We give one more opportunity to the respondents to comply with the judgments and orders in toto for the regularization of the services of the complainants from the year 1981. The same cannot be treated as a fresh direction issued in the contempt petitions to the respondents as we have indicated the purport of the operative portion of the judgments and orders of the High Court as well as this Court. The respondents shall comply with the order as indicated above and submit their compliance report within four weeks from today, in terms of the signed Non-Reportable Judgment.

                               NON REPORTABLE



                        IN THE SUPREME COURT OF INDIA
                         CIVIL APPELLATE JURISDICTION

                    CONTEMPT PETITION (C) No. 421 of 2014

                                     In

                        CIVIL APPEAL NO. 4831 OF 2014


GAURI SHANKAR PD. RAI                 .........PETITIONER

                                     Vs.


SAJAL CHAKROBORTY, CHIEF SECRETARY,
GOVT.OF JHARKHAND AND ORS.             ......RESPONDENTS



                     WITH

            CONTEMPT PETITION(C)No.428/2014 in C.A. No.4815/2014
            CONTEMPT PETITION(C)No.431/2014 in C.A. No.4823/2014
            CONTEMPT PETITION(C)No.427/2014 in C.A. No.4836/2014
            CONTEMPT PETITION(C)No.424/2014 in C.A. No.4824/2014
            CONTEMPT PETITION(C)No.432/2014 in C.A. No.4828/2014
            CONTEMPT PETITION(C)No.423/2014 in C.A. No.4822/2014
            CONTEMPT PETITION(C)No.425/2014 in C.A. No.4821/2014
            CONTEMPT PETITION(C)No.433/2014 in C.A. No.4820/2014
            CONTEMPT PETITION(C)No.426/2014 in C.A. No.4817/2014
            CONTEMPT PETITION(C)No.430/2014 in C.A. No.4819/2014
            CONTEMPT PETITION(C)No.422/2014 in C.A. No.4832/2014
            CONTEMPT PETITION(C)No.429/2014 in C.A. No.4830/2014
            CONTEMPT PETITION(C)No.502/2014 in C.A. No.4829/2014
            CONTEMPT PETITION(C)No.501/2014 in C.A. No.4818/2014
            CONTEMPT PETITION(C)No.503/2014 in C.A. No.4812/2014
            CONTEMPT PETITION(C)No.350/2014 in C.A. No.4809/2014
            CONTEMPT PETITION(C)No.547/2014 in C.A. No.4810/2014




                                  O R D E R



V.GOPALA GOWDA, J.

       The  above  said  group  of  contempt  petitions  are  filed  by  the
complainant-petitioners requesting  this  Court  to  initiate  the  contempt
proceedings against the respondents for their alleged  disobedience  in  not
complying with the direction issued by this  Court  in  the  judgment  dated
23.04.2014 passed in Civil Appeal No.4809 of 2014 along with other batch  of
Civil Appeals, the operative portion  of  the  order  passed  in  the  above
Appeals reads thus:
"...We accordingly direct the appellants to  implement  the  orders  of  the
Division Bench of the High  Court  thereby  continuing  the  respondents  in
their services and extend all benefits as have been granted  by  it  in  the
impugned judgment."

 Contempt Petition No. 350 of 2014 in C.A. No. 4809 of 2014 was first  taken
up  on  11.8.2014,  when  this  Court  ordered  the  issuance   of   notice.
Subsequently, the other connected contempt petitions were also listed  along
with the main contempt petition No.421 of 2014 in C.A.  No.  4831  of  2014.
The respondents appeared through their counsel who  sought  time  to  comply
with the order and filed their counter affidavit.
Vide letter No. R.C. D-01-CC-12/2011/7030(S), the Government  of  Jharkhand,
Road Construction Department, issued a Notification dated 15.09.2014 to  one
of the complainants, the relevant portion of which reads thus:
"In compliance of the order dated 23.04.2014 of the  Hon'ble  Supreme  Court
in Civil Appeal No. 4809 of  2014  @  SLP  (C)No.  266  of  2012,  State  of
Jharkhand & Ors. Vs. Kamal Prasad & Ors., the cabinet's  sanction  has  been
obtained in the meeting dated 11.09.2014 and   vide departmental  resolution
No. 6977  (S)  WE,  dated  15.09.2014,  services  of  Shri  Paras  Kumar  as
Assistant Engineer on ad-hoc basis, are hereby regularised from his date  of
joining i.e. 27.06.1987.
                                           By order of Governor of Jharkhand
                                                                        Sd/-
                                       Principal Secretary to the Government
                                                                  15.09.2014

      Similar notifications were also issued to all the other complainants.
 The complainants, on being aggrieved  by  the  partial  compliance  of  the
judgment and order of this Court dated 23.4.2014, have filed these  contempt
petitions and produced the Notifications sent by the respondents along  with
the affidavits. Mr. J.P. Cama, the learned senior counsel on behalf  of  the
complainants, has submitted that the respondents  have  not  fully  complied
with the judgment and order of this Court dated  23.04.2014  and  therefore,
they have wilfully disobeyed the order, which warrants  further  proceedings
against them. We have heard him as well as Mr.P.P. Rao, the  learned  senior
counsel appearing on behalf of the respondents.
The learned senior counsel on behalf of the  complainants  has  invited  our
attention to  the  averments  made  in  the  writ  petitions  filed  by  the
complainants before the High Court of Jharkhand along with the  prayer  made
by them under clause 'C' of the writ petition No. 2087 of 2010, wherein  the
complainants have prayed before the High Court  for  the  regularisation  of
their services on  the  said  posts  in  terms  with  the  conscious  policy
decision taken by the Notification No.  10113(s)  dated  11.09.2009  by  the
Cadre Controlling State of Bihar. The contents of the same read thus:
"(C)  Further for direction upon the respondents to  treat  the  petitioners
equally to that of similarly situated 120 persons appointed along  with  the
petitioners who fortuously remained working in the  territory  of  successor
State  of  Bihar  w.e.f.  15.11.2000  and  are  still  working  without  any
disturbance and accordingly to consider the petitioners  for  regularization
along with them in terms with  the  conscious  policy  decision  taken  vide
notification no. 10113 (s) dated 11.09.2009 by the Cadre  Controlling  State
of Bihar and in pursuance thereof, the petitioners  have  also  applied  for
the same and which is in active considerations."

He has further placed strong reliance upon the judgment  and  order  of  the
learned single Judge as well as the Division Bench  of  the  High  Court  in
support of his contention that the regularisation of  the  services  of  the
complainants was sought even in relation to the posts  of  Junior  Engineers
and averments have been made to that effect in the writ  petitions.  He  has
further adverted to the Division Bench judgment of the  High  Court  wherein
it is stated that the complainants have rendered 30 years  of  service  both
in the State Government of Bihar and Jharkhand. The learned  senior  counsel
has placed reliance upon certain paragraphs  from  the  aforesaid  judgment,
which read thus:
"25...............These persons continued in service for almost 30 years  by
the State Government (Bihar and Jharkhand both) not  under  any  stay  order
passed by any Court and these employees, after 30  years  of  their  service
how can be rendered jobless when not only  their  life  but  life  of  their
entire family is dependent  upon  this  job.  It  is  submitted  that  these
employees should compete with other eligible persons and  may  get  the  job
and in some of the cases Courts directed and the State  Governments  relaxed
the age."

                                 x x x x x x


29............At the cost of the repetition we may  mention  here  that  the
writ petitioners' eligibility at the time of appointment is not in  question
nor the conduct of these writ petitioners was questioned for  more  than  25
years by the State  Government  then  simply  because  that  there  is  some
indication in the order that competent authorities may  pass  any  order  in
relation to the services of  the  writ  petitioners,  the  State  Government
proceeded  to  issue  show-cause  notice  and  then  passed   the   order of
termination of services of these employees, which cannot be justified.


30. The contention of the  learned  Advocate  General  that  the  show-cause
notice is not without jurisdiction or it is  not  passed  by  the  authority
having no power are absolutely misplaced arguments in as much  as  that  the
State wanted to take a decision to dispense with the services  of  the  writ
petitioners then the State should have applied  its  mind  and  should  have
looked into all aspects including  why  their  services  are  sought  to  be
terminated/dispensed with after 30 years of their services from the time  of
their appointment on the post of Junior Engineers  and  why  their  services
cannot be regularized and who has created this irrevertible situation?"

