Quite independently and without reference to the aforesaid decision, another Bench of this Court in Rathnavathi and Another v. Kavita Ganashamdas[2] came to the same conclusion. It was held in paragraph 42 of the Report that a mere reading of Article 54 would show that if the date is fixed for the performance of an agreement, then non-compliance with the agreement on the date would give a cause of action to file a suit for specific performance within three years from the date so fixed. But when no such date is fixed, the limitation of three years would begin when the plaintiff has notice that the defendant has refused the performance of the agreement. It was further held, on the facts of the case that it did not fall in the first category of Article 54 since no date was fixed in the agreement for its performance.The Clauses of the agreement for consideration in Rathnavathi were Clauses 2 and 3 and they read as follows:- “2. The purchaser shall pay a sum of Rs. 50,000 (Rupees fifty thousand only) as advance to the seller at the time of signing this agreement, the receipt of which the seller hereby acknowledges and the balance sale consideration amount shall be paid within 60 days from the date of expiry of lease period. 3. The seller covenants with the purchaser that efforts will be made with the Bangalore Development Authority for the transfer of the schedule property in favour of the purchaser after paying penalty. In case it is not possible then the time stipulated herein for the balance payment and completion of the sale transaction will be agreed mutually between the parties.” As far as the present appeal is concerned, the agreement between Gulab Bai and Madina Begum did not specify a calendar date as the date fixed for the performance of the agreement. Consequently, the view expressed in Ahmadsahab Abdul Mulla and Rathnavathi on the first part of Article 54 clearly applies to the facts of the case. In taking a contrary view, ignoring the absence of a specified date for the performance of the agreement and reversing the Trial Court, the High Court has fallen in error.; whether the High Court was right in merely deciding the issue of limitation in a first appeal filed under Section 96 of the Code of Civil Procedure without going into the merits of the case. Quite recently, in Vinod Kumar v. Gangadhar[3] this Court had occasion to consider the issue whether, under Section 96 of the Code of Civil Procedure, the first appellate court ought to decide all the issues before it or not. - the High Court only considered the issue of limitation and did not consider the other issues in the appeal. This was impermissible. The result is that since we do not agree with the view taken by the High Court on the issue of limitation, there is no option but to set aside the view expressed by the High Court and following the decisions of this Court, remand the matter to the High Court to decide the remaining issues in the first appeal filed under Section 96 of the Code of Civil Procedure.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 6687 OF 2016

Madina Begum & Anr.                           .…Appellants
  versus
Shiv Murti Prasad Pandey & Ors.                   .…Respondents

                               J U D G M E N T
Madan B. Lokur, J.
1.     The two questions for our consideration are whether  the  suit  filed
by the appellant Madina Begum was barred  by  limitation  in  terms  of  the
first part of Article 54 of Schedule 1  of  the  Limitation  Act,  1963  and
whether the High Court ought to have  decided  the  first  appeal  filed  by
Madina Begum not only on the preliminary issue of  limitation  but  also  on
all other issues.  As far as the first question is concerned our  answer  is
in the negative and as far as the  second  question  is  concerned,  in  our
opinion, the High Court ought to have  considered  all  the  issues  in  the
first appeal rather than only the preliminary issue of limitation.
2.     The land in dispute in this appeal  is  1.63  acres  of  agricultural
land bearing khasra nos. 438, 439,  440  and  456  (total  area  being  2.13
acres) in Patwari Halka No. 26 Gram Amkhera, Tehsil and District Jabalpur.
3.     There was a dispute about the title of the entire aforesaid land  and
to resolve that  dispute,  Gulab  Bai  claiming  to  be  the  owner  and  in
possession of the entire land, filed Suit No. 479A of 1994 in the  Court  of
the Additional District Judge in Jabalpur.  The defendants in the suit  were
Amar Singh and Jaswant Singh.  The prayer made by Gulab Bai  in  her  plaint
was for a declaration with regard to her title  and  possession.   She  also
prayed for an injunction restraining the defendants Amar Singh  and  Jaswant
Singh from interfering with her possession.
4.     On 2nd August, 2001 the suit was decreed in favour of Gulab  Bai  and
thereafter on 3rd September, 2001 she entered  into  an  agreement  to  sell
1.63 acres of agricultural  land  being  the  disputed  property  to  Madina
Begum.  The consideration for the sale was Rs. 4,89,000/- out  of  which  an
advance of Rs. 1,25,000/- was paid by Madina Begum to Gulab Bai.  This  fact
is recorded in the agreement to sell.
5.     What we are concerned with in this appeal is  the  interpretation  of
Clause 3 of the agreement to sell which reads as follows:-

“3 That Party no. 1 has sold 1.63 acres land at the rate of  Rs.  3,00,000/-
(Rs. Three lakh) per acre and  Party  no.  1  Gulab  Bai  has  obtained  Rs.
1,25,000/- (One lakh twenty five thousand) as  advance.   The  rest  of  the
amount of Rs. 3,64,000/- (Rs. Three lakh sixty four thousand) would be  paid
by Party no. 2 to Party no. 1 within the period  of  six  months  from  this
date and having received it the party no. 1 will execute Benama Registry  in
favour of Party no. 2 or any such person specified by party  no.  2  in  one
part or many parts.”

6.     Apparently on coming to know that Gulab Bai had agreed  to  sell  the
disputed land to Madina Begum an appeal being F.A. No.399 of 2001 was  filed
by Amar Singh and  Jaswant  Singh  in  the  High  Court  of  Madhya  Pradesh
challenging the decree dated  2nd  August,  2001.   An  interim  application
under Order XXXIX Rules 1 and 2 of the Code of  Civil  Procedure  was  filed
along with the appeal. The application was taken  up  for  consideration  on
22nd September, 2001 and while issuing notice  in  the  application  it  was
directed as follows:-
“In the meanwhile till the disposal of M(C) P.  No.  3231/2001,  status  quo
regarding possession over the suit property  shall  be  maintained  and  the
respondent shall not alienate the suit property.”

7.     On  16th  November,  2001  Gulab  Bai  executed  a  Will  (which  was
registered) in which she categorically mentioned  that  she  had  negotiated
the sale of 1.63 acres of land to Madina  Begum  and  had  given  possession
thereof to her but  the  remaining  amount  and  registration  of  the  sale
remained to be completed.  In her  Will,  Gulab  Bai  appointed  Shiv  Murti
Prasad Pandey  and  Devendra  Prasad  Pandey  (respondents  herein)  as  her
executors.  The Will mentioned that upon her demise, her  agricultural  land
except 1.63 acres will devolve on Shiv  Murti  Prasad  Pandey  and  Devendra
Prasad Pandey and in the event of her death before the registration  of  the
sale deed it would be their responsibility to execute and register the  sale
deed in favour of Madina Begum. Unfortunately, Gulab Bai passed away on  2nd
January, 2002.
8.     Thereafter, F.A. No. 399 of 2001 filed  by  Amar  Singh  and  Jaswant
Singh was heard by  the  High  Court  and  came  to  be  dismissed  on  28th
September, 2006.  We are told that the decree passed by the High  Court  has
attained finality.
9.     Upon the dismissal of the aforesaid appeal, it  appears  that  Madina
Begum required Shiv Murti  Prasad  Pandey  and  Devendra  Prasad  Pandey  to
execute the sale deed but apparently they did not take  any  steps  in  this
regard.  On the contrary, it appears that on or about 2nd August,  2008  the
land in dispute was mutated in the name of Anita Jain  pursuant  to  a  sale
made in her favour by Shiv Murti Prasad Pandey and Devendra Prasad Pandey.
10. When Madina Begum came to know of the transfer  of  the  disputed  land,
she sent a notice to Shiv Murti Prasad Pandey and Devendra Prasad Pandey  on
13th August, 2008 calling upon them to execute the sale  deed  in  terms  of
the agreement to sell dated 3rd September, 2001 and  the  Will  executed  by
Gulab Bai on 16th November, 2001.  The notice was replied to by  Shiv  Murti
Prasad Pandey and Devendra Prasad Pandey and we are told that they  declined
to execute the sale deed.  This led to Madina Begum  filing  a  suit,  inter
alia, for specific performance of the agreement being Suit No. 17A  of  2008
(perhaps renumbered later as 41A of 2010) in the  Court  of  the  Additional
District Judge, Jabalpur.
11. The defendants in the suit namely Shiv Murti Prasad Pandey and  Devendra
Prasad Pandey and Anita Jain filed their written statement and  one  of  the
contentions raised was that the suit was barred by  limitation  having  been
instituted more than three years beyond the date specified in the  agreement
to sell dated 3rd September, 2001. It was also submitted that  Madina  Begum
had given an advance of only Rs. 90,000/- which had since been  returned  to
her and that on 19th November, 2001 the agreement to sell between Gulab  Bai
and Madina Begum was cancelled.
12. On the pleadings, one of the issues framed by the Trial Court was  issue
No. 8: Whether the suit is time barred?
13. The Trial Court considered the issue whether the suit  filed  by  Madina
Begum was barred by time and answered it in the negative.  It  was  held  in
paragraph 38 of the decision rendered on 1st February, 2011 as follows:-

“38. On perusal of the record it is gathered  that  agreement  Ex.  P-1  was
executed on 03.09.2001 and thereafter stay has been granted by Hon’ble  High
Court in first appeal  on  22.09.2001  but  the  first  appeal  was  finally
decided on 28.09.2006 vide Ex. P-5  since  it  was  dismissed  and  in  this
manner, the stay order had become ineffective  on  28.09.2006.   Thereafter,
the plaintiffs have sent notice to the defendants in August 2008 i.e.  after
two years from the date of decision in the first appeal which was  dismissed
on 28.09.2006 which was  done  within  prescribed  period  of  three  years.
Therefore, it cannot be said that the plaintiffs had filed the  suit  beyond
the period of limitation with  a  view  to  harass  the  defendants.   Thus,
issues No. 8 and 9 are being answered against the defendants.”

