The Appellate Authority has completely ignored the undisputed pleadings and material documents on record in favour of the respondents and the said finding of the Appellate Authority is erroneous in law and patently perverse as it has ignored the correct findings of the Land Tribunal, on the relevant contentious issues which have been rightly questioned before the High Court by the respondents under Section 103 of the Act. The High Court has rightly reversed the decision of the Appellate Authority after careful examination of the divergent findings of fact recorded by it as the same are contrary to both the documentary and oral evidence on record, particularly Ext.B1. Thus, in the light of all the material evidence on record and the statutory provisions under Sections 74 and 75 of the Act, the relevant and glaring error on fact and in law committed by the Appellate Authority has been rightly interfered with by the High Court, after it had satisfied itself that the divergent findings of the Appellate Authority are not only erroneous but also error in law and it has exercised its revisional jurisdiction and set aside the divergent findings of the Appellate Authority. Reliance has been placed upon the decision of this Court in Mammu v. Hari Mohan[1], which reads thus:- "13......it is manifest that the power of revision vested in the High Court is wide and it is not limited only to the question of law or jurisdiction. It hardly needs to be emphasised that the revisional power to disturb findings of fact or law recorded by the Land Tribunal or the Land [pic]Board or the Taluk Land Board as the case may be, (sic) only in appropriate cases in which the Court is satisfied that such interference is necessary in the interest of justice and for proper adjudication of the dispute raised by the parties. In the case on hand, the High Court, as the impugned order shows, has taken note of the exception to the order of the Land Tribunal on the ground that it failed to take note of relevant factors like the facts and circumstances under which the structure was allowed to be constructed......" Thus, we are of the considered view that the power exercised by the High Court under Section 103 of the Act has been rightly exercised by it in setting aside the judgment and order of the Appellate Authority, as the same is not only erroneous but also error in law for the aforesaid reasons. The appeals are dismissed.

                               NON REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL Nos.1942-1943 OF 2015
             (Arising out of S.L.P (C) Nos.26832-26833 of 2009)

N.M.KRISHNAKUMARI & ORS.                       ....APPELLANTS



















     Vs.

THALAKKAL ASSIYA & ORS.                        ...RESPONDENTS



                               J U D G M E N T



V.GOPALA GOWDA, J.

   Leave granted.

These appeals have  been  filed  by  the  appellants  against  the  impugned
judgment and order dated 23.03.2009 passed by the High Court of  Kerala,  at
Ernakulam, in Civil  Revision  Petition  Nos.  1172  and  1173  of  1997(D),
whereby the High Court allowed the Civil Revision  Petitions  filed  by  the
respondents and upheld the common judgment and order of the  Land  Tribunal,
Nileshwar, dated 16.10.1991 passed in O.A.No.51 of  1986  and  I.A.No.61  of
1986 in S.M.P.No.1474 of 1976 and set aside the common  judgment  and  order
of the Appellate Authority (Land Reforms), Kannur, dated  20.03.1997  passed
in A.A.No.221 of 1991 and A.A.No.233 of 1991.

For the purpose of considering the rival legal contentions urged  on  behalf
of the parties in these appeals, with a view to find out whether this  Court
is required to interfere with the impugned judgment and order  of  the  High
Court, the necessary facts are briefly stated hereunder:

    It is an admitted fact that the petition  schedule  property  originally
belonged to  Vaddakke  Kovilakam  of  Nileshwar.  It  is  the  case  of  the
respondents that Aboobacker Haji, who is now deceased had obtained  an  oral
Kuzhikanam in the  year  1957  and  while  doing  so,  the  members  of  the
aforesaid Vadakke Kovilakam entered into a partition in the  year  1959  and
the petition schedule property along  with  other  extent  was  allotted  to
Smt.V.C.Mahaprabha Thamburatti and her children as per schedule 'D'  in  the
partition deed and the deceased Aboobacker Haji had been paying purappad  to
jenmi  Kovilakam.  The  members  of  the  Kovilakam,  entered  into  another
partition in the year 1974 and  as  per  the  same,  the  petition  schedule
property is allotted to  Smt.  V.C.Mahaprabha  Thamburatti  and  her  female
children as per schedule 'A' in the partition deed.

The appellants are the legal heirs of the  deceased  V.C.  Rama  Varma  Raja
(Jr.), the 2nd respondent in O.A.No.51 of 1986 and the respondents  are  the
legal heirs of the deceased  Aboobacker  Haji,  the  original  applicant  in
O.A.No.51 of 1986 on the file of the Land Tribunal. A joint  application  (J
Form) i.e. O.A.No.51 of 1986, was filed  by  the  deceased  Aboobacker  Haji
along with the 1st respondent in O.A. 51 of 1986,  Kerala  Varma  Raja,  who
was also shown as the land owner by the  deceased  Aboobacker  Haji,  before
the Land Tribunal for the purchase of Jenm right in respect  of  0.12  Cents
of land in Re.Sy.435/2B, under the provisions  of  Section  72MM(1)  of  the
Kerala Land Reforms Act, 1963, (in short "the Act") as amended  by  the  Act
17 of 1972. The predecessor of the appellants i.e. deceased V.C. Rama  Varma
Raja (Jr.), got himself impleaded as the additional 2nd  respondent  in  the
proceedings before the  Land  Tribunal  and  disputed  the  tenancy  of  the
deceased Aboobacker Haji. The  deceased  V.C.  Rama  Varma  Raja  (Jr.)  has
further  contended  in  the  proceedings  that  he  is  the  tenant  of  the
properties and that he has already obtained an order  for  the  purchase  of
the Jenm right in respect of the land  in  question  as  per  the  order  in
S.M.P.No.1474 of 1976 of the Land Tribunal.

The deceased Aboobacker Haji filed I.A.No.61 of 1986 under  Section  72MM(7)
of the Act, seeking to set aside the order passed in S.M.P.No.1474 of  1976,
by the Land Tribunal. The Land Tribunal by its judgment  and  order  allowed
the application of the deceased Aboobacker Haji without  any  liability  and
held that he is the cultivating tenant of the schedule property.   Aggrieved
by the same, the legal heirs of the deceased  V.C.  Rama  Varma  Raja  (Jr.)
filed an appeal before the Appellate Authority, questioning the  correctness
of the order  of  the  Land  Tribunal  on  various  grounds.  The  Appellate
Authority has set aside the judgment and order  of  the  Land  Tribunal  and
upheld  the  order  passed  in  S.M.P.No.1474  of  1976  obtained   by   the
predecessor  of  the  appellants  earlier.  Aggrieved  by  the   same,   the
respondents filed a Civil Revision Petitions before the High Court,  by  its
order dated 23.03.2009, allowed the same by holding that the reasons  stated
by the Appellate Authority in its judgment for reversing a  well  considered
order passed by the Land Tribunal is unsustainable in law.  It  has  further
held that the transaction put forward by the deceased V.C. Rama  Varma  Raja
(Jr.) with respect to the land in question is hit by Section 74 of  the  Act
and hence, the same is invalid. Therefore, the High Court has  restored  the
order of the Land Tribunal  in  favour  of  the  respondents.  Hence,  these
appeals have been filed by the  appellants,  challenging  the  judgment  and
order of the High Court, urging a number of grounds and  has  prayed  before
this Court inter alia contending  that  the  High  Court  has  exceeded  its
jurisdiction under Section 103 of the Act and has erroneously  reversed  the
findings of fact recorded by the Appellate Authority  in  its  judgment  and
order and therefore prayed for setting aside the same.

It is the contention of the learned counsel  on  behalf  of  the  appellants
that Smt.  Mahaprabha  Thamburatty  had  executed  a  registered  marupattam
No.3990/64 dated 30.10.1964 and had leased out the  property  in  favour  of
the deceased V.C. Rama Varma Raja (Jr.), the predecessor of  the  appellants
herein. It has been further stated by him that the deceased V.C. Rama  Varma
Raja (Jr.) was in possession of the property three months prior to the  said
lease deed dated 30.10.1964 and therefore, he is in absolute possession  and
enjoyment of the property and  he  has  purchased  the  jenm  right  of  the
schedule property as per the order passed in S.M.P.No.1474  of  1976  before
the Land Tribunal, Nileshwar and has further  contended  that  the  deceased
Aboobacker Haji had no right or possession over the property as  he  is  not
the cultivating tenant and thus, he could not have applied for the  purchase
of Jenm right.

On the other hand, it has been contended by the learned  counsel  on  behalf
of the respondents that their  predecessor,  deceased  Aboobacker  Haji  had
obtained the schedule property by oral Kuzhikanam lease  in  the  year  1957
from Kovilakam and thus, he  is  the  cultivating  tenant  of  the  schedule
property. He has further contended that the deceased V.C.  Rama  Varma  Raja
(Jr.) had obtained the order in S.M.P.No.1474 of 1976 in his favour by  foul
play, misrepresentation and fraud, as he has never  been  in  possession  of
the property. It has been further contended by him that  the  Marupatt  deed
dated 30.10.1964, produced by the appellants is a  fabricated  document  and
further, the deceased V.C. Rama Varma Raja (Jr.) has been in  the  habit  of
fabricating documents, which  has  also  been  deposed  by  Smt.  Mahaprabha
Thampuratti and her daughters, who had filed a counter in  S.M.P.No.1474  of
1976, denying the tenancy of the deceased V.C. Rama  Varma  Raja  (Jr.)  and
have also disputed their signature in the 'J' Form.

It has been further contended by  the  learned  counsel  on  behalf  of  the
respondents that the Act, which came into force  on  01.04.1964,  stipulates
the eligibility of the cultivating tenant to  purchase  jenm  rights,  thus,
the appellants are ineligible under the Act to get  the  possession  of  the
property, even if they had the alleged  possession  of  the  property  three
months prior to 30.10.1964.
We have heard both the parties. On the basis of the  aforesaid  rival  legal
contentions urged on behalf of the parties and the evidence  on  record,  we
have to examine the following:

Whether the divergent findings  recorded  by  the  High  Court  against  the
appellants are legal and valid; and
Whether the High Court has exceeded in its jurisdiction  under  Section  103
of the Act in re-examining the case and holding that  the  findings  of  the
Appellate Authority are not only erroneous but also error in law?