He has further contended that with  regard  to  certain  factual  and  legal
aspects urged, the Division Bench of the  High  Court  at  para  33  of  its
judgment has passed the following order:
"33. In view of  the  reasons  mentioned  above,  the  LPA  is  allowed  and
impugned order dated 25.07.2011 is set aside. Interlocutory Application  No.
3223/2011 is allowed and the order of termination of services  of  the  writ
petitioners and the show-cause notice are quashed and the petitioners  shall
be entitled to all the consequential benefits also."

 The same was sought to be justified by the complainants' senior counsel  in
the Civil Appeal No.4809 of 2014, which relevant aspects have been  referred
to in the judgment dated 23.04.2014 passed by this Court at paras 4  and  6,
which read thus:.
"4. The respondent-employees (the writ petitioners before the  High  Court),
were initially appointed in the year 1981 in the posts of  Junior  Engineers
in the Rural Development Department in  the  erstwhile  State  of  Bihar  in
respect of which the recommendation of the Bihar Public  Service  Commission
(for short "the BPSC") was not required. It is the case  of  the  respondent
employees that they have continuously discharged their duties in  the  above
posts honestly and diligently to the satisfaction of  their  employer.  They
were  subsequently  appointed  on  ad-hoc  temporary  basis   as   Assistant
Engineers in the  pay-scales  of  Rs.  1000-50-1700/-  P.Ro-10-1820/-,  with
certain conditions on the basis of recommendation made by the  BPSC  against
temporary posts from the date of notification. Their services  as  Assistant
Engineers on ad-hoc basis were entrusted to work in  the  Road  Construction
Department where they were required to  contribute  their  work  within  the
stipulated period. The relevant condition No. 2  in  the  said  notification
No. Work/G/1-402/87,248/(S) Patna dated 27.6.1987 is extracted hereunder:-
   "1. XXX XXX XXX
         2. This ad-hoc appointment shall be
       dependent on approval of Bihar Public
       Service Commission.
    3. XXX XXX XXX ......"
      It is their further case that they  have  been  working  in  the  said
posts for more than 29 years from the date of first  appointment  as  Junior
Engineers and 23 years from  the  appointment  in  the  posts  of  Assistant
Engineers on ad-hoc basis. Neither the BPSC nor Bihar State  Government  nor
Jharkhand State Government had intention to dispense with  the  services  of
these employees. Therefore, they did not take steps to dispense  with  their
services from their posts. The employees  approached  the  High  Court  when
they were issued the show cause notices dated  20.4.2010  by  the  appellant
No.3. After taking substantial work from the respondent-employees they  have
been harassed by issuing show cause notices asking them to show cause as  to
why their  services  should  not  be  terminated  on  the  ground  of  their
appointment to  the  posts  as  illegal/invalid.  Their  appointments  were,
however, not held to be invalid either by the orders of the  High  Court  or
Supreme  Court  in  spite  of  the  fact  that  199  posts  filled   up   by
advertisement No.128/1996 issued by the BPSC  dated  2.9.1996  as  the  same
would not  affect  the  respondent-employees  who  otherwise  have  been  in
continuous service for more than 23 years in the substantial posts  of  Road
Construction  Department  and   not   of   Rural   Engineering/Rural   Works
Department. Therefore, it was pleaded by  them  that  the  impugned  notices
issued to them was an empty formality with  preconceived  decision  and  the
same is also not only  discriminatory  but  also  suffers  from  legal  mala
fides, arbitrariness, unreasonableness and is in utter transgression of  the
interim order dated 22.3.2010 passed in W.P. (S) No. 1001 of 2010  amounting
to overreaching the majesty of the High Court.
6. Further, direction was sought by the respondent employees from  the  High
Court in the Writ Petitions to treat them  equally  at  par  with  similarly
situated 120 persons appointed along with  them  who  fortuitously  remained
working in the territory of successor  State  of  Bihar  namely,  after  the
Jharkhand State was formed w.e.f. 15.11.2000  without  any  disturbance  and
consider their claim for regularization along with them in  terms  with  the
conscious Policy decision taken by it vide notification No.  10113(s)  dated
11.09.2009 by the Cadre Controlling State of Bihar and in pursuance  thereof
the respondent-employees have also applied for the  same  and  which  is  in
active consideration of the State of Jharkhand and further they  sought  for
issuance  of  a  writ  of  prohibition  restraining  the   appellants   from
termination of their services from their posts in pursuance of the  impugned
show cause notices as they had seriously apprehended in the  light  of  pre-
decisive and prejudicial findings  and  reasons  recorded  in  the  impugned
notices in the garb of order dated 22.3.2010 passed in W.P.(S) No.  1001  of
2010, that their services might be terminated.  However,  the  fact  remains
that they are discharging their regular service to the appellants  (although
their posts are termed as ad-hoc in nomenclature) for  more  than  29  years
from the initial appointment as Junior Engineers since the year  1981  after
following due procedure of Advertisement etc. and their services  have  been
upgraded to the posts of Assistant Engineer  again  on  temporary  basis  in
1987  pursuant  to  Cabinet  decision  of  the  erstwhile  State  of   Bihar
Government  with  the  permission  of  BPSC   who   had   recognized   their
qualification of degree and experience. Therefore, their appointment to  the
posts is legal and valid from their date  of  inception  of  their  original
appointment as Junior Engineers in the erstwhile State Government  of  Bihar
stating that the appellants have been discharging their regular services  in
the respondent State although they  treated them as ad hoc  regular  service
in the respondent state their posts are termed as  ad  hoc  in  nomenclature
for more than 29 years from the  initial  appointment  as  Junior  Engineers
since the year 1981 and after following the procedure of advertisement  etc.
and their services have been upgraded to the posts  of  Assistant  Engineers
(Civil) again on temporary basis in 1987 pursuant to  the  Cabinet  decision
of the erstwhile  Bihar  Government  the  Bihar  Public  Service  Commission
(BPSC) which recognised their qualification of their experience........."

After noting the aforesaid relevant facts, as has been  urged  in  the  writ
petition proceedings and civil appeals before this  Court,  this  Court  has
passed the judgment and order dated 23.04.2014,  the  operative  portion  of
which is extracted above, in which the relief as prayed by the  complainants
was granted accordingly by this Court.
  Therefore, the learned senior counsel for the complainants  has  submitted
that the purport of the judgments and orders of  the  High  Court  and  this
Court are that the complainants are entitled  for  regularisation  in  their
posts from 1981, i.e. from the date  they  have  been  appointed  as  Junior
Engineers in the Department of the State Government  of  Jharkhand  and  the
said posts of the complainants have been upgraded to Assistant Engineers  by
giving them promotion, pursuant to the Cabinet decision.
  Therefore, he has prayed that they  are  entitled  for  regularisation  in
their posts from 1981, i.e. from the year they were initially  appointed  to
the said posts and not from 1987  as  has  been  notified  to  them  by  the
respondents in the above mentioned Notification as the same does not  amount
to full compliance of this Court's direction  issued  in  the  judgment  and
order  as  has  been  submitted  by  the  learned  senior  counsel  for  the
complainants.  Therefore,  he  has  urged  that  there  has  not  been  full
compliance of the operative portion  of  the  judgment  and  order  of  this
Court.
  On the other hand, Mr. P.P.  Rao,  the  learned  senior  counsel  for  the
respondents  has  sought  to  justify  the  compliance  affidavit  and   the
Notifications produced along with  the  affidavit  by  contending  that  the
direction given by the High Court and this Court in  the  operative  portion
of the orders is that regularisation of the complainants'  services  in  the
posts of Assistant Engineers must be done by the respondents  and  the  same
has been complied with by them. He  has  further  contended  that  there  is
neither any specific prayer nor any direction in the judgment of the  single
Judge or the Division Bench of the High Court directing the  respondents  to
regularise their services to the posts of Junior  Engineers  from  the  year
1981. In the absence of the same, it cannot be said that there is  a  wilful
disobedience on  the  part  of  the  respondents  on  which  these  contempt
proceedings could be initiated against them. In support of  this  contention
he has placed strong reliance upon the  judgments  of  this  Court,  wherein
this Court has laid down the  law  that  the  contempt  proceedings  can  be
maintained and proceedings can be initiated against the respondents  by  the
complainants only when there is a wilful disobedience of the  judgement  and
order by them. In support of the  above  legal  submissions  he  has  placed
reliance upon the decision of this Court in  the  case  of  All  India  Anna
Dravida Munnetra Kazhagam vs. L.K. Tripathi and Ors.[1], wherein this  Court
has held thus:

