LAW FOR ALL

Friday, September 23, 2016

Regarding sale of the suit property by Defendants 7 and 8 to Defendant 9, it was held that Defendant 9 admittedly bought the property with the full knowledge of the litigations, and hence, Defendant 9 was not entitled to any equities. ; a purchaser of a coparcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. He has a right only to sue for partition of the property and ask for allotment of his share in the suit property.;Suffice it to say, Article 2177 does not prohibit alienation of undivided interest, which is in tune with the principle underlying Section 44 of the Transfer of Property Act, 1882.-“It is not lawful to a co-owner, however, to dispose a specific part of the thing held indivisibly, without the same being allotted to him in partition; and a transfer of the right, which he has to the share belonging to him, may be restricted in accordance with the law.”=In our view, no substantial or grave injustice is caused to the Defendants: on the contrary, the justice of the case, on facts, is in favour of the Plaintiff, and therefore, no interference under Article 136 of the Constitution of India is required. Once, it is found that justice of the case on facts does not require interference, this Court, even at the appellate stage, is well within its discretion to stay its hands off, as held in Taherakhatoon (D) by Lrs. v. Salambin Mohammad[6].

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2910 OF 2013

SYSCON CONSULTANTS P. LTD. … APPELLANTS (S)

VERSUS

M/S PRIMELLA SANITARY PROD. P. LTD.
AND OTHERS … RESPONDENT(S)

WITH

CIVIL APPEAL NO. 2909 OF 2013
WITH

CIVIL APPEAL NO. 2911 OF 2013
WITH

CIVIL APPEAL NO. 2912 OF 2013
AND

CONTEMPT PETITION (CIVIL) NO. 89 OF 2016
IN

CIVIL APPEAL NO.2910 OF 2013

J U D G M E N T

KURIAN, J.:

These appeals essentially deal with a dispute on the validity and
executability of an agreement for sale and once that issue is tackled, the
rest are practically not of much significance. The parties are described as
they are in the suit for specific performance No. 88/1987 on the file of
the Civil Judge Senior Division at Margao. The Plaintiff is the first
respondent herein. The Plaintiff had sought for specific performance of
the agreement dated 04.09.1985 made with Defendants 1 to 6 for conveyance
of the suit property known as Conco situated at village Palolem in Canacona
Taluka in the State of Goa. The 7th Defendant was the Bank where the
Defendants had mortgaged the suit property.

In the agreement dated 04.09.1985, the Defendants 1 to 6 claimed that they
were the absolute owners of the suit property and that the property was
free from all attachments, charges, etc. The agreed consideration was
Rs.6.5 lakhs and, on the date of agreement, Rs.50, 000 was given as
advance. The relevant portions of the agreement for sale dated 04.09.1985,
are extracted below:

“3.The Vendor hereby declares that the said land agreed to be sold is free
from any encumbrance, attachment, charge or other claims, rights and
demands, and is not affected by any notice or scheme of acquisition or
requisition and that the Vendors have among themselves the full power and
absolute authority to sell and deal with the said land. The Vendor shall at
his own expense effectually indemnify and keep indemnified the purchasers
from and against all claims, demands, losses, damages, cost and expenses,
if any and whatsoever, sustained, incurred or suffer by the Purchaser, on
account of any defect in the title of the Vendor or any change or
encumbrance or any scheme of acquisition or requisition affecting the land
hereby contracted to be sold.

4. The Purchaser has this day paid to the Vendor the sum of Rs.50,000/-
(Rupees fifty thousand only) as and by way of earnest money (the payment
and receipt whereof the Vendor does hereby admit and acknowledges) and the
balance of the purchase money amounting to Rs.6 lacs (Rupees six lacs only)
shall be paid at the time of the completion of the sale. Simultaneously
with the execution of this agreement the Vendor shall at his own cost
furnish to the Purchasers an abstract of all title deeds and other papers
and writings including copies or extracts from records of the Talati or
Circle Inspector relating to the said land. The sale shall be completed
within one month from the date of establishment of a good and marketable
title of the Vendor.”