  It has been deposed by the deceased Aboobacker Haji, PW1, before the  Land
Tribunal, in the proceedings held by it that he had paid varam to the  Jenmi
Kovilakam regularly. To  substantiate  his  claim  for  the  same,  deceased
Aboobacker   Haji   had   produced   Ext.A1   to   A5   documents    wherein
Exts.A1(a),(b)and(c) were produced as purappad  receipts  and  PW2  and  PW3
were examined as witnesses before the Land Tribunal to prove his claim.  The
contention of the appellants before the High Court as  well  as  this  Court
that the said documents are not genuine, as they do not contain  the  actual
survey number, extent and fixed varam, cannot be accepted by us in  view  of
the decision of the Land Tribunal as well  as  the  High  Court  which  have
rightly held that the same are valid and legal  on  proper  appreciation  of
the legal evidence on record,  as  nothing  had  been  brought  out  by  the
counsel on behalf of the appellants in the cross examination of PW1,  before
the Land Tribunal with regard to  the  genuineness  of  the  said  receipts.
Further, PW3, who is an independent witness before  the  Land  Tribunal  had
categorically deposed that the deceased Aboobacker Haji is  the  cultivating
tenant of the land involved in the claim as he  has  been  taking  usufructs
from the schedule property.

Further, the son of Mahaprabha Thamburatti, who is  the  1st  respondent  in
O.A.No.51/86 has also categorically stated before  the  Land  Tribunal  that
the deceased V.C. Rama Varma Raja (Jr.) has never  been  in  possession  and
enjoyment of  the  schedule  property.  He  has  further  deposed  that  the
deceased V.C. Rama Varma Raja (Jr.) has been in  the  habit  of  fabricating
documents. He has testified the  same  before  the  Munsiff  Court,  in  the
original suit between himself and the deceased V.C. Rama  Varma  Raja  (Jr.)
in O.S.331/84 on the file of the Munsiff's Court, Hosdurg, wherein the  said
court had found that the deceased V.C. Rama Varma Raja (Jr.) had  fabricated
the documents. This relevant and important fact has not been  considered  by
the Appellate Authority while reversing the findings of  the  Land  Tribunal
while giving its reasons on the contentious issue in its judgment and  order
and the same has been rightly reversed by the High Court in exercise of  its
revisional jurisdiction. The Land Tribunal has come to the right  conclusion
on the basis of the facts pleaded and  the  evidence  adduced  by  both  the
parties and held that  the  respondent's  predecessor,  deceased  Aboobacker
Haji is the cultivating tenant in respect of  the  land  in  question  after
proper appreciation of the evidence on hand and therefore, it  has  recorded
that the finding on the order which was obtained by the deceased  V.C.  Rama
Varma Raja (Jr.) in S.M.P.1474 of 1976 is an act of fraud and foul play  and
thus, the Land Tribunal has rightly set aside the same,  which  finding  has
been concurred by the High Court stating that the reversal  of  the  finding
of fact by the Appellate Authority are not only erroneous but also error  in
law.

The Exbt.B1 brought as evidence before the Land Tribunal is not  genuine  as
the same has been brought into existence by committing fraud and  foul  play
as Ext.B1 covers  5  items  of  property  including  the  petition  schedule
property and it has also been deposed by the deceased V.C. Rama  Varma  Raja
(Jr.), DW1 before the Land Tribunal that except  the  area  defined  in  the
schedule property, the other properties were allotted  in  schedule  'G'  in
the 1959 partition  and  the  said  schedule  'G'  is  allotted  for  family
viniyogas. Thus, as per the partition deed  Smt.Mahaprabha  Thamburatti  has
no right over the properties coming under  schedule  'G'  and  the  deceased
V.C. Rama Varma Raja (Jr.) has no right to alienate the  property  and  thus
the documents brought on record  as  evidence  by  the  predecessor  of  the
appellants before the Land Tribunal are not genuine. The finding of fact  of
the Land Tribunal has been rightly concurred by the  High  Court  which  has
held that the finding of fact by the Appellate Authority in this  regard  is
erroneous as there is non consideration of positive evidence  on  record  in
favour of the respondents. Further, the documents Exts.B1 to B5(d)  produced
before the Land Tribunal by the predecessor of the  appellants  as  evidence
in justification of the claim of the appellants, do not contain  the  survey
number, extent of the  land,  etc.  Additionally,  the  genuineness  of  the
signature of Smt. Mahaprabha Thamburatti has not been established  by  them,
as the deceased V.C. Rama Varma Raja (Jr.) himself could  not  identify  her
signature before the Land Tribunal. This  Court  cannot  overlook  the  fact
that Smt. Mahaprabha Thamburatti had filed a counter in I.A. 61 of  1986  to
the effect that the order in S.M.P.1474 of 1976 was obtained by forging  the
signatures of the Jenmis. Further, even the Karyasthan of the Kovilakam  did
not support the case of the appellants before the Land Tribunal.

Even if we accept the contention of the learned counsel  on  behalf  of  the
appellants that their predecessor had the possession of the  property  three
months prior to 30.10.1964, which  is  the  date  of  the  lease  deed,  the
appellants would still be ineligible under the provisions of the Act to  get
the cultivating rights upon the land in question in view of  the  fact  that
the deceased V.C. Rama Varma Raja (Jr.) had allegedly got the possession  of
the schedule property only after 1.04.1964, after the Act  came  into  force
and thus, he could not have claimed  the  right  of  cultivating  tenant  as
provided  under  the  provisions  of  Section  74  of  the  Act.  Thus,  the
contention of the appellants  that  the  property  was  leased  out  to  the
predecessors of the appellants as per the Marupat deed dated  30.10.1964  is
not maintainable in law. Further, the deceased V.C. Rama  Varma  Raja  (Jr.)
was also ineligible for the purchase of Jenm right from  the  Land  Tribunal
under the provisions of the Act.  Being  a  person  who  allegedly  came  in
possession of the property subsequent to 1.04.1964, he cannot claim  tenancy
rights. Thus, the Land Tribunal as well as the High Court have come  to  the
right conclusion based on the fact and evidence on record  in  holding  that
the respondents have proved their tenancy right. The respondents'  claim  is
further supported by the testimonies of the landlords,  who  have  testified
that the property  belonging  to  Vadakke  Kovilakam  was  obtained  by  the
deceased Aboobacker Haji in the year 1957 from the Kovilakam. The said  fact
has also been reiterated by Kerala  Varma  Raja,  who  is  examined  as  PW2
before the Land Tribunal.  Thus,  the  respondents  have  rightly  filed  an
application before the Land Tribunal after the Act  came  into  force  under
Section 75 of the Act, as they had been in possession  of  the  property  on
and before 1.04.1964. The Land Tribunal and the High Court have come to  the
correct conclusion and have rightly recorded the finding of  fact  that  the
deceased V.C. Rama Varma Raja (Jr.) had created  fabricated  documents  with
respect to the property  in  question  and  therefore,  his  claim  for  the
purchase of Jenm  right  for  the  schedule  property  is  illegal  and  not
supported by evidence.

The Appellate Authority has completely ignored the undisputed pleadings  and
material documents on record in favour  of  the  respondents  and  the  said
finding of  the  Appellate  Authority  is  erroneous  in  law  and  patently
perverse as it has ignored the correct findings of  the  Land  Tribunal,  on
the relevant contentious issues which have been  rightly  questioned  before
the High Court by the respondents under Section 103 of the Act.

The High Court has rightly reversed the decision of the Appellate  Authority
after careful examination of the divergent findings of fact recorded  by  it
as the same are contrary to  both  the  documentary  and  oral  evidence  on
record, particularly  Ext.B1.  Thus,  in  the  light  of  all  the  material
evidence on record and the statutory provisions under Sections 74 and 75  of
the Act, the relevant and glaring error on fact and in law committed by  the
Appellate Authority has been rightly interfered  with  by  the  High  Court,
after it had satisfied itself that the divergent findings of  the  Appellate
Authority are not only erroneous but also error in law and it has  exercised
its revisional jurisdiction and set aside  the  divergent  findings  of  the
Appellate Authority. Reliance has been placed  upon  the  decision  of  this
Court in Mammu v. Hari Mohan[1],  which reads thus:-
"13......it is manifest that the power of revision vested in the High  Court
is wide and it is not limited only to the question of law  or  jurisdiction.
It hardly needs to be  emphasised  that  the  revisional  power  to  disturb
findings of  fact  or  law  recorded  by  the  Land  Tribunal  or  the  Land
[pic]Board or the Taluk Land Board  as  the  case  may  be,  (sic)  only  in
appropriate cases in which the Court is satisfied that such interference  is
necessary in the interest of justice and  for  proper  adjudication  of  the
dispute raised by the parties. In the case on hand, the High Court,  as  the
impugned order shows, has taken note of the exception to the  order  of  the
Land Tribunal on the ground that it failed to take note of relevant  factors
like the facts and circumstances under which the structure  was  allowed  to
be constructed......"


Thus, we are of the considered view that the power  exercised  by  the  High
Court under Section 103 of the Act has  been  rightly  exercised  by  it  in
setting aside the judgment and order of  the  Appellate  Authority,  as  the
same is not only erroneous but also error in law for the aforesaid  reasons.
The appeals are dismissed.




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

                           [V. GOPALA GOWDA]



..................................................................J.
  [R. BANUMATHI]

New Delhi,
February 17, 2015
-----------------------
[1]    (2000) 2 SCC 32

Since local police is allegedly involved as per the statement of the petitioner recorded under Section 164, there may not be fair investigation. In R.S. Sodhi vs. State of U.P., 1994 Supp (1) SCC 143, this Court in such a case observed that however faithfully the local police may carry out the investigation, the same may lack credibility since the allegations are against them. 16. Taking into consideration the entire facts of the case and very serious allegations made against all the respondents including police officers, it is a fit case where the investigation has to be handed over to an independent agency like CBI for the purpose of fair and unbiased investigation.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL ORIGINAL JURISDICTION

                    WRIT PETITION (Crl.) NO. 218 OF 2013

Rashmi Behl                             .....Petitioner(s)

                                   versus

State of Uttar Pradesh and others      .....Respondent(s)

                               J U D G M E N T

M.Y.Eqbal, J.