"64. In  Kapildeo Prasad Sah and Ors. v.  State of Bihar and  Ors. :  (1999)
7 SC 569, the Court outlined the object of its contempt jurisdiction in  the
following words:


"9. For holding the respondents to have committed contempt,  civil  contempt
at that, it has to be shown that there has been wilful disobedience  of  the
judgment or order of the court. Power  to  punish  for  contempt  is  to  be
resorted to when there is  clear  violation  of  the  court's  order.  Since
notice  of  contempt  and  punishment  for  contempt  is   of   far-reaching
consequence, these powers should be  invoked  only  when  a  clear  case  of
wilful disobedience  of  the  court's  order  has  been  made  out.  Whether
disobedience is wilful in  a  particular  case  depends  on  the  facts  and
circumstances of that case. Judicial orders are to  be  properly  understood
and  complied  with.  Even  negligence  and  carelessness  can   amount   to
disobedience particularly when the attention of the person is drawn  to  the
court's orders and its  implications.  Disobedience  of  the  court's  order
strikes at the very root  of  the  rule  of  law  on  which  our  system  of
governance is based. Power to punish  for  contempt  is  necessary  for  the
maintenance  of  effective  legal  system.  It  is  exercised   to   prevent
perversion of the course of justice.


x                 x               x


11. No person can  defy  the  court's  order. Wilful  would  exclude  casual
accidental, bona fide or unintentional acts or genuine inability  to  comply
with the terms of the order.  A  petitioner  who  complains  breach  of  the
court's order must allege deliberate or  contumacious  disobedience  of  the
court's order.""




   In  the  present  cases,  the  regularisation  of  the  services  of  the
complainants has been made from the respective dates i.e, from the  date  on
which they were appointed to the post of Assistant Engineers from the  posts
Junior Engineers, in the absence of  any  specific  plea  or  any  direction
given in the impugned order  by  both  the  Courts  to  the  respondents  to
regularise the services of the complainants w.e.f.  1981  in  the  posts  of
junior Engineers.  Therefore,  it  cannot  be  said  that  it  is  a  wilful
disobedience of the judgment and order on the part of  the  respondents  and
that they have committed contempt of  this  Court.  Therefore,  the  learned
senior counsel for the respondents has requested  this  Court  to  drop  the
said proceedings.
   He further contends that if they are aggrieved by the  non-grant  of  the
regularisation of the services of the complainants to the said posts  w.e.f.
1981, they  are  required  to  initiate  appropriate  proceedings  before  a
competent Court of law and get such directions  issued  to  the  respondents
and therefore he has  prayed  to  drop  the  proceedings  by  accepting  the
compliance affidavit.
  We have heard the learned senior counsel on behalf of  both  the  parties.
With reference to the aforesaid rival  legal  contentions  urged  and  after
careful consideration of the averments made along with the  prayer  made  in
the writ petitions and on a perusal of the judgments and orders of both  the
High Court and this Court, we pass the following order:
      Our attention has been rightly invited by the learned  senior  counsel
for the complainants, Mr.J.P. Cama, to  the  pleadings  and  the  prayer  at
clause 'C' of the writ petition  before  the  High  Court  as  well  as  the
operative portion of the orders passed by the Division  Bench  of  the  High
Court dated 8.11.2011 and this Court dated 23.04.2014. We have  adverted  to
certain facts at paras 4 and 6 of the  judgment  dated  23.04.2014  of  this
Court with reference to the claim of the contempt  petitioners.  Though  the
complainants were initially appointed  to  the  services  in  the  erstwhile
State of Bihar, subsequently on  the  bifurcation  of  Bihar  and  Jharkhand
States, the services of these complainants  have  been  transferred  to  the
State of Jharkhand and they have been functioning as such in  the  posts  of
Assistant  Engineers.  Therefore,  the  contention  of  the  learned  senior
counsel, Mr. P.P. Rao, that the notification issued by the  erstwhile  Bihar
State cannot be applied to the complainants who have  been  transferred  and
fall under the jurisdiction of the Jharkhand State is  wholly  untenable  in
law for the  reason  that  prior  to  their  appointment  to  the  posts  of
Assistant Engineers in the State of Jharkhand, they  have  been  discharging
their duties similar to that of permanent Junior  Engineers  from  the  year
1981 in the erstwhile State of Bihar and therefore, treating their  services
as ad hoc, after promoting them to the said posts  of  Assistant  Engineers,
without giving them pay scale payable to the said  permanent  posts  in  the
State of  Jharkhand  is  erroneous  and  contrary  to  law.  Therefore,  the
contention urged in this regard by Mr. P.P. Rao cannot be accepted by us.
  The learned senior counsel on behalf  of  the  respondents  has  contended
that there are neither any pleadings nor any specific  prayer  in  the  writ
petitions filed by the complainants nor any specific directions  were  given
in the judgments and orders of both the High Court as well as this Court  to
the respondents to regularize the services of the complainants  with  effect
from 1981. The said contention cannot be accepted  by  this  Court  for  the
reason that it is contrary to the record and therefore, the same  is  wholly
untenable in law. The purport of the judgments and orders of the High  Court
as well as this Court makes  it  amply  clear  that  the  respondents  shall
regularize the services of the complainants with effect  from  1981  in  the
posts of Junior Engineers also.
  However, in our considered view, the reliance placed  upon  the  judgments
and orders of  the  High  Court  as  well  as  this  Court  do  support  the
contention  of  the  complainants  for  the  reason  that  there  is  wilful
disobedience  on  the  part  of  the  respondents  as  they  have  partially
fulfilled the direction given by this Court as well as the High  Court  with
regard to the regularization of the services of the  complainants  from  the
year 1987.
  However, further direction is issued to the respondents to regularise  the
services of the complainants from the date of their initial  appointment  as
Junior Engineers i.e. from the year 1981. Not complying with the  directions
issued by  this  Court  from  the  above  mentioned  year  would  amount  to
deprivation of the legitimate rights of the complainants  as  determined  by
the High Court and this Court in the judgments and orders.
   After taking the entire litigation, pleadings, documents  on  record  and
the  rival  legal  contentions  urged  on  behalf  of   the   parties   into
consideration, we direct the respondents  to  comply  with  the  above  said
direction after properly understanding the  purport  of  the  judgments  and
orders of the High Court as well as this Court.
    For  the  aforesaid  reasons,  we  give  one  more  opportunity  to  the
respondents to comply  with  the  judgments  and  orders  in  toto  for  the
regularization of the services of the complainants from the year 1981.   The
same cannot  be  treated  as  a  fresh  direction  issued  in  the  contempt
petitions to the respondents  as  we  have  indicated  the  purport  of  the
operative portion of the judgments and orders of the High Court as  well  as
this Court. The respondents shall comply with the order as  indicated  above
and submit their compliance report within four weeks from today.