14. Even though the issue of limitation was decided in her favour, the  suit
filed by Madina Begum was dismissed on  merits.  Feeling  aggrieved  by  the
dismissal of the suit on merits Madina Begum preferred First Appeal No.  175
of 2011 in the High Court of Madhya Pradesh and that  led  to  the  impugned
judgment and order dated 16th August, 2013.  The Division Bench hearing  the
appeal did not go into the merits of the dispute  between  the  parties  but
only adverted to the issue of limitation and since it  was  found  that  the
institution of the suit was barred by time (contrary to  the  conclusion  of
the Trial Court) there was no necessity of considering  the  merits  of  the
case.
15. In coming to the conclusion that the suit was barred by time,  the  High
Court considered Article 54 of Schedule 1 of the Limitation Act,  1963  (for
short, “the Act”).  The  discussion  thereon  was  brief  and  it  reads  as
follows:-

    “Under Article 54 of  the  Limitation  Act,  the  prescribed  period  of
limitation for filing a suit of specific performance of a contract is  three
years and the period of three years  has  to  be  calculated  based  on  two
contingencies i.e. the date fixed for performance of the contract or  if  no
such date is fixed, the date when the plaintiffs had  notice  about  refusal
of the performance by the defendants.  In this case, admittedly, a date  for
performance is fixed i.e. six months from  the  date  of  execution  of  the
contract and, therefore, as a specific period for performance is fixed,  the
period of limitation would be three years w.e.f.  3.03.2002  i.e.  the  date
when the period of six months for execution of the sale-deed lapsed.”

16. The High Court held that since the suit was barred  by  limitation,  the
Trial Court committed a grave error in recording a  finding  that  the  suit
was within limitation.
17. The interpretation of the first part of Article 54 of Schedule 1 of  the
Act is no longer res-integra. Article 54 reads as follows:-
|“54. |For specific performance of |Three years|The date fixed for the |
|     |a                           |           |performance, or, if no |
|     |contract                    |           |such date is fixed,    |
|     |                            |           |when the plaintiff has |
|     |                            |           |notice that performance|
|     |                            |           |is refused.”           |


18. In Ahmadsahab  Abdul  Mulla  (2)  (Dead)  v.  Bibijan  and  Ors.[1]  the
following question was considered by a three  judge  Bench  of  this  Court:
“Whether the use of  the  expression  “date”  used  in  Article  54  of  the
Schedule to the Limitation Act, 1963 (in short “the Act”) is  suggestive  of
a specific date in the calendar?”
19. While answering this question on a reference made  to  the  three  judge
Bench, this Court considered the meaning of  the  word  “date”  and  “fixed”
appearing in Article 54.  Upon such consideration, this Court held that  the
expression “date fixed for the performance” is a crystallized notion.   When
a date is fixed it means  there  is  a  definite  date  fixed  for  doing  a
particular act.   Therefore,  there  is  no  question  of  finding  out  the
intention from other circumstances.  It was reiterated that  the  expression
“date” is definitely  suggestive  of  a  specified  date  in  the  calendar.
Paragraphs 11 and 12 of the Report in this  regard  are  of  importance  and
they read as follows:-

“11. The inevitable conclusion is that the expression “date  fixed  for  the
performance” is a crystallized notion.  This is clear  from  the  fact  that
the second part “time from which period begins to  run”  refers  to  a  case
where no such date is fixed.  To put it differently, when date is  fixed  it
means that there is a definite date fixed for doing a particular act.   Even
in the second part the stress is on “when  the  plaintiff  has  notice  that
performance is refused”.  Here again, there is a  definite  point  of  time,
when the plaintiff notices the refusal.  In that sense both the parts  refer
to definite dates.  So, there is no question of  finding  out  an  intention
from other circumstances.

12. Whether the date  was  fixed  or  not  the  plaintiff  had  notice  that
performance is refused and the date  thereof  are  to  be  established  with
reference  to  materials  and  evidence  to  be  brought  on  record.    The
expression “date” used in Article 54 of the Schedule to the  Act  definitely
is suggestive of a specified date in the calendar.  We answer the  reference
accordingly.  The matter shall now be placed before the Division  Bench  for
deciding the issue on merits.”

20.    Quite independently and without reference to the aforesaid  decision,
another  Bench  of  this  Court  in  Rathnavathi  and  Another   v.   Kavita
Ganashamdas[2] came to the same conclusion.  It was held in paragraph 42  of
the Report that a mere reading of Article 54 would show that if the date  is
fixed for the performance of an  agreement,  then  non-compliance  with  the
agreement on the date would give a cause  of  action  to  file  a  suit  for
specific performance within three years from the date so  fixed.   But  when
no such date is fixed, the limitation of three years would  begin  when  the
plaintiff has notice that the defendant has refused the performance  of  the
agreement.  It was further held, on the facts of the case that  it  did  not
fall in the first category of Article 54 since no  date  was  fixed  in  the
agreement for its performance.
21.    The Clauses of the agreement for consideration  in  Rathnavathi  were
Clauses 2 and 3 and they read as follows:-

 “2. The purchaser shall pay a sum of  Rs.  50,000  (Rupees  fifty  thousand
only) as advance to the seller at the time of signing  this  agreement,  the
receipt of which  the  seller  hereby  acknowledges  and  the  balance  sale
consideration amount shall be paid within 60 days from the  date  of  expiry
of lease period.
3.  The seller covenants with the purchaser that efforts will be  made  with
the Bangalore  Development  Authority  for  the  transfer  of  the  schedule
property in favour of the purchaser after paying penalty.   In  case  it  is
not possible then the time stipulated herein for  the  balance  payment  and
completion of the sale transaction  will  be  agreed  mutually  between  the
parties.”

22.    As far as the present appeal  is  concerned,  the  agreement  between
Gulab Bai and Madina Begum did not specify  a  calendar  date  as  the  date
fixed  for  the  performance  of  the  agreement.  Consequently,  the   view
expressed in Ahmadsahab Abdul Mulla and Rathnavathi on  the  first  part  of
Article 54 clearly applies to the facts of the case. In  taking  a  contrary
view, ignoring the absence of a specified date for the  performance  of  the
agreement and reversing the Trial  Court,  the  High  Court  has  fallen  in
error.
23. It is not necessary for  us  to  multiply  authorities  on  the  subject
particularly when the issue has been conclusively  settled  by  a  Bench  of
three learned judges of this Court in Ahmadsahab Abdul Mulla and we  see  no
reason to take a different view.
24. The second question that requires  consideration  is  whether  the  High
Court was right in merely deciding  the  issue  of  limitation  in  a  first
appeal filed under Section 96 of the Code of Civil Procedure  without  going
into  the  merits  of  the  case.   Quite  recently,  in  Vinod   Kumar   v.
Gangadhar[3] this Court had occasion to consider the  issue  whether,  under
Section 96 of the Code of Civil Procedure, the first appellate  court  ought
to decide all the issues before it or not.  Reference was  made  to  a  very
large number of decisions rendered by  this  Court  and  it  was  concluded,
particularly relying upon Madhukar v.  Sangram[4]  decided  by  a  Bench  of
three learned judges of this Court that sitting as a court of  first  appeal
it is the duty of the High Court to deal with all the  issues  and  evidence
led by the parties before recording its findings.
25. In so far as the present  appeal  is  concerned,  the  High  Court  only
considered the issue of limitation and did not consider the other issues  in
the appeal. This was impermissible. The result  is  that  since  we  do  not
agree with the view taken by the High Court  on  the  issue  of  limitation,
there is no option but to set aside the view expressed  by  the  High  Court
and following the decisions of this Court, remand the  matter  to  the  High
Court to decide the  remaining  issues  in  the  first  appeal  filed  under
Section 96 of the Code of Civil Procedure.
26. It is a little unfortunate that the  parties  have  to  undergo  another
round of litigation which could easily have  been  avoided  if  the  settled
legal principles laid down by this Court from time to time were followed  in
regard to the requirements of Section 96 of the  Code  of  Civil  Procedure.
This is quite apart from the delay caused in the resolution of  the  dispute
between the parties.
27. In view of our discussion,  the  appeal  is  allowed  and  the  impugned
judgment and order of the High Court dated 16th August, 2013  is  set  aside
and the matter is remanded to the High  Court  for  deciding  the  remaining
issues in the appeal on merits.