             Petitioner, a young girl of 22 years who hails from  the  State
of Uttar Pradesh, has filed this writ  petition  under  Article  32  of  the
Constitution  of  India  for  the  enforcement  of  her  fundamental  rights
guaranteed under Articles 14 and 21 of the Constitution  of  India  inasmuch
as even though her FIR was registered on  21.1.2013  neither  statements  of
the  petitioner  or  her  witnesses  had  been  recorded  nor  her   medical
examination under Section 164A of the Criminal Procedure Code had been  done
by the Uttar Pradesh Police despite repeated notices and reminders  sent  to
the authorities.   Petitioner  has  alleged  to  the  extent  that  she  was
abducted,  repeatedly  assaulted  and  raped  by  her  own  father  and  his
accomplices for not accepting their demand  to  enter  the  flesh  trade  in
which her family is actively involved.



2.    The writ petition before us shows that the ordeal  of  the  petitioner
began in the year 2010 when the  father  and  her  family  alleged  to  have
started coercing her to join the flesh trade/prostitution.   Upon  realizing
petitioner's unwillingness, father and the family tried to sell her  off  to
an elderly man of about 65 to 70 years in Punjab.  Upon  becoming  aware  of
the nefarious designs of the accused persons, petitioner somehow managed  to
escape from her parental home in Meerut and escaped to Haridwar, from  where
she was brought back by some Samaritans to the office of DIG  Meerut,  where
she narrated her ordeal.  Petitioner was sent to the custody of her  parents
with a stern warning, which was not complied.  As such, she was  then  given
into  the  custody  of  Ms.  Asha  Madho,  who  was  an  ex-teacher  of  the
petitioner.  However, in the midnight of 1/2.9.2011 in the  absence  of  the
custodian, her parents along with their  relatives  with  police  assistance
said to have forcibly took her away.  Thereafter, petitioner  complained  to
the Police that she was held in captivity by her  father  and  anything  can
happen to her in such circumstances.  Taking action on the said letter,  the
SHO produced the petitioner before the City Magistrate  on  5.9.2011,  where
the petitioner stated that she was a major and should  be  allowed  to  stay
free as per her wishes and her custody should not be  given  to  her  father
and family.  Father of the petitioner also moved an application  before  the
City Magistrate stating that his daughter was mentally unstable on which  an
order was passed to refer the petitioner to a hospital  for  mental  medical
examination, in which she was declared mentally sound.  The City  Magistrate
passed an order giving the custody of the petitioner to Ms. Asha Madho.   It
was also ordered that Ms. Asha Madho will produce the petitioner before  the
Court as and when required.

3.    Aggrieved by the order, father of the petitioner preferred a  Revision
Petition before the Additional District Judge,  Meerut  seeking  custody  of
the petitioner. Petitioner was produced before  the  court  and  when  being
asked about her choice, she refused to go  with  her  father  and  told  the
court that her father had earlier raped her and wanted to sell her.  By  way
of a letter Ms. Asha Madho showed her unwillingness to take custody  of  the
petitioner on the ground of her own  sickness  and  criminal  background  of
petitioner's parents.   Hence, the petitioner further showed her  desire  to
go along with Ms. Aparna  Gautam,  sister-in-law  of  Ms.  Asha  Madho.   On
15.10.2011, the  Additional  District  Judge  partly  allowed  the  revision
petition and set aside order dated 16.9.2011 regarding the  custody  of  the
petitioner being given to Ms. Asha  Madho   and  held  that  the  petitioner
being an adult is free to reside wherever she  decides to live.



4.    It is alleged by the  petitioner  that  after  the  Court  had  risen,
accused persons forcibly dragged her out  of  the  Court  and  took  her  to
various places within  Meerut  and  thereafter  to  Ludhiyana,  Punjab,  and
throughout this period the petitioner was repeatedly assaulted and raped  by
her father and  his  accomplices.   Subsequently,  in  November  2011,  Mrs.
Aparna Gautam filed a writ  of  Habeas  Corpus  before  the  Allahabad  High
Court.  Consequently, the petitioner was produced before the High  Court  on
16.1.2012, where she gave  details  of  assault,  rape  and  abduction.   On
30.1.2012, consequent to petitioner's statement,  learned  Single  Judge  of
the High Court disposed of the writ petition setting her at  liberty  to  go
anywhere including the opportunity to go along with Mrs. Aparna Gautam.



5.    On several occasions the petitioner tried to lodge a FIR  with  regard
to abduction, repeated assault and rape while she was in illegal custody  of
the respondents.  On 16.1.2013, the petitioner wrote a complaint to the  SSP
Meerut, Uttar Pradesh for registering her FIR against the  respondents.   On
21.01.2013, finally FIR No.31/2013 was registered  against  the  respondents
under Sections 366, 323, 504 and 376 of IPC at Lisadi Gate  Police  Station,
Meerut instead of Civil Lines Police Station.

6.    Mr. P.H. Parekh, learned senior counsel appearing for the  petitioner,
contended that all the relevant sections  applicable  to  the  present  case
have not been applied by the police and neither statement of the  petitioner
had been recorded nor  medical  examination  was  done  as  per  mandate  of
Section 164A, Cr.P.C.  Since no action had been taken by the police  against
the named accused nor any security  had  been  provided  to  the  petitioner
despite grave and imminent threat to her life and liberty and she being  not
in a position to approach Allahabad High  Court  by  way  of  writ  petition
under  Article  226,  the  petitioner  has  approached  this  Court  seeking
indulgence under Article 32 read with 142 of the Constitution of India.

7.    We have elaborately heard learned counsel for the parties.   Mr.  P.H.
Parekh, learned senior counsel appearing for the petitioner, submitted  that
the petitioner was first abducted from the house of the custodian  Ms.  Asha
Madho and second time from the court premises with the active connivance  of
the police officials.   The  accused  persons  are  influential  people  and
certain police officers (who are  also  named  in  FIR)  are  also  actively
involved with the family.  The influence of the  father  and  family  is  so
much that although the petitioner  was  abducted  from  the  Court  premises
situated under the jurisdiction of Civil Line Police  Station,  Meerut,  yet
the accused managed to get the FIR recorded not in  the  Civil  Line  Police
Station but at the Lisadi Gate Police Station, Meerut,  within  jurisdiction
of which most of the accused reside.



8.    Mr. Parekh further contended that due to the influence of the  accused
persons, the investigation in  the  case  has  not  even  begun,  which  has
resulted  in  disappearance   of   material   evidence   including   medical
examination report under 164A of Cr.P.C.  which  ought  to  have  been  done
after being raped.  Learned senior counsel further  contended  that  accused
persons  are  roaming  free  influencing  and  delaying  investigation   and
threatening witnesses and have been on the look out of the petitioner  since
the date of lodging of the FIR forcing the petitioner to be in hiding  under
imminent  threat  to  her  life  and  liberty.   On  account  of  this,  the
petitioner is hiding in Delhi, but is prevented from  freely  going  out  in
Delhi or going to place of lodging of FIR (Meerut) and it has forced her  to
knock the doors of the Apex Court by hiding her in Delhi.



9.    After the notice was served upon the respondents, learned counsel  for
the State of Uttar Pradesh and other respondents  appeared  and  the  matter
was heard.  From the side of the petitioner, it was submitted that no  steps
have been taken for recording the statement of the petitioner under  Section
164, Cr.P.C.  Whereas learned senior counsel  appearing  for  the  State  of
Uttar Pradesh contended that despite all  efforts,  the  petitioner  is  not
making her appearance for the  purpose  of  recording  statements.   Hearing
submissions,  this  Court  vide   order   dated   30.1.2015   directed   the
petitioner/prosecutrix to  appear  before  the  Chief  Judicial  Magistrate,
Saket Courts, Saket, New Delhi along with her photograph and one  person  to
identify her on 31.1.2015 so that her statement shall  be  recorded  by  the
Chief Judicial Magistrate, who shall forward the same to this Court.



10.   In compliance of the aforesaid order, the petitioner  appeared  before
the Chief Judicial Magistrate and her statement was recorded  and  the  same
was forwarded to this Court.   We have gone through the  statement  made  by
the petitioner before the Chief Judicial Magistrate.  In her statement,  she
has made serious allegations against her father  allegedly  committing  rape
since 2007. She also stated that when she was residing with her Asha  Madam,
her parents along with many persons including Police  personnel  (which  did
not have any lady police) forcibly took her away from there  to  the  Police
Station, from where she was handed over to her  parents.   She  stated  that
her parents used to misbehave  with  her.   She  has  also  stated  that  on
15.10.2011, after the decision of the Magistrate  declaring  her  major  and
could reside at her  will,  her  aunt  Anjana  Malik  and  Ranjana  Vasudeva
dragged  her  outside  Court,  where  more  than  15  persons  were  present
including her father Ravinder Behl, Safar Borga, Ravinder  Singh,  Advocate,
Tarun Behl, Reeta Behl,  Roma  Behl,  Sanjay  Aggarwal,  Dharamveer  Narang,
Inderjeet, Harvinder Singh, Harsh Behl, Rakesh  Vasudeva  and  all  of  them
including police personnel took her dragging up to  the  main  door  of  the
Court and put her in white colour Santro  Car,  which  had  been  driven  by
Pawan Malik.