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



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


New Delhi,
April 9, 2015

ITEM NO.1A-For JUDGMENT     COURT NO.11               SECTION XVII

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

CONMT.PET.(C) No. 421/2014 In C.A. No. 4831/2014

GAURI SHANKAR PD RAI                              Petitioner(s)

                                VERSUS

SAJAL CHAKROBORTY CHIEF SECRETARY,
GOVT. OF JHARKHAND AND ORS                     Respondent(s)

WITH
CONMT.PET.(C) No. 428/2014 In C.A. No. 4815/2014

 CONMT.PET.(C) No. 431/2014 In C.A. No. 4823/2014

 CONMT.PET.(C) No. 427/2014 In C.A. No. 4836/2014

 CONMT.PET.(C) No. 424/2014 In C.A. No. 4824/2014

 CONMT.PET.(C) No. 432/2014 In C.A. No. 4828/2014

 CONMT.PET.(C) No. 423/2014 In C.A. No. 4822/2014

 CONMT.PET.(C) No. 425/2014 In C.A. No. 4821/2014

 CONMT.PET.(C) No. 433/2014 In C.A. No. 4820/2014

 CONMT.PET.(C) No. 426/2014 In C.A. No. 4817/2014

 CONMT.PET.(C) No. 430/2014 In C.A. No. 4819/2014

 CONMT.PET.(C) No. 422/2014 In C.A. No. 4832/2014

 CONMT.PET.(C) No. 429/2014 In C.A. No. 4830/2014

 CONMT.PET.(C) No. 502/2014 In C.A. No. 4829/2014

 CONMT.PET.(C) No. 501/2014 In C.A. No. 4818/2014

 CONMT.PET.(C) No. 503/2014 In C.A. No. 4812/2014

 CONMT.PET.(C) No. 350/2014 IN C.A. No. 4809/2014

 CONMT.PET.(C) No. 547/2014 In C.A. No. 4810/2014

Date : 09/04/2015 These petitions were called on for pronouncement of
JUDGMENT today.

For Petitioner(s)
                     Mr. Mohit Kumar Shah,Adv.

                     Mr. Akhilesh Kumar Pandey,Adv.

For Respondent(s)
                     Mr. Tapesh Kumar Singh,Adv.
                     Mr. Jayesh Gaurav, Adv.
                        Md. Waquas, Adv.


            Hon'ble Mr. Justice V.Gopala Gowda pronounced  the  judgment  of
the Bench comprising His Lordship and Hon'ble Mr. Justice C.Nagappan.
            We give one more opportunity to the respondents to  comply  with
the judgments and orders in toto for the regularization of the  services  of
the complainants from the year 1981.  The same cannot be treated as a  fresh
direction issued in the contempt petitions to the  respondents  as  we  have
indicated the purport of the operative portion of the judgments  and  orders
of the High Court as well as this Court. The respondents shall  comply  with
the order as indicated above and submit their compliance report within  four
weeks from today, in terms of the signed Non-Reportable Judgment.

            List the matters after four weeks.

    (VINOD KR.JHA)                              (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
            (Signed Non-Reportable Judgment is placed on the file)

-----------------------
[1]    (2009) 5 SCC 417

Section 69 of the Sales Tax Act, 1969 = the appellant's works contract for fabrication and installation of water chilling plant at the factory of Anupam Colours and Chemicals at Vapi would fall under Entry 5 of the Schedule to the Notification dated 18.10.1993 issued under Section 55A of the Act and would be taxable at the rate of 5% as prescribed thereby. The impugned decision dated 4.9.2006 of the High Court of Gujarat at Ahmedabad in Sales Tax Reference No.1/2004 and Special Civil Appeal No.12508/2002 and other determinations as are contrary to the views expressed herein are hereby set aside.

                                                         (REPORTABLE)

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2957 of 2007

Voltas Ltd.                                         ....Appellant



                       Vs.
State of Gujarat                                 .....Respondent



                             J U D G M E N T

AMITAVA ROY,J.

The oft encountered debate on the extent  of  tax  liability  based  on  the
classification of the determinants of a levy in law seeks judicial  scrutiny
in the attendant factual conspectus.  The appellant being aggrieved  by  the
determination made by the High Court of Gujarat on the  issue  common  to  a
reference  under  Section  69  of  the  Sales  Tax  Act,  1969  (for   short
hereinafter  referred  as  to  as  the  "Act")  being  Sales  Tax  Reference
No.1/2004 and its appeal, i.e. Special  Civil  Application  No.  12508/2002,
against it, seeks redress against the judgment and order dated 4.09.2006  to
that effect.

We have heard the learned counsel for the parties.

The indispensable skeletal facts introduce the appellant, M/s.  Voltas  Ltd.
as a company incorporated under the  Companies  Act,  1956  engaged  amongst
others in the business of execution of jobs design, supply and  installation
of air-conditioning plants construed to be indivisible works contracts.   It
is a registered dealer under the Act. By a  communication  dated  22.10.1993
of M/s. Anupam Colours  and  Chemicals  Industries,  Bombay,  an  order  was
placed with it for water chilling plant at its factory at Vapi.   The  basic
design  parameters were enumerated in the work order as hereunder:

"1.Tonnage of Refrigeration             ..        11 TR

2. Final temperature or chilled              ..          5 to 6C
water to be made available
for our process.

3.Quantity    of    chilled    water                     ..           12,000
liters( 5 to 6 C) required for our                     liters"
process in about 10 hours.


Other specifications pertaining to the water chilling plant were advised  to
be in conformity with the assessee's offer, as  referred  to  therein.   The
work order insisted on the requirement of chilled water to be used  directly
for  its  process  of  manufacturing  pigments  with  the   assertion   that
sufficient precautions be taken to ensure that  chilled  water  at  5  to  6
degree centigrade is available for such process. The  letter  emphasized  as
well that the assessee would provide the customer with the lay-out  details,
foundation  drawing  and  other  necessary  information  required  for   the
erection of the plant.   The  essential  segments  of  the  works  contracts
involved, as would be eventually  relevant  for  the  adjudicative  exercise
underway, were thus specified with distinct details in the work order.

4.    The Act which is a  legislation  to  consolidate  and  amend  the  law
relating to the levy of tax on the sale or purchase of goods  in  the  State
of Gujarat has set out in Part-A of Schedule II-A thereof, the rates of  the
impost on the  sale  of  goods  involved  in  the  execution  of  the  works
contracts, the relevant excerpt whereof is quoted as under:

|Sr.No.   |Description of works contract |Entry No. in |Regular rate of   |
|         |                              |Schedule-IIA |tax               |
|         |                              |of the Act   |                  |
|  1.     |Installation of               |       67    |     18%          |
|         |air-conditioners and          |             |                  |
|         |A.C.coolers and for repairs   |             |                  |
|         |thereof.                      |             |                  |
|  2.     |Furniture and fixtures        |       104   |      8%          |
|         |partitions including contracts|             |                  |
|         |for interior decoration and   |             |                  |
|         |repairs thereof               |             |                  |
|   3.    |Fabrication and installation  |        120  |       8%         |
|         |of lifts or elevators or      |             |                  |
|         |escalators and for repairs    |             |                  |
|         |thereof                       |             |                  |
| 4.      |Fabrication and installation  |        39   |       8%         |
|         |of plant and machinery and    |             |                  |
|         |repairs thereof               |             |                  |
|  5.     |Construction of bodies on     |     128(5)  |       4%         |
|         |chassis of Motor Vehicles     |             |                  |
|         |including three wheelers and  |             |                  |
|         |for repairs thereof           |             |                  |
|  6.     |Ship building including       |      186    |       4%         |
|         |construction of barges,       |             |                  |
|         |Ferries Tugs Trawlers or      |             |                  |
|         |Dredgers and for repairs      |             |                  |
|         |thereof                       |             |                  |


5. Section 55-A of the Act dwells  on  the  scheme  of  composition  of  tax
whereunder a dealer as referred to therein  and  in  the  circumstances  and
subject to such conditions as may be prescribed, is left with the option  to
pay in lieu of the amount of tax leviable from him under Section 7 or  8  in
respect of any period, a lump sum by way of composition at  the  rate/rates,
as may be fixed by the State Government  by  notification  in  the  Official
Gazette, having regard to the incidence of tax on the nature  of  the  goods
involved in the execution of total value of  the  works  contract.   Apt  it
would be to quote Section 55A as well for ready reference:

"SECTION 55A.  COMPOSITION OF TAX.

