Service Matter - upholding the cancellation of departmental promotion of the appellant observing that the appellant has not worked on the post of Steno-typist continuously for a period of five years before departmental promotion and thus does not possess the eligibility criteria for promotion as a Stenographer.We have heard the submission of the learned counsel for the parties at considerable length and perused the material on record. 5. State Government’s letter No.C-3-7/09/3/49 dated 23.02.1989 prescribed the criterion for promotion to the post of Stenographer by departmental examination, as five years experience as a Steno-typist and passing of exam of Shorthand and Typing from Madhya Pradesh Stenography Typing Council or from any recognized institution with a speed of hundred words per minute. Admittedly, the appellant passed the said shorthand and typing exam only in the year 2000 and not prior to that. As noticed earlier, the appellant was absorbed on the post of Steno-typist by an order dated 12.04.2002. As per the eligibility criteria prescribed by the Government in letter dated 23.02.1989, the appellant will further become eligible for promotion on the post of Stenographer only in the year 2007 that is on completion of period of five years after he was absorbed on the post of Steno-typist by the said order dated 12.04.2002. Thus the appellant cannot claim the benefit of being posted as in charge ‘Office Steno’ vide order dated 09.12.1992. When the appellant was working as LDC, merely because he was placed in charge as Office Steno, that will not confer upon him any right to claim that he satisfied the eligibility criteria from that date. Be it noted that the appellant obtained the requisite qualification by passing the Council Examination only in the year 2000 and he was absorbed on the post of Steno-typist vide order dated 12.04.2002; when appellant has passed the Council exam of shorthand only in the year 2000, it is inconceivable as to how the appellant can claim his seniority as Steno-typist before ever he was qualified. 6. Learned counsel for the appellant placed much reliance upon the recommendation of the Divisional Forest Officer dated 01.01.2003 in which DFO has stated that appellant has performed all duties of Stenographer and recommended that he be given seniority of Steno-typist from the year 1998. By perusal of the said recommendation of Divisional Forest Officer dated 01.01.2003, it is seen that the appellant filed an application on 30.12.2002, seeking seniority on the post of Steno-typist and in response to that application, the said letter dated 01.01.2003 seems to have been sent by the Divisional Forest Officer, Shivpuri addressed to Conservator of Forest recommending that appellant has performed all duties of Steno-typist and he may be given seniority from the year 1998. Although such recommendation was made by Divisional Forest Officer to Conservator of Forest, there is no order from the Conservator of Forest to show that the recommendation was accepted. As noticed earlier, the appellant qualified himself in the Council exam only in the year 2000 and he was absorbed on the post of Steno-typist by an order dated 12.04.2002, there is no question of granting seniority to the appellant on the post of Steno-typist from the year 1998. The appellant was eligible to be promoted to the post of Stenographer only in the year 2007. 7. The High Court rightly held that the appellant did not satisfy the eligibility criteria of having continuously worked for a period of five years as Steno-typist before being promoted as Stenographer. The impugned orders do not suffer from any infirmity warranting interference exercising jurisdiction under Article 136 of the Constitution of India. Appeals are dismissed. No order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS. 5853-5854 OF 2008

RAVINDRA KUMAR SHRIVASTAVA                          ...Appellant

                                   Versus
STATE OF M.P. & ORS.                                ...Respondents

                               J U D G M E N T

R. BANUMATHI, J.


Challenge in these appeals is the judgment dated  20.05.2006 and  21.04.2006
passed by High Court of  Madhya  Pradesh  at  Gwalior  dismissing  the  Writ
Appeal No.24 of 2006 and also the Writ  Petition  No.420  of  2003,  thereby
upholding the  cancellation  of  departmental  promotion  of  the  appellant
observing that the appellant has not worked  on  the  post  of  Steno-typist
continuously for a period of five years before  departmental  promotion  and
thus  does  not  possess  the  eligibility  criteria  for  promotion  as   a
Stenographer.
2.          Appellant was initially  appointed  as  a  daily  wager  in  the
Forest Department before 1990 and his service was regularized  on  the  post
of Lower Division Clerk (LDC) w.e.f. 17.01.1990.  In  the  year  1992,  vide
Order No.253 dated 09.12.1992, the appellant was made in  charge  of  Office
Steno. Vide Order No.Stha./47 dated 12.04.2002, the Conservator  of  Forest,
Shivpuri Circle directed the absorption of the  appellant  on  the  post  of
Steno-typist and special salary of Rs.125/- was sanctioned to him for  doing
the work of Steno-typist.  Vide  Order  No./Stha/32  dated  22.01.2003,  the
appellant was promoted to the post of  Stenographer  in  the  pay  scale  of
Rs.4500-125-7000.   The  Chief  Conservator  of  Forest  passed  the   Order
            No.Prash.Araj/Stha/Fa-2/1169  dated  22.09.2003  cancelling  the
appointment of appellant on the post of Stenographer holding that  promotion
was granted to the appellant by ignoring the condition  of  completing  five
years of service as Steno-typist.
3.          Aggrieved by the cancellation of his promotion, appellant  filed
a Writ Petition No.420 of 2003 challenging the  order  of  cancellation  and
reversion from the post of Stenographer to the post  of  Steno-typist.   The
writ petition was dismissed by the Single  Judge  of  the  High  Court  vide
order dated 21.04.2006 observing that the  appellant  was  not  holding  the
minimum eligibility criteria for the promotion to the post  of  Stenographer
and therefore his order of promotion was  rightly  cancelled.   Writ  Appeal
preferred by the appellant also came to be dismissed. The appellant  assails
the correctness of the dismissal of his writ  petition  and  also  the  writ
appeal in these appeals.
4.          We have heard the submission of  the  learned  counsel  for  the
parties at considerable length and perused the material on record.
5.          State  Government’s  letter  No.C-3-7/09/3/49  dated  23.02.1989
prescribed the criterion for  promotion  to  the  post  of  Stenographer  by
departmental examination, as five years experience  as  a  Steno-typist  and
passing of exam of Shorthand and  Typing  from  Madhya  Pradesh  Stenography
Typing Council or from any recognized institution with a  speed  of  hundred
words per minute.  Admittedly, the appellant passed the said  shorthand  and
typing exam only in the year  2000  and  not  prior  to  that.   As  noticed
earlier, the appellant was absorbed on the post of Steno-typist by an  order
dated  12.04.2002.  As  per  the  eligibility  criteria  prescribed  by  the
Government in letter dated 23.02.1989, the  appellant  will  further  become
eligible for promotion on the post of Stenographer only  in  the  year  2007
that is on completion of period of five years after he was absorbed  on  the
post  of  Steno-typist  by  the  said  order  dated  12.04.2002.   Thus  the
appellant cannot claim the benefit of being  posted  as  in  charge  ‘Office
Steno’ vide order dated 09.12.1992.  When the appellant was working as  LDC,
merely because he was placed in  charge  as  Office  Steno,  that  will  not
confer upon him any  right  to  claim  that  he  satisfied  the  eligibility
criteria from that date.  Be  it  noted  that  the  appellant  obtained  the
requisite qualification by passing the Council Examination only in the  year
2000 and he was absorbed on  the  post  of  Steno-typist  vide  order  dated
12.04.2002; when appellant has passed the Council exam of shorthand only  in
the year 2000, it is inconceivable as to how the  appellant  can  claim  his
seniority as Steno-typist before ever he was qualified.
6.          Learned counsel for the appellant placed much reliance upon  the
recommendation of the Divisional Forest Officer dated  01.01.2003  in  which
DFO has stated that appellant has performed all duties of  Stenographer  and
recommended that he be given seniority of Steno-typist from the  year  1998.
By perusal of the said recommendation of  Divisional  Forest  Officer  dated
01.01.2003,  it  is  seen  that  the  appellant  filed  an  application   on
30.12.2002, seeking seniority on the post of Steno-typist  and  in  response
to that application, the said letter dated 01.01.2003  seems  to  have  been
sent by the Divisional Forest Officer, Shivpuri addressed to Conservator  of
Forest recommending that appellant has performed all duties of  Steno-typist
and  he  may  be  given  seniority  from  the  year  1998.   Although   such
recommendation was made by  Divisional  Forest  Officer  to  Conservator  of
Forest, there is no order from the Conservator of Forest to  show  that  the
recommendation was accepted.  As noticed earlier,  the  appellant  qualified
himself in the Council exam only in the year 2000 and  he  was  absorbed  on
the post of Steno-typist by an order dated 12.04.2002, there is no  question
of granting seniority to the appellant on the post of Steno-typist from  the
year 1998.  The appellant was  eligible  to  be  promoted  to  the  post  of
Stenographer only in the year 2007.
7.          The High Court rightly held that the appellant did  not  satisfy
the eligibility criteria of having continuously worked for a period of  five
years as Steno-typist before being promoted as  Stenographer.  The  impugned
orders do not suffer from any infirmity warranting  interference  exercising
jurisdiction under Article 136 of the Constitution of  India.   Appeals  are
dismissed.  No order as to costs.
                                    .……………………J.
                                                 (DIPAK MISRA)