11.   In her statement she has alleged that she was kidnapped and  taken  to
the house of her aunt (Bhuwa) and then to the house  of  Harsh  Behl,  where
she was abused and her father forcing her  for  prostitution  told  that  in
their business goods once sold is never taken back and  they  are  bound  to
hand it over dead or alive.  Harsh Behl stated to her that they  would  have
also kidnapped  Aparna  Gautam  if  gathering  would  not  have  saved  her.
Thereafter, Harsh Behl raped her.  She has also alleged  sexual  assault  by
Dharamveer Narang, Constable Dayashankar, DIG Prem Prakash,  Manish  Mishra,
Sunny Ahuja, Deshraj Ahuja, Tilak Narang and Toofan alias  Raj  Kumar.   She
amended her statement saying  that  name  of  Manish  Mishra  was  taken  by
mistake as he was not present there and the name of the  man  was  Dr.  B.P.
Ashok.  She has also alleged that  on  17.10.2010  Inderjeet  and  Harvinder
raped her in the presence of Preety Khurana and  Urmila  Kathuria,  who  did
not save  her  despite  repeated  prayer.   Thereafter,  she  was  taken  to
Ludhiyana, where as alleged by her, father used to rape  her.   Upon  filing
of Habeas Corpus petition by Aparna Gautam, she was produced by her  parents
in the High Court, where she stated that she did not want  to  go  with  her
parents since she was being raped by her father and  his  accomplices.   She
has also alleged that when Aparna Gautam had gone  to  DIG  with  a  request
letter to meet petitioner, DIG physically assaulted her  and  when  she  was
conversing with Media at the Commissioner Square, she was taken away by  the
police and implicated her in false case and was also  imprisoned.   She  has
submitted that many I.Os. have changed and despite various  letters  written
by her, no I.O. turned up even on 18.3.2014, when she  was  sitting  in  the
Chambers of her advocate in the Saket Courts.  However,  when  her  advocate
had gone to attend other case, her parents  entered  into  the  Chamber  and
threatened her to keep quite.  She stated that her  Parvikar  Aparna  Gautam
is being harassed since she helped her.



12.   As noticed above, as against the order passed by the  City  Magistrate
on 5.9.2011, before whom the petitioner has stated that she was a major  and
should be allowed to stay  free  as  per  her  wishes,  the  father  of  the
petitioner  filed  a  revision  petition  before  the  Additional   District
Judge,Meerut seeking custody of the petitioner on the ground  that  she  was
mentally unstable.  The Additional  District  Judge  by  setting  aside  the
order of the City Magistrate  regarding  custody  of  the  petitioner  being
given to Mrs. Asha Madho held that the petitioner being an adult is free  to
reside where she decides to live.  The City Magistrate, before  passing  the
aforesaid order, got the petitioner medically  examined  in  which  she  was
declared mentally sound.  The Additional District Judge in revisional  order
had observed that the father of the petitioner made a false  statement  that
the petitioner was mentally unfit.



13.   A perusal of the counter affidavit  filed  on  behalf  of  Respondents
nos.1 to 4 - State of Uttar Pradesh,  Director  General  of  Police,  Deputy
General of Police and Senior Superintendent of Police would show that  after
the case was registered being Crime Case No.31/2013, one  Rajbir  Singh,  SI
Lisadi Gate  Police  Station,  Meerut,  was  entrusted  with  the  case  for
investigation.  So far  the  serious  allegations  made  by  the  petitioner
against the respondents including the police officials are concerned, it  is
stated in the counter affidavit that those allegations  are  subject  matter
of investigation.  Admittedly, no action was taken against the  persons  who
have allegedly committed crime.  On the basis of complaint, in March,  2013,
the investigation was entrusted to another SI Janak Singh Pundir, SIS  Cell,
Meerut.  Two months thereafter, the said I.O. Janak  Singh  was  transferred
and in his place one Pramod Kumar Singh,  S.I.,  Crime  Branch,  Meerut  was
entrusted with the case for investigation in June, 2013.  Again  in  August,
2013, the investigation was entrusted to another SI Yogender Dikshit,  Crime
Branch,  Meerut.   It  is  stated  in  the  counter   affidavit   that   the
Investigating Officer was transferred from Crime Branch  to  Police  Station
Durala, District Meerut.  This itself shows that  the  allegations  made  by
the petitioner in the FIR followed by several  complaints  was  never  taken
seriously  by  the  police  authorities  and  in  a   routine   manner   the
investigation was entrusted to SI police one after another.   Moreover,  the
respondents in the counter affidavit tried to justify  the  reason  for  not
taking steps for the purpose of recording the statement  of  the  petitioner
victim under Section 164, Cr.P.C. and also failure  in  medically  examining
the petitioner as required under  Section  164A  of  the  Code  of  Criminal
Procedure.



14.   One cannot ignore  the  fact  that   still,   a  class  of   women  is
trapped   as  victims   of   circumstances,  unfounded  social    sanctions,
handicaps  and  coercive  forms  in  the   flesh    trade,   optimised    as
`prostitutes'.  The victims of the  trap   are  the   poor,  illiterate  and
ignorant sections of the society  and are  the target  group in   the  flesh
trade; rich communities  exploit them  and  harvest   at  their  misery  and
ignominy   in  an   organised  gangsterism,   in  particular,  with   police
nexus.    It    is  of  grave  social  concern,  increasingly  realised   by
enlightened   public spirited sections of  the  society  to  prevent  gender
exploitation of girl children.

15.   Having regard to the facts, sequence of events  and  inordinate  delay
in the investigation of the case, it would show that  the  investigation  by
the State police authorities is not being conducted in a  proper  direction.
More than two years have passed  but  the  police  failed  to  conclude  the
investigation, which itself goes to show that police have  not  acted  in  a
forthright manner in investigating the case.  Prima  facie  the  police  has
acted  in  a  partisan  manner  to  shield  the  real   culprits   and   the
investigation of the case is not being conducted in a proper  and  objective
manner.  Since local police is allegedly involved as per  the  statement  of
the  petitioner  recorded  under  Section  164,  there  may  not   be   fair
investigation.  In R.S. Sodhi vs. State of U.P.,  1994  Supp  (1)  SCC  143,
this Court in such a case observed that however faithfully the local  police
may carry out the investigation, the same may  lack  credibility  since  the
allegations are against them.

16.   Taking into consideration the  entire  facts  of  the  case  and  very
serious allegations  made  against  all  the  respondents  including  police
officers, it is a fit case where the investigation has to be handed over  to
an independent agency  like  CBI  for  the  purpose  of  fair  and  unbiased
investigation.



17.   We, therefore, allow this petition and direct the  Central  Bureau  of
Investigation to investigate the case  independently  and  in  an  objective
manner and to conclude the same in accordance with law.



                                        ..................................J.
                                                                (M.Y. Eqbal)



                                        ..................................J.
                                                         (Shiva Kirti Singh)
New Delhi
February 17, 2015



ITEM NO.1B              COURT NO.11               SECTION X

               S U P R E M E  C O U R T  O F  I N D I A

                       RECORD OF PROCEEDINGS

Writ Petition(s)(Criminal)  No(s).  218/2013

RASHMI BEHL                                Petitioner(s)

                                VERSUS

STATE OF U.P & ORS                          Respondent(s)

[HEARD BY HON'BLE M.Y.EQBAL AND HON'BLE SHIVA KIRTI SINGH, JJ.]

Date : 17/02/2015 This petition was called on for judgment
today.

For Petitioner(s)      Mr. P.H. Parekh, Sr. Adv.
                    for M/s. Parekh & Co.

For Respondent(s)      Mr. Dinesh Kr. Tiwari, Adv.
                       Mr. Amit Srivastava, Adv.
                       Mr. Pavitra Mohan Sharma, Adv.
                       Mr. Chandan Vir, Adv.
                    for Mr. Praneet Ranjan,AOR

                    Mr. Som Raj Choudhury, Adv.
                       for Mr. Abhisth Kumar,AOR

                       Ms. Ranjana Narayan, Adv.
                       for Mr. B.V. Balaram Das, AOR

            Hon'ble Mr. Justice M.Y.Eqbal pronounced  the  judgment  of  the
Bench comprising His Lordship and Hon'ble Mr. Justice Shiva Kirti Singh.

            The  writ  petition  is  allowed  in  terms  of  the  Reportable
judgment, which is placed on the file.


(Parveen Kr. Chawla)                    (Indu Pokhriyal)
  Court Master                            Court Master

Admittedly the vessel is berthed at the Madras harbor and, therefore, the Madras High Court alone had jurisdiction to entertain any claim against the subject vessel as per provisions of Section 3(15) of the Merchant Shipping Act, 1958. The arrest of vessel by the Madras High Court being the first arrest, the vessel and the sale proceeds are custodial legis of the said court and no proceedings in Bombay High Court can be maintained subsequently without leave of the Madras High Court. It is also not in dispute that after the decree got transmitted to the Madras High Court, appellant had again moved Bombay High Court and obtained attachment order without notice to the creditors and claimants before the Madras High Court, which act of the appellant clearly exposes that it conveniently wanted to avoid any contest of its claim by other creditors/claimants. It has not been disputed by the appellant that the Bombay High Court while passing the order of attachment was not aware about the fact that the vessel was seized by the Madras High Court much prior to the filing of the suit by the appellant in Bombay High Court. The Division Bench in the impugned order has recorded the finding that Madras High Court while deciding the issues in the suit filed under admiralty jurisdiction had considered the interest and also priorities of all interveners and also parties to the suit. It was held that the appellant ought to have made claim under Order XLII Rule 11 of the OS Rules. The Division Bench rightly held that no court is so prestige conscious that it will stand in the way of legitimate legal proceedings for redressal or relief sought for by the litigant. The Court also took notice of the fact that the necessary parties who had led their claims had not been impleaded by the appellant in the proceedings. 30. In the facts and circumstances of the case and having regard to the law settled, so far the admiralty jurisdiction of the Court is concerned, we do not find any reason to differ with the findings recorded by the Division Bench of the High Court in the impugned order. For the reason aforesaid, we do not find any merit in this appeal, which is accordingly dismissed, however with no order as to costs.