The Commissioner may, in such circumstances and subject to  such  conditions
as may be prescribed, permit every dealer referred to in sub-clause  (f)  of
clause (10) of section 2 to pay at his option in lieu of the amount  of  tax
(including additional tax) leviable from  him  under  section  7,(or  8)  in
respect of any period, a lump sum by way  of  composition  at  the  rate  or
rates as may be fixed  by  the  State  Government  by  Notification  in  the
Official Gazette having regard to the incidence of tax on the nature of  the
goods involved in the execution of total value of the works contract.



The provisions of sections [13,51 and 55] shall not apply to  a  dealer  who
opts for composition of tax under sub-section (1).]"



Pursuant to this provision, and as  empowered  thereby,  the  Government  of
Gujarat vide  the  notification  dated  18.10.1993  (for  short  hereinafter
referred to as the Notification) did fix the rate of composition payable  by
such dealer (s) in lieu of the amount of tax otherwise  leviable  under  the
Act and as contemplated in the said statutory provision.  As  the  stand-off
centers around  the  rate of composition so fixed, essential it would be  to
set out the table of relevant entries to be immediately adverted to:

|Sr.No.   |Description of works contract                |Rate of           |
|         |                                             |Composition       |
|1.       |Works contract for civil works like          |       2%         |
|         |construction of buildings, bridges or roads, |                  |
|         |and for repairs thereof                      |                  |
|2.       |Installation of air-conditioners and         |       15%        |
|         |A.C.Coolers                                  |                  |
|3.       |Furniture and fixtures, Partitions including |        5%        |
|         |contracts for interior decoration            |                  |
|4.       |Fabrication and installation of lifts or     |       10%        |
|         |elevators or escalators                      |                  |
|5.       |Fabrication and installation of plant and    |         5%       |
|         |machinery                                    |                  |
|6.       |Construction of bodies on chassis of motor   |         3%       |
|         |vehicles including three wheelers            |                  |
|7.       |Ship building, including construction of     |2%                |
|         |barges, ferries tugs, trawlers or dredgers   |                  |
|8.       |Works contracts other than those mentioned   |         12%      |
|         |above                                        |                  |


6. The recorded  facts  demonstrate  that  the  appellant  being  under  the
impression qua the works contract ordered vide letter  dated  22.10.1983  of
M/s. Anupam  Colour  and  Chemicals  that  it  would  attract  the  rate  of
composition prescribed against Entry No.5 hereinabove i.e.  fabrication  and
installation of plant and machinery and not  15%  against  Entry  No.2  i.e.
installation of air-conditioners and AC coolers or 12%  against  Entry  No.8
i.e. works contracts other  than  those  mentioned,   filed  an  application
before the Deputy Commissioner of Sales Tax (Legal), Gujarat  under  Section
62 of the Act and insisted that the works contract involved came within  the
purview of Entry No.5 attracting the composition rate of  tax  at  5%  only.
The said revenue authority by its order dated  16.10.1996  however  rejected
the plea of the appellant and instead  held  that  the  works  contract  was
covered by Entry No.2 as the assessee had to air-condition the plant  to  be
erected by it.  The margin of difference in the composition  rates  compared
to the rates of tax for the identical works contract as  catalogued  in  the
Schedule to the Act did also weigh with the revenue  authority  in  arriving
at this conclusion.

7.    The appellant-assessee being  dissatisfied  did  appeal  against  this
finding  before  the  Gujarat  Sales  Tax  Tribunal,  Ahmedabad  (for  short
hereinafter referred to as the "Tribunal") which was  registered  as  Appeal
No. 16/1996.  In course of the regular assessment for  the  Assessment  Year
1993-94, the concerned Sales Tax Officer, pursuant to the decision  rendered
by the  Deputy  Commissioner  of  Sales  Tax  on  16.10.1996,  assessed  the
appellant by applying the composite rate  of  15%  for  the  works  contract
involved.

8.    The appellant thus preferred an appeal against this  assessment  order
before the Assistant Commissioner of Sales Tax, Ahmedabad and having  failed
before this forum did take the issue before the Tribunal  in  Second  Appeal
No.97/2001.  These two appeals were also dismissed by the Tribunal vide  its
judgment and order dated 2.12.2002  whereafter  the  appellant  invoked  the
writ  jurisdiction  of  Gujarat  High  Court  registered  as  Special  Civil
Application No. 12508/2002 which to reiterate, have been,  by  the  impugned
decision, disposed of along with Sales Tax Reference No.1/2004 laid  by  the
Tribunal before it under Section 69  of  the  Act  referring  the  following
question of law:

"Whether on the facts and in the circumstances of  the  case,  the  Tribunal
was right in  law  in  holding  that  the  appellant's  works  contract  for
fabrication and installation of air-conditioning plants falls under Entry  2
and, therefore, taxable at the rate of 15%  and  not  under  Entry  5  under
which it is taxable at the rate of 5% of the Schedule  to  the  notification
dated 18.10.93 issued under Section 55A of the Gujarat Sales Act, 1969?"

9. The High Court has answered the  question  referred  in  the  affirmative
thus sustaining the determination made by the revenue  authorities/fora  and
the learned Tribunal declaring  that  the  appellant's  works  contract  for
fabrication and for installation of air-conditioning plant  did  fall  under
Entry 2 of the Notification and was taxable at the composition rate of 15%.

10. As the decision of the High Court assailed  herein  would  disclose,  in
its view, the air-conditioning systems are  classified  according  to  their
construction and operating characteristics and that it  would  be  incorrect
to differentiate between a central air-conditioning system and a  room  air-
conditioner on the basis that the  installation  of  air-conditioning  plant
requires preparation of plant whereas no such exercise is to  be  undertaken
in case of installation of window air-conditioner etc.  This is more  so  as
the basic components  applied  in  the  manufacture  of  a  air-conditioning
plant, room air-conditioner or  split  air-conditioner  are  almost  similar
with difference in size and are not drastically different.  The  appellant's
plea  that  in  central  air-conditioning  system,  fabrication  has  to  be
undertaken requiring preparation of plant etc. and  that  thus  the  central
air-conditioning system has to be  treated  differently  from  a  room  air-
conditioner  or  window  air-conditioner  etc.  was  not  accepted  because,
according to the High Court, even in a room air-conditioner or  window  air-
conditioner or split air-conditioner or AC cooler, elevation and lay out  of
the area requiring conditioning,  has to be taken  into  consideration.  The
appellant's contention that Entry 5 dealt with all kinds of fabrication  and
installation of all kinds of plant and  machinery  and  that  there  was  no
reason to exclude the installation of air-conditioning plant  therefrom  was
negatived.  The High Court was of  the  view  that  the  composition  scheme
ought to be regarded  as  an  exemption  reprieve  and  thus  needed  to  be
construed strictly.  Reliance was placed on the decision of this   Court  in
Sanden Vikas (India) Ltd. V. Collector of Central Excise, New  Delhi  (2003)
4 SCC 699 which held with reference to a particular entry  in  an  exemption
notification under the  Central  Excise  Tariff  Act,  1985  that  the  air-
conditioner kit of a car did fall within the  meaning  of  air-conditioners.
It rejected the proposition that in common  parlance  air-conditioner,  room
air-conditioner,  window  air-conditioner,  A.C.  cooler,   air-conditioning
plant etc. were differently known and thus installation of  air-conditioning
plant would fall within Entry No.5.

11.   Mr.  Datar,  the  learned  senior  counsel  for  the   appellant   has
assertively urged that having regard  to  the  inalienable  and    essential
constituents of the works contract as per the  work  order,  fabrication  as
well as the  installation  of  the  water  chilling  plant  were  distinctly
different items  of  works  and  thus  the  appellant  was  taxable  at  the
composition rate of 5% against Entry No.5 of  the  Notification.   Referring
to the work  order  dated  22.10.1993  in  particular,  the  learned  senior
counsel has maintained that the water chilling plant of the customer was  to
be configured in conformity with the design parameters referred  to  therein
and not on readymade specifications on the election  or  discretion  of  the
appellant-assessee.   According  to  Mr.   Datar   the   design   parameters
prescribed by the customer, to cater to its requirement  amongst  others  of
the temperature of the chilled water and the volume thereof to be  used  for
its process of  manufacturing  pigment  did  assuredly  involve  design  and
fabrication of the essential composition of the system  which  by  no  means
could be equated with  the  installation  thereof  simplicitor  as  the  end
device.  That the customer was persistently particular on the  adherence  to
its prescribed design  parameters  as  is  apparent  from  the  work  order,
demonstrates that the works contract, in any view of the matter,  cannot  be
drawn within the contours of Entry 2 of the Notification, he urged.