xxx xxx xxx xxx

“6. The Vendor hereby agrees to answer all reasonable requisitions
and satisfy all objections on title to be made by the Purchasers or their
Solicitor or Representatives. If a good and marketable title is made out
and the said land is found to be free from all encumbrance, attachments and
charges and other rights, demands and claims and not effected by any notice
or scheme of acquisition or requisition AND permission and no objection
from any Authority or Authorities, if any, is obtained by the Vendor, the
Vendor will execute a proper conveyance or conveyance in favour of the
Purchasers or their nominee or nominees or assigns in which the Vendor
shall make the other person or persons, if any, join, if necessary, to pass
and convey an absolute title unto the Purchaser or his nominee or nominees
or assigns or to redeem any charge or encumbrances. The Vendor shall bear
and pay all outgoings, expenses and liabilities in respect of the said land
upto and inclusive of the day of the completion of the sale. The Vendor
shall hand over vacant and peaceful possession to the Purchaser of the said
land at the time of completion of the sale.”
xxx xxx xxx xxx

“8. If a good and marketable title is not made out or the said land is
found to be subject to any encumbrances charges or attachments or other
claims, rights or demands the Purchaser shall be at liberty to rescind this
Agreement and the Vendor shall in the event forthwith refund the said
earnest money with interest at 21% per annum.

9. If the Vendor fails and or neglects to complete the sale after the
title being made out as aforesaid or otherwise to carry out any one or more
of the obligations on his part as herein contained or enjoyed upon by any
law for the time being in force the Purchaser shall be at liberty to
enforce specific performance of this Agreement or recover the earnest money
with interest at 21 % per annum.”

(Emphasis supplied)

It may be relevant to note that the sale was to be completed within one
month from the date of establishment of a good and marketable title of the
vendor and, if the title was not made out or in case the said land was
found to be subject to any encumbrance or charges or attachments or other
claims, rights or demands, the Plaintiff was at liberty to rescind the
agreement and, in that event, the Defendants 1 to 6 would refund the
earnest money with interest @ 21 per cent per annum. It was also agreed
between the parties that in case the Defendants 1 to 6 fail to complete the
sale after a good and marketable title is made out, the Plaintiff was at
liberty to enforce the specific performance of the agreement or recover the
earnest money with interest @ 21 per cent per annum. It is also significant
to note that the Defendants 1 to 6 had clearly agreed to give a clear title
to the property, if necessary by joining any other person or persons or
even to redeem any charge or encumbrance.

Defendants 1 to 6 traced their authority to transfer the property to a deed
of declaration of succession executed by them on 03.11.1981 before a Notary
Public as provided under the Portuguese Law. It was declared that
Vishwanata Purshotam Sinai Gaitonde and his wife Anandibai Viswanata
Gaitonde died intestate … “leaving their sole and only heirs their three
children …” and “… there does not exist persons, who, according to law, may
have preferential right over the said legal heirs or may concur with them
to the estate.” It was further declared that their parents … “left no
movable properties but only an immovable property situated at Palolem
Canacona known as Conco” (the suit property).

On account of the Portuguese personal law applicable in Goa, their wives
also became heirs and thus the agreement for sale with the Plaintiff was
executed by Defendants 1 to 6.

While the steps for the sale were in progress, Smt. Kishori Nayak daughter
of Vishwanata Purshotam Sinai Gaitonde and Anandibai Viswanata Gaitonde,
real sister of Defendants 1, 3 and 5 raised an objection that she was also
entitled to succeed to the estate of her parents and, in particular, she
was interested in the suit property, and therefore, they should not proceed
with the sale.

Smt. Kishori Nayak was later impleaded as 7th Defendant in the suit and her
husband as the 8th. According to the 7th Defendant, she had informed the
Plaintiff of her objection. But in any case, it has come in the evidence of
Plaintiff that the 1st Defendant- Shri Gurudas Gaitonde had informed the
Plaintiff about the objection, by his letter dated 03.04.1987.