                                                                 ………………………J.
                                                 (R. BANUMATHI)
New Delhi;
September 4, 2015
-----------------------
4

May Lord Ganesh

shower all his mighty blessing & boons on you and your family

Wish you & your family a Happy and Prosperous VINAYAKA CHAVITHI

Yours for ever

Where time gap is long it would be unsafe to base the conviction on the “last seen theory”;= In view of the time gap between Manoj left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that appellants and deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj. Where time gap is long it would be unsafe to base the conviction on the “last seen theory”; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory. In case of circumstantial evidence, court has to examine the entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused. In the case at hand, neither the weapon of murder nor the money allegedly looted by the appellants or any other material was recovered from the possession of the appellants. There are many apparent lapses in the investigation and missing links:–(i) Non-recovery of stolen money; (ii) The weapon from which abrasions were caused; (iii) False case lodged by PW-2 alleging that he was being robbed by some other miscreants; (iv) Non-identification of the dead body and (v) Non-explanation as to how the deceased reached Maniya village and injuries on his internal organ (penis). Thus we find many loopholes in the case of the prosecution. For establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts. The chain of circumstantial evidence cannot be said to be concluded in any manner sought to be urged by the prosecution. The “last seen theory” seems to have substantially weighed with the courts below and the High Court brushed aside many loopholes in the prosecution case. None of the circumstances relied upon by the prosecution and accepted by the courts below can be said to be pointing only to the guilt of the appellants and no other inference. If more than one inferences can be drawn, then the accused must have the benefit of doubt. In the facts and circumstances of the case, we are satisfied the conviction of the appellants cannot be sustained and the appeal ought to be allowed. 21. The conviction of the appellants under Sections 302 and 201 IPC is set aside and the appeal is allowed. The appellants are in jail and they are ordered to be set at liberty forthwith if not required in any other case.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 413 OF 2007

NIZAM & ANR.
...Appellants

                                   Versus

STATE OF RAJASTHAN                        ...Respondent


                               J U D G M E N T

R. BANUMATHI, J.


This appeal assails the correctness of the judgment dated 01.07.2005  passed
by the High Court of  Judicature  at  Rajasthan  Jaipur  Bench  in  Criminal
Appeal No.1248 of 2002, whereby the High Court confirmed the  conviction  of
the accused-appellants under Sections 302 and 201 IPC and sentence  of  life
imprisonment imposed on each of them with a fine of Rs.2,000/- with  default
clause and also two years rigorous imprisonment  with  a  fine  of  Rs.500/-
with default clause respectively.
2.          Case of the prosecution is that deceased-Manoj  was  the  helper
on the truck No.MP-07-2627 and had gone to  Pune  and  thereafter  to  Barar
alongwith his first driver Raj Kumar   (PW-2) and second driver Ram  Parkash
(PW-1) and from Barar they loaded the truck with pipes  for  destination  to
Ghaziabad on 23.01.2001.  Accused-appellants Nizam  and  Shafique  who  were
the driver and cleaner respectively on the truck No.DL-1GA-5943 also  loaded
their truck with pipes from the same company on the same day  at  Barar  and
started for Ghaziabad alongwith truck  No.MP-07-2627.   During  this  period
drivers and cleaners of both the trucks  developed  acquaintance  with  each
other.  While on the way to Ghaziabad, driver  Raj  Kumar  (PW-2)  of  truck
No.MP-07-2627 got into quarrel with  some  local  persons  and  consequently
Barar police detained him alongwith his truck. Faced  with  such  situation,
Raj Kumar (PW-2) instructed his second driver Ram  Parkash  (PW-1)  to  hand
over the amount of Rs.20,000/- to Manoj with instructions to give the  money
to the truck owner.   Accordingly,  Manoj  left  for  Gwalior  with  accused
persons by the truck No.DL-1GA-5943 on 23.01.2001.
3.          Dead body  of  deceased-Manoj  was  found  on  26.01.2001  under
suspicious circumstances in a field near village Maniya.  On  26.01.2001  at
about 3.00 O’clock, one Koke Singh (PW-13) went to collect  the  fodder  and
found a dead body lying in the field and the same was  informed  to  Shahjad
   Khan (PW-4).  Based on the written information by  Shahjad  Khan  (PW-4),
case was registered in FIR No.16/2001 under Sections  302  and  201  IPC  on
26.01.2001   at   Thana-Maniya,   District   Dholpur.   Gullu   Khan(PW-16)-
Investigating Officer  seized the dead body and prepared a  Panchnama.   One
bilty   (Ex. P17)  of  Uttar  Pradesh,  Haryana  Roadlines  (Pune)  and  one
receipt (Ex. P18) of Madhya Pradesh Government, Shivpuri Naka pertaining  to
truck No. DL-1GA-5943 were recovered from the pocket of trouser of deceased-
Manoj and in the said bilty     (Ex.P-17), name of the driver was  mentioned
as Nizam and truck No.DL-1GA-5943 and some  phone  numbers.   Based  on  the
clues obtaining in the bilty, accused Nizam and Shafique  were  arrested  on
27.01.2001  and  the  truck  No.DL-1GA-5943   was   recovered.   After   due
investigation, chargesheet was filed against  the  appellants-accused  under
Sections 302 and 201 IPC.
4.          To bring home the guilt of the  accused-appellants,  prosecution
has   examined   twenty   one   witnesses.    Incriminating   evidence   and
circumstances were put to accused-appellants under Section 313 Cr. P.C.  and
the accused denied all of them and  accused  stated  that  Manoj  had  never
travelled in their truck DL-1GA-5943. Additional Sessions Judge, Fast  Track
Court No.2, Dholpur held that the  appellants-accused  committed  murder  of
deceased-Manoj to grab Rs.20,000/- and the prosecution has  established  the
circumstances proving the accused-appellants guilty under Sections  302  and
201 IPC and sentenced each of them to undergo life imprisonment with a  fine
of Rs.2,000/- with default clause and two years rigorous  imprisonment  with
a fine of Rs.500/- with  default  clause  respectively.   Aggrieved  by  the
verdict of conviction, appellants-accused preferred appeal before  the  High
Court of Rajasthan,  which  vide  impugned  judgment  dismissed  the  appeal
thereby  confirming  the  conviction  of  the  accused-appellants  and  also
respective sentence of imprisonment and  fine  amount  imposed  on  each  of
them. Being aggrieved, the appellants have preferred this appeal.
5.          Learned counsel for the  appellants  submitted  that  the  “last
seen theory” is not applicable to the instant case  as  there  were  serious
contradictions as to the date and time in which Manoj  allegedly  left  with
the appellants. It was further argued that the amount of Rs.20,000/-   which
was allegedly taken by deceased-Manoj was not recovered from the  possession
of  the appellants. Learned counsel submitted that the circumstances  relied
upon by the prosecution are not firmly established and the circumstances  do
not form a complete chain establishing the guilt  of  the  accused  and  the
appellants are falsely roped in.
6.          Per contra, learned counsel for the  respondent-State  contended
that the deceased having huge amount of money travelled in  the  company  of
the accused-appellants and when the prosecution  has  established  that  the
deceased-Manoj  was  last  seen  alive  in  the  company  of  the   accused-
appellants, it was for the accused to explain as to  what  happened  to  the
deceased and in the absence of any explanation from the  accused  and  based
on  the   circumstantial  evidence  courts  below  rightly   convicted   the
appellants and the impugned judgment  warrants no interference.
7.          We  have  considered  the  rival  contentions  and  perused  the
impugned judgment and material on record.
8.          Case of the prosecution is entirely based on the  circumstantial
evidence. In a case based on circumstantial evidence, settled  law  is  that
the circumstances from which the conclusion of  guilt  is  drawn  should  be
fully  proved  and  such  circumstances  must  be  conclusive   in   nature.
Moreover, all the circumstances should be  complete,  forming  a  chain  and
there should be no gap left in the chain of evidence.  Further,  the  proved
circumstances must be consistent only with the hypothesis of  the  guilt  of
the accused totally inconsistent with his evidence.
9.          The principle of circumstantial evidence has been reiterated  by
this Court in a plethora of cases. In Bodhraj @ Bodha  And  Ors.  vs.  State
of Jammu & Kashmir,(2002) 8 SCC 45, wherein  this  court  quoted  number  of
judgments and held as under:-
“10. It has been consistently laid down by this  Court  that  where  a  case
rests squarely on circumstantial evidence, the inference  of  guilt  can  be
justified only when all the incriminating facts and circumstances are  found
to be incompatible with the innocence of the accused or  the  guilt  of  any
other person. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99,  Eradu
v. State of Hyderabad AIR 1956 SC 316, Earabhadrappa v. State  of  Karnataka
(1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985) Suppl. SCC 79,  Balwinder
Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v.  State
of M.P., 1989 Suppl. (1) SCC 560) The circumstances from which an  inference
as to the guilt of the accused is drawn have to be proved beyond  reasonable
doubt and have to be shown to be closely connected with the  principal  fact
sought to be inferred from those circumstances. In Bhagat Ram  v.  State  of
Punjab AIR 1954 SC 621 it was laid down that where  the  case  depends  upon
the conclusion  drawn  from  circumstances  the  cumulative  effect  of  the
circumstances must be such as to negative the innocence of the  accused  and
bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court  in  C.  Chenga
Reddy v. State of A.P. (1996) 10 SCC  193,  wherein  it  has  been  observed
thus: (SCC pp. 206-07, para 21)
“21. In a case based on circumstantial evidence, the  settled  law  is  that
the circumstances from which the conclusion of  guilt  is  drawn  should  be
fully proved and such circumstances must be conclusive in nature.  Moreover,
all the circumstances should be complete and there should be no gap left  in
the chain of evidence. Further, the proved circumstances must be  consistent
only  with  the  hypothesis  of  the  guilt  of  the  accused  and   totally
inconsistent with his innocence.”