12.   As against this,  Ms.  Madhvi  Diwan,  the  learned  counsel  for  the
Revenue has argued that as the supply of the water  chilling  plant  as  per
the works contract involved for all practicable purposes does  not  envisage
any process of fabrication, the appellant is  liable  to  be  taxed  at  the
composition rate of 15%.  According  to  her,  the  basic   and   functional
components of the water chilling plant being identical to that  of  an  air-
conditioning plant, the appellant's plea  of  application  of  5%  composite
rate prescribed against Entry No.5 of the Notification is  wholly  misplaced
and thus no interference with the impugned  judgment  and  order  is  called
for.  Reliance was placed on the decision of  this  Court  in  Sanden  Vikas
(India) supra.

13. The rival assertions have received our due consideration. The  competing
entries requiring scrutiny to ascertain the correct composition rate of  tax
payable vis--vis the works contract involved are  engrafted  admittedly  in
the Notification issued by the Government of Gujarat in exercise  of  powers
conferred by Section 55A of the Act.   Logically  thus,  the  interpretation
necessitated by the rival orientations ought to be  in  furtherance  of  the
underlying objective of the said provision.  A plain perusal  thereof  would
attest that thereby, in the circumstances to be prescribed, a dealer can  be
left at his option to pay in lieu of the amount of tax payable, a  lump  sum
by way of composition, at the rate or rates as may be  fixed  by  the  State
Government having regard to the incidence of tax on the nature of the  goods
involved  in  the  execution  of  total  value  of   the   works   contract.
Unmistakably, therefore, the State Government while fixing  the  composition
rate of tax has to be mindful of the nature of the works  contract  executed
and by no means can be oblivious thereof.  Further, a  composition  rate  of
tax is in lieu of the amount of levy otherwise payable by the  dealer  under
the Act.  The scheme of composition as envisaged by  Section  55A  therefore
in our  comprehension  does  not  admit  of  any  synonymity  with  that  of
exemption as contemplated in law.  This pre-supposition of  the  High  Court
as one of the contributing factors in concluding that the works contract  in
question did fall within the framework of Entry No.2 of the Notification  is
apparently erroneous.

14.  As adverted to hereinabove, the work order in clear  terms  did  enjoin
that the design parameters pertaining to  tonnage  of  refrigeration,  final
temperature  of  the  water  to  be  made  available  for  the  process   of
manufacturing pigments and the  quantity  of  the  chilled  water  essential
therefor  were  indispensable  and   were   in   addition   to   the   other
specifications as offered by the appellant.  The rigour  of  the  insistence
for the adherence to the design parameters is patent also from  the  request
of the customer requiring the appellant to  provide  it  with  the  lay  out
detail, foundation drawing and other  necessary  information  essential  for
the erection of the water chilling  plant.   The  exercise  as  a  whole  as
contemplated by the work order thus was neither intended nor can be  reduced
to mere installation of the finally  emerging  apparatus.   The  work  order
noticeably did not refer to any readymade or  instantly  available  devices,
meeting the requirements of the customer so much so to be only installed  at
its factory.  Instead, the work order had  been  apparently  tailor-made  to
the requirements from which no departure was intended  or  comprehended.  It
is in this perspective that the word "fabrication" appearing in  Entry  No.5
of     the     Notification     assumes     a     decisive     significance.


15.   The legislative intendment entrenched in Section 55A  of  the  Act  to
maintain a direct correlation between the composition rates of  tax  as  the
Notification would reveal and the description  of  the  corresponding  works
contract is patent. Understandably, the  word  "fabrication"  had  not  been
applied in the works contract for installation of air-conditioners and  A.C.
coolers contained in Entry No.2 of the Notification. The author of the  said
Notification, however, did consciously include the expression  "fabrication"
while describing the works contract enumerated in Entry 5  thereof.   Having
regard to the inseparable  interdependence  between  the  description  of  a
works contract and the corresponding composition rate of tax,  none  of  the
inherent components of the works to be executed can  either  be  ignored  or
disregarded for identifying the correct composition rate of the  levy  under
the Act. Any other approach could tantamount to doing violence not  only  to
the legislative purpose conveyed by Section 55A but  also  the  language  of
its yield i.e. the  Notification  seeking  to  promote  the  statutory  end.
Viewed in that context, mere omission of the expressions  "air-conditioners"
and  "A.C.  coolers"  in  Entry  No.5  would  not  be  of   any   definitive
consequence.   The  words  plant  and  machinery  applied  in  Entry  5  are
otherwise compendious enough to include air-conditioners and  A.C.  coolers,
if the works contract involved require fabrication as well  as  installation
thereof.

16.   The word "fabrication" as defined in the Aiyan's Advanced Law  Lexicon
(Vol.II), 3rd Edition 2005 is "to manufacture".

17.   The Oxford Dictionary  defines  the  word  "fabrication"  to  mean  to
construct or manufacture an industrial product.

18.  The  word  "manufacture"  as  per  the  Aiyan's  Advanced  Law  Lexicon
(Vol.II) in its plainest form and shorn of other details is the  process  of
transforming or fashioning of raw materials into a change of form  for  use.
The process of fabrication therefore conceptually would involve  a  lay  out
for the ultimate device to  be  installed,  preceded  by  a  design  of  the
parameters  prescribed,  configuration  of  the  resultant  components,  and
integration  thereof  to  structure  the  ultimate  mechanism  or   product.
Installation thereof would be a subsequent  step  to  finally  position  the
plant to complete the works contract. As fabrication in terms  of  the  work
order in the instant case is a distinctly independent yet  integral  segment
of the works contract contributing to the final physical form of  the  water
chilling plant with the characteristics intended, it cannot be construed  to
be, synonymous to the installation thereof.

19.   The High Court,  as the impugned judgment would exhibit, had  confined
itself  wholly  to  the  components  of  various  air-conditioning   devices
available and the range of the use thereof and in our  estimate  had  missed
the significant aspect of "fabrication" integrally  involved  in  the  works
contract to supply the water  chilling  plant  with  the  design  parameters
stipulated by the customer.  The High Court did  adopt  a  general  approach
vis-a-vis the air-conditioning devices commercially available  in  different
forms dehors the singular factual aspects of  the  work  order  constituting
the works contract.  The High Court, thus, in our view, by  overlooking  the
component of fabrication in the works contract  opined  that  the  same  was
within the purview of Entry No.2 and not Entry  No.5.   The  description  of
the works  contract,  to  reiterate,  being  of  determinative  bearing  for
ascertaining the composition rate of tax, we are of the unhesitant  opinion,
in the face of the design parameters insisted upon in  the  work  order  and
consequential process of fabrication involved to  cater  thereto,  that  the
works contract involved squarely falls within the ambit  of  Entry  No.5  of
the Notification.  The margin of difference in rates of  tax  as  prescribed
by the Act compared to those mentioned in the Notification ipso  facto  does
not detract from this conclusion. This consideration per se cannot  override
the decisive characteristics of the works contract  otherwise  unequivocally
spelt out by the work order.

20.  The primary canon of interpretation of a  taxing  statute  hallowed  by
time is underlined by the classic statement of  ROWLATT,J.  in  Cape  Brandy
Syndicate v. Inland Revenue Commnrs. (1921) 1 KB 64  at  p.71  as  extracted
hereunder:

"In a Taxing Act one has to look merely at what is clearly  said.  There  is
no room for any intendment. There is no equity about  a  tax.  There  is  no
presumption as to a tax. Nothing  is  to  be  read  in,  nothing  is  to  be
implied. One can only look fairly at the language used."