      ...………………….J                                                 (Madan B.
                                                                      Lokur)



                                                                 ..………………….J

New     Delhi;                                                         (R.K.
Agrawal)
August 1, 2016
-----------------------
[1]  (2009) 5 SCC 462
[2]  (2015) 5 SCC 223
[3]  (2015) 1 SCC 391
[4]  (2001) 4 SCC 756

government bungalows occupied by former Chief Ministers of the State of Uttar Pradesh.= it is held that the 1997 Rules so far as they are not in consonance with the provisions of the 1981 Act are bad in law. The government bungalows allotted to the respondents is held to be bad in law and the concerned respondents shall hand over possession of the bungalows occupied by them within two months from today and the respondent-Government shall also recover appropriate rent from the occupants of the said bungalows for the period during which they were in unauthorized occupation of the said bungalows.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION
                    WRIT PETITION (CIVIL) NO.657 OF 2004


Lok Prahari                                  ... Petitioner

                                   Versus

State of U.P. & Ors.                               ... Respondents


                               J U D G M E N T

ANIL R. DAVE, J.



1.    A short but serious and significant issue  has  been  raised  in  this
public interest litigation, which pertains to government bungalows  occupied
by former Chief Ministers of the State of Uttar Pradesh.

2.     The  Petitioner  is  a  Society  registered   under   the   Societies
Registration Act with objects pertaining to public  welfare,  etc.  and  the
petition has been filed through  its  General  Secretary,  who  appeared  in
person.  He is a former officer of All India  Services  and  has  ventilated
grievances which are definitely serious one, touching  the  State  exchequer
and conduct of the persons who were Chief Ministers of the  State  of  Uttar
Pradesh.  The main submission made in the petition is  that  several  former
Chief Ministers had occupied Government bungalows  of  Type  VI  even  after
demitting office of the Chief Minister for several years without  any  right
to retain the same, which is not only immoral and illegal, but it also  does
not befit persons who were Chief Ministers of the State.

3.    At the time when the petition was  admitted  on  13th  January,  2006,
this Court had passed the following Order:
“The challenge in this petition is to the  validity  of  Ex-Chief  Ministers
Residence Allotment Rules, 1997.  The petitioner claims it  to  be  illegal,
malafides and colourable exercise of power.  It is  also  claimed  that  the
Rules, which are non-statutory, could not have been framed in the  light  of
the provisions of the Uttar  Pradesh  Ministers  (Salaries,  Allowances  and
Miscellaneous Provisions) Act, 1981.

      On the other hand, it has been, inter alia,  contended  on  behalf  of
the State that in the federal structure, there is no  bar  if  provision  is
made for allotment of residential accommodation  to  ex-Chief  Ministers  of
the State.  It is also contended that the matter  deserves  to  be  examined
further in the light of the provisions of the  President’s  (Emoluments  and
Pension) Act, 1951.  The further contention is that  the  former  Presidents
and the Prime Ministers are also allotted  residential  accommodation  after
they cease to hold those positions.

      In our view, the  writ  petition  raises  important  questions,  which
require deeper consideration.  Accordingly, while issuing  Rule,  we  direct
that  notice  be  issued  to  the   Union   of   India   and   other   State
Governments/Union Territories.”

Thus, we have to  examine  whether  the  provisions  of  Ex-Chief  Ministers
Residence Allotment Rules, 1997    (hereinafter referred  to  as  ‘the  1997
Rules’) are valid or  contrary  to  the  provisions  of  the  Uttar  Pradesh
Ministers (Salaries, Allowances  and  Miscellaneous  Provisions)  Act,  1981
(hereinafter referred to as the ‘the 1981 Act’).

4.    As several former Chief Ministers had occupied  government  bungalows,
a petition, in the nature  of  a  Public  Interest  Litigation,  being  Writ
Petition  No.1313  (M/S)  of  1996  was  filed  before  the  High  Court  of
Judicature at  Allahabad  by  Janhit  Sangathan,  a  registered  Society  of
retired senior Civil Servants.  At the  time  when  the  said  petition  was
filed, there were no Rules or Regulations permitting former Chief  Ministers
to occupy government bungalows.

5.    In the aforestated circumstances, the State of  U.P.  i.e.  respondent
no.1 framed the 1997 Rules during the pendency of the said  petition.    The
1997 Rules are not statutory Rules and they are in the nature  of  executive
instructions.  The 1997 Rules provide that former Chief Ministers should  be
provided government bungalows for their residence  for  the  life  and  upon
their death, the family members occupying  the  bungalow  should  hand  over
vacant possession of the bungalow within 3  months  from  the  date  of  the
death of the former Chief Minister and failing which they  would  be  liable
to pay penal rent. The 1997 Rules do not provide for allotment of  bungalows
either to the family members of the former Chief Ministers or to  any  Trust
or Society concerned with any former Chief Minister.

6.    As the 1997 Rules were framed during the  pendency  of  Writ  Petition
No.1313 (M/S) of 1996, the aforestated Writ Petition was amended  so  as  to
challenge the validity of the 1997 Rules on the ground that the  1997  Rules
were not only unconstitutional and illegal, but were also violative  of  the
provisions of Article 14 of the Constitution of India.

7.    At the time of hearing of the said petition, a statement was  made  by
the learned Additional Advocate General appearing for respondent  no.1  that
only Type V bungalows would be allotted to the former  Chief  Ministers  and
the former Chief Ministers will have  to  make  some  payment  of  rent  for
occupying such bungalows.  Some other provisions with regard to  expenditure
to be incurred for maintenance of the bungalows were  also  referred  to  by
him.  The learned Additional Advocate General  had  further  submitted  that
possession of bungalows allotted to private trusts  or  organizations  would
be taken back by the government as there was no  provision  with  regard  to
making     allotment     of      government      bungalows      to      such
trusts/societies/organizations etc.  Ultimately, the petition  was  disposed
of on 20th August, 2001 without deciding the validity of the 1997  Rules  in
view of the fact that the aforestated statements were made  by  the  learned
Additional Advocate General on behalf  of  Respondent  no.1-State.   It  was
also directed that the family members of the  former  Chief  Ministers,  who
were occupying such premises even  after  the  death  of  the  former  Chief
Minister will have to vacate the premises within a particular period.

8.    It further appears that in spite of the statement made by the  learned
Additional Advocate General, the government  did  not  do  the  needful  for
getting possession of the bungalows occupied by the family  members  of  the
deceased former Chief Ministers and in the  aforestated  circumstances,  the
present writ petition was filed with the following main prayer :
“(1)  declare  the  Ex-Chief  Ministers  Residences  Allotment  Rules,  1997
(Annexure P-4 to the WP) illegal being  malafides,  colourable  exercise  of
power and against the provisions of the Constitution.”

It has also been prayed that rent payable by the unauthorized  occupants  of
such bungalows be recovered and those who were occupying bungalows  allotted
to former Chief Ministers be evicted.

9.    It has also been prayed that certain private trusts  or  organizations
or societies, who are occupying government bungalows  be  also  directed  to
vacate the bungalows.

10.   It is pertinent to note that after disposal of Writ  Petition  No.1313
(M/S)  of  1996,  respondent  no.1-State  framed  rules   titled   as   “The
Distinguished Personality Trust Allotment of Houses  in  Lucknow  under  the
Control of State Estate Department Rules, 2003” (hereinafter referred to  as
‘the 2003 Rules’) under Office Memorandum  dated  31.12.2003  to  deal  with
lease of houses for the use of any social service trust set up in  the  name
of a distinguished person who is known as a National hero.  In  addition,  a
policy decision dated 4th  July,  2005  was  taken  regarding  allotment  of
premises at Lucknow, under the administrative  control  of  Respondent  No.2
department, to certain NGOs/Trusts, Non-Government  persons  and  employees’
Union, who were not included under the 2003 Rules.

11.   In pursuance of the aforestated 2003 Rules,  one  of  the  respondents
had been allotted a bungalow on lease for 30 years, which was renewable  for
a further period of 90 years at the yearly rent of rupee 1/-  by  virtue  of
Office Memo dated 22nd January, 2004.  Similarly,  several  other  bungalows
had also been allotted on lease  to  different  bodies,  by  and  large,  on
similar terms in pursuance of the aforestated 2003 Rules.