10.         In Trimukh Maroti Kirkan vs. State  of  Maharashtra,  (2006)  10
SCC 681, this court held as under:
“12. In the case in hand there is no eyewitness of the  occurrence  and  the
case of  the  prosecution  rests  on  circumstantial  evidence.  The  normal
principle  in  a  case  based  on  circumstantial  evidence  is   that   the
circumstances from which an inference of guilt is sought to  be  drawn  must
be cogently and firmly established; that those circumstances should be of  a
definite tendency unerringly pointing towards  the  guilt  of  the  accused;
that the circumstances taken cumulatively should form a  chain  so  complete
that  there  is  no  escape  from  the  conclusion  that  within  all  human
probability the crime was committed  by  the  accused  and  they  should  be
incapable of explanation on any hypothesis other than that of the  guilt  of
the accused and inconsistent with their innocence.”

The same principles were reiterated in Sunil Clifford Daniel  vs.  State  of
Punjab,  (2012)  11  SCC  205,  Sampath  Kumar  vs.  Inspector  of   Police,
Krishnagiri (2012) 4 SCC 124 and Mohd. Arif  @  Ashfaq  vs.  State  (NCT  of
Delhi), (2011) 13 SCC 621 and a number of other decisions.
11.         By perusal of the testimonies of PWs 1, 2  and  3,  it  is  seen
that PW1-Ram Parkash and PW2-Raj Kumar along  with  deceased  cleaner  Manoj
got their truck No. MP-07-2627 loaded with pipes at Barar and  at  the  same
time another truck  No.DL-1GA-5943 of the accused  Nizam  and  Shafique  was
also loaded with pipes. On the way to Ghaziabad, quarrel took place  between
the drivers of the truck No. MP 07-2627  and  some  local  persons  and  Raj
Kumar (PW-2) was detained by the police.  Raj Kumar  (PW-2)  instructed  Ram
Parkash (PW-1) to  hand  over  the  amount  of  Rs.20,000/-  to  Manoj  with
instructions to give this money to the truck owner and  he  was  sent  along
with accused Nizam and Shafique in the other truck DL-1GA-5943.  PWs  1  and
2 further stated that after being released from  the  police  station,  they
went to Gwalior and enquired about Manoj from their owner Rajnish Kant  (PW-
3) who had no knowledge about Manoj.  In the meanwhile, based on  the  bilty
and the receipt recovered from the pocket of the trouser of  deceased-Manoj,
Maniya police contacted PW-3-owner of the truck and on being  so  contacted,
PWs 1 to 3 went to Maniya Police Station and identified the deceased  person
as Manoj through his clothes and photographs.
12.         Based on the evidence of PWs 1 and  2,  courts  below  expressed
the view that motive for murder of Manoj was the lust for  the  money  which
Manoj was carrying. Courts below based the conviction of the  appellants  on
the circumstances “last seen theory” as stated by PWs 1  and  2  along  with
recovery of bilty and receipt by PW-6 on  which  the  name  of  the  accused
person (Nizam) was printed. The appellants are  alleged  to  have  committed
murder of Manoj for the amount which Manoj was carrying.   But  neither  the
amount of Rs.20,000/- nor any part of it was recovered from the  appellants.
 If the prosecution is able to prove its  case  on  motive,  it  will  be  a
corroborative piece of evidence lending assurance to the  prosecution  case.
But even if the prosecution has not been able  to  prove  the  motive,  that
will not be a ground to throw away the prosecution case.  Absence  of  proof
of motive only demands careful scrutiny  and  deeper  analysis  of  evidence
adduced by the prosecution.
13.         Apart from non-recovery  of  the  amount  from  the  appellants,
serious doubts arise as to the motive propounded  by  the  prosecution.   By
perusal of the evidence of Sudama Vithal Darekar (PW-17) it  is  clear  that
driver Raj Kumar came to the police station  complaining  that  by  five  to
seven people of other vehicle have robbed him and the money. However,  after
investigation it was discovered that Raj Kumar gave false information and  a
case under Section 182  IPC  was  registered  against  him.  Raj  Kumar  was
produced before the Court and court  imposed  fine  of  Rs.1,000/-  on  him.
This fact was also verified  from  PW-16-investigating  officer  during  his
cross-examination.
14.         Courts below convicted the appellants on the evidence of  PWs  1
and 2 that deceased was last seen alive with the appellants  on  23.01.2001.
Undoubtedly, “last seen theory”  is  an  important  link  in  the  chain  of
circumstances that would point towards the guilt of the  accused  with  some
certainty.  The “last seen theory” holds the courts to shift the  burden  of
proof to the accused and the accused to offer a  reasonable  explanation  as
to the cause of death of the deceased.  It is  well-settled  by  this  Court
that it is not prudent to base the conviction solely on “last seen  theory”.
“Last seen theory” should be applied taking into consideration the  case  of
the prosecution in its entirety and keeping in mind the  circumstances  that
precede and follow the point of being so last seen.
15.         Elaborating the principle of  “last  seen  alive”  in  State  of
Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:-
“23. It is not necessary to multiply  with  authorities.  The  principle  is
well settled. The provisions of Section 106 of the Evidence Act  itself  are
unambiguous and categoric in laying down that when any  fact  is  especially
within the knowledge of a person, the burden of proving that  fact  is  upon
him. Thus, if a person is last seen with the  deceased,  he  must  offer  an
explanation as to how and  when  he  parted  company.  He  must  furnish  an
explanation which appears to the court to be probable and  satisfactory.  If
he does so he must be held to have discharged his burden.  If  he  fails  to
offer an explanation on the basis of facts within his special knowledge,  he
fails to discharge the burden cast upon him by Section 106 of  the  Evidence
Act. In a case resting on circumstantial evidence if the  accused  fails  to
offer a reasonable explanation in discharge of the  burden  placed  on  him,
that itself provides an  additional  link  in  the  chain  of  circumstances
proved against him. Section 106 does not shift the  burden  of  proof  in  a
criminal trial, which is always upon the prosecution. It lays down the  rule
that when the accused  does  not  throw  any  light  upon  facts  which  are
specially within his knowledge and which could not  support  any  theory  or
hypothesis compatible  with  his  innocence,  the  court  can  consider  his
failure to adduce any explanation, as an  additional  link  which  completes
the chain. The principle has been succinctly  stated  in  Naina  Mohd.,  Re.
(AIR 1960 Mad 218)”