 It is trite as well that in a case of reasonable  doubt,  the  construction
most beneficial to the subject is to be adopted.  The  underlying  principle
is that the meaning and intention of a statute must be  collected  from  the
plain and unambiguous expression used therein rather than  from  any  notion
that may be entertained by a Court which  may  appear  to  be  it  just  and
expedient. Even prior in point of time, TINDAL, CJ in  Sussex  Peerage  case
(1844) 11 C1 & Fin 85 : 8 ER 1034(HL) had propounded thus:

            "If the words of the  statute  are  in  themselves  precise  and
unambiguous, then no more can be necessary than to expound  those  words  in
their natural and ordinary sense. The words  themselves  do  alone  in  such
cases best declare the intent of the law-giver."



These views have with time  resonated  in  various  judicial  pronouncements
with unambiguous approval of this Court as well  amongst  others  in  Income
Tax Officer, Tuticorin vs. T.S.Devinatha Nadar & Ors. (1968)68 ITR  252  and
very recently in Commissioner of  Income  Tax-III  vs.  Calcutta  Knitwears,
Ludhiana (2014) 6 SCC 444 and Commissioner of Income  Tax  (Central)-I,  New
Delhi vs. Vatika  Township  Pvt.  Ltd.  2015  (1)  SCC  1.   A  plethora  of
decisions in this regard, available though, we do not  wish  to  burden  the
instant narration therewith.

21.   Qua  the  issue  of  classification  of   goods   to   determine   the
chargeability thereof and the rates of levy applicable, it is no longer res-
integra that the burden of proof is on the taxing authority  to  demonstrate
that a particular class of goods or item  in  question  is  taxable  in  the
manner claimed by them and that mere assertion  in  that  regard  is  of  no
avail as has been enunciated by this Court in  U.O.I.  &  Ors.  vs.  Garware
Nylones Ltd.etc. (1996) 10 SCC 413  and relied upon  with  approval  in  HPL
Chemicals Ltd. vs. Commissioner of Central Excise, Chandigarh (2006)  5  SCC
208.

22. Equally, fundamental is the principle of statutory  interpretation  that
no construction to a legislation ought to be provided  so  as  to  render  a
part of it otiose  or  redundant  as  held  inter  alia  by  this  Court  in
Maharashtra University of Health Sciences & Ors.  vs.  Satchikitsa  Prasarak
Mandal & Ors. (2010)3 SCC 786.

23.  That it is the cardinal principle of interpretation not to brush  aside
a word used in a statute or in a Notification issued  under  a  statute  and
that full effect must be given to the every word of an instrument  had  been
underscored by this  Court  in  The  South  Central  Railway  Employees  Co-
operative Credit Society Employees Union, Secundrabad vs. The  Registrar  of
Co-operative  Societies  &  Ors.  reported  in  (1998)  2  SCC   580.    The
Notification in the instant case being apparently  statutory  in  nature  is
akin to subordinate legislation to actualize  and  advance  the  legislative
intent engrafted in Section 55A.  It not only owes its existence to the  Act
but would also be amenable to  the  cardinal  principles  of  interpretation
adverted to herein above.

24.  In the overall legal and factual perspectives as obtained  herein,  any
endeavour to drag the works contract involved within the framework of  Entry
No.2 would be  repugnant  to  the  basic  principles  of  interpretation  of
statutes and subordinate legislations like the statutory Notification  under
Section 55A of the Act. To exclude the work of fabrication  from  the  works
contract as per the work order would render it  (works  contract)  truncated
to a form not intended by the customer.  This would strike as  well  at  the
root  of  the  mandate  of  correlation  of  a  works   contract   and   the
corresponding composition rate of tax as envisaged by  Section  55A  of  the
Act and the Notification issued thereunder.

25.  The decision of this Court in Sanden Vikas (India)  Ltd.(supra)  is  of
no avail to the revenue vis--vis the issue falling for scrutiny herein.

26. In the face of the determinations made  herein  above,  the  inescapable
conclusion is that  the  appellant's  works  contract  for  fabrication  and
installation of water chilling plant at the factory of  Anupam  Colours  and
Chemicals at  Vapi  would  fall  under  Entry  5  of  the  Schedule  to  the
Notification dated 18.10.1993 issued under Section 55A of the Act and  would
be taxable at the rate of 5% as prescribed thereby.  The  impugned  decision
dated 4.9.2006 of the High Court  of  Gujarat  at  Ahmedabad  in  Sales  Tax
Reference  No.1/2004  and  Special  Civil  Appeal  No.12508/2002  and  other
determinations as are contrary to the views expressed herein are hereby  set
aside.

27.  The Civil Appeal is allowed.

.........................CJ.


............................J.
        (Arun Mishra)


............................J.
       (Amitava Roy)
New Delhi,
Dated:  April 8, 2015

Sec.2(c) and sec. 5 of Assam Urban Areas Rent Control Act, 1972 - Sec.109 r/w 106 T.P.Act - Transfer of ownership - Attornment of Tenant is mandatory ? -No - Landlord"-From the definition of 'landlord', - not only the owner but also any person receiving rent, whether on his own account or on behalf of or for the benefit of any other person or as a trustee, guardian, or receiver for any other person, is also the landlord.-It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy.- Sec.109 - The section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment.- As noticed above, the respondent-tenant on many occasions approached the appellant, the transferee, owner and the landlord to receive the rent. Further, admittedly, the electricity charges of the tenanted premises were paid by the tenant to the present appellant. -Non-consideration of subsequent tenancy agreement executed by the erstwhile owner namely the brother of the appellant will not come in the way of the present appellant to seek eviction of the tenant on the ground of personal necessity as also on the ground of non-payment of rent. - The approach of the High Court reversing the appellate court's finding cannot be sustained in law.-2015 SC msklawreports

The trial court noted that 
PW3 Ranjeet Prasad had represented  himself
to be the landlord in  the  agreement  dated  20.05.2006  and  in  the  rent
receipts and also filed a suit for eviction against one of  the  tenants  in
the suit property in the capacity of a  landlord.  
PW3  was  noted  to  have
never stated being the representative of the  appellant  or  there  being  a
property exchange.  
Even  if  it  was  assumed  that  he  had  received  the
electricity charges, the appellant was held to have failed to prove  himself
as the landlord as the appellant had not produced  any  evidence  of  having
received rent from any of tenants. 
 The mutation entry in his name was  held to be not proof of title in the suit property. 
 Considering  the  deposition of Abdul Karim as DW1,
 wherein he stated that the appellant had  refused  to
accept the rent from him, the  trial  court  held  that  the  appellant  had
waived his right to be called a landlord.
 The  trial  court  held  that  PW3
Ranjeet Prasad was the landlord of the suit property under section  2(c)  of
the Assam Urban Areas Rent Control Act, 1972 (in short,  "Rent  Act").  
 The
trial court dismissed the suit, rejecting  plaintiff-appellant's  contention
that Abdul Karim had defaulted in the payment of rent  and  that  he  needed
the suit property for bonafide use on the grounds  that  the  appellant  was
not the landlord of the suit property and Abdul Karim  had  been  admittedly
depositing the rent in the court.

Appeal court reversed the finding of trial court

Aggrieved by the decision of the trial court, the appellant  preferred
an appeal before the District Court.
The  appellate  court  noted  that  the
ownership of the suit property has been proved in the light of the  exchange
deed, which remained unchallenged by the  defendant  and  supported  by  PW3
Ranjeet Prasad. 
The appellate court further noted that the plaintiff  served
notice requesting Abdul Karim to attorn the appellant as  the  landlord  and
pay the  rent  to  him.  
The  appellate  court,  therefore,  held  that  the
appellant is the landlord of the suit property  considering  the  deposition
of Abdul Karim that the appellant had refused to accept the rent  from  him,
the deposition of PW3 Ranjeet Prasad that he had directed  all  the  tenants
to pay the rent to the appellant from March, 2007 onwards and the  admission
of the respondent no. 1 (DW2) son of Abdul Karim, that  he  was  paying  the
electricity  charges  to  the  appellant. 
 Abdul  Karim  was  held  to  have
defaulted in the payment  of  rent  from  March,  2007  onwards  as  he  was
depositing rent in the court in the name of PW3 Ranjeet Prasad and  not  the
appellant  despite  knowing  that  the  appellant  was  the  landlord.  
 The
appellant also proved the need for bonafide use as  he  and  his  wife  were
medical practitioners wanting to open a clinic in the  rented  premises  and
as the defendant Abdul Karim owns another premises and would  not  hence  be
facing difficulty. 
Allowing the appeal, the  appellate  court  directed  the
defendant Abdul Karim to vacate the suit property.