   

                                                            'REPORTABLE'

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.6156 OF 2005


Petromarine Products Ltd.                    ...Appellant (s)

                                  versus

Ocean Marine Services Company Ltd.
and others                              ...Respondent(s)

                                  JUDGMENT

M.Y. Eqbal, J.:


       This  appeal  is  directed  against  the  judgment  and  order  dated
27.11.2003 passed by a Division Bench of the High Court  of  Madras  in  OSA
No.175 of 1998, dismissing the appeal  of  the  appellant,  upholding  inter
alia the disbursements made by Single Judge of the  sale  proceeds  received
by sale of the ship in question named as motor vessel 'Eleni'.

2.    The factual matrix of the case is that in  February,  1997  Respondent
No.1 filed a suit being C.S.No.97 of 1997 under the  Admiralty  Jurisdiction
of High Court of Madras, for recovery of US$  22,705.84  against  Respondent
No.3 herein along with an application praying for an order of arrest of  the
vessel which arrived at Port of Madras. The High Court  in  terms  of  Order
dated 27.2.1997 issued arrest warrant.  Whereas in the  Bombay  High  Court,
Appellant filed an admiralty suit A.S.No.27  of  1997  in  March,  1997  for
recovery of amount of US$ 39,712.97 i.e. the security  of  Appellant's  suit
claim. On 19.03.1997, Bombay High Court directed  the  order  of  arrest  of
Vessel M.V. Eleni.

3.    Meanwhile, High Court of Madras appointed  Respondent  No.  2  as  the
Advocate Commissioner. On 25.04.1997, terms and  conditions  for  sale  were
approved by the Madras High Court. Publications with respect to the sale  of
the  said  vessel  were  made  in  various  newspapers.   Unaware  of   such
proceedings, Bombay High Court, on 11.09.1997, passed  an   ex-parte  decree
in the suit filed by  the  appellant  for  a  sum  of   US$  50,081.74  with
interest, which was communicated to the  Advocate  Commissioner  (Respondent
No.2), appointed by the Madras High Court,  with a request to take  note  of
their claim against the Vessel. The Sheriff of Mumbai  also communicated  to
Respondent No.2 on 21.10.1997 that the Vessel MV ELENI was arrested  in  due
compliance of Warrant of Arrest dated 18.03.1997 and  21.03.1997  passed  by
the High Court of Bombay and requested them  to  take  note  of  the  arrest
order  passed  by  Bombay  High  Court.    Before   the   aforesaid   decree
transmitted by the Bombay High Court was received by the Madras  High  Court
on 24.1.1998, learned Single Judge of the Madras High  Court  confirmed  the
sale in favour of M/s. Jansee Steel Industry Pvt. Ltd. on 24.10.1997.     In
the execution petition moved by the  appellant  in  February,  1998,  Bombay
High Court issued notice under Order 21 Rule 52 of  the  C.P.C.,  requesting
the Madras High Court to hold the decretal sum in  an  aggregate  amount  of
US$ 58,325.64 from and out of the  funds  deposited  by  M/s.  Jansee  Steel
Industries.

4.    It is worth to  note  here  that  the  tender  of  M/s.  Jansee  Steel
Industries had been challenged by another company M/s. Bancorex  by  way  of
another suit being O.S.A.No.15 of 1998,  which  ultimately  was  allowed  on
23.4.1998 by Madras High Court by setting aside  the  confirmation  of  sale
made in favour of M/s. Jansee and the matter  was  remanded  to  the  Single
Judge to ensure that the best  possible  price  is  secured.   Consequently,
learned Single Judge accepted the only bid of M/s.   Jansee  Steel  Industry
Pvt. Ltd. for a sum of US$ 4,70,000  and  they  were  directed  to  pay  the
balance consideration within three weeks, failing which  the  earnest  money
deposited by them would stand  forfeited.  Advocate  commissioner  was  also
directed to deposit the entire amount to the credit  of  the  suit.   Madras
High Court confirmed the sale made in favour of M/s. Jansee  Steel  Industry
Pvt. Ltd. on 05.10.1998 and ordered reimbursement of cost of  sale,  payment
to the crew members and charges to the statutory authorities.

5.    On 25.09.1998, Bombay High Court  informed  the  passing  of  ex-parte
decree in favour of appellant and asked Registrar of the Madras  High  Court
to remit the funds lying attached pursuant to Order 21 Rule 52  Notice.   On
7th October 1998, Bombay High Court made a further order in  favour  of  the
appellant who filed execution  petition  in  the  Bombay  High  Court.   The
Registry of Bombay High Court sent letters dated 28.01.1999, 09.03.1999  and
11.03.1999, requesting the Registrar of the Madras High Court to give  reply
for non-remittance of the attached funds.  Finally,  on  03.09.1999,  Bombay
High Court gave liberty to the appellant, to  obtain  suitable  orders  from
the Madras High Court and closed the Execution Application.



6.    Meanwhile after the confirmation of the sale, the sale  proceeds  were
disbursed to the crew members of statutory authorities and  a direction  was
issued on 6.10.1998 to the  commissioner to deposit the  balance  amount  of
Rs. 12,38,164/-.



7.    Thereafter, appellant challenged the order dated 06.10.1998 passed  by
single Judge in Application No.1217 of 1997 in C.S.No.97 of  1997,  pleading
before the Division Bench of the Madras High Court that on  the  service  of
notice issued by the Bombay High Court under  Order  21  Rule  52  CPC,  the
appellant was entitled to the decretal amount alone and the amount  attached
ought not to have been disbursed to third  parties  and  the  custody  court
namely  the  Madras  High  Court  has  no   authority   to   make   rateable
distribution.  Per contra, it was submitted on  behalf  of  the  respondents
before the Madras High Court that the  appellant  failed  to  bring  to  the
notice of the Bombay High Court that  the  Madras  High  Court  was  already
seized with the matter.  Had the appellant brought  to  the  notice  of  the
Bombay High Court about the  proceedings  entertained  by  the  Madras  High
Court, which were much prior to the suit filed  by  them,  the  Bombay  High
Court would not have passed the attachment order.



8.    After hearing learned counsel for the parties, Division Bench  of  the
Madras High  Court  dismissed  the  application  keeping  it  open  for  the
appellant to lay their claim under Order  XLII  Rule  11  of  Original  Side
Rules.  The Division Bench  held  that  once  the  suit  is  filed  invoking
admiralty jurisdiction of the  Madras  High  Court,  the  suit  in  rem,  it
decides the interest of not only parties to the suit but also other  parties
who are interested in the property under arrest or in the  fund.   The  High
Court observed thus:-

"Madras High Court, while deciding  the  issues  in  the  suit  filed  under
admiralty jurisdiction has considered the interest and  also  priorities  of
all interveners and also parties to the suit.  We  follow  the  judgment  of
Apex Court in M.V. Elisabeth and others vs. Harwan Investment & Trading  Pvt
Ltd., Hanoekar House, Swatontapeth,  Vasco-De-Gama,  Goa,  reported  in  AIR
1993 SC 1014. The catena of judgments relied on by the appellant are no  way
useful to them.  The appellant ought to have made the claim  under  Rule  11
of Order XLII of O.S.  Rules.  In  the  ordinary  course,  no  Court  is  so
prestige-conscious that it  will  stand  in  the  way  of  legitimate  legal
proceedings for redressal or relief sought for by  the  litigant.   We  find
that necessary parties are not impleaded by the appellant herein and  Jansee
Steel Industries Pvt. Ltd., which is  sought  to  be  impleaded  as  seventh
respondent in this appeal, is not a necessary party to resolve the  disputes
involved in this appeal.  It is not open to the  appellant  to  convert  the
appeal against the order dated 05.10.1998  instead  of  06.10.1998,  as  the
leave  was  granted  to  file  the  appeal  only  against  the  order  dated
06.10.1998. Liberty was granted to  Appellant  to  file  their  claim  under
Order XLII Rule 11 of O.S. Rules."


9.    Hence, this appeal by special leave by the appellant.

10.   Ms. Vijaylaxmi Menon, learned counsel  appearing  for  the  appellant,
assailed the impugned order passed by  the  Madras  High  Court  on  various
grounds.  At the very outset, learned counsel submitted that the High  Court
erred in holding  that  money  lying  with  the  Advocate  Commissioner  was
custodial legis.  Learned counsel contended  that  the  High  Court  in  the
impugned  judgment  overlooked   that   the   appellant-execution   creditor
attempted to intervene in the pending admiralty  suit  in  the  Madras  High
Court on 12th December, 1997 leading to an order dated 24th  January,  1998,
whereby the appellant was directed to work out its  remedies  in  execution.
In other words, the appellant was not allowed to intervene  in  the  pending
admiralty suit in the Madras High Court.  On the contrary,  the  High  Court
held that the appellant ought to have been intervened in the suit  with  its
application under Order 42 Rule 11 of the Original Side Rules of the  Madras
High Court.

11.   Ms. Menon  further contended that there is nothing  in  the  aforesaid
O.S.  Rules  that  requires  a  decree  holder,  who  has  secured  a  valid
attachment,  to  seek  to  intervene  in   the   pending   admiralty   suit,
particularly, when in the previous application filed by the  decree  holder,
an order  has already been passed directing the decree holder  to  work  out
its remedies in execution.

12.   Learned counsel further contended that the High Court  overlooked  the
grievances of the appellant and failed  to  appreciate  the  fact  that  the
custody Court was acting in a dual capacity of  an  admiralty  Court  vested
with the higher degree of responsibility and accountability  upon  both  the
Registrar of Madras High Court and the Advocate  Commissioner  appointed  in
the pending admiralty suit.

13.   Lastly, learned counsel submitted that the order of Bombay High  Court
dated 3rd September,  1999  at  no  stage  ever  ordered  dismissal  of  the
Appellant's Execution Application, either before or after the  disbursal  of
monies by the Madras High Court.  Thus, no scope or  requirement  arose  for
the Appellant to challenge the  Order  dated  3rd  September,  1999  of  the
Bombay High Court.  The surrounding circumstances preceding such  order  are
important,  viz.  that  faced  with  a  brazen  silence  and  the  lack   of
explanation, since the Registrar of the Madras High Court failed to  respond
despite order of the Bombay High Court, the only restrained option  left  to
the Bombay High Court was to enable the appellant  to  urge  matters  before
the Madras High Court.  Ordinary remedies of contempt of Court  in  relation
to non-compliance of orders of the Bombay High Court  by  the  Registrar  of
the Madras High Court were available, but were  rather  too  harsh  for  the
Appellant to pursue, hence the Appellant pursued its Appeal already  pending
before the Madras High Court.