In the Special Civil Suit No. 88/87/A filed by the Plaintiff in the court
of Civil Judge Senior Division, Margao, the Plaintiff claimed that the
agreement was enforceable at the option of the Plaintiff-purchaser. To
quote paragraph-7 of the plaint:

“7. The Plaintiff submits that the said Agreement dated 4th September,
1985 is specifically enforceable at the option of the plaintiff, and the
plaintiff is entitled to purchase of the suit property on the terms and
conditions contained in the said Agreement. In terms of the said Agreement,
the Defendants no. 1 to 6 are liable to make out a good and marketable
title of the suit property free from all encumbrances, restrictions,
charges, claims and demands and execute a proper conveyance by joining
other person or persons thereto, if necessary, to convey an absolute title
thereof to the plaintiff.”

At paragraph-14, the Plaintiff has acknowledged the receipt of letter dated
03.04.1987 from Defendant 1, to treat the agreement as cancelled. Paragraph-
14 reads as follows:
“14. In the meantime, the plaintiff received a demand draft bearing No.
OL/A/85 016341 dated 3-4-1987 drawn on State Bank of India for a sum of Rs
20,000/- the defendant no. 1 alongwith a letter expressing the intention of
the defendants no. 1 to 6 to treat the agreement dated 4th September, 1985
as cancelled.”

Contextually, we may refer to the letter dated 03.04.1987 which is Exhibit-
PW1/C in the suit. To the extent relevant, the letter reads as follows:

“Dear Shri Malhotra,
In my letter dated 5.3.87, I have informed regarding my inability to
sale of land at Canacona.
Mr. Bhatnagar called on to me last Thursday. I have to explain also
the position to him. He advised me to sell the property and forget about
the notice of my sister. He said you are able to face any action from my
sister’s side, to be frank I am helpless.
I discussed the issue with lawyer I am told that in any case sale
would invite serious litigation and I would not be left out even if you
take over this responsibility particularly if my sister exercises her right
of preemption.
As you know that I am not keeping well due to my heart problem and
family litigation will aggravate my health.
I have thought over this aspect seriously and only you can relieve me
from this agony.
As promised in my above letter 5.3.87 I am sending with this letter a
bank draft for Rs.20,000/-. The balance I shall remit as early as possible
kindly bear with me some time. …”

The Plaintiff, however, did not accept the amount but insisted on specific
performance.

The suit originally maintained only the following reliefs:
“
That Your Honour may be pleased to pass a decree for specific performance
of contract dated 4th September, 1985 made between the defendants no. 1 to
6 and the plaintiff and direct the said defendants to execute a proper deed
of Conveyance of the suit property viz., the property known as “CONCO”
situated at Village Palolem in Canacona Taluka, registered under No. 14858
and 14859 of Book B-41, F1. 64 (overleaf) in the Land Registration Office
at Margao, Goa surveyed under Survey No. 119, Sub-Division no. 1 of
Nagarsem-Palolem Village and may further be pleased to direct the said
defendants to do all acts, deeds and things for registration of the said
Deed of Conveyance;

That Your Honour may be pleased to direct defendants no. 1 to 6 to join the
defendant no. 7 as a confirming party to the said Deed of Conveyance and
arrange for execution of the said deed by the defendant no. 7 as a
confirming party;

For a decree of permanent injunction restraining the defendants from
selling, transferring and/or creating any encumbrance, interest, charge,
restriction, claim or demand on the said property in favour of any person
or persons other than the plaintiff in any manner whatsoever;

For interim injunction in terms of prayer (c);

For such other further reliefs as Your Honour may deem fit and proper;

For costs as Your Honour may deem fit and proper in the circumstances of
the case.”

In the written statement filed on 10.02.1988, Defendants 1 to 6 took the
stand that the sale as per agreement could be performed only “if a good and
marketable title is made out” and if not, the agreement was rescindable.

The objections on the part of the sister of Defendants 1, 3 and 5 and her
husband were also brought out in the written statement. To quote:

13. “Sometime in the month of Feb. ’87, sister of defendant No. 1, 3 & 5
and her husband set up a claim to the ancestral property as a whole
including the suit property. On account of this the defendants were in a
tight corner on the subject of sale of the suit property. Defendant No. 1
accordingly wrote two letters one after the other to the plaintiffs
informing them of the defendants’ inability to convey title as per the
agreement. A copy of the defendants letter dated 05.03.87 is annexed hereto
marked as Exhibit 5. Thereafter on 03.04.87 defendant No. 1 sent a Bank
draft of Rs 20,000/- alongwith a covering letter which is self explanatory.
Annexed hereto and marked exhibit 6 is a copy of the said letter.

