
from private operator to another private operator vis--vis calls made  from
private operator to BSNL/MTNL network directed  the  appellants  to  implead
the BSNL/MTNL as respondent. After hearing the parties, the Tribunal  passed
the impugned order dated 22nd  December,  2006  dismissing  the  appeal  and
disposing of the M.A.No. 58 of 2006 with the observations and directions  as
quoted above.

6.    In appreciation of the case, it is relevant to  notice  the  following
facts:

      For grant of licences, India  was  divided  into  four  metro  service
areas of Delhi, Mumbai, Kolkata and  Chennai  and  various  telecom  circles
which were roughly contiguous to the State of India.  In  the  first  phase,
licences were  granted  for  the  four  metro  service  areas  in  1994  and
thereafter in the Circles/States in 1995 defining  the  geographical  limits
within which the licensee may operate and offer the  services.  For  Mumbai,
Chennai, Kolkata and Delhi, in the aforesaid manner, separate licences  were
issued by the DoT. Separate  and  distinct  licences  were  issued  for  the
States of Maharashtra, Tamil  Nadu  and  West  Bengal  excluding  the  three
metropolitan cities of Mumbai, Chennai and Kolkata  respectively  for  which
licences were given to MTNL. As far as State of Uttar Pradesh is  concerned,
it was divided into two Telecom circles, i.e., U.P.  (East)  and  U.P.(West)
with separate licences for U.P.(East) and U.P.(West).

7.    The first respondent-Authority has laid down  Inter  Connection  Usage
Charges (hereinafter referred to as 'IUC') with respect to the changing  for
the use of network elements of other  operators  which  include  termination
charges, carriage charges and access  deficit  charge  for  use  of  network
elements of other  operators.  These  charges  for  inter-circle  calls  are
different from  those  for  intra-circle  calls.  On  20th  May,  2005,  the
Government of India notified that inter-service  area  connectivity  between
access  providers  within  Mumbai  Metro  and  Maharasthra  Telecom  Circle,
Chennai Metro and Tamil Nadu Telecom Circle, Kolkata Metro and  West  Bengal
Telecom Circle and U.P.(East) and U.P.(West) Telecom  Circle  service  areas
respectively, is permitted subject to condition  that  the  access  provider
will operate within the existing licensed service  area  and  shall  not  be
permitted to create infrastructure outside their licensed service  area  for
the purpose of inter-service area  connectivity.  It  was  further  provided
that the access provider may take leased lines for such  connectivity.  With
the above arrangement, calls within a State  in  the  above  mentioned  four
states would be treated as intra-service area  calls  for  the  purposes  of
routing as well as ADC.

8.    The final result of the above said notification was  that  the  metros
were merged with the respective State circles and the calls from  metros  to
the remaining areas of the respective States and in case of  U.P.(East)  and
U.P.(West) circles from one to the other,  were  to  be  treated  as  intra-
circle calls.

9.    The appellants  were  charging  higher  tariff  for  calls  made  from
appellant's network in the metros to the  BSNL  and  MTNL  networks  in  the
remaining areas of  the  State  compared  to  calls  made  from  appellant's
network in the metros to another appellant's network in the remaining  areas
of the State. For example, a subscriber  on  a  private  operator's  network
calling from Mumbai to another private operator's subscriber  at  Nasik  was
being charged at low rate as compared to a call made by the same  subscriber
from the same  place  to  BSNL  subscriber  at  the  other  place.  In  this
background, the first respondent  by  Circular  dated  27th  February,  2006
observed that this differential tariff was discriminatory  and  inconsistent
with the amended licence condition notified by the DoT  on  20th  May,  2005
and, therefore, directed the  appellants  to  immediately  discontinue  such
differential tariff and asked for compliance of the same within 15 days.

10.   As noticed above, the first respondent-authority vide  Circular  dated
No.101-15/2005-MN dated  27th  February,  2006  observed  that  differential
tariff  was  discriminatory  and  inconsistent  with  the  amended   licence
conditions notified by the DoT on 20th May, 2005  and,  therefore,  directed
the appellants to immediately discontinue such differential tariff  and  ask
for compliance within 15 days.

11.   The aforesaid direction was challenged by the  appellants  before  the
Tribunal with a prayer to set aside the directions issued  by  the  Circular
No.101-15/2005-MN dated 27th February, 2006. The appellants also sought  for
an interim relief granting ex-parte stay of operation of the said  circular.