14.    Mr. Vipin Nair, learned counsel appearing for the respondent  Nos.  1
to 4, firstly submitted that the Bombay High Court by order  dated  3.9.1999
had directed the appellant to make its claim before the Madras  High  Court,
but the  appellant  had  not  challenged  that  order,  which  attained  the
finality.   Moreover, the High Court  of Madras by order  dated  27.11.2003,
had given liberty to the appellant to lay the claim before  it  under  Order
42  Rule 11 of the Rules of the Madras High  Court.   Learned  counsel  then
submitted that there are seven other creditors,  whose  claims  are  pending
before the Madras High Court.  Those creditors are parties to the  suit  and
they have lost their claim before the Madras high  Court  against  the  sale
proceeds lying in the High Court.

15.   Learned counsel then submitted that the Madras High  Court  being  the
transferee Court had jurisdiction to determine the  inter-se  priorities  of
all the creditors or the claimants, in terms of proviso to Order 21 Rule  52
of the Code of Civil Procedure, 1908 as the vessel/ ship was sold free  from
all encumbrances, being a sale conducted in an action in rem.

16.   Learned counsel submitted that the  appellant  had  knowledge  of  the
proceedings pending before the learned  Single  Judge  of  the  Madras  High
Court, where all the creditors  were  seeking  relief  for  disbursement  of
fund.  The appellant had chosen not to object to the said  disbursement  and
not participated in the proceeding.  The  appellant,  who  is  an  unsecured
creditor, by standing outside the Court  cannot  claim  exclusively  on  the
basis of an order of attachment.

17.   We have elaborately  heard  the  learned  counsel  appearing  for  the
parties.  It has been pleaded on behalf of the appellant that the  appellant
had obtained a decree for a sum of US$  50,081.74  with  interest  from  the
Bombay High Court in a  suit  against  the  judgment  debtor  and  had  also
obtained an order of sale of a ship of the judgment debtor which  was  lying
in the territorial waters of India at Madras.  The said ship had  also  been
attached by the orders  of  the  Madras  High  Court  in  a  suit  filed  by
respondent No.1 for US$ 15,975.04.  The Division Bench of  the  Madras  High
Court on 17.4.1997 appointed an Advocate Commissioner in order to bring  the
said ship to sale, with a view to preserve/prevent  her  from  deterioration
and thereby protect her creditors.  It is further  pleaded  that  in  April,
1997 the ship was brought to sale and  on  26.5.1997  an  earnest  money  of
Rs.35,60,000/- was received by  the  Advocate  Commissioner  from  one  M/s.
Jansee Steel Industries Pvt. Ltd.  On 24.8.1997, the  bid  of  Jansee  Steel
Industries Pvt. Ltd was accepted and the Madras  High  Court  confirmed  the
sale in its favour and the balance amount was directed to be remitted.   The
Advocate Commissioner was informed about the  decree  of  the  appellant  on
25.9.1997.  On 24.1.1998, the Madras High Court again confirmed the sale  in
favour of M/s. Jansee Steel Industries Pvt. Ltd.  In  April  1998,  however,
the said sale was set aside in appeal and a fresh sale was directed.



18.   It is appellant's case that in an execution application filed  by  the
appellant, Bombay High Court on 17.3.1998 issued an attachment  order  under
Order 21 Rule 52 of the CPC directing attachment of a sum of  US$  58,325.64
(approximately Rs.20 lakhs) from and out of  the  funds  deposited  by  M/s.
Jansee Steel Industries Pvt. Ltd. until further orders of  the  Madras  High
Court.  The said order of attachment was received by the Madras  High  Court
on 16th June, 1998.  Meanwhile, on 23.4.1998, the sale was set aside  and  a
fresh tender was directed by the Division Bench of the  Madras  High  Court.
However, the amount of earnest money lying with  the  Advocate  Commissioner
was not returned to M/s. Jansee Steel Industries  Pvt.  Ltd.   On  1.9.1998,
Madras High Court accepted the only bid  of  M/s.  Jansee  Steel  Industries
Pvt. Ltd. and directed that the moneys be held over to the  account  of  the
suit.   On  7.9.1998,  Registry  of  the  Madras  High  Court  effected  the
attachment and returned the notice of the  Bombay  High  Court  with  a  pro
order to the Bombay High Court confirming that the monies  directed  by  the
Bombay High Court to be attached stood  duly  held  to  the  credit  of  the
appellant.  On 25.9.1998, Bombay High Court passed an  order  directing  the
Registrar of the Madras High Court to remit the funds lying pursuant to  the
Order 21 Rule 52 attachment.



19.   The appellant's case in a nutshell is that  ignoring  the  decree  and
the attachment of the Bombay High Court, the Madras High Court on  5.10.1998
paid moneys to the crew and other charges to other  creditors  who  have  no
decree in their favour.  On  6.10.1998,  on  an  application  filed  by  the
Advocate Commissioner showing  the  disbursements,  the  Madras  High  Court
confirmed the disbursements and directed that the balance amount  be  placed
in a fixed deposit in view of the order of the Bombay High Court  which,  it
is specifically stated,  was  brought  to  its  notice  on  6.10.1998  only.
Learned counsel vehemently contended that the aforesaid  events  would  show
that even though the appellant was a decree holder  and  had  priority  over
all  other  creditors,  money  was  disbursed  without   there   being   any
adjudication of priority or dispute of  title  by  the  Madras  High  Court,
which disbursement could only have been done by Bombay High  Court.  Learned
counsel for the appellant also contended  that  Madras  High  Court  had  no
jurisdiction to deal with the moneys once the same were attached under  Rule
52 of Order 21 CPC.



20.   It is the case of the respondent that the appellant had  knowledge  of
the proceedings before the Madras High Court right from  its  inception  and
despite this, the appellant did not participate in any  of  the  proceedings
before the learned Single Judge and allowed orders to be  passed.   Division
Bench of the Madras High Court vide impugned judgment has, therefore,  given
liberty to the appellant to make its claims before the learned Single  Judge
under Order XLII Rule 11 of O.S. Rules of the Madras  High  Court.   It  has
been further contended that the appellant specifically stated  in  its  suit
filed before the Bombay High Court that the subject vessel is lying  in  the
port at Chennai and it is only to conveniently avoid the contest with  other
creditors who have all lodged their claims before the Madras High Court  the
suit was filed in Bombay.  Further, the  appellant  was  the  lone  claimant
before the Bombay High Court whereas all the other claimants  were  pursuing
their claims before the Madras High Court, which alone has  jurisdiction  to
decide on the rights of the parties and  the  inter  se  priorities  amongst
them.



21.     Admittedly  the  vessel  is  berthed  at  the  Madras  harbor   and,
therefore, the Madras High Court alone had  jurisdiction  to  entertain  any
claim against the subject vessel as per provisions of Section 3(15)  of  the
Merchant Shipping Act, 1958.   The arrest  of  vessel  by  the  Madras  High
Court being  the  first  arrest,  the  vessel  and  the  sale  proceeds  are
custodial legis of the said court and no proceedings in  Bombay  High  Court
can be maintained subsequently without leave of the Madras High  Court.   It
is also not in dispute that after the decree got transmitted to  the  Madras
High Court, appellant  had  again  moved  Bombay  High  Court  and  obtained
attachment order without notice to the creditors and  claimants  before  the
Madras High Court, which act  of  the  appellant  clearly  exposes  that  it
conveniently  wanted  to  avoid  any  contest  of   its   claim   by   other
creditors/claimants.



22.   We have gone through the relevant provisions of Order XLII  of  Madras
High Court Original Side Rules:  The said Rule reads as under:-

"Rule 3. In suits in rem a warrant for the arrest of  the   property   maybe
issued  at the instance either of the plaintiff or of the defendant  at  any
time after the suit has been instituted, but no warrant  of   arrest   shall
be issued  until  an  affidavit by the party or his agent  has  been  filed,
and the following provisions complied with:
A. The affidavit shall state the  name  and  description  of  the party   at
 whose instance the warrant is to be issued, the  nature  of  the  claim  or
counter-claim, the name and nature of the property to be arrested, and  that
the claim or counter-claim has not been satisfied.
B.  In a suit of wages or of  possession,  the  affidavit  shall  state  the
national character of the vessel  proceeded  against;  and  if   against   a
foreign  vessel,  that notice of the institution of the suit has been  given
to the consul of the State to which the vessel  belongs,  if  there  be  one
resident in Madras and a  copy  of  the  notice  shall  be  annexed  to  the
affidavit.
C.      In  a  suit  of  bottomry,  the  bottomry  bond  and  if  a  foreign
language also a notarial  translation  thereof,  shall   be   produced   for
the
inspection  and  perusal  of  the Registrar, and a copy of the bond,  or  of
the translation  thereof,  certified  to  be  correct   shall   be   annexed
to  the
affidavit.
D.      In  a  suit  of   distribution   of  salvage,  the  affidavit  shall
state the amount of salvage money awarded or agreed to  be   accepted,   and
the name and address and description of the party holding the same.

8.    In suits in rem, sevice of summons or warrant  against  ship,  freight
or cargo  on  board  is  to  effected by nailing or  affixing  the  original
writ or
warrant for a short time on the main mast or  on  the  single  mast  of  the
vessel and  by  taking off the process leaving a true copy of it  nailed  or
affixed in its place.

11.     In a suit in rem, any person not named in  the  writ  may  intervene
and appear  on  filing  an affidavit showing that he is  interested  in  the
property under arrest or in the fund in the Registry."


23.   Perusal of the aforesaid Rule  would  show  that  in  a  suit  in  rem
warrant of arrest of vessel is issued by  the  High  Court,  all  interested
persons shall have a right to intervene and lay their  claim  by  filing  an
affidavit showing that he is interested in the property under arrest.