12.   The short submissions made by the petitioner were to the  effect  that
after demitting the office as a Chief Minister, a person  has  no  right  to
occupy any Government bungalow for his residence  and  yet  several  persons
named in the petition, who were  Chief  Ministers  of  the  State  of  Uttar
Pradesh had continued to occupy Government bungalows, which  are  maintained
by the Government by spending enormously huge amount every year. In  absence
of  any  statutory  provision,  according  to  the   petitioner,   continued
occupation or occupation of another house after demitting the  office  of  a
Chief Minister is illegal and therefore, they should be asked to vacate  the
bungalows occupied by them and should also be asked  to  pay  notional  rent
for the unauthorized occupation.  Another submission made by the  petitioner
was that  even  if  some  rules  and  regulations  are  made  for  allotting
residential bungalows to former Chief Ministers, it would be  discriminatory
and violative of the provisions of Article 14 of the Constitution  of  India
for the reason that other dignitaries like the Chief Justice  of  the  State
or Principal Chief Secretary or Speaker of the Assembly etc. are  not  given
such facilities.  Giving  residential  bungalows  to  some  of  the  persons
holding constitutional position in  the  State,  by  ignoring  other  almost
similarly situated persons would not be proper and  even  if  there  is  any
regulation empowering the  Government  to  allot  residential  bungalows  to
former Chief Ministers, the Rules or Regulations made to that effect  cannot
be said to be legal and Constitutional.

13.   Another submission made by the  petitioner  was  that  the  Government
authorities did not act as per the real spirit with which  judgment  in  the
case of Shiv Sagar Tiwari v. Union of India (1997) 1 SCC 444, was  delivered
by this Court.  As per observations made in para 72 of  the  said  judgment,
keeping in view the  very  high  constitutional  position  occupied  by  the
President, Vice-President and Prime Minister, they  should  be  accommodated
in government premises after they demit their office,  so  that  problem  of
suitable  residence  does  not  trouble  them  in  the  evening   of   life.
Observations in substance are to the  effect  that  except  the  aforestated
dignitaries, nobody else should be provided government  accommodation  after
he  or  she  demits  his/her  office.  By  not  following  the   aforestated
observations made by this Court in  the  matter  relating  to  allotment  of
accommodation to former Chief Ministers,  the  Government  authorities  have
shown a little respect to this Court and the law of the land.

14.    Another  submission  was  to  the  effect  that  several  trusts  and
organizations  had  been   allotted   government   bungalows   without   any
justifiable reason.  In the case of Shiv Sagar Tiwari  (supra),  this  Court
has observed that government bungalows should not  be  allotted  to  private
organizations.  Of course, the judgment delivered in the case of Shiv  Sagar
Tiwari (supra) deals with bungalows  situated  in  Delhi  but  situation  in
Lucknow  is  quite  similar  because  there  is  also  acute   shortage   of
residential  accommodation  for  government  employees  in  the  said  city.
According  to  the  petitioner,  government  employees/officers,   who   are
entitled to government accommodation by virtue of their  service  conditions
are  not  allotted  residential  quarters  due  to  shortage  of  government
premises and therefore, they are constrained  to  occupy  private  premises,
for which the government has to pay a sizeable amount by way of  house  rent
allowance to the concerned government employees/officers.  According to  the
petitioner, on one hand there is an acute shortage  of  government  premises
and the government employees are constrained to occupy private premises  for
which a hefty amount is paid by the government by way of allowances  and  on
the other hand the government bungalows  are  given  to  private  trusts  or
organizations without getting any rent or by getting nominal rent  of  rupee
1/- or so per month.  Thus, according  to  the  petitioner,  this  adversely
affects the State exchequer  and  therefore,  possession  of  all  bungalows
which have been  allotted  to  private  organizations  and  trusts  or  such
parties without charging adequate market rent must  be  taken  back  by  the
government in the interest of the public at large.

15.   So as not to lengthen this judgment,  we  are  not  referring  to  the
names  of  the  persons/former  Chief  Ministers  and  trusts  and   private
organizations to whom government bungalows have been given  without  getting
adequate market rent.

16.   The submission made by the petitioner was  also  to  the  effect  that
occupation of residential bungalows after expiry of the term  of  office  of
the Chief Ministers is in violation of the provisions of the  Uttar  Pradesh
(Salaries, Allowances and Miscellaneous Provisions) Act, 1981,  (hereinafter
referred to as  ‘the  1981  Act’)  which  pertains  to  salaries  and  other
perquisites to be given to the Chief Ministers.

17.   The 1981 Act provides that the Ministers are to be provided  residence
without any payment of rent throughout the term of their office  and  for  a
further period of 15 days after they demit their office. Thus, there  is  no
provision with regard  to  permitting  any  Minister,  including  the  Chief
Minister, to retain the official premises or any  other  premises  in  their
capacity as a Minister or a Chief Minister, 15 days after completion of  his
term as a Minister or the Chief Minister.

18.   The petitioner also submitted that  the  1997  Rules  were  framed  in
exercise of executive power and they are in violation of the  provisions  of
Article 14 of the Constitution  of  India.   He  submitted  that  the  Chief
Ministers cannot be given different treatment in the matter of allotment  of
bungalows after they demit their  office.   If  other  Ministers  and  other
constitutional functionaries like Judges and the Chief Justice of  the  High
Court, Governor of  the  State,  Speaker  of  the  Assembly,  etc.  are  not
provided such accommodation after completion of their tenure,  there  is  no
justification for providing any government bungalow either  free  of  charge
or at a  nominal  rent  to  the  former  Chief  Ministers.   The  action  of
respondent no.1 in  framing  the  1997  Rules  is  thus  illegal  and  is  a
colourable exercise of power and is also violative  of  Article  14  of  the
Constitution of India as the  State  gives  preferential  treatment  to  the
former  Chief  Ministers,  which  is  not  given  to  other   constitutional
functionaries.

19.   The petitioner, therefore, prayed that the  petition  be  allowed  and
the 1997 Rules  be  quashed  and  set  aside  as  being  discriminatory  and
violative of the provisions of Article 14 of the Constitution of India.

20.   On the other hand, the learned counsel appearing for  respondent  no.1
State vehemently submitted that it is  for  respondent  no.1  government  to
exercise its executive power and allot bungalows to former  Chief  Ministers
even after they  demit  their  office.   According  to  him,  ‘former  Chief
Ministers’ is a class of persons and  therefore,  it  cannot  be  said  that
there is any preferential treatment given to  the  former  Chief  Ministers.
He further submitted that it is for the State  to  decide  whether  to  give
such accommodation to former Chief Ministers and  the  said  decision  being
executive decision in pursuance of a particular policy,  this  Court  should
not ordinarily interfere with the executive  decision  of  respondent  no.1-
Government.

21.   The learned counsel appearing for  the  State  tried  to  explain  the
circumstances in which the government bungalows had  been  provided  to  the
former Chief Ministers.  The learned counsel also questioned  the  right  of
the petitioner to challenge the validity of the 1997  Rules.   According  to
him, the petitioner has no locus standi to challenge  the  validity  of  the
said Rules by filing a petition under Article  32  of  the  Constitution  of
India before this Court.  He further submitted  that  the  validity  of  the
said Rules had been questioned in Writ Petition No.1313 (M/S)  of  1996  and
the said petition has already been disposed of, but the said Rules  had  not
been declared to be invalid  or  unconstitutional  by  the  High  Court  and
therefore, this petition challenging the validity of the 1997 Rules  is  not
maintainable.

22.   The Respondents, while justifying the 1997 Rules  took  a  stand  that
some of the respondents are given ‘Z’ plus Security by the  Union  of  India
and  it  is  necessary  to  provide  proper  accommodation  with   requisite
infrastructure in a secured locality.   For  providing  such  security,  the
State has to see that the accommodation of the concerned person is safe  and
therefore, it is necessary to provide a special  type  of  accommodation  to
such persons.

23.   The Union of India in its affidavit  dated  13th  December,  2006  has
contended that aspect of emoluments and pensions  of  former  President  and
Vice President of India is governed by “President’s Emoluments and  Pensions
Act, 1951” and “Vice President’s Pension Act, 1997” and rules framed  there-
under. The facilities provided to the Prime Minister are  also  governed  by
Office Memorandum dated 6.12.1991 issued by the Government of India  and  he
had not to say anything about the facilities  to  be  given  to  the  former
Chief Ministers.

24.   On the basis of the aforesaid contentions, the following issues  arise
for our consideration:

a)     Whether  the  writ  petition  filed  in  the   public   interest   is
maintainable and whether the writ Petitioner has locus standi  to  file  the
writ petition.

b)    Whether the Ex-Chief Ministers Residence  Allotment  Rules,  1997  are
legal and valid.