Plaintiffs have suppressed these material facts and as such are disentitled
for equitable relief of specific performance. Plaintiffs have not
approached this Court with clean hands and this suit therefore has to be
dismissed on this ground alone.”

At paragraph-16 of the written statement, it was also disclosed that the
attempt on the part of the Defendants 1, 3 and 5 to purchase peace with
their sister did not fructify and that she had filed a civil suit for
injunction. To quote paragraph-16:

“16. Defendants did write to the plaintiff’s lawyer that detailed reply
would be sent as there was attempt from the defendant’s side to close the
issue with the disputant sister and her husband to enable the defendants to
complete the sale. But unfortunately, the sister Smt. Kishori P. Nayak and
her husband, Shri Prabhakant R. Nayak did not settle the issue amicably and
filed a civil suit in the court of the Civil Judge Senior Division at
Margao. The said suit is registered as special civil suit no. 105/87/A and
a civil application filed in the same is registered as Misc. Application
No. 212/87/A. The Honourable Court has passed a temporary injunction order
restraining the defendants from executing sale deed in respect of the suit
property in favour of the plaintiffs who are impleaded as Defendant no. 7
in the said suit. The plaintiffs in the said suit have inter alia
challenged the enforceability and legality of the agreement dated 4.09.85
which is the subject matter of this suit also.

Defendants 1 to 6 herein state and submit that for proper and effective
adjudication of this suit Smt. Kishori Prabhakant Nayak and Shri Prabhakant
R. Nayak should be added in this suit as defendants as they have leveled a
challenge to the enforceability of the agreement sought to be specifically
enforced in this suit by the plaintiff herein.”

In short, Defendants 1 to 6 wanted the suit to be dismissed in view of the
objection of Smt. Kishori Nayak.

It may be noted that Defendant 7 originally was the Cooperative Bank with
whom the suit property had been mortgaged; but it appears on clearing the
loan, the Bank was deleted and thereafter Smt. Kishori Nayak was impleaded
as Defendant 7 and her husband Shri Prabhakant Ramrai Nayak as Defendant 8.

Special Civil Suit No. 105/1987/A was filed by Smt. Kishori Nayak, real
sister of Defendants 1, 3 and 5 and her husband Shri Prabhakant R. Nayak
before the Civil Judge Senior Division, Margao against Defendants 1 to 6
and the Plaintiff. It was a suit for declaration, permanent and temporary
injunction. It was stated in the plaint that apart from the suit property
of Civil Suit No. 88/1987, five other items of property were also left
intestate. It was averred that the agreement of sale of any property
without the sister and her husband is null and void. To quote from
paragraph-7:

“7. Plaintiffs state that the defendants no. 7 is a company which has
entered into an agreement to sell the suit property with defendant nos. 1
to 6 on the 4th of September, 1985, which agreement is impugned herein,
ignoring the legal rights of the plaintiffs to the suit property, in
collusion with one another and are about to execute the deed of conveyance
and as such the plaintiffs are compelled to file the suit to seek the
assistance of this Hon’ble Court by an appropriate order of declaration and
permanent injunction restraining the defendant number 1 to 6 from in any
manner alienating and/or executing any deed of conveyance or any other
instrument of transfer of possession of the suit property to the name of
the defendant no. 7 in pursuance of the impugned agreement to sell
allegedly entered into on 4th September 1985 declaring that the said
agreement is ab-initio null and void ad hence unforceable specifically.”

Again, at paragraph-9, it has been averred that:

“9. Plaintiffs state that they being co-sharers and co-owners of the suit
property as aforesaid the defendant nos. 1 to 6 had no authority in law to
negotiate the said deal without their consent and knowledge with defendant
no. 7 and on this count alone the alleged agreement to sell and/or the
alleged deed of sale dated 4th December 1985 is ab-initio void and the
plaintiff’s are entitled in law for such a declaration.”