24.   In the impugned judgment, Madras High Court has discussed  elaborately
the sequence  of  events  and  reasons  of  disallowing  the  claim  of  the
appellant.

25.   Indisputably in admiralty  proceedings,  where  several  persons  have
lodged their claim, even the attachment made by Bombay High Court has to  be
decided only if an application for  payment  of  attached  amount  is  made.
Admittedly the  appellant  without  approaching  the  admiralty  proceedings
sought a declaration that it is  not  entitled  to  priority.   Being  fully
aware of the development of the proceedings and suits  in  the  Madras  High
Court, the appellant did not  raise  any  objection.   In  the  result,  the
learned Single Judge  of  the  Madras  High  Court  after  hearing  all  the
parties, who had approached the Court, passed the order.  In our  considered
opinion, once the decree was transferred and transmitted by the Bombay  High
Court to the Madras High Court, the  appellant  could  not  have  moved  the
Bombay High Court and obtained an order without notice to the creditors  and
claimants.  We are further of the view that when the  property  was  in  the
custody of Madras High Court, being the  transferee  court  in  question  of
title of priority arisen between the person having decree in his favour  and
person not being the judgment debtor is to be determined by  the  transferee
court.  We are unable to accept the submission of the  learned  counsel  for
the appellant that after order of attachment under Order XX1  Rule  52  CPC,
the Registry of Madras High Court had to remit the  amount  to  Bombay  High
Court ignoring the pendency of proceedings in the Madras High Court.

26.   The decision in Shivshankar  Gurgar   vs.  Dilip,  (2014)  2  SCC  465
relied upon by Mrs. Menon, learned counsel appearing for the appellant,  for
the proposition that the executing court cannot go behind the decree is  not
at all applicable in the facts of the present case.  In the  said  decision,
while considering an order of modification of the compromise decree  by  the
executing court it was held that it will amount to  modification  of  decree
and, therefore, the same is without jurisdiction.  Similarly,  the  decision
in the case  of  Oil  and  Natural  Gas  Corporation  Limited   vs.   Modern
Construction and Company, (2014) 1 SCC 648, for the proposition that in  the
absence of any challenge to the decree the executing court cannot go  behind
the decree, will also be of no help to the appellant.

27.   Further Mrs. Menon relied upon a  decision  in  the  case  of  Shaukat
Hussain alias Ali Akram and Others vs. Smt. Bhuneshwari Devi (dead) by  Lrs.
and Others, (1972) 2 SCC 731 with regard to the power  of  the  court  which
passed the decree and the transferee court where the decree  is  transferred
will equally have no application in the present case where the  Madras  High
Court exercised admiralty jurisdiction.

28.   It is worth to mention here that the Bombay  High  Court  on  3.9.1999
gave liberty to the appellant to move the Madras High Court for  appropriate
order for disbursement of amount.  The Bombay Court  held  that  no  further
direction is required.  For better appreciation, the  order  dated  3.9.1999
in the admiralty suit filed by the appellant is quoted hereinbelow :-
"According to the office of the Prothonotary the position remains  the  same
as 31st august, 1999.  In other words, no communication  has  been  received
from the Madras High Court.  However, Ms. Sethna, learned counsel  appearing
for the plaintiff, has very fairly brought to the notice of  this  Court  an
order passed by the Madras High Court on 6th October, 1998.  After  noticing
the orders passed by this Court, the Madras High Court is directed that  the
amount of Rs.12,38,164/- should be  deposited  in  a  fixed  deposit  for  a
period of 46 days renewable periodically if necessary in  the  name  of  the
Registrar, High Court, Madras  to  the  credit  of  the  suit.   As  noticed
earlier, the plaintiff has already  filed  Appeal  No.175  of  1998  in  the
Madras High Court.  In view of the above the plaintiffs are  at  liberty  to
move the Madras High Court for appropriate orders for  disbursement  of  the
aforesaid amount on the basis of the decree passed by this Court.

In view of the above no further directions are required.

      ........"


29.   It has not been disputed by the appellant that the Bombay  High  Court
while passing the order of attachment was not aware about the fact that  the
vessel was seized by the Madras High Court much prior to the filing  of  the
suit by the appellant in Bombay High  Court.   The  Division  Bench  in  the
impugned order has  recorded  the  finding  that  Madras  High  Court  while
deciding the issues in the  suit  filed  under  admiralty  jurisdiction  had
considered the interest and also priorities  of  all  interveners  and  also
parties to the suit.  It was held that the  appellant  ought  to  have  made
claim under Order XLII Rule 11 of the OS Rules.  The Division Bench  rightly
held that no court is so prestige conscious that it will stand  in  the  way
of legitimate legal proceedings for redressal or relief sought  for  by  the
litigant.  The Court also  took  notice  of  the  fact  that  the  necessary
parties who had led their claims had not been impleaded by the appellant  in
the proceedings.

30.   In the facts and circumstances of the case and having  regard  to  the
law settled, so far the admiralty jurisdiction of the  Court  is  concerned,
we do not find any reason to  differ  with  the  findings  recorded  by  the
Division Bench of the High Court in the  impugned  order.   For  the  reason
aforesaid, we do not find any merit in this  appeal,  which  is  accordingly
dismissed, however with no order as to costs.


                                        ..................................J.
                                                                (M.Y. Eqbal)



                                        ..................................J.
(Shiva Kirti Singh)
New Delhi
February 17, 2015


ITEM NO.1A             COURT NO.11               SECTION XII

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Civil Appeal  No(s).  6156/2005

PETROMARINE PRODUCTS LTD.                      Appellant(s)

                                VERSUS

OCEAN MARINE SERVICES CO. LTD. & ANR           Respondent(s)

[HEARD BY HON'BLE M.Y.EQBAL AND HON'BLE SHIVA KIRTI SINGH, JJ.]

Date : 17/02/2015 This appeal was called on for judgment
 today.

For Appellant(s) Ms. Fereshte D. Sethna, Adv.
                       Mr. Kuber Dewan, Adv.
                       Ms. Akriti, Adv.
                    for Ms. B. Vijayalakshmi Menon,AOR

For Respondent(s)      Mr. P.B. Suresh, Adv.
                       for M/s. Temple Law Firm

                    Mr. Nikhil Nayyar,AOR

                    Mr. Subramonium Prasad,AOR


            Hon'ble Mr. Justice  M.Y.Eqbal pronounced the  judgment  of  the
Bench comprising His Lordship and Hon'ble Mr. Justice Shiva Kirti Singh.

            The appeal is dismissed in terms  of  the  Reportable  judgment,
which is placed on the file.


(Parveen Kr. Chawla)                    (Indu Pokhriyal)
    Court Master                               Court Master

Whether seasonal workers of the sugar factories stopped crushing years back would be entitled to retaining allowance

IN THE SUPREME COURT OF INDIA

                       CIVIL  APPELLATE  JURISDICTION


                     CIVIL APPEAL NOS. 3937-3938 OF 2011


Warsaliganj Sahkari Chini Mill Mazdoor Union ... Appellant (s)

                                   Versus

State of Bihar and others                          ... Respondent (s)


                                    WITH

                        CIVIL APPEAL NO. 4201 OF 2011

South Bihar Sugar Mills Workers Union
and others                                         ... Appellant (s)

                                   Versus

State of Bihar and others                          ... Respondent (s)


                               J U D G M E N T


KURIAN, J.:





     1. Whether seasonal workers of the sugar  factories  stopped  crushing
        years back would be entitled to retaining allowance, was  the  main
        issue agitated by the appellant-union before the High Court. It was
        held by the High Court that as there was no crushing in  the  sugar
        factories, the seasonal workers will not be entitled  to  retaining
        allowance. Aggrieved, the union has come up in appeal.

     2. At the  time  of  hearing  of  the  appeals,  taking  note  of  the
        intervening development of an Exit Settlement scheme/plan,  learned
        Senior Counsel Shri Amarendra Sharan submits that at least for  the
        purpose of working out  the  benefits  under  the  said  plan,  the
        retaining allowance may be directed to be taken into account.

     3. Heard the learned counsel appearing for the respondents also.

     4. It is seen from the additional affidavit dated 10.02.2015 that  the
        seasonal workers attached to the sugar factories  which  have  been
        closed down long back are actually made to retire only on attaining
        the age of 60 years. In one of the  communications,  it  is  stated
        that the company did not require their services after the age of 60
        years. Thus, in the case of those seasonal  workers  who  had  been
        working in those sugar factories referred to in the appeals, though
        not actually provided with work after the closure of the factories,
        they  have  been  retained  till   they   attained   the   age   of
        superannuation, apparently for some pensionery benefits which  they
        are otherwise eligible. That being the position, it is  only  just,
        fair and  reasonable  that  at  least,  notionally,  the  retaining
        allowance which would have been otherwise payable to them, had  the
        factories been functional, be taken into account for the purpose of
        calculating their pensionery benefits or  the  benefits  under  the
        Exit Settlement scheme/plan.

     5. Ordered accordingly.  In  order  to  avoid  any  confusion,  it  is
        clarified that the seasonal workers attached to the sugar factories
        referred to in the appeals will not be entitled  to  any  retaining
        allowance: however, the retaining allowance, which would have  been
        otherwise payable, will only be taken into account for the  purpose
        of calculating the benefits due  to  them  in  terms  of  the  Exit
        Settlement scheme/plan or pensionery  benefits.  Needful  shall  be
        done by the respondents within a period of  four  months  from  the
        date of receipt of copy of this order.