The above judgment was relied upon and reiterated in Kiriti  Pal  vs.  State
of West Bengal, (2015) 5 Scale 319.
16.         In the light of the above, it is  to  be  seen  whether  in  the
facts and circumstances of this case, whether the courts  below  were  right
in invoking the “last seen theory.”   From  the  evidence  discussed  above,
deceased-Manoj allegedly left in the truck DL-1GA-5943 on  23.01.2001.   The
body of deceased-Manoj was recovered  on  26.01.2001.  The  prosecution  has
contended the accused persons were last  seen  with  the  deceased  but  the
accused have not offered any plausible, cogent explanation as  to  what  has
happened to Manoj. Be it noted, that only if the prosecution  has  succeeded
in proving the facts by definite evidence that the deceased  was  last  seen
alive in the company of the accused, a reasonable inference could  be  drawn
against the accused and then only onus can be shifted on the  accused  under
Section 106 of the Evidence Act.
17.         During their questioning under Section 313 Cr.P.C., the accused-
appellants denied Manoj having travelled in their truck No.DL-1GA-5943.   As
noticed earlier, body of Manoj was recovered only on 26.01.2001 after  three
days.  The gap between the time when Manoj is alleged to have  left  in  the
truck     No.DL-1GA-5943 and the recovery of the body is not  so  small,  to
draw an inference against the appellants.  At  this  juncture,  yet  another
aspect emerging from the evidence needs to be  noted.   From  the  statement
made by Shahzad Khan (PW-4) the internal organ (penis) of the  deceased  was
tied with rope and blood was oozing out from his nostrils.  Maniya  village,
the place where the body of Manoj was recovered is alleged to be  a  notable
place  for  prostitution  where  people  from  different  areas   come   for
enjoyment.
18.         In view of the time gap between Manoj left in the truck and  the
recovery of the body and also the place and circumstances in which the  body
was recovered, possibility of others intervening cannot  be  ruled  out.  In
the absence of definite evidence that  appellants  and  deceased  were  last
seen together and when the time gap is long, it would be dangerous  to  come
to the conclusion that the appellants are  responsible  for  the  murder  of
Manoj and are guilty of committing murder of  Manoj.    Where  time  gap  is
long it would be unsafe to base the conviction on the  “last  seen  theory”;
it is safer to look for corroboration from other circumstances and  evidence
adduced by the prosecution. From the facts and evidence, we  find  no  other
corroborative piece of evidence corroborating the last seen theory.
19.         In case of circumstantial evidence, court  has  to  examine  the
entire evidence in its entirety and ensure that the only inference that  can
be drawn from the evidence is the guilt of the  accused.   In  the  case  at
hand, neither the weapon of murder nor the money  allegedly  looted  by  the
appellants or any other material was recovered from the  possession  of  the
appellants.  There  are  many  apparent  lapses  in  the  investigation  and
missing links:–(i) Non-recovery of stolen money; (ii) The weapon from  which
abrasions were caused; (iii) False case lodged by PW-2 alleging that he  was
being robbed by some other  miscreants;    (iv)  Non-identification  of  the
dead body and (v) Non-explanation as to  how  the  deceased  reached  Maniya
village and injuries on his internal  organ  (penis).   Thus  we  find  many
loopholes in the case of the prosecution.  For  establishing  the  guilt  on
the basis of the circumstantial evidence, the circumstances must  be  firmly
established and the chain  of  circumstances  must  be  completed  from  the
facts.  The chain of circumstantial evidence cannot be said to be  concluded
in any manner sought to be urged by the prosecution.
20.         Normally, this Court will  not  interfere  in  exercise  of  its
powers under Article 136 of the Constitution of India  with  the  concurrent
findings recorded by the courts below.  But where material aspects have  not
been taken into consideration and  where  the  findings  of  the  Court  are
unsupportable from the  evidence  on  record  resulting  in  miscarriage  of
justice, this Court will certainly interfere.  The “last seen theory”  seems
to have substantially weighed with the  courts  below  and  the  High  Court
brushed  aside  many  loopholes  in  the  prosecution  case.   None  of  the
circumstances relied upon by the prosecution  and  accepted  by  the  courts
below can be said to be pointing only to the guilt of the appellants and  no
other inference. If more than one inferences can be drawn, then the  accused
must have the benefit of doubt.  In  the  facts  and  circumstances  of  the
case, we are satisfied the conviction of the appellants cannot be  sustained
and the appeal ought to be allowed.
21.         The conviction of the appellants under Sections 302 and 201  IPC
is set aside and the appeal is allowed. The appellants are in jail and  they
are ordered to be set at liberty forthwith if  not  required  in  any  other
case.


                                                                 ………………………J.
                                                (DIPAK MISRA)


                                                                 ………………………J.
                                                (R. BANUMATHI)
New Delhi;
September 4, 2015







-----------------------
12

LA Act - Acquisition of Sold Evacuee Properties - The subject land, admittedly, was evacuee property. It was acquired under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (in short ‘the DPCR Act’). Thereafter the property was transferred to the compensation pool under Section 14 of the said Act. A decision was taken to transfer the subject property out of the compensation pool to displaced persons. In an auction held on 6.8.1958 the predecessors of the respondents (hereinafter referred to as the respondents) offered the highest bid which was accepted on 15.10.1958. After adjustment of the verified claims, the respondents were asked to deposit the balance price within 15 days which was so done. On 10.3.1959, the respondents were informed by the appellant that their bid has been accepted and provisional possession of the property is being handed over to them.=In view of the above it has to be held that the subject land ceased to be evacuee property after publication of the notification of acquisition under Section 12 of the DPCR Act. Consequently the exemption clause in the notification issued under Section 4 exempting from its purview evacuee land will have no application to the present case. This will bring us to the second question that has been formulated for an answer in the present appeal. In Saraswati Devi (supra) on an exhaustive consideration of the issue with regard to the effect of delivery of provisional possession, which in the present case was handed over to the respondents on approval of the highest bid, it was held that such provisional possession gives the auction purchaser possessory rights as distinguished from proprietary rights in the auctioned property. The above proposition culled out in a judgment of the Punjab High Court in Roshan Lal Goswami vs. Gobind Raj[4] was approved by this Court to further hold that such proprietary rights occasioned by the delivery of provisional possession creates an encumbrance on the property which can be the subject of acquisition under the LA Act. In the present case also the facts being identical, we have to hold that an encumbrance had been created in the subject property, which, as held in Saraswati Devi (supra), could be acquired under the LA Act although the ownership in the land vested in the Central Government. In this regard we must also take note of the manner in which the earlier decision of this Court in Sharda Devi vs. State of Bihar[5] has been understood in Saraswati Devi (supra), namely, it is only such land in respect of which the entirety of the rights vests in the State and on which land there are no private rights or encumbrances which would be outside the purview of the LA Act. In view of the above discussions we arrive at the conclusion that the judgment and order of the High Court under challenge in the present appeal is not sustainable in law. We, therefore, set aside the same and allow this appeal.