At paragraph-14, it was averred that the entire properties, left intestate
being ancestral, the same are to be divided only as per Portuguese Law of
Succession through inventory proceedings. To quote from paragraph-14:

“14. Plaintiffs state that their share in the ancestral suit property is
undivided and indivisible till the suit property as well as other ancestral
properties are auctioned in appropriate inventory proceedings to be
initiated under the Portuguese Law of Succession and till the shares of the
heirs are ascertained and as such the suit property or any part of the same
cannot be sold as contemplated under the agreement of sale dated 4th
September 1985 in exclusion to them. Plaintiffs state that even if the
inventory proceedings are initiated and the properties are auctioned
amongst the members of the family, they are entitled to exercise their
right of preemption and under the prevailing law of succession governing
this land.”

Though there had been several other developments in between, it is not
necessary to refer to those aspects. Suffice to note that in the meantime,
inventory proceedings were initiated before the same court of Civil Judge
Senior Division at Margao at the instance of Defendants 7 and 8 namely,
Smt. Kishori P. Nayak and her husband Shri Prabhakant R. Nayak. Paragraphs-
1 to 4 of the petition being relevant are extracted herein:

“1. The applicants are the daughter and son-in-law of the Late Visvonata
Purxotoma Sinai Gaitonde and the late Anandibai V. Gaitonde who died on
26.10.1966 and 25.06.1976 respectively. Hereto annexed are the death
certificates.

2. The deceased left behind their heirs, their three sons and their
daughter, the applicant no. 1 herein.

3. The estate of the deceased has not yet been partitioned and continues
undivided.

4. The son of the deceased, Mr. Ratnakar Vishwanath Gaitonde, resident
of Vishwanath Sunirti, Super Market, Ponda, Goa is competent to be
appointed as Cabeca de casal, he being the eldest son of the deceased.”

In the inventory proceedings, the auction took place on 01.12.1990. The
suit property was auctioned by the 7th Defendant- Smt. Kishori Nayak and
the remaining estate was also divided amongst the other heirs and the final
orders in the inventory proceedings was passed by the Civil Judge Senior
Division, Margao on 30.01.1991.

The Plaintiff, thereafter, filed Civil Suit No. 329/1992 seeking a
declaration that inventory proceedings were vitiated by fraud to the extent
of allocation of suit property to the 7th Defendant Smt. Kishori Nayak and
her husband and for setting aside the inventory proceedings.

In the meantime, the Cooperative Bank initiated recovery proceedings by
putting the suit property to public auction. The Bank obtained an award and
published the proclamation for the sale of the suit property by public
auction. On 10.01.1989, the Defendants 7 and 8, hence, filed a Regular
Civil Suit No. 3/1989/B for injunction restraining the bank from proceeding
with the sale. That suit was decreed as compromised on 23.04.1992. The
relevant paragraphs from the decree read as follows:

“5. In such circumstances, the plaintiff was though legally not bound,
morally feels her obligation not to put in jeopardy the interest of the
Bank, therefore she guarantees the payment of the debt to the Bank
(defendant no. 2) reserving her right to recover the amount from defendant
no. 1 (Smt. Sunita Gaitonde)”

xxx xxx xxx xxx

“9. The plaintiff further agrees that in the event the plaintiff fails to
pay the entire liability within a period of 15 (fifteen) days, the
defendant no. 2 is free to sell the suit property in auction and realize
from the proceeds of the auction sale the amount of loans, interest and
other charges with clear understanding that the asset value shall not be
less than the amount of principal and interest and other charges.”