High court - reversed the finding of Appellant court

   Aggrieved  respondents,  therefore,  preferred  a  revision  petition
before the High Court.
The High Court observed that the appellate court  has
not considered the  tenancy  agreements  dated  20.12.1968  and  20.05.2006,
which were also not mentioned in the depositions of the appellant (PW1)  and
Ranjeet Prasad (PW3) and the plaint. 
The High Court upheld the  trial  court
findings regarding the various instances when  PW3  represented  himself  as
the landlord.  
Observing that there was no conveyance  of  title  after  the
execution of the agreement dated 20.05.2006, the High Court opined that  the
appellant could not be held  to  be  the  owner  or  landlord  of  the  suit
property on the basis of the  exchange  deed  dated  23.04.1975.   
The  High
Court observed that the definitions of the  terms  'tenant'  and  'landlord'
were not related to ownership of the suit property. 
PW3 Ranjeet  Prasad  was
held to be the landlord of defendant Abdul Karim considering the  agreements
dated 20.12.1968 and 20.05.2006 and that Ranjeet Prasad had  filed  eviction
suits as a landlord. 
Once landlord-tenant relationship existed  between  the
PW3 Ranjeet Prasad and the defendant Abdul Karim, the same should have  been
determined only as per the provisions of the Rent Control Act. 
Holding  that
there was no need to give a finding regarding  default  in  the  payment  of
rent or bonafide requirement when there was no landlord-tenant  relationship
between the appellant and the defendant Abdul Karim, the High Court  allowed
the revision petition filed by the  respondents-tenants  and  dismissed  the
suit for eviction filed by the appellant.

Apex court held that

Assam Urban Area Rent Control Act, 1972.

The expression "landlord" has been defined in Section 2(c) of the  Rent  Act
which reads as under:-

"(c) Landlord" means any person who is, for the  time  being  receiving,  or
entitled to receive rent  in  respect  of  any  house  whether  on  his  own
account, or on account, or on behalf,  or  for  the  benefit  of  any  other
person, or as a trustee, guardian, or receiver for  any  other  person;  and
includes, in respect of his subtenant, a tenant who has  sub-let  any  house
and includes every person not being a tenant who from time to  time  derives
title under a landlord."

Section 5 of the Act creates a bar against the passing  or  execution  of  a
decree or order for ejection.  Section 5 reads as under:-

"5. (1) No order or decree for the  recovery  of  possession  of  any  house
shall be made or executed by any Court so long as the tenant  pays  rent  to
the full extent allowable under this Act and performs the conditions of  the
tenancy:

Provided that  nothing  in  this  sub-section  shall  apply  in  a  suit  or
proceedings for eviction of the tenant from the house:-

(a) Where the tenant has done anything contrary to the provisions of  clause
(m), clause (o) or clause (p) of Section 108 of  the  Transfer  of  Property
Act, 1882 or to the spirit of the aforesaid clause in areas where  the  said
Act does not apply, or

(b) Where the tenant has been guilty of conduct which is a  nuisance  of  an
annoyance to the occupiers of the adjoining or neighbouring houses, or

(c) Where the  house  is  bonafide  required  by  the  landlord  either  for
purposes of repairs or rebuilding, or for his  own  occupation  or  for  the
occupation of any person for whose benefit the house  is  held,  or  whether
the landlord can show any other cause which may be  deemed  satisfactory  by
the Court, or

(d) Where the tenant sublets the house or  any  part  thereof  or  otherwise
transfers his interest in the house or any part thereof  without  permission
in writing from the landlord, or

(e) Where the tenant has not paid the rent lawfully due from him in  respect
of the house within a fortnight of its falling due, or

(f) Where the tenant has built, acquired or been allotted a suitable
residence."

From the definition of 'landlord',  it  is  clear  that  the  definition  is
couched in a very wide language, according to which not only the  owner  but
also any person receiving rent, whether on his own account or on  behalf  of
or for the benefit of any  other  person  or  as  a  trustee,  guardian,  or
receiver for any other person, is also the landlord.

However, for the purpose of eviction of a tenant on the ground  of  personal
need or reasonable requirement, one must show that he is the  owner  of  the
building.
The  High  Court  appears  to  have  taken  a  very   narrow   meaning   and
interpretation of the expression 'landlord' as defined  in  the  Assam  Rent
Act.
The finding recorded on that score to the effect that there exists  no
relationship of landlord and tenant is  not  in  accordance  with  the  true
meaning of the term 'landlord'.   
This  aspect  of  the  law  has  not  been considered by the High Court. 
 On the contrary, the High Court proceeded  on
the basis that the relationship  of  'landlord  and  tenant'  has  not  been
established although the ownership of the appellant by virtue  of  the  deed
of exchange has neither been denied nor been  disputed  by  the  respondent-
tenant.  
Even assuming for the sake of argument that the  elder  brother  of
the appellant was acting as a landlord by receiving rent, it will not  debar
the original owner from filing a suit for eviction not only  on  the  ground
of personal necessity but also on the ground of default when it has come  in
evidence that the respondent on many occasions went to the appellant to  pay
rent but the latter refused to receive the rent. 
 Moreover, admittedly,  the
respondent-tenant was paying electricity and other charges of  the  tenanted
premises to the appellant.

  On the question of tenancy, both the trial court and  the  High  Court
have not considered  the  provision  of  Section  109  of  the  Transfer  of
Property Act.

"109. Rights of lessor's transferee.-If the lessor  transfers  the  property
leased, or any part thereof, or  any  part  of  his  interest  therein,  the
transferee, in the absence of a contract to the contrary, shall possess  all
the rights, and, if the lessee so elects, be subject to all the  liabilities
of the lessor as to the property or part transferred so long as  he  is  the
owner of it; but the lessor shall not,  by  reason  only  of  such  transfer
cease to be subject to any of  the  liabilities  imposed  upon  him  by  the
lease, unless the lessee elects  to  treat  the  transferee  as  the  person
liable to him:

Provided that the transferee is not entitled to arrears of rent  due  before
the transfer, and that, if the lessee, not having  reason  to  believe  that
such transfer has been made, pays rent to the lessor, the lessee  shall  not
be liable to pay such rent over again to the transferee.

The lessor, the transferee and the lessee may determine what  proportion  of
the premium or rent reserved by the lease is payable in respect of the  part
so transferred, and, in case they disagree, such determination may  be  made
by any Court having jurisdiction to entertain a suit for the  possession  of
the property leased.


 From perusal of the aforesaid Section, it is manifest that  after  the
transfer of lessor's right in favour of the transferee, the latter gets  all
rights and liabilities of the lessor in respect of subsisting tenancy.   The
Section does not insist that transfer will take effect only when the  tenant
attorns.  It is well settled that a  transferee  of  the  landlord's  rights
steps into the shoes of the landlord with all the rights and liabilities  of
the transferor landlord in respect of the subsisting tenancy.   The  section
does not require that the transfer of the right of  the  landlord  can  take
effect only if the tenant attorns to him.  Attornment by the tenant  is  not
necessary to confer validity of  the  transfer  of  the  landlord's  rights.
Since attornment by the tenant is not required, a notice under  Section  106
in terms of the old terms of lease  by  the  transferor  landlord  would  be
proper and so also the suit for ejectment.

 As noticed above, the respondent-tenant on many  occasions  approached
the appellant, the transferee, owner and the landlord to receive  the  rent.
 Further, admittedly, the electricity charges of the tenanted premises  were
paid  by  the  tenant  to  the  present  appellant.   Non-consideration   of
subsequent tenancy agreement executed by  the  erstwhile  owner  namely  the
brother of the appellant will not come in the way of the  present  appellant
to seek eviction of the tenant on the ground of personal necessity  as  also
on the ground of non-payment of  rent.   The  approach  of  the  High  Court
reversing the appellate court's finding cannot be sustained in law.-2015 SC msklawreports