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL  NO. 3971 OF 2006


Lt. Governor of Delhi & Ors.                       ...   Appellant (s)

                                   Versus
Matwal Chand (D) Thr. LRs.                       ...    Respondent(s)


                               J U D G M E N T

RANJAN GOGOI, J.

The challenge in this appeal is to an order dated 15.04.2004 passed  by  the
High Court of Delhi in two writ petitions  raising  identical  questions  of
law on similar facts. The writ petitions filed by the respondent  have  been
allowed and the acquisition proceedings  under  the  Land  Acquisition  Act,
1894 (in short ‘the LA Act’) have been declared null and  void.   Aggrieved,
the Delhi Administration has filed the instant appeal.
The core facts lie in a short compass and are as follows:
The subject land, admittedly, was evacuee property. It  was  acquired  under
Section 12 of the Displaced Persons (Compensation and  Rehabilitation)  Act,
1954 (in short ‘the DPCR Act’). Thereafter the property was  transferred  to
the compensation pool under Section 14 of  the  said  Act.  A  decision  was
taken to transfer the subject property  out  of  the  compensation  pool  to
displaced persons.  In an auction held on 6.8.1958 the predecessors  of  the
respondents  (hereinafter  referred  to  as  the  respondents)  offered  the
highest bid which was  accepted  on  15.10.1958.  After  adjustment  of  the
verified claims, the respondents were asked to  deposit  the  balance  price
within 15 days which  was  so  done.  On  10.3.1959,  the  respondents  were
informed by the appellant that their bid has been accepted  and  provisional
possession of the property is being handed over to them.

On 13.11.1959 a notification under Section  4  of  the  LA  Act  was  issued
proposing to acquire 34070 acres  of  land  in  several  villages  including
Village Basai Darapur where the subject land was situated. The  notification
under Section 4 specifically excluded from the purview  of  the  acquisition
Government and evacuee land. After the Section  4  notification  was  issued
and prior to the declaration under Section 6  made  on  6.1.1969,  the  sale
certificate was issued in respect of the  subject  land  on  25.1.1962.  The
same which was registered on 21.2.1962 clearly recites that the  respondents
are declared as the purchasers of the property with effect from 25.1.1962.

After publication of the declaration under Section 6  on  6.1.1969,  notices
under Sections 9 and 10  of  the  LA  Act  were  issued  on  10.1.1979.  The
respondents filed their claim before the competent authority. Thereafter  on
7.1.1981 the award in respect of the subject property was passed which  came
to be challenged in the writ petitions out of which this appeal has  arisen.


By the  impugned  order  the  High  Court  on  consideration  of  the  rival
contentions and the provisions of the DPCR Act and the facts set  out  above
came to the conclusion that the subject land was  evacuee  property  on  the
date of the notification issued under Section 4 of the LA  Act  and  as  the
said  notification  had  exempted  evacuee  land   from   the   purview   of
acquisition, the proceedings for  acquisition,  including  the  award,  were
null and void.

Before us, Ms. Rachana Srivasatava learned counsel  for  the  appellant  has
urged that the subject property, though evacuee property, ceased  to  be  so
upon acquisition of the same under Section 12 of the DPCR Act.  It is  urged
that  under  Section  12(2)  of  the  said  Act,  upon  publication  of  the
notification under sub-section (1), the right, title  and  interest  of  any
evacuee  in  the  evacuee  property  stands  extinguished  and  the  evacuee
property  vests  absolutely  in  the  Central  Government  free   from   all
encumbrances. Under sub-section (4) of Section 12 all such evacuee  property
acquired becomes a part of the compensation pool which vests in the  Central
Government under Section 14(2) of the DPCR Act. Pointing out the  provisions
of the Section 20 of the DPCR Act, it is urged  that  property  included  in
the common pool may be sold, leased, allotted or otherwise transferred to  a
displaced person. It is therefore urged that upon  the  acquisition  of  the
subject property under Section 12 of the DPCR Act  the  same  had  shed  its
character as evacuee property and by operation of the provisions of the  Act
the property stood vested in the Central Government.  The  exemption  clause
contained in the notification under Section 4 of the LA Act  issued  in  the
present case on 13.11.1959, in so far  as  evacuee  property  is  concerned,
therefore, has no application to the subject land.

It is further argued that though in the present case  the  sale  certificate
in respect of the property was issued on 25.1.1962 and the property  therein
was transferred to the respondents with effect from the said date, there  is
no inherent contradiction between the transfer of title  in  favour  of  the
respondents on a subsequent date and the  acquisition  of  the  property  or
initiation of such process of acquisition on a prior date.  In  this  regard
placing reliance on a judgment of this Court in Saraswati Devi (Dead) by  LR
vs. Delhi Development Authority & Ors.,[1] it  is  contended  that  the  bid
offered by the respondent;  the  acceptance  thereof  and  the  delivery  of
provisional possession creates an encumbrance on the subject land  which  is
amenable to a process of acquisition under the LA Act as held  in  Saraswati
Devi (supra).

Reliance has also  been  placed  on  a  judgment  of  this  Court  in  Delhi
Administration & Ors. Vs. Madan Lal Nangia & Ors.[2]  to  contend  that  the
evacuee property vests in the Custodian for  the  purposes  contemplated  by
the Administration of  Evacuee  Property  Act,  1950   and  in  the  Central
Government only after the notification of acquisition under  Section  12  of
the DPCR Act is issued but not prior thereto.

On the other hand learned counsel appearing on  behalf  of  the  respondents
has contended that the  acquisition  of  evacuee  property  by  the  Central
Government under Section 12 of the DPCR Act and the transfer  of  such  land
to the compensation pool under Section 14 does not divest the status of  the
subject land as evacuee property. Pointing out the  provisions  of  the  two
enactments i.e. the DPCR Act and  the  Administration  of  Evacuee  Property
Act, it is contended that while the object and purpose of the latter Act  is
the administration of evacuee property by the custodian in  accordance  with
the provisions thereof, acquisition of such property for  inclusion  in  the
common pool for allotment of such land to displaced persons is  contemplated
under the DPCR Act. The transfer of evacuee  land  to  the  common  pool  by
issuance of a notification under Section 12 of the DPCR Act does not  change
the character of the land which continues to remain evacuee property.  Hence
it is contended that the subject land is covered by the exemption clause  of
the Section 4 notification dated 13.11.1959.  It is also urged  that  if  by
virtue of Section 12 of the DPCR Act the property is vested in  the  Central
Government it cannot be understood how the  Central  Government  could  have
initiated  the  process  of  acquisition  of  its  own  property  under  the
provisions of the LA Act.

Learned counsel has further argued that in the present case in terms of  the
expressed stipulation in the sale certificate dated 25.1.1962  to  the  said
effect, the property stood transferred in the name of the  respondents  with
effect from the said date and not from any anterior date including the  date
of payment of the full amount due.  This is notwithstanding  the  fact  that
under Rule 90 of the Rules of 1955 for sale of properties  forming  part  of
the compensation pool, the sale certificate  only  formalises  the  transfer
which is effective from the date of payment of the full price.   Relying  on
the clear terms embodied in the sale certificate issued in the present  case
it is argued that  the  subject  land  continued  to  vest  in  the  Central
Government until 25.1.1962 and hence could not have  been  acquired  by  the
notification dated 13.11.1959 under Section 4 of the LA Act, the  said  date
being  anterior  to  the  date  of  transfer  of  title  in  favour  of  the
respondents.