(Emphasis supplied)

The Defendants 7 and 8 did not make any payment to the Bank so as to avert
the distress sale of the suit property and neither did Defendants 1 to 6.
The Defendants 7 and 8 in the compromise decree had gone to the extent of
giving up all hopes by agreeing that in case, they failed to pay the dues,
the suit property could be sold but the only condition was that the sale
amount should cover the entire liability arising out of the loan including
interest and other charges meaning thereby that they were worried only
about saving other assets. It is at that juncture that the Plaintiff
cleared the entire liability on payment of Rs. 17 lakh on 12.05.1993. Thus,
the distress sale was averted, the mortgage was redeemed and the charge on
the property was released

The Defendants 7 and 8 filed a writ petition before the High Court
challenging the proceedings of the Assistant Registrar culminating in
redemption of mortgage. The Writ Petition was disposed of by judgment dated
10.10 1994, stating :

“Respondents Nos. 4 to 10 mortgaged a property to respondent No.2, Bank and
took certain loan. The amount was not paid by them. Respondent No.2, Bank,
obtained the said certificate and started recovery proceedings in which the
property was put to sale. At the time of the sale, respondent no.1,
claiming interest in the property on the basis of some Agreement of Sale,
allegedly executed by respondents Nos. 4 to 10 in their favour paid Rs.
17,00,000/- to the Recovery Officer, as a result of which the Recovery
Officer stopped the sale and directed the redemption of the mortgage in
favour of Respondent Nos. 4 to 10.

2. The present petitioners claimed some title to the property under
inventory proceedings in 53/90/A. They were not parties to the mortgage,
nor they are members of respondent Nos. 2 Bank. They challenged the order
passed by the Recovery Officer on the ground that the amount tendered by
the respondent No.1 could not have been accepted by the Recovery Officer
for the purpose of passing an order of redemption in favour of the
mortgagors. If at all such an order was wrongly passed by the Recovery
Officer the person to be prejudiced would have been the Bank. The
mortgagors as well as the Bank did not have any grievance on the point.

3. Grievance is sought to be raised by a third party, who has hardly
any locus standi in a proceeding under Rule 104 because the petitioners had
never offered to pay any amount, nor had they ever paid anything, either to
the Bank, or to the Recovery Officer. Under such circumstances, we do not
think that the impugned order is against justice, equity and good
conscience.

4. Needless to say that if the petitioners claiming mere title to the
property have some rights to the property in question. They would be at
liberty to pursue their rights according to law. Petition is therefore
disposed of.”

(Emphasis supplied)

Meanwhile, the Plaintiff’s suit was dismissed for default on 18.09.1990 and
was ultimately restored only on 05.02.1994. Thereafter the suit was amended
and Smt. Kishori Nayak and her husband were impleaded as additional
Defendants, in 1998.

Additional reliefs for compensation to the tune of Rs.12,29,030.80 and
Rs.2,68,29,038.80 were added. The challenge to the inventory proceedings
was also incorporated by way of the amendment.

On 14.11.1995, the 7th and 8th Defendants, viz., the sister
Smt. Kishori and her husband, who had obtained the suit property in
the inventory proceedings, sold the same to the 9th Defendant-Syscon
Consultants Pvt. Ltd. Thereafter, the Plaintiff sought amendment for
cancelling that sale also. It may be stated that the 9th Defendant
purchased the suit property for a sum of Rs. 34,00,000/- knowing fully well
that the said property was in litigation and the fate of some of the
litigations.

Though, there were certain other factual aspects as well, it is not
necessary to refer to the same. Suffice it to note that Civil Suit Nos.
88/1987 and 105/1987 were tried together as per orders of High Court of
Bombay dated 19.04.1990 in Appeal from Order No. 54/89 with Civil
Application No. 192/89.

By common judgment dated 31.12.2001, the Trial Court disposed of both suits
upholding the right of 7th and 8th Defendants (the sister and her husband).
The Defendants 1 to 6 were directed to refund the advance of Rs. 50
thousand with interest @ 21 per cent per annum from the date of institution
of the suit to the Plaintiff and further Defendants 1 to 8 were directed to
refund an amount of Rs.17 lakhs to the Plaintiff with interest @ 6 per cent
per annum from 12.05.1993.

Aggrieved, the Plaintiff filed First Appeal No. 179/2003 before the High
Court of Judicature at Bombay, Panaji Bench, Goa. During the pendency of
the appeal, on 08.10.2003, the entire decree amount was deposited before
the High Court.