25.   So  far  as  the  first  issue  is  concerned,  in  our  opinion,  the
petitioner has locus  standi  to  file  the  writ  petition.   It  has  been
submitted in the petition that the petitioner society is formed  by  retired
civil servants, journalists and other  persons  who  are  residents  of  the
State of U.P. and have no  malafide  intention  behind  filing  the  present
petition and none of them  has  any  personal  grudge  against  any  of  the
occupants of the government premises or any of the former  Chief  Ministers.
In our opinion, when the petitioner society is challenging the  validity  of
the 1997 Rules, whereby government bungalows have been  allotted  to  former
Chief Ministers, especially when there is an acute  shortage  of  government
premises, in our opinion, it cannot be  said  that  the  petitioner  has  no
locus standi to file the present petition.

26.    In the case of “Fertilizer Corporation  Kamgar  Union  (Regd)  Sindri
and Ors. v. Union of India and Ors.  (1981)  1  SCC  568,  the  Constitution
Bench of this Court has held as under:

“29.  ………….Lastly, but most importantly, where does the  citizen  stand,  in
the context of the democracy of judicial remedies, absent an  ombudsman?  In
the face of (rare, yet real) misuse of administrative power  to  play  ducks
and  drakes  with  the  public  exchequer,  especially  where  developmental
expansion necessarily  involves  astronomical  expenditure  and  concomitant
corruption, do public bodies enjoy immunity from challenge save through  the
post-mortem of parliamentary organs.  What  is  the  role  of  the  judicial
process, read in the light of the dynamics of legal  control  and  corporate
autonomy?  This juristic field is virgin but is  also  heuristic  challenge,
so that law must meet life in  this  critical  yet  sensitive  issued.   The
active  coexistence  of  public  sector  autonomy,  so  vital  to  effective
business management, and judicial control of  public  power  tending  to  go
berserk, is one of the creative claims upon functional jurisprudence.



30-46.      xxx  xxx   xxx

47.   ………....Nevertheless,   the   broad   parameters   of    fairness    in
administration,  bona  fides  in  action,  and  the  fundamental  rules   of
reasonable  management  of  public  business,  if  breached,   will   become
justiciable.



48. If a citizen is no more than a wayfarer or officious intervener  without
any interest or concern beyond what belongs to any one of  the  660  million
people of this country, the door of the court will  not  be  ajar  for  him.
But, if he belongs to an organisation which  has  special  interest  in  the
subject-matter, if he has some concern deeper than that of  a  busybody,  he
cannot be told off at the gates, although whether the issue  raised  by  him
is justiciable may still remain to be considered.  I,  therefore,  take  the
view that the present petition would clearly  have  been  permissible  under
Article 226.”



Similar was the view taken in S.P. Gupta v. Union of India and  Anr.  (1981)
Supp SCC 87.

27.   Looking at the law laid down by this Court and in  view  of  the  fact
that the petitioner society or its members have not filed the petition  with
any oblique motive and as we also feel that cause  for  which  the  petition
has been filed is just and proper, in our opinion, the petitioner has  locus
to file this petition.

28.   Now, let  us  examine  the  validity  of  the  1997  Rules  framed  by
Respondent no.1-State.

Article 164 of the Constitution of India reads as under:-

      Article 164: Other provision as to Ministers:-

(1) The Chief Minister shall be appointed by  the  Governor  and  the  other
Ministers shall be appointed by the Governor on  the  advice  of  the  Chief
Minister, and the Ministers shall hold office during  the  pleasure  of  the
Governor.................

(5)  The  salaries  and  allowances  of  Ministers  shall  be  such  as  the
Legislature of the State may from time to time by law determine  and,  until
the Legislature of the State so determines, shall be  as  specified  in  the
Second Schedule.....”



29.   Therefore, in compliance with Article 164 read with Entry 40, List  II
of Seventh Schedule of the Constitution of India, Respondent No.1-State,  in
order to  determine  salaries  and  allowances  payable  to  the  Ministers,
enacted the 1981 Act.  In the said Act,  Section  2  (e)  defines  the  term
“Minister”.

Section 2 (e) is reproduced herein below:



"2(e) 'Minister'  means  a  member  of  the  Council  of  Ministers  of  the
Government of Uttar Pradesh and includes the Chief Minister, a  Minister  of
State and a Deputy Minister of that State."



In this regard, Section 4 of the 1981 Act may also be considered,  which  is
as under:

“4: Residence

(1) Each Minister shall be entitled without payment of any rent to  the  use
throughout the term  of  his  office  and  for  a  period  of  fifteen  days
thereafter,  of  a  residence  at  Lucknow  which  shall  be  furnished  and
maintained at public expense at the prescribed scale..”



Upon perusal of the above  provisions,  it  is  clear  that  the  terms  and
conditions of service and salaries and allowances payable to  the  Ministers
are governed by the 1981 Act,  which  currently  holds  the  field  in  this
regard.

30.   We may now turn to the issue  whether  the  impugned  1997  Rules  are
ultra vires of Article 14 of the Constitution of India  and  also  repugnant
to the provisions of the 1981 Act. The relevant extract of  the  1997  Rules
is as under:-

“Rule 4: Allotment of Residence

A residence on falling vacant will be allotted  by  the  Estate  Officer  to
such ex-chief minister who has  given  an  application  under  these  rules.
There will be no right for allotment of a house outside Lucknow under  these
rules.

Rule 6:- Period for which Allotment subsists

The allotment of residence to Ex-Chief ministers  shall  be  effective  only
during their life time. The allotment shall be deemed  to  be  automatically
cancelled upon the death of Ex-chief minister and  family  members  residing
therein will have to invariably hand over the possession  of  the  concerned
residence to the Estate Department within 3 months from the date  of  death.
If the family members residing  in  the  residence  do  not  hand  over  the
possession, recovery rent, damages etc. shall be taken under the  provisions
of UP Public Premises (Eviction of Unauthorized Occupants) Act, 1972.”



31.   Upon perusal of the above  provisions,  it  is  clear  that  the  term
“Minister” includes the Chief Minister and Section 4 (1)  (a)  of  the  1981
Act, permits a Minister to retain his residence for  15  days  after  he/she
demits his/her office.  In view of the above special  provisions  made,  the
Chief  Minister  is  not  entitled  to  privileges  and  protection  as  are
available to the President of India and the  Vice-President  of  India,  who
are entitled to an official residence for life.

32.   The Respondents while justifying the 1997 Rules,  took  a  stand  that
some of the respondents are being given ‘Z’  plus  Security  from  Union  of
India and it is necessary to provide  proper  accommodation  with  requisite
infrastructure  in  a  secured  locality.   The  afore-said  contention   of
Respondent no.1 lacks merit and deserves to be rejected for the reason  that
as the said security is to be provided by  the  Ministry  of  Home  Affairs,
Union of India and provisions are already  made  for  such  persons  as  per
Office Memorandum dated 17.11.1997 issued by the Government of India on  the
recommendations of the Ministry of Home affairs and it is the obligation  of
the Government  of  India  to  provide  accommodation  to  such  persons  in
accordance with its own guidelines and it is not  for  the  Respondent-State
to provide any accommodation and therefore, the  ground  put  forth  by  the
Respondents is untenable.  In fact, the impugned 1997  Rules  give  largesse
only to former Chief Ministers without any element of reasonableness.

33.   The facts on record  also  reflect  that  many  of  the  former  Chief
Ministers, who  are  in  occupation  of  Government  Bungalows,  are  either
serving as Members of  Parliament  or  Governors  or  Cabinet  Ministers  in
Central  Government  and   they   have   already   been   provided   another
accommodation.  It would, therefore, not be proper, in any  case,  to  allot
permanent residence at two places to one individual.

34.   If we look at the position of other constitutional post  holders  like
Governors, Chief Justices, Union Ministers, and Speaker etc,  all  of  these
persons  hold  only  one  “official  residence”  during  their  tenure.  The
Respondents have contended that in a federal set up,  like  the  Union,  the
State has also power to provide residential bungalow  to  the  former  Chief
Minister.  The above submission of the Respondent State cannot  be  accepted
for the reason that the 1981 Act does not make any such  provision  and  the
1997 Rules, which are only in  the  nature  of  executive  instructions  and
contrary to the provisions of the 1981 Act, cannot be acted upon.

35.    Moreover,  the  position  of  the  Chief  Minister  and  the  Cabinet
Ministers of the State cannot stand on a separate footing after  they  demit
their office.  Moreover, no other dignitary, holding constitutional post  is
given such a facility. For the afore-stated reasons, the 1997 Rules are  not
fair, and more so, when the  subject  of  “salary  and  allowances”  of  the
ministers, is governed by Section 4 (1) (a) of the 1981 Act.