Two  questions  as  set  out  below,  in  our  considered  view,  arise  for
determination in the present case.
Whether the land, after issuance of notification under  Section  12  of  the
DPCR Act, ceased to be evacuee property  so  as  to  be  excluded  from  the
purview of the notification issued under Section 4 of the LA Act?
If the subject land vested in the Central  Government  upon  publication  of
the notification under Section 12 of the DPCR Act and thereby ceased  to  be
evacuee land, could such land vested in the Central Government  be  acquired
under the provisions of the LA Act?
A reading of the provisions of the Administration of Evacuee  Property  Act,
1950 would go to show that the said Act (since  repealed  with  effect  from
5.9.2005) had been enacted for the administration of  evacuee  property  and
for matters connected therewith. While it will not be necessary to  set  out
the definition of “evacuee” and “evacuee property” as defined  in  the  said
Act regard must be had to the provisions of  Section  6  which  contemplated
appointment by the Central Government by means  of  a  notification  in  the
official gazette, a Custodian for any State for discharge  of  duties  under
the Act. Section 7 empowers the Custodian to  declare  any  property  as  an
evacuee  property  after  issuance  of  appropriate  notice  in  the  manner
prescribed and after holding an inquiry in the matter.  Under Section 8  any
property declared as evacuee property under Section  7  is  deemed  to  have
vested in the Custodian. Possession of all such properties is  to  be  taken
over by the Custodian under Section 9 of the Act. Section 10 deals with  the
powers and duties of the Custodian and  may  be  usefully  extracted  herein
below.
“10 - Powers and duties of  the  Custodian  generally-  (1) Subject  to  the
provisions of any rules that may be made in this behalf, the  Custodian  may
take such measures as he considers necessary or expedient for  the  purposes
of securing, administering, preserving and  managing  any  evacuee  property
and generally for the purpose of enabling him  satisfactorily  to  discharge
any of the duties imposed on him by or under this Act and may, for any  such
purpose as aforesaid, do all  acts  and  incur  all  expenses  necessary  or
incidental thereto.

(2) Without prejudice to the generality of the provisions contained in  sub-
section (1), the Custodian may, for any of the purposes aforesaid,--

(a) carry on the business of the evacuee;

(b) appoint a manager for the property of the evacuee  or  for  carrying  on
any business or undertaking of the evacuee  and  authorize  the  manager  to
exercise any of the powers of the Custodian under this section;

(c) enter, or authorize any other person to enter, any land or  premises  to
inspect any evacuee property;

(d) take all such measures as may be necessary to keep any evacuee  property
in good repair;

(e) complete any building which has vested in him and which requires  to  be
completed;

[***]

(i) take such action as may be necessary for the recovery of  any  debt  due
to the evacuee;

(j) institute, defend or continue any  legal  proceeding  in  any  Civil  or
Revenue Court on behalf of the evacuee or  refer  any  dispute  between  the
evacuee and any other person to arbitration or compromise any claims,  debts
or liabilities on behalf of the evacuee;

(l) in any  case  where  the  evacuee  property  which  has  vested  in  the
Custodian  consists  of  a  share  or  shares  in   a   company,   exercise,
notwithstanding  anything  to  the  contrary   contained   in   the 3 Indian
Companies Act, 1913 (7 of 1913 ), or in the articles of association  of  the
company, the same rights in the matter  of  making  a  requisition  for  the
convening of a meeting or of presenting a petition to the  Court  under  the
provisions  of  the  Indian  Companies  Act,  1913  ,  or  the  articles  of
association  of  the  company  or  in  any  other  matter  as  the   evacuee
shareholder himself could have done had he been present, although  the  name
of the Custodian does not appear in the register of members of the company;

(ll)  in any case where  the  evacuee  property  which  has  vested  in  the
Custodian consists of fifty- one per cent.  or  more  of  the  shares  in  a
company, the Custodian may take  charge  of  the  management  of  the  whole
affairs of the company and exercise,  in  addition  to  any  of  the  powers
vested in him under this Act, all or any of the powers of the  directors  of
the company, notwithstanding that the registered office of such  company  is
situate in any part of the  territories  to  which  this  Act  extends,  and
notwithstanding anything to the  contrary  contained  in  this  Act  or  the
Indian Companies Act, 1913 (7 of 1913 ), or in the articles  of  association
of the company:
Provided that the Custodian shall not take charge of such management of  the
company except with the previous approval of the Central Government;

(m) incur any expenditure, including the payment of  taxes,  duties,  cesses
and rates to Government or to any local authority  ;

(n) pay to the evacuee, or to any member of  his  family  or  to  any  other
person as in the opinion of the Custodian is entitled thereto, any  sums  of
money out of the funds in his possession;

(o) transfer in any manner whatsoever any evacuee property,  notwithstanding
anything to  the  contrary  contained  in  any  law  or  agreement  relating
thereto:
Provided that the Custodian shall not sell any  immovable  property  or  any
business or other undertaking of  the  evacuee,  except  with  the  previous
approval of the Custodian- General;

(p)  acquire any non- evacuee interest in evacuee property, whether  by  way
of purchase or otherwise:
Provided that no such acquisition shall be made  except  with  the  previous
approval of the Custodian- General;

(q) delegate, by general or special order,  all  or  any  of  his  functions
under this Act to such officers or persons as he thinks fit.”