12.   The Tribunal having not granted any  interim  relief,  the  appellants
moved before the High Court in a Writ Petition,  being  W.P.(C)  No.5428  of
2006. The High Court observed that no punitive or coercive action  shall  be
taken by the first respondent Authority at  least  till  the  next  date  of
hearing before the Tribunal and disposed of the writ petition. The  Tribunal
by the impugned order dated 22nd December, 2006 held as follows:

"26.  Having gone through the documents produced by  both  the  parties  and
having heard arguments we are of the view that the appellants did  not  make
adequate effort to provide direct connectivity between the appellants'  MSCs
and the BSNL/MTNL's MSCs which would have brought tariffs at part for  calls
made within the appellants' network. We are also left  with  the  impression
that DoT and BSNL could have taken a  more  pro-active  approach  to  ensure
that the requisite leased  lines  and  Ps  of  I  were  made  available  for
establishing direct connectivity in a time bound  manner  which  would  have
helped achieving the transition sought  to  be  brought  about  by  the  DoT
notification of 20-5-2005 in a more smooth manner. Be that as it may, we  do
not  agree  with  the  argument  put  forth  by  the  appellants  about  the
protection  to  them  for  charging  higher  tariff  under  the  clause   of
forbearance. The clause  of  non-discrimination  is  very  clear  and  self-
explanatory which has been defied by the appellants.  We  do  not  find  any
merit in the appeal and the same is dismissed. M.A.  No.  58  of  2006  also
stands disposed."

13.   Learned counsel appearing on behalf of the appellants  submitted  that
the differential tariffs are because of the difference in the cost  elements
involved in the two natures of calls. Insofar as calls  terminating  in  the
network of BSNL/MTNL are concerned, as  direct  connectivity  had  not  been
established between the  appellant's  network  and  BSNL/MTNL  network,  the
appellants  were  obliged  to  pay  carriage  charges  to  BSNL   and   MTNL
(respondent nos. 2 and 3) for calls terminating on their  networks.  But  in
case of a call terminating in the network  of  the  private  operator  these
charges were not applicable as  direct  connectivity  had  been  established
between the private operators. Therefore, the cost elements involved in  the
two calls were different leading to a difference in tariffs charged  by  the
service provider for such calls from its subscribers. The above position  is
explained with the help of a Diagram to show that in  the  case  of  a  call
from a metro like Mumbai to another place like Pune, the  call  between  two
subscribes of private networks is connected directly, which in the  case  of
a call to BSNL subscriber is treated as a STD call as it is first  connected
to Nagpur and then to Pune,  which  is  the  routing  plan  for  STD  calls.
According to appellants, in STD  arrangement,  BSNL  as  the  National  Long
Distance Operator was able to recover carriage charges which  were  as  high
as Rs.1.10 per minute, which charges would no longer be payable once  direct
connectivity was established.

14.   Thus the reason for the differential tariffs as per the appellant  was
that the call between subscribers of private operators was  routed  directly
and costed as a local call while the call  to  a  BSNL/MTNL  subscriber  was
routed through another place and costed as an STD call.

15.   It was further contended that the  aforesaid  position  had  continued
right from July, 2005 in the knowledge of the first respondent  and  now  in
sudden turn around, the first respondent chose to disregard the  compulsions
under which the private operators were  constrained  to  offer  differential
tariffs and directed the private operators to discontinue  the  differential
tariff. Its net effect was to force the operators to increase their  tariffs
for  calls  terminating  on  the  network  of  other  private  operator   or
alternatively reduce the tariff for calls to BSNL/MTNL subscribers  and  pay
the difference from their own pocket. Either of these alternatives would  be
against the fundamental duties and responsibilities of the first  respondent
under the Act and the impugned  action  was  not  only  against  the  public
interest but  would  also  have  put  the  private  operators  in  a  highly
disadvantageous position.

16.   Learned counsel for the appellant further submitted that the  Tribunal
erred in law  in  not  appreciating  that  simply  prescribing  differential
tariff does not violate the mandate of Article 14  of  the  Constitution  or
result in discrimination; the same class has to be determined in  accordance
with the similarity of  features  of  its  constituents.  According  to  the
appellants, the costs involved in the nature of the two calls are  different
and, therefore, though the subscribers belong to the appellants,  they  form
a distinct class when they make a call to the BSNL Cell one  number.  It  is
also submitted that the Tribunal failed to notice that the DoT  decision  of
20th  May,  2005  explicitly  stated  that  the  tariffs  which  were  under
forbearance would continue to be regulated by market forces.