36.   There is one more and most important reason for which the  1997  Rules
cannot be said to be legal.   The 1981  Act  deals  with  the  salaries  and
perquisites  to  be  given  to  all  the  Ministers,  including  the   Chief
Ministers.  The said provisions are statutory, but the 1997  Rules  are  not
statutory and they are only in the nature  of  executive  instructions.   If
there is any variance in statutory provision and executive instruction,  the
statutory provision  would  always  prevail.   This  is  a  very  well-known
principle and no further discussion is required on the  subject.   When  the
1981 Act enables the Chief Minister to have residential  accommodation  only
during his tenure and for 15 days after completion of his tenure,  the  1997
Rules providing for an accommodation for life to the Chief  Minister  cannot
be said to be legal and valid.  For this sole reason, validity of  the  1997
Rules cannot be upheld.

37.   As far as question of accommodation to the  President,  Vice-President
and Prime Minister is concerned, there is no challenge in the writ  petition
to the same and is limited to the  1997  Rules  framed  by  Respondent  No.1
State, therefore, it is in-appropriate to consider the issue dealt  with  by
this Court in “Shiv Sagar Tiwari v. Union of India” (1997) 1 SCC 444”.

38.   This Court, in the case of “SD Bandi v. Karnataka SRTC, (2013) 12  SCC
631, in relation to occupation of government bungalows,  beyond  the  period
for which the same were allotted, observed that “it is unfortunate that  the
employees, officers, representatives of people and  other  high  dignitaries
continue  to  stay  in  the  residential  accommodation  provided   by   the
Government  of  India  though  they  are  no   longer   entitled   to   such
accommodation.  Many  of  such  persons  continue  to   occupy   residential
accommodation commensurate with the  office(s)  held  by  them  earlier  and
which are beyond their present entitlement. The unauthorized occupants  must
recollect that rights and duties  are  correlative  as  the  rights  of  one
person entail the duties of another person similarly the duty of one  person
entails the rights of  another  person.  Observing  this,  the  unauthorized
occupants must appreciate that their  act  of  overstaying  in  the  premise
infringes the right of another. No law or directions  can  entirely  control
this  act  of  disobedience  but  for  the  self   realization   among   the
unauthorized occupants”.

39.   As stated hereinabove, there is a statutory  provision  which  relates
to salaries and perquisites to be given  to  the  ministers,  including  the
Chief Minister.  The 1981 Act is a statute enacted by Respondent  no.1-State
under its power under Article 164 read with Entry 40 of the List  II  (State
List) of the Seventh  Schedule  of  the  Constitution.   Thus,  there  is  a
statutory  provision  with  regard  to  perquisites  to  be  given  to   the
ministers, including the Chief Minister under Section 4  of  the  said  Act,
which has been reproduced hereinabove.  The said Act provides that  all  the
ministers are entitled to official residence without  payment  of  any  rent
and they are also entitled to occupy the  said  official  residence  for  15
days even after completion of their term.  Thus the statutory  provision  is
to the effect that the Chief Minister can continue to  occupy  the  official
accommodation for a further period of 15 days after  completion  of  his/her
term.

40.   The 1997 Rules are not statutory rules.  They are  in  the  nature  of
administrative or executive instructions.  They would not stand the test  of
legality if they are not in consonance with statutory provisions.  The  said
Rules are definitely  in  contravention  of  the  statutory  provisions  and
therefore, the said Rules can be said to be bad in law so far  as  they  are
in contravention of the statutory provisions.

41.   There cannot be any dispute that when the  rules  and  regulations  or
executive  institutions  are  contrary  to  any  statutory  provision,   the
statutory provision would prevail and the rules or  executive  institutions,
so far as they are contrary to the statutory provisions, would fail.

42.   In view of the aforestated clear  and  unambiguous  position,  in  our
opinion, the 1997 Rules, which permit the former Chief Ministers  to  occupy
government  bungalows  for  life  cannot  be  said  to  be  valid.   In  the
circumstances, respondent no.1 cannot permit any former  Chief  Minister  to
occupy any government bungalow or  any  government  accommodation  after  15
days from the date on which his term comes to an end.

43.   So far as allotment of bungalow to private  trusts  or  societies  are
concerned, it is not in dispute that all those bungalows  were  allotted  to
the societies/trusts/organizations at the time when there was  no  provision
with regard to allotment of government bungalows to them and  therefore,  in
our opinion, the said allotment cannot be held to be justified.  One  should
remember here that public property cannot be disposed of in  favour  of  any
one without adequate consideration.  Allotment  of  government  property  to
someone without adequate market rent, in absence of  any  special  statutory
provision, would also be bad in law  because  the  State  has  no  right  to
fritter away government property in favour  of  private  persons  or  bodies
without adequate consideration and therefore,  all  such  allotments,  which
have been made in absence of any statutory provision cannot be  upheld.   If
any allotment was not made in accordance with a statutory provision  at  the
relevant time, it must be discontinued and must be treated as cancelled  and
the State shall take possession of such premises as soon as possible and  at
the same time, the State should also recover appropriate rent in respect  of
such premises which had been allotted without any statutory provision.

44.    In  the  circumstances,  for  the  reasons  stated  hereinabove,  the
petition is allowed.  Rule is made absolute with no order as  to  costs  and
it is held that the 1997 Rules so far as they are  not  in  consonance  with
the provisions of the 1981 Act are bad in  law.   The  government  bungalows
allotted to the respondents is held to be  bad  in  law  and  the  concerned
respondents shall hand over possession of the  bungalows  occupied  by  them
within two months  from  today  and  the  respondent-Government  shall  also
recover appropriate rent from the occupants of the said  bungalows  for  the
period during which  they  were  in  unauthorized  occupation  of  the  said
bungalows.





                                                           ………………..……………….J.
                                     (ANIL R. DAVE)



                                                          …….…………..……………….J.
                                     (N.V. RAMANA)



                                                          …….…………..……………….J.
                                                 (R.              BANUMATHI)
NEW DELHI;
AUGUST 01, 2016.

Service Matter ;- In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking. For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years.

                                                                  REPORTABLE

        IN THE SUPREME COURT OF INDIA
                         CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 3500 OF 2006


HIGH COURT OF PUNJAB & HARYANA          .....APPELLANTS
& ORS


                                   Versus



JAGDEV SINGH         .....RESPONDENT







                               J U D G M E N T



Dr. D Y CHANDRACHUD, J

1     The High Court of Punjab and Haryana allowed, by its judgment dated  1
August 2005, a petition filed by the Respondent under  Article  226  of  the
Constitution to challenge a direction issued by the State to the  Accountant
General for the recovery of an excess payment towards salary.

2     The facts lie in a narrow compass. The Respondent was appointed  as  a
Civil  Judge  (Junior  Division)  on  16  July  1987  and  was  promoted  as
Additional Civil Judge on 28 August 1997 in  the  judicial  service  of  the
State.  By  a  notification  dated  28  September  2001,  a  pay  scale   of
 Rs. 10000-325-15200 (senior scale) was  allowed  under  the  Haryana  Civil
Service (Judicial Branch) and Haryana Superior Judicial Service Revised  Pay
Rules 2001. Under  the  rules,  each  officer  was  required  to  submit  an
undertaking that any excess which may be found to have  been  paid  will  be
refunded to the Government either by adjustment against future payments  due
or otherwise.

3     The Respondent furnished an undertaking and was  granted  the  revised
pay scale and selection grade of Rs. 14300-400-18000-300. While  opting  for
the revised pay  scale,  the  Respondent  undertook  to  refund  any  excess
payment if it was so detected and demanded  subsequently.  The  revised  pay
scale in the selection grade was allowed to  the  Respondent  on  7  January
2002.

4     The Respondent was placed under  suspension  on  19  August  2002  and
eventually, was compulsorily retired from service on 12 February 2003.

5     In the meantime, this Court in Civil Writ (C) 1022  of  1989  accepted
the recommendations of the First National Judicial Pay  Commission   (Shetty
Commission). Thereupon, the Haryana Civil  Services  (Judicial  Branch)  and
Haryana Superior Judicial Service Revised Pay Rules 2003 were notified on  7
May 2003.

6     In view thereof the pay scales of judicial officers  in  Haryana  were
once again revised  with  effect  from  1  January  1996.  An  exercise  was
undertaken for adjustment of excess  payments  made  to  judicial  officers,
following the notification of the revised pay rules.  On 18  February  2004,
a letter for the recovery of an amount of Rs.  1,22,003/-  was  served  upon
the Respondent pursuant to the  direction  of  the  Registrar  of  the  High
Court.

7     The Respondent challenged the action for recovery in writ  proceedings
under Article 226. The petition was allowed by the impugned judgment of  the
High Court.  The  High  Court  found  substance  in  the  grievance  of  the
Respondent that the excess payment made to him towards salary and  allowance
prior to his retirement could not be recovered at that  stage,  there  being
no fraud or misrepresentation on his part.