On the other hand, the DPCR Act  has  been  enacted,  inter  alia,  for  the
purpose of making payment  of  compensation  and  rehabilitation  grants  to
displaced persons. Section 12 contained in  Chapter  III  of  the  DPCR  Act
confers power in the Central Government  to  acquire  evacuee  property  for
rehabilitation of displaced persons. The provisions of Sections 12,  14  and
20 which are relevant have already been noticed and  will  not  require  any
further mention. The effect and interplay between the  two  enactments  have
been noticed in Delhi Administration & Ors. vs.  Madan  Lal  Nangia  &  Ors.
(supra) wherein it has been held that under the  Administration  of  Evacuee
Property Act,  1950,  the  evacuee  property  vests  in  the  Custodian  for
purposes  of  administration  of  such  property  in  accordance  with   the
provisions of the Act and at that stage the property does not vest   in  the
Central Government.  However, after the issuance of the  notification  under
Section 12 of the DPCR Act the property vests  in  the  Central  Government.
This is, in fact, abundantly clear from the provisions of Section  12(2)  of
the DPCR Act which clearly provides that on publication  of  a  notification
under sub-section (1) of Section 12 “the right, title and  interest  of  any
evacuee in the evacuee property specified in the notification shall, on  and
from the beginning of the date on which the notification is so published  be
extinguished and the evacuee property shall vest absolutely in  the  Central
Government free from all encumbrances.” Under sub-section (4) of Section  12
all such evacuee property acquired  forms  part  of  the  compensation  pool
which under Section 14 vests  in  the  Central  Government  “free  from  all
encumbrances and shall be utilised in  accordance  with  the  provisions  of
this Act and the rules made thereunder”. The vesting of the property in  the
Custodian under the Administration of Evacuee Property Act (Section  8)  and
in the Central Government (after issuance of Section 12  notification  under
the DPCR Act) are two distinct and different phases which  are  contemplated
to be brought into effect  by  specific  acts  and  conscious  decisions  as
contemplated by the provisions of the two enactments. The clear language  of
Section 8 of Administration of Evacuee Property Act  and  Sections  12(2)  &
(4) and 14 of the DPCR Act makes it abundantly  clear  that  the  transition
from the vesting of the evacuee property in the  Custodian  to  the  Central
Government is a  distinct  and  identifiable  process  under  the  law.  The
acquisition of the land under Section 12 of the DPCR Act brings the  evacuee
property into a common pool which is to be utilised in accordance  with  the
provisions of the Act. Specifically, once the property is  included  in  the
common pool and vests in the Central Government, under  Section  16  of  the
DPCR Act, the Central Government may take  such  measures  as  it  considers
necessary or expedient for the custody,  management  and  disposal  of  such
property including transfer of the property out of the compensation pool  to
a displaced person.  In  the  face  of  the  clear  provisions  of  the  two
enactments  and  the  respective  schemes  contemplated  thereunder,  it  is
difficult to hold that the evacuee property continues to retain such  status
after issuance of the notification under Section 12 of the  DPCR  Act.    In
fact the above view would find resonance  in  an  old  vintage  decision  in
Major Gopal Singh and Others vs.  Custodian,  Evacuee  Property,  Punjab  an
Others[3] though rendered in a somewhat  different  context.   The  relevant
details thereof in para 9 may be extracted below.
“9.   Section 12 of the 1954 Act empowers the Central Government to  acquire
evacuee property for rehabilitation of displaced persons  by  publishing  in
the official gazette a notification to the effect that  it  has  decided  to
acquire such evacuee property in pursuance of this provision. ……………………………
Sub-section 2 of s.12 of the Act provides that on  the  publication  of  the
notification under sub-s. 1 the right, title or interest of any  evacuee  in
the  property  specified  in  the  notification  shall   immediately   stand
extinguished  and  that  property  shall  vest  absolutely  in  the  Central
Government free from all encumbrances. The power of the Custodian under  the
Administration of Evacuee Property Act, 1950, to allot  any  property  to  a
person or to cancel an allotment existing in favour of  a  person  rests  on
the fact that the  property  vests  in  him.  But  the  consequence  of  the
publication of the notification by the Central Government under s.  12(1) of
the Displaced Persons (Compensation and Rehabilitation) Act with respect  to
any property or a class  of  property  would  be  to  divest  the  Custodian
completely  of  his  right  in  the  property  flowing   from   s.8 of   the
Administration of Evacuee Property Act, 1950, and vest that property in  the
Central Government. He would, therefore, not be competent to deal  with  the
property in any manner in the absence of any provision in  either  of  these
two enactments permitting him to do so. No provision was,  however,  pointed
out to us in either of these Acts whereunder  despite  the  vesting  of  the
property in the Central Government the Custodian was empowered to deal  with
it. Sub-s. 4 of s. 12 of the 1954 Act provides  that  all  evacuee  property
acquired under that section shall form part of the compensation pool.  Under
s. 16(1) of this Act the  Central  Government  is  empowered  to  take  such
measures as it considers necessary or expedient for the custody,  management
and disposal of the compensation  pool.  Sub-s.  2  of  s.  16 empowers  the
Central  Government  to  appoint  such  officers  as  it  deems  fit  or  to
constitute such authority or corporation as it deems fit for the purpose  of
managing and disposing of the properties forming part  of  the  compensation
pool.  Section  19 of  the  Act  provides  that   notwithstanding   anything
contained in any contract or any other law for the time being in  force  but
subject to the rules that may be made under the Act the managing officer  or
managing corporation may cancel any allotment etc., under which any  evacuee
property acquired under the Act is held or  occupied  by  a  person  whether
such allotment or lease was granted before or after the commencement of  the
Act. This provision thus confers the power to  deal  with  evacuee  property
acquired under the Act only on a  managing  officer  appointed  or  managing
corporation constituted under the Act and makes  no  mention  whatsoever  of
the Custodian appointed under the Administration of  Evacuee  Property  Act.
No doubt, under s.10 of the  Administration  of  Evacuee  Property  Act  the
Custodian is empowered to manage evacuee property and  in  exercise  of  his
power he will be competent to allot  such  property  to  any  person  or  to
cancel an allotment or lease made in favour of  a  person.  Apart  from  the
fact that subsequent to the issue of the notification under s. 12(1) of  the
Displaced Persons (Compensation and Rehabilitation) Act, the property  would
cease to be evacuee property, the aforesaid powers of  the  Custodian  would
be in conflict with those conferred by s.19 of the 1954 Act  on  a  managing
officer or a managing corporation constituted under that Act.”


In view of the above it has to be held that the subject land  ceased  to  be
evacuee property after publication of the notification of acquisition  under
Section 12 of the DPCR  Act.   Consequently  the  exemption  clause  in  the
notification issued under Section 4 exempting from its purview evacuee  land
will have no application to the present case.

This will bring us to the second question that has been  formulated  for  an
answer in the present appeal. In Saraswati Devi  (supra)  on  an  exhaustive
consideration of the  issue  with  regard  to  the  effect  of  delivery  of
provisional possession, which in the present case was  handed  over  to  the
respondents  on  approval  of  the  highest  bid,  it  was  held  that  such
provisional possession gives the  auction  purchaser  possessory  rights  as
distinguished from proprietary rights in the auctioned property.  The  above
proposition culled out in a judgment of the Punjab High Court in Roshan  Lal
Goswami vs. Gobind Raj[4] was approved by this Court to  further  hold  that
such  proprietary  rights  occasioned  by  the   delivery   of   provisional
possession creates an encumbrance on the property  which can be the  subject
of acquisition under the LA Act. In the present case also  the  facts  being
identical, we have to hold that an  encumbrance  had  been  created  in  the
subject property, which,  as  held  in  Saraswati  Devi  (supra),  could  be
acquired under the LA Act although the ownership in the land vested  in  the
Central Government. In this regard we must also take note of the  manner  in
which the earlier decision of  this  Court  in  Sharda  Devi  vs.  State  of
Bihar[5] has been understood in Saraswati Devi (supra), namely, it  is  only
such land in respect of which the entirety of the rights vests in the  State
and on which land there are no private rights or  encumbrances  which  would
be outside the purview of the LA Act.

In view of the above discussions  we  arrive  at  the  conclusion  that  the
judgment and order of the High Court under challenge in the  present  appeal
is not sustainable in law.  We, therefore, set  aside  the  same  and  allow
this appeal.


                                            ..……..……......................J.
                                                    (RANJAN GOGOI)


                                             ….……..…….....................J.
                                                    (PRAFULLA C. PANT)
NEW DELHI
SEPTEMBER 04, 2015.

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                             I.A. NO. 12 OF 2015
                                     IN
                       CIVIL APPEAL  NO. 3971 OF 2006

Lt. Governor of Delhi & Ors.                       ...Appellant (s)/
                                                            Non-Applicants

                                   Versus
Matwal Chand (D) Thr. LRs.                       ...Respondent/(s)
                                                            Applicant(s)

                                  O R D E R

This  application  seeks  directions  that  the  subject  land   acquisition
proceedings are deemed to have lapsed under Section 24(2) of  the  Right  to
Fair Compensation & Transparency in  Land  Acquisition,  Rehabilitation  and
Resettlement Act, 2013.
      In view of the issues raised and the consistent orders of  this  Court
on similar applications, we leave it open to  the  respondents  to  approach
the appropriate forum, if they  are  so  advised,  to  initiate  appropriate
proceedings  under  Section  24  of  the  Right  to  Fair   Compensation   &
Transparency in  Land  Acquisition,  Rehabilitation  and  Resettlement  Act,
2013.  Any such approach, if made,  shall be within eight weeks from today.

      The I.A. stands disposed of in the above terms.




                                           ...……..……......................J.
                                                     (RANJAN GOGOI)



                                             ….……..…….....................J.
                                                      (PRAFULLA C. PANT)
NEW DELHI
SEPTEMBER 04, 2015.