17.   Learned counsel appearing on  behalf  of  first  respondent  submitted
that it was the duty of the appellants  to  arrange  the  leased  lines  for
establishing direct connectivity with the BSNL network as they had  done  to
connect each other's network. The  appellants  no  where  pleaded  that  the
second  respondent  denied  the  provision   of   Points   of   Interconnect
(hereinafter referred to as 'Ps of  I')  and  the  only  pleading  was  with
respect to non-grant of leased lines by BSNL. In fact, the appellants  never
approached the BSNL for provision of Ps of I.

18.   It was brought to the notice of the Court that  immediately  on  issue
of letter by the DoT when the metro circles were merged with the  respective
state circles, BSNL had issued a Circular  on  24th  May,  2005  asking  the
appellants to sign addenda  to  the  existing  interconnect  agreements  for
provision of Ps of I. However, no effort was made by the appellants to  this
effect. In another case before the Tribunal, respondent No.2 had  stated  on
affidavit that wherever the payments have been made, the Ps of I were  being
provided within 90 days. In these four service areas,  no  demand  was  ever
placed on BSNL.

19.   Similar was the stand taken by the appellants and  respondents  before
the Tribunal. The Tribunal observed  that  some  demands  for  Ps  of  I/E-1
connectivity were placed by the  appellants  on  BSNL  but  as  late  as  in
December 2005, January 2006 and February 2006. The Tribunal held that  there
was no reason that in case infrastructure for direct connectivity  could  be
created for connecting amongst themselves the networks  of  the  appellants,
the same could not be done for connecting the MSCs of  appellants'  networks
to those of BSNL/MTNL networks in the four service areas in question.

      The Tribunal rightly held that the appellant could have  made  use  of
the similar leased lines as they had between their networks  and  asked  for
Ps of I from the BSNL for the MSCs  located  in  these  four  service  areas
which was not done. No effort was made by  the  appellants  to  create  this
direct connectivity and they took recourse to the easier way of handing  the
traffic to the  BSNL  as  National  Long  Distance  Operator  and  continued
charging the consumers higher tariffs.

20.    The respondent has prescribed the tariffs for  various  calls/telecom
services under the Telecommunication Tariff Order 1999 as amended from  time
to time. As a general condition clause 6  of  the  Tariff  Order  prescribes
that  no  service  provider  shall,  in  any  manner,  discriminate  between
subscribers  of  the  same  class  and  such  classification  shall  not  be
arbitrary.  Further,  clause  2(k)  of  the  Tariff  Order   defines   "Non-
discrimination" to mean that service provider shall not, in  the  matter  of
application of tariffs, discriminate between subscribes of  the  same  class
and such classification of subscribes shall not be  arbitrary.  Clause  2(k)
and Clause 6 of the Tariff Order are reproduced herein under:

"2(k) Non-discrimination means  that  service  provider  shall  not  in  the
matter of application of tariffs, discriminate between  subscribers  of  the
same class and such classification of subscribers shall not be arbitrary.

Clause 6.   Non-discrimination:   No service provider shall, in any  manner,
discriminate between subscribers of the same class and  such  classification
shall not be arbitrary."



      In terms of the above Tariff Order, the first respondent in  September
2002, introduced forbearance in  prescribing  tariffs  as  far  as  Cellular
calls are concerned and in taking this decision the  first  respondent  took
note of the emerging market scenario and  came  to  the  conclusion  that  a
stage had been reached, when market forces could  effectively  regulate  the
cellular tariff.

21.   The question whether the non-discrimination clause  is  applicable  to
the class of subscribers making call  to  another  private  network  from  a
private network as compared to the class making call from a private  network
to BSNL/MTNL network  was  raised  by  both  the  parties.  The  appellants'
contention was that they were two different classes  since  the  routing  of
the call was different and BSNL was charging higher amount  for  the  latter
category of calls. In reply to the same, it has been  rightly  contended  on
behalf of the respondents that the same subscriber or two  subscribers  from
the same house making  calls  from  the  same  network  to  another  private
network or to BSNL network located at the same  destination  form  the  same
class. The interpretation of the respondents being  more  logical  was  also
accepted by the Tribunal. For the said  reason  the  Tribunal  rightly  held
that the action of appellants amount  to  discrimination  between  the  same
class of subscribers which is against the  basic  definition  laid  down  in
Clause 2(k) of the Tariff Order.