As per the impugned judgment, the High Court allowed the appeal in part,
and partly reversed the trial court judgment therein. To the extent of the
share of Defendants 1 to 6, in the suit property, the suit was decreed.
Defendants 1 to 6 were permitted to withdraw the amount deposited in court
after the decree was being fully satisfied. Thus, the appeals at the
instance of the Defendants and one by the Plaintiff for the 1/4th share of
Defendants 7 and 8 and another at the instance of Defendant 9, the
purchaser.

Being a first appeal, the High Court has in fact dealt with the issues as
framed by the Trial Court. The following were the issues framed by the
Trial Court and their findings:
|“ISSUES |FINDINGS |
|(1)Whether the plaintiff |Negative |
|proves that the plaintiff is | |
|entitled for specific | |
|performance of contract dated| |
|4.9.85? | |
|(2) Whether the plaintiff |Negative |
|proves that order in | |
|Inventory Proceedings | |
|No.55/90/A is liable to be | |
|vitiated as obtained by fraud| |
|and also illegal to the | |
|extent of allotment of the | |
|suit property to the | |
|defendant No.7? | |
|(3) Whether the plaintiff |Negative |
|proves that the defendants | |
|No. 7 and 8 lost right of | |
|preemption, even if they had | |
|the said right under law? | |
|(4) Whether the plaintiff |Negative |
|proves that the defendants | |
|No. 1 to 6 are liable to pay | |
|to the plaintiff a sum of | |
|Rs.12,29,030.80 as | |
|compensation for breach of | |
|contract in addition to the | |
|specific performance? | |
|(5) Whether the plaintiff |Partly in affirmative |
|proves that defendants No.1 | |
|to 6 are also liable to pay | |
|to the plaintiff compensation| |
|of Rs.2,68,29,038.80 in lieu | |
|of specific performance? | |
|(6) Whether the defendants |Affirmative |
|No.7 and 8 prove that they | |
|have right of preemption in | |
|respect of the suit property | |
|and that the agreement dated | |
|4.9.85 entered between the | |
|plaintiff and the defendant | |
|nos. 1 to 6 is null and void?| |
|(7) Whether the defendants |Affirmative |
|No.7 and 8 are justified in | |
|selling the suit property to | |
|the defendant No.9 within | |
|their own rights? | |
|(8) What relief? What order? |As per law.” |

On issue no.1, the High Court took the view:

“107. … Respondent Nos. 1 to 6 never objected per se to perform the
agreement. They, to put it mildly, expressed their inability to perform
even their part of the agreement on the ground that Respondent No.7 had
raised a claim as regards her one-fourth share in the property. Their bona
fides are, therefore, put to the test when the Appellant submitted that it
was willing to accept at least or even the share of the Respondent Nos. 1
to 6 in the suit property without claiming any reduction in the price.
Surely, Respondent Nos. 1 to 6 then cannot have any objection whatsoever to
a decree to the extent of their share in the suit property.”

Regarding sale of the suit property by Defendants 7 and 8 to Defendant 9,
it was held that Defendant 9 admittedly bought the property with the full
knowledge of the litigations, and hence, Defendant 9 was not entitled to
any equities. Thus, issue no. 1 was answered in the affirmative in favour
of the Plaintiff, limited to the extent of share of Defendants 1 to 6.

On issue no.2, the High Court was of the view that the Plaintiff was
deliberately kept in the dark about the inventory proceedings. It was also
noted by the High Court that despite granting time to produce evidence on
the relinquishment of their rights by Defendants 7 and 8, nothing was done.
It was further noted that the Inventory Court was not informed of the deed
of declaration or about the agreement in litigation or about the mortgage
of the suit property to the Cooperative Bank. None of Defendants led any
evidence. The Plaintiff was denied an opportunity in the inventory
proceedings to protect their interest. The High Court further held that
even assuming that the inventory proceedings were not conducted
fraudulently, the orders passed therein could not bind the Plaintiff as it
was not a party thereto.

On issue no.3, it was held that since Defendants 7 and 8 did not exercise
their right of preemption, they lost their right. And, on issue no. 6, it
was held that the suit agreement dated 04.09.1985, between the Plaintiff
and Defendants 1 to 6 was legally valid and not