-----------------------
[1]

       2013 (3) SCC 571
[2]    2003 (10) SCC 321
[3]    AIR 1961 SC 1320
[4]    AIR 1963 Punj 532
[5]    2003 (3) SCC 128

Under Section 15(2) of the Act in a situation where the mandate of an arbitrator terminates, a substitute arbitrator is required to be appointed according to the rules that were applicable to the appointment of the arbitrator who is replaced. In Yashwith Constructions (P) Ltd. Versus Simplex concrete Piles India Ltd. and another [(2006) 6 SCC 204], the term 'rules' appearing in Section 15(2) of the Act has been understood to be referring to the provisions for appointment contained in the arbitration agreement or any rules of any institution under which the disputes are to be referred to arbitration. In the present case, admittedly, there are no institutional rules under which the disputes between the parties are to be referred to arbitration and, therefore, the expression “rules” appearing in Section 15(2) of the Act will have to be understood with reference to the provisions for appointment contained in the Supply Contract. Clause 22.3 of the Supply Contract which deals with the matter may be extracted at this stage: “22.3 All disputes, controversies or claims arising out of or in connection with or in relation to this Contract of its negotiation, performance, breach, existence or validity, whether contractual or tortuous, shall be referred to arbitration in accordance with the Indian Conciliation and Arbitration Act, 1996 and conducted by a single arbitrator to be appointed by the Parties by mutual consent. The cost of arbitration shall be shared by the Parties. The place of the arbitration shall be India and the applicable law in relation to the procedure of the arbitration shall be determined by reference to the law of the place of the arbitration is to be held. The arbitration proceedings shall be conducted in English language. The award of the arbitration shall be final and binding against the Parties hereto.” 6. Clause 22.3 of the Supply Contract contemplates appointment of a sole arbitrator by the parties by mutual consent. In a situation where the original arbitrator i.e. Shri Justice S.K. Dubey had recused himself the substitute or new arbitrator is required to be appointed according to the rules that were applicable to the appointment of the original arbitrator. This is the mandate of Section 15(2) of the Act. It was, therefore, incumbent on the petitioner to give notice and explore the possibility of naming an arbitrator by mutual consent and only on failure thereof the present application under Section 11(6) of the Act could/should have been filed. The above recourse is required to be followed by virtue of the provisions of Section 15(2) of the Act and the decision of this Court in Yashwith Constructions (P) Ltd. (supra). Admittedly, the same had not been followed. In these circumstances, the Court will understand the present application/arbitration petition to be premature. It is accordingly not entertained leaving it open for the petitioner to act appropriately, if so advised, in terms of the present order and thereafter seek its remedies as provided by law. The Arbitration Petition is disposed of in the above terms.

                                                              NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                   ARBITRATION CASE (CIVIL) NO.27 OF 2015


HUAWEI TECHNOLOGIES CO. LTD.             ...PETITIONER

                            VERSUS

STERLITE TECHNOLOGIES LTD.                 ...RESPONDENT


                               J U D G M E N T


1.          This application under Section  11(6)  of  the  Arbitration  and
Conciliation Act, 1996 (hereinafter referred  to  as  “the  Act”)  has  been
filed seeking appointment of a Sole Arbitrator in terms of  clause  22.3  of
the Supply Contract between the  parties  which  was  entered  into  in  the
following circumstances:

            In March 2006, MTNL issued a tender  for  supply,  installation,
testing, commissioning of Broadband Access  Network.   Both  the  petitioner
and  the  respondent  together  bid  against  the  tender  floated  and  the
respondent acted as the lead bidder.  The contract was awarded in favour  of
the respondent by the MTNL.  On 9th April, 2007, the parties entered into  a
Supply Contract for the aforesaid  project.  According  to  the  petitioner,
though it had complied with all the terms and conditions of the said  supply
contract and had shipped/delivered all equipments on  time,  the  respondent
had failed to make full payment of the amounts due and an amount  quantified
at USD 13,390,000 is due and payable.  The petitioner sent  a  legal  notice
dated 28th November, 2014 calling upon the respondent  to  make  payment  of
the outstanding dues along with interest thereon within seven  days  failing
which it was stated in the notice that  the  petitioner  would  be  invoking
clause 22 of the Supply Contract which provided  for  arbitration  and  will
proceed to appoint Mr. Justice S.K. Dubey, a former judge of the High  Court
of Madhya Pradesh as the sole Arbitrator.

            As no  response  was  received  to  the  aforesaid  notice,  the
petitioner by letter dated 29th December, 2014 appointed Shri  Justice  S.K.
Dubey which appointment was accepted.  Thereafter the  respondent  raised  a
dispute with regard to the reference to the  arbitration  and  rejected  the
appointment of Shri Justice S.K. Dubey as the sole Arbitrator.

            In these facts the learned sole  Arbitrator  Shri  Justice  S.K.
Dubey  by  order  dated  21st  January,  2015  recused  himself   from   the
proceedings.   It  is  in  the  aforesaid  circumstances  that  the  present
application/arbitration petition has been filed under Section 11(6)  of  the
Act for appointment of a sole Arbitrator.

2.          A counter affidavit has been filed on behalf of  the  respondent
wherein it has been, inter  alia,  stated  that  upon  appointment  of  Shri
Justice  S.K.  Dubey  as  the  sole  Arbitrator  the  notice  invoking   the
arbitration clause had spent its  force;  Shri  Justice  S.K.  Dubey  having
recused himself from the proceedings the  fresh  appointment  of  a  learned
sole Arbitrator has to be made by, once again, resorting to  the  provisions
of clause  22  of  the  Supply  Contract  and  by  following  the  procedure
prescribed therein.  Certain other objections have also been raised  on  the
merits of the dispute contending that the petitioner had not  fulfilled  its
obligations under the Supply Contract so as to be entitled  to  the  amounts
as claimed.

3.          The Court has heard the learned counsels for the parties.

4.          Under Section 15(2) of the Act in a situation where the  mandate
of an arbitrator terminates, a  substitute  arbitrator  is  required  to  be
appointed according to the rules that were applicable to the appointment  of
the arbitrator who is replaced. In Yashwith Constructions  (P)  Ltd.  Versus
Simplex concrete Piles India Ltd. and another [(2006) 6 SCC 204],  the  term
'rules' appearing in Section 15(2) of the Act  has  been  understood  to  be
referring to the provisions for appointment  contained  in  the  arbitration
agreement or any rules of any institution under which the  disputes  are  to
be referred to arbitration.  In the present case, admittedly, there  are  no
institutional rules under which the disputes between the parties are  to  be
referred to arbitration and, therefore, the expression “rules” appearing  in
Section 15(2) of the Act will have to be understood with  reference  to  the
provisions for appointment contained in the Supply Contract.
5.          Clause 22.3 of the Supply Contract which deals with  the  matter
may be extracted at this stage:

“22.3   All  disputes,  controversies  or  claims  arising  out  of  or   in
connection with  or  in  relation  to  this  Contract  of  its  negotiation,
performance,  breach,  existence  or  validity,   whether   contractual   or
tortuous, shall be referred to arbitration in  accordance  with  the  Indian
Conciliation and Arbitration Act, 1996 and conducted by a single  arbitrator
to be appointed by the Parties by mutual consent.  The cost  of  arbitration
shall be shared by the Parties.  The  place  of  the  arbitration  shall  be
India  and  the  applicable  law  in  relation  to  the  procedure  of   the
arbitration shall be determined by reference to the law of the place of  the
arbitration is to be held. The arbitration proceedings  shall  be  conducted
in English language. The  award  of  the  arbitration  shall  be  final  and
binding against the Parties hereto.”


6.          Clause 22.3 of the Supply Contract contemplates  appointment  of
a sole arbitrator by the parties by mutual consent.  In  a  situation  where
the original arbitrator i.e. Shri Justice S.K.  Dubey  had  recused  himself
the substitute or new arbitrator is required to be  appointed  according  to
the  rules  that  were  applicable  to  the  appointment  of  the   original
arbitrator.  This is the mandate of Section  15(2)  of  the  Act.   It  was,
therefore, incumbent on the  petitioner  to  give  notice  and  explore  the
possibility of naming an arbitrator by mutual consent and  only  on  failure
thereof the present application under Section 11(6) of the Act  could/should
have been filed.  The above recourse is required to be  followed  by  virtue
of the provisions of Section 15(2) of the  Act  and  the  decision  of  this
Court in Yashwith Constructions (P) Ltd. (supra).  Admittedly, the same  had
not been followed.  In these circumstances, the Court  will  understand  the
present  application/arbitration  petition   to   be   premature.    It   is
accordingly not entertained leaving  it  open  for  the  petitioner  to  act
appropriately, if so advised, in terms of the present order  and  thereafter
seek its remedies as provided by law.

7.          The Arbitration Petition is disposed of in the above terms.



                                                  ……………………...............,J.
                            (RANJAN GOGOI)

NEW DELHI
SEPTEMBER 04, 2015