22.   On 20th May, 2005,  the  Government  of  India  announced  that  inter
service area connectivity between Access  Providers  within  four  States  -
Mumbai Metro & Maharashtra  Telecom  Circle,  Chennai  Metro  &  Tamil  Nadu
Telecom Circle, Kolkata Metro & West Bengal Telecom Circle and  U.P.  (East)
& U.P.(West) Telecom Circle  Service  areas  is  permitted  subject  to  the
condition that the  Access  provider  will  operate  within  their  existing
licensed service area and shall not be permitted  to  create  infrastructure
outside their licensed service area for the purpose  of  inter-service  area
connectivity.  The  access  providers  may  take  lease   lines   for   such
connectivity.  This  inter-service  area  connectivity  shall  be  only  for
terminating traffic.  Relevant extracts from  Clause  5.2  and  6.0  of  the
Circular dated 24th May, 2005 are reproduced hereunder:

"5.2. The traffic organized by mobile subscribers belonging to  one  service
area but located in another service area within same state shall be  treated
as home network traffic instead of national roaming traffic. This  principle
shall  be  applicable  for  both  charging  at  POI  as  well   as   traffic
certificates for  ADC  billing.  Further,  since  the  traffic  between  two
service areas within same state  shall  be  treated  as  intra-service  area
traffic, therefore, such traffic shall not be handed over by NLDOs to BSNL.

6.0.  The access service providers of these four states shall  be  permitted
to seek POIs with BSNL switches in the complete state irrespective of  their
service areas in which they can provide  their  services.  Concerned  access
provider shall have  to  sign  separate  Addenda  to  existing  Interconnect
Agreements with BSNL for establishing these new POIs  with  BSNL.  Till  the
time these Addendas  are  signed  and  new  POIs  established  the  existing
arrangements shall  continue  including  handover  of  such  calls  to  BSNL
through NLDOs  treating  the  traffic  as  inter  circle  and  charging  IUC
accordingly. All the traffic within a state (in these four States  only  and
in case of State of UP it also  includes  State  of  Uttaranchal)  shall  be
treated as intra circle traffic and IUC charged accordingly at  POI  (except
the traffic handed over at POIs of NLDOs) as well  as  for  the  purpose  of
traffic certificates for ADC billing. These new POIs,  as  above,  shall  be
commissioned after concerned access providers sign these Addendas  to  their
existing Interconnect Agreement with BSNL.  These  instructions  are  to  be
implemented w.e.f. 0000 hours of 25th May, 2005."



      The net effect of the aforesaid Circular was that the appellants  were
to sign the Addenda agreements with BSNL and then apply for new Ps of I  and
till  such  time  that  the  new  Ps  of  I  are  established  the  existing
arrangements were to continue.

23.   We have noticed that the appellants took advantage  of  the  aforesaid
provision. But they did not apply before the BSNL/MTNL to apply new Ps of  I
and treating the tariff as inter service charges differently from same  sets
of consumers.  The  access  providers  have  option  to  continue  with  the
existing inter-connected routing of the class  of  service  areas  but  that
cannot be a ground to discriminate, in any manner, between  the  subscribers
of the same class. The Tribunal rightly held that the appellants  -  service
providers discriminated between subscribers of the same class;  one  on  the
ground that the call ends with  the  private  parties  and  another  on  the
ground that the  call  ends  with  BSNL/MTNL.   The  classification  of  the
subscribers into two categories on the basis of  calls  made  by  them  from
private network to another private  network  and  from  private  network  to
BSNL/MTNL network is arbitrary as it fails to  satisfy  the  twin  test  for
reasonable classification laid down by this Court in State  of  West  Bengal
v. Anwar Ali Sarkar & Anr. AIR 1952 SC 75. Therefore, the  Tribunal  rightly
dismissed the appeal.

24.   We find no merit in this  appeal,  it  is  accordingly  dismissed.  No
costs.

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


                      ....................................................J.
                                      (PRAFULLA C. PANT)
NEW DELHI;
JANUARY 30, 2015.
-----------------------
10