8     The order of the High Court has been challenged in these  proceedings.
From the record of the proceedings, it is evident that when  the  Respondent
opted for the revised pay scale, he furnished an undertaking to  the  effect
that he would be liable to refund any excess payment made to  him.   In  the
counter  affidavit  which  has  been  filed  by  the  Respondent  in   these
proceedings, this position has been specifically [1]admitted.  Subsequently,
when the rules were revised and notified on         7 May 2003 it was  found
that a payment in excess had been made to the  Respondent.  On  18  February
2004, the excess payment  was  sought  to  be  recovered  in  terms  of  the
undertaking.

9     The submission of the Respondent, which found  favour  with  the  High
Court, was that a payment which has been made in excess cannot be  recovered
from an employee who has retired from the service of the  state.   This,  in
our view, will have no application to a situation such as the present  where
an undertaking was specifically furnished by the officer at  the  time  when
his pay was initially revised accepting that any payment found to have  been
made in excess would be liable to be adjusted. While opting for the  benefit
of the revised pay scale, the Respondent was clearly on notice of  the  fact
that a future re-fixation or revision  may  warrant  an  adjustment  of  the
excess payment, if any, made.

10    In State of Punjab & Ors etc. vs. Rafiq  Masih  (White  Washer)  etc1.
this Court held that while it is not possible to  postulate  all  situations
of hardship where payments have mistakenly been made by an employer, in  the
following situations, a recovery by the employer would be  impermissible  in
law:


“(i) Recovery from employees belonging to  Class-III  and  Class-IV  service
(or Group 'C' and Group 'D' service).


(ii) Recovery from retired employees, or employees who  are  due  to  retire
within one year, of the order of recovery.


(iii) Recovery from employees, when the excess payment has been made  for  a
period in excess of five years, before the order of recovery is issued.


(iv) Recovery in cases where an employee has  wrongfully  been  required  to
discharge duties of a higher post,  and  has  been  paid  accordingly,  even
though he should have rightfully been required to work against  an  inferior
post.


(v) In any other case, where the  Court  arrives  at  the  conclusion,  that
recovery if made  from  the  employee,  would  be  iniquitous  or  harsh  or
arbitrary to such an extent, as would far outweigh the equitable balance  of
the employer's right to recover.”                     (emphasis supplied).




11    The principle enunciated in proposition (ii) above cannot apply  to  a
situation such as in the present case. In the present case, the  officer  to
whom the payment was made in  the  first  instance  was  clearly  placed  on
notice that any payment found to have been made in excess would be  required
to be refunded. The officer furnished an undertaking while  opting  for  the
revised pay scale. He is bound by the undertaking.

12    For these reasons, the judgment of the High Court which set aside  the
action for recovery is unsustainable. However, we are of the view  that  the
recovery should be made  in  reasonable  instalments.  We  direct  that  the
recovery be made in equated monthly instalments spread over a period of  two
years.

13    The judgment of the High Court is accordingly  set  aside.  The  Civil
Appeal shall stand allowed in the above terms. There shall be  no  order  as
to costs.


.......................................CJI
                                            [T S  THAKUR]



..............................................J
                                           [Dr D Y  CHANDRACHUD]


New Delhi
JULY 29, 2016.
-----------------------
[1]   [2] (2015) 4 SCC 334

Monitoring Investigation = Sample Voice - to avoid inculpatory meterial - it is just and necessary to brought the sample/modal text/script for verification of court before read out by accused = the only surviving issue for this Court is to ensure that the underlying process for drawing the voice samples is fair and reasonable, having due regard to the mandate of Article 21. On the one hand, it is not open to the accused to dictate the course of investigation. Hence, we do not find substance in the submission that the text which is to be read by the Appellants in the course of drawing their voice samples should contain no part of the inculpatory words which are a part of the disputed conversation. A commonality of words is necessary to facilitate a spectrographic examination. =FIR (FIR 240 of 2012) is that the Appellants demanded a sum of money to refrain from telecasting programmes on a television channel pertaining to the alleged involvement of a corporate entity in a wrongful activity pertaining to the allocation of coal blocks. The FIR was registered against the Appellants for offences under Sections 384, 511, 420 and 120B of the Penal code.= an application requesting the court to seek the consent of the Appellants for obtaining their voice samples at the Central Forensic Science Laboratory, CBI (CFSL-CBI) for the purpose of comparing it with a recording which had been made in the course of a sting operation.= The grievance of the Appellants was that they were being made to read out inculpatory material drawn from an audio recording of the alleged sting operation. The Appellants objected to do so and moved an application under the Code of Criminal Procedure, 1973 for monitoring the investigation and for a direction to the Investigating officer to provide material for the purpose of a voice sample “which does not contain any inculpatory statement” in the presence of a judicial magistrate. = whether or not a sample of words in such number as the expert may suggest would suffice for the experts to give their opinion by scientific voice sampling methods. Accordingly, a brief note has been filed on the record stating that: “That the experts of the Central Forensic Science Laboratory (CFSL) have informed that two separate texts/scripts have been prepared in the laboratory from each Speaker/Accused, which are different from the received transcripts. That the text/script prepared by the CFSL experts cannot be provided to the petitioners in advance as there is apprehension that the petitioner may practice the texts/scripts thereby adversely affecting the voice sampling examination. Accordingly it is submitted that the sample/modal text/script can only be supplied to the speakers/Accused if this Hon’ble Court deems it appropriate.” By an Order of this Court dated 1 July 2016, the Investigating officer was directed to file a transcript of the disputed conversation in a sealed cover. The Director CFSL-CBI, was called upon to file in a sealed cover a proposed passage of a written text which the Appellants shall be required to read out for the purpose of giving their voice samples using words, but not the sentences, appearing in the disputed conversation in such number as the Director/Scientific Officer may consider necessary for the purpose of comparison. We are of the view that the aforesaid directions which have been issued by this Court would allay the apprehension of the Appellants in regard to the fairness of the process involved in drawing the voice sample. Our directions ensure that the text which the Appellants would be called upon to read out for the purpose of drawing their voice samples will not have sentences from the inculpatory text. Similarly, permitting the text to contain words drawn from the disputed conversation would meet the legitimate concern of the investigating authorities for making a fair comparison. In pursuance of the directions issued by this Court the Investigating officer has filed in sealed cover: (i) transcripts of the disputed conversations; and (ii) a proposed passage of a written text required to be read out by the Appellants for the purpose of giving their voice samples. The passage contains words but not the sentences appearing in the disputed conversation. Having perused the contents of the sealed covers, we are satisfied that the Investigating officer has complied with our directions. We order accordingly.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL Nos. 700-701   OF 2016
              [Arising out of SLP (Crl) Nos.3009-3010 of 2015]



SUDHIR CHAUDHARY ETC. ETC.        .....APPELLANTS

                                   Versus

STATE (NCT OF DELHI)          .....RESPONDENT







                           J  U  D  G  M  E  N  T



Dr. D Y CHANDRACHUD, J.

           Leave granted.

2           A judgment of the High Court of Delhi  dated  11  February  2015
has given rise to these proceedings. The High  Court  dismissed  a  petition
instituted under Section 482 of the Code  of  Criminal  Procedure  1973  and
affirmed an order dated 7 July 2014  of  the  Additional  Sessions  Judge–01
Patiala House Courts, New Delhi, in a Criminal Revision.

3           On 2 October  2012,  a  First  Information  Report  (‘FIR’)  was
registered at P.S. Crime Branch New Delhi, on  a  complaint  made  by  Rajiv
Bhadauria of Jindal Steel  Company  Private  Limited.  Briefly  stated,  the
allegation in the FIR (FIR 240 of 2012) is that the  Appellants  demanded  a
sum of money to refrain from telecasting programmes on a television  channel
pertaining to the alleged involvement of a corporate entity  in  a  wrongful
activity  pertaining  to  the  allocation  of  coal  blocks.  The  FIR   was
registered against the Appellants for offences under Sections 384, 511,  420
and 120B of the Penal code.  The Appellants were  arrested  on  27  November
2012.

4            On  10  December  2012,  an  application  was  moved   by   the
Investigating officer in  the  Crime  Branch  before  the  Additional  Chief
Metropolitan Magistrate (South), when the Appellants were in police  custody
in pursuance of an order  of  remand,  requesting  the  court  to  seek  the
consent of the Appellants for obtaining their voice samples at  the  Central
Forensic Science Laboratory, CBI (CFSL-CBI) for the purpose of comparing  it
with a recording which had been made in the course  of  a  sting  operation.
In their replies to the application the Appellants furnished  their  consent
for tendering their voice samples.  Consequently, on  13 December  2012  the
Metropolitan Magistrate disposed of the application by  directing  that  the
Investigating officer may move an appropriate application for the  visit  of
the accused to the place or office where he proposes to  collect  the  voice
samples with a specification of time, date and place.  The  Appellants  were
required by the Investigating officer to furnish their voice samples  on  21
December 2012.  When they reported at the police station, the  Investigating
officer directed them to read out from a paper.