     6. Appeals are disposed of as above. There shall be  no  order  as  to
        costs.

                                                ..........................J.
                                                       (M.Y. EQBAL)


                                                ..........................J.
                                                       (KURIAN JOSEPH)
New Delhi;
February 16, 2015.
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                                                              NON-REPORTABLE

the respondent was, therefore, entitled to get the benefit of his services rendered from "03.01.1966" onwards as mentioned by him in the Form (Annexure- P-1) for assessing his pension, gratuity and other retiral benefits etc.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELALTE JURISDICTION

                       CIVIL APPEAL No. 1892   OF 2015
                   (ARISING OUT OF SLP(C) No. 21865/2014)

      State of Madhya Pradesh & Others           Appellant(s)


                 VERSUS


Hitkishore Goswami                                 Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1.          Leave granted.
2.           This  appeal  is  filed  by  the  State  of  M.P.  against  the
judgment/order dated 09.10.2013 passed by the High Court  of  M.P.  in  W.A.
No.478 of 2013 which arise out of judgment/order dated 05.07.2013 passed  by
the Writ Court in W.P. No.1475/2009 (S).
3.          By impugned judgment, the  Division  Bench  of  the  High  Court
dismissed the appeal filed by the State (appellant herein)  and  upheld  the
order  of  the  Writ  Court  (learned  Single  Judge)   which  allowed   the
respondent's writ petition by issuing directions in the nature  of  mandamus
against the appellant (State) in relation to respondent's pension case.
4.          The question, which arises for consideration in this  appeal  is
whether the Courts below were justified in allowing  the  respondent's  writ
petition and in consequence  justified in issuing directions in  the  nature
of writ of mandamus in relation to respondent's pension case.
5.          Facts of the case lie in a narrow compass. They,  however,  need
mention, which are taken from the list of dates and  the  pleadings  of  the
parties infra.
6.          The respondent was appointed as Lecturer (Botany) on  02.07.1963
in the School Education Department of the  State.   He  was  posted  in  the
Government Higher Secondary School  at  Kannod,  District  Dewas  and  later
transferred to another Government Higher Secondary School at Agar (Malba).
7.          In the year  1965,  the  respondent  applied  for  the  post  of
Lecturer in the Government Degree  College,  Narsinghgarh  pursuant  to  the
advertisement issued by  the  M.P.  Public  Service  Commission  (for  short
MPSC). The respondent  was  selected  for  the  said  post.  He,  therefore,
tendered his resignation in December, 1965 from the  post  of  lecturer   to
enable him to  join  the  new  service.  The  respondent's  resignation  was
accepted.
8.          The respondent, accordingly, on 03.01.1966 joined  on  the  post
of Lecturer in the Government Degree College, Narsinghgarh and  worked  till
30.04.1976. He was then  sent  on  deputation  as  Reader  on  selection  at
Barkatulla University, Bhopal. The respondent continued to work  there  when
his services were  absorbed  permanently  on  29.08.1979  with  effect  from
01.05.1978.  The  respondent  attained  the  age  of  superannuation    and,
accordingly, retired from the services on 31.5.2004.
9.          The respondent  then  applied  for  assessing  his  pension  and
payment of gratuity (annexure-P-1) to the concerned authorities.  In  Column
No. 7 of the Form, he  mentioned the date of beginning  of  his  service  as
"3rd January 1966".  However, later, the respondent  joined  an  issue  with
the State that while calculating his pensionery benefits,  the  past  period
of his services, which he rendered as lecturer in  the   government  schools
from "02.07.1963 to 02.01.1966", should also be counted. The State  did  not
accept the prayer made by the respondent.
10.         This gave rise to filing of the writ petition by the  respondent
against the State for determination of the question as  to  whether  he  was
entitled to take benefit of his past services from 02.07.1963 to  02.01.1966
so as to include the said  period  in  his  total  length  of  services  for
counting  qualifying services to fix his pension and other retiral  benefits
payable to him.
11.         The State  contested  the  respondent's  writ  petition  on  two
grounds. In the first place it was contended that  the  claim  made  by  the
respondent is inordinately delayed and hence the writ  petition  was  liable
to be dismissed on the ground of delay and laches.  The  second  ground  was
that since the respondent had voluntarily resigned from earlier services  to
enable him to join the new post of  Lectureship  in  the  Government  Degree
College and his resignation having been  accepted by the State, he  was  not
entitled to claim  any  benefit  of   earlier  services   for  counting  his
qualifying services  for fixing his pension and  payment  of  other  retiral
benefits.
12.         The Writ Court, by order dated 05.07.2013, did  not  accept  the
grounds taken by  the  State  and,  while  allowing  the  respondent's  writ
petition, issued the following directions against the State:
"(i)  The respondents shall count the services rendered  by  the  petitioner
from July 1963 to 3.1.1966  for  the  purpose  of  qualifying  services  for
counting pension, gratuity and other retrial dues.

(ii)   While  refixing  and  revising  the  pension  and  retrial  dues  the
respondents shall consider whether petitioner is entitled  for  any  benefit
as  per  the  circulars  issued  by  the  State  Government,  Annexure  P-12
(cumulative).

(iii)       The aforesaid exercise be positively completed  within  60  days
and revised pension and consequential benefits arising there to be  paid  to
the petitioner within the aforesaid time.  If it  is  not  done  within  the
aforesaid period, it  will  carry  6%  interest  till  the  date  of  actual
payment."

13.         The State felt aggrieved filed intra court appeal.  By  impugned
order, the Division Bench dismissed the appeal  and  upheld  the  directions
issued by the  Writ  Court.  It  is  against  this  order;  the  State  felt
aggrieved and has filed this  appeal, by special leave.
14.         Learned Counsel for the appellant (State)  while  assailing  the
legality and correctness of the impugned order reiterated the  same  grounds
as were urged before the courts below and made two-fold submissions. In  the
first place, he contended that the courts below erred  in  entertaining  and
eventually allowing the respondent's writ petition by issuing  the  impugned
directions. It was his  submission  that  once  the  respondent  voluntarily
tendered his resignation from his earlier service, which on its  acceptance,
enabled him to join the new service as Lecturer  in  the  Government  Degree
College, the period spent in  past services  was  not  available  for  being
counted nor it could be a part of the qualifying service  while  fixing  his
pension. In other words, the submission was that acceptance of  respondent's
resignation by the State (competent authority) resulted in severance of  his
relationship with the State so far  as  that  particular  service/employment
was concerned because it brought to an end the said services/employment  for
all purposes.  It was for this reason the  learned  counsel  for  the  State
urged that the period spent in  such  services  was  not  available  to  the
respondent while counting the qualifying service  for  fixing  his  pension.
This submission urged by the learned counsel was not  decided  by  the  High
Court in its proper perspective. His second submission  was  that  when  the
respondent himself  mentioned in his Pension Form  (Annexure-P-1)  that  his
date  of  beginning  in  the  service  for   assessing   the   pension   was
"03.01.1966", then in such circumstances he had no right to turn around  and
request the State to count his services rendered  prior to 03.01.1966.
15.         In contra, learned counsel  for  the  respondent  supported  the
impugned order and contended that no case is made out to interfere with  the
impugned order and hence, the  same  should  be  upheld  by  dismissing  the
appeal.
16.         Having heard the learned counsel for the parties and on  perusal
of the record of the case, we find force in the submissions of  the  learned
counsel for the State.
17.         In our considered opinion, the respondent was  not  entitled  to
claim the benefit of his  past services which he rendered  from  "02.07.1963
to 02.01.1966" as Lecturer in the Government Schools while  determining  his
qualifying service for fixing his pension etc.
18.         It  was  for  the  reason  that  respondent  having  voluntarily
tendered his resignation from the  said  service  without  there  being  any
condition much less a condition to enable him  to  claim  any  kind  of  its
benefit in the event of his  joining  other  services  with  the  State,  no
benefit of such past services was available to the respondent.
19.          In  our  considered  opinion,  the  effect  of  tendering   the
resignation by the  respondent  -  may  be  for  any  reason  was  that  the
relationship between the parties insofar as that particular  employment  was
concerned got severed for all purposes  leaving  no  benefit  to  remain  in
respondent's favour. It  had  no  connection  with  respondent's  subsequent
employment  which began from "03.01.1966".
20.         Indeed,  in  order  to  claim  continuity  in  the  service  for
claiming any benefit arising therefrom, it was necessary for the  respondent
to have shown any specific rule or condition recognizing such right  in  his
favour. The respondent, however, was not able to show any such  rule  or/and
condition in his favour.
21.         It is a trite law that a right to claim pension  is governed  by
the statue.  An employee has, therefore, no right to claim  any  benefit  in
relation to pension dehores the statute.
22.         Learned counsel for the respondent,  however,  vehemently  urged
that keeping in view the respondent's unblemished service  record  with  the
State, it can safely be taken that there was no break in the service,  which
entitled the respondent to claim benefits flowing from his past and  present
services including its continuity qua State.
23.         We find no merit in this submission in the light of our  finding
recorded in the preceding paragraph.
24.         In the light of foregoing discussion, we are of  the  considered
opinion that the courts below erred in directing the State to  give  benefit
to the respondent of his services which he had rendered from "02.07.1963  to
02.01.1966" for fixing his pension without properly examining the effect  of
his tendering resignation on the issue raised in the writ petition.
25.         In our opinion, the respondent was, therefore, entitled  to  get
the  benefit  of  his  services  rendered   from  "03.01.1966"  onwards   as
mentioned by him in the Form (Annexure- P-1)   for  assessing  his  pension,
gratuity  and other retiral benefits etc.
26.         Since we have   dismissed  the  respondent's  writ  petition  on
merits hence, it  is  not  necessary  to  deal  with  another   question  in
relation to  delay and laches in filing the  writ  petition  raised  by  the
appellant (State) which was decided by  the  courts  below  in  respondent's
favour.  In any event, we are inclined  to  uphold  the  finding  of  courts
below on this issue and,  accordingly,  hold  that  writ  petition  was  not
liable for dismissal  on the ground of delay  and  laches  on  the  part  of
respondent.
27.         In view of foregoing discussion, we allow the appeal, set  aside
the impugned judgment  and  orders  and  in  consequence  dismiss  the  writ
petition filed by the respondent.
28.         We direct the appellant (State) to  finalize the  claim  of  the
respondent for fixing his pension and other retiral benefits  in  the  light
of what is held above, as per rules, and pay  the  same  to  the  respondent
within three months from the date of this judgment.  No costs.



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



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


      New Delhi;
      February 16, 2015.

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