5           The grievance of the Appellants was that they  were  being  made
to read out inculpatory material  drawn  from  an  audio  recording  of  the
alleged sting operation.  The Appellants objected to  do  so  and  moved  an
application under the Code of Criminal Procedure, 1973  for  monitoring  the
investigation and for a direction to the Investigating  officer  to  provide
material for the purpose of a voice  sample  “which  does  not  contain  any
inculpatory statement” in  the  presence  of  a  judicial  magistrate.   The
Additional Chief Metropolitan Magistrate (for brevity ‘ACMM’) dismissed  the
application on 4 February 2013, observing that while  it  was  open  to  the
accused to decide whether or not to grant their consent,  once  consent  was
granted the  accused  would  have  to  abide  by  the  instructions  of  the
Investigating officer and cannot  dictate  the  terms  on  which  the  voice
sample has to be given.

6           A Criminal Revision was filed against the  order  of  the  ACMM.
The Revision was heard and decided by an order dated 7  July  2014.   During
the course of the proceedings before the ACMM, the State agreed  to  provide
a text which was not an exact reproduction of the earlier text given to  the
accused but which was stated to be a mixture of some  sentences  drawn  from
the inculpatory material, besides some general statements.   After  perusing
the draft text,  the  Appellants  objected  to  the  text  stating  that  it
contained portions of the audio recording.    Before  the  ACMM  an  opinion
furnished by the CFSL expert was produced.  The opinion, inter alia,  stated
that:

“(A)  It is not mandatory to have vis-à-vis  same  text  to  be  read  by  a
suspect.  However, sufficient common sentences/words should  be  present  in
the sample voice recording with respect to the  questioned  voice  recording
for spectrographic examination.

(B)   In  case  there  are  sufficient  common  sentences/words  in  between
questioned & specimen voice recording, then  a  complete  opinion  could  be
offered.  However, in case of complete different text and sufficient  common
sentences/words are  not  available;  opinion  could  be  offered  based  on
auditory examination only.

(C)   For auditory  comparison,  the  whole  recording/text  is  used.   For
spectrographic examination, some  selected  sentences/words  are  taken  for
comparison.”

7           The ACMM by an order dated 7 July 2014, came to  the  conclusion
that it will not be appropriate if the accused are required to  read  out  a
transcript of the questioned text.   At the same time,  the  ACMM  took  the
view that in the interest of a proper investigation it would not  be  proper
to direct that a text completely different from the questioned text is  used
for drawing a voice sample.  The ACMM issued a direction  in  the  following
terms:

“….it will be  appropriate  if  the  CFSL  experts  at  CBI  Laboratory  are
directed to prepare a text inter-mixed with sufficient  sentences  from  the
questioned text  which  may  facilitate  the  examination  of  voice  sample
identification by them.  The  said  text  shall  be  prepared  by  the  CFSL
experts themselves only after the investigating agency first  provides  them
with the questioned recording.   The  collection  of  voice  sample  of  the
accused persons shall also be done in the CFSL  Laboratory  in  presence  of
the experts as not only it will provide them  a  controlled  environment  to
suitably collect the samples but it will also clear the apprehension of  the
accused persons that the investigating  agency  may  play  some  mischievous
role while collecting the voice samples.”



8           The order of the ACMM  was  questioned  before  the  Delhi  High
Court.  By a judgment and order dated 11 February  2015,  a  learned  Single
Judge held that the purpose of a voice sample is to facilitate  the  process
of comparing it with a recorded conversation.  The voice  sample  is  not  a
testimony in  itself  since  it  only  constitutes  what  was  described  as
‘identification data’.  A voice sample, in the view of  the  High  Court  is
not  a  substantive  piece  of  evidence.   The  High  Court  rejected   the
submission that the direction to furnish a voice sample was in violation  of
the  fundamental  right  under  Article  20(3)  of  the  Constitution  since
firstly, the Appellants had not been forced or coerced into furnishing  such
a sample since it was they who had  furnished  their  consent;  secondly,  a
voice sample is not evidence since its purpose is only to  compare  it  with
the questioned text.  In the view of the High  Court,  once  the  Appellants
had furnished their consent to furnishing their voice samples,  it  was  not
open to them to dictate the course of investigation.  This order  is  called
into question.

9           Learned senior counsel appearing on  behalf  of  the  Appellants
submitted that while it is true that the Appellants have  consented  to  the
drawing of their voice samples (a concession  which  was  reiterated  before
this Court in the course of the submissions) yet the process of drawing  the
samples must be fair,  so  as  to  be  consistent  with  the  right  of  the
Appellants under Article 21 of the Constitution.  The requirement of a  fair
investigation, it was urged, is implicit in Article  21  and  the  procedure
which is adopted for drawing a voice sample must be fair and reasonable.

10    The Appellants expressly consented to a voice sample being  drawn,  in
their response to the  application  that  was  filed  by  the  Investigating
officer before the Court of Metropolitan Magistrate.   This  was  reiterated
before the High Court.  In the submissions which have been  urged  in  these
proceedings, learned counsel has specifically  stated  that  the  Appellants
would abide by the consent which they had furnished to their  voice  samples
being drawn.  That being the position, the only  surviving  issue  for  this
Court is to ensure  that  the  underlying  process  for  drawing  the  voice
samples is fair and reasonable, having due regard to the mandate of  Article
21.  On the one hand, it is not open to the accused to  dictate  the  course
of investigation.  Hence, we do not find substance in  the  submission  that
the text which is to be read by the Appellants  in  the  course  of  drawing
their voice samples should contain no part of the  inculpatory  words  which
are a part  of  the  disputed  conversation.   A  commonality  of  words  is
necessary to facilitate a spectrographic examination.

11     By  our  order  dated  17  November  2015,  this  Court  allowed   an
adjournment  to  the  Respondent  to  seek  instructions  from  the   expert
concerned whether or not a sample of words in such number as the expert  may
suggest would suffice for the experts to give their  opinion  by  scientific
voice sampling methods.  Accordingly, a brief note has  been  filed  on  the
record stating that:

“That the experts of the Central Forensic  Science  Laboratory  (CFSL)  have
informed  that  two  separate  texts/scripts  have  been  prepared  in   the
laboratory from each Speaker/Accused, which are different from the  received
transcripts.

That the text/script prepared by the CFSL experts cannot be provided to  the
petitioners in advance as there is  apprehension  that  the  petitioner  may
practice the texts/scripts thereby adversely affecting  the  voice  sampling
examination.  Accordingly it is submitted that the sample/modal  text/script
can only be supplied to the speakers/Accused if this Hon’ble Court deems  it
appropriate.”



12    By an Order of  this  Court  dated  1  July  2016,  the  Investigating
officer was directed to file a transcript of the disputed conversation in  a
sealed cover.  The Director CFSL-CBI, was called upon to file  in  a  sealed
cover a proposed passage of a written text which  the  Appellants  shall  be
required to read out for the purpose of giving  their  voice  samples  using
words, but not the sentences, appearing  in  the  disputed  conversation  in
such number as the Director/Scientific Officer may  consider  necessary  for
the purpose of comparison.

13    We are of the view that  the  aforesaid  directions  which  have  been
issued by this Court would allay  the  apprehension  of  the  Appellants  in
regard to the fairness of the process involved in drawing the voice  sample.
 Our directions ensure that the text which the Appellants  would  be  called
upon to read out for the purpose of drawing their  voice  samples  will  not
have sentences from the inculpatory text.  Similarly,  permitting  the  text
to contain words  drawn  from  the  disputed  conversation  would  meet  the
legitimate concern of  the  investigating  authorities  for  making  a  fair
comparison.

14    In pursuance of the directions issued by this Court the  Investigating
officer  has  filed  in  sealed  cover:  (i)  transcripts  of  the  disputed
conversations; and (ii) a proposed passage of a written text required to  be
read out by the Appellants for the purpose of giving  their  voice  samples.
The passage contains words but not the sentences appearing in  the  disputed
conversation. Having perused the contents  of  the  sealed  covers,  we  are
satisfied that the Investigating officer has complied with  our  directions.
We order accordingly.

15    The order passed by the High Court shall  accordingly  stand  modified
and be substituted by the aforesaid directions.

16    The Appeals are disposed of in the above terms.



                  ..................................... CJI
                                             [T.S. THAKUR]



                                  .........................................J
                                              [A.M. KHANWILKAR]



........................................J
                                              [Dr. D.Y. CHANDRACHUD]

New Delhi
JULY 29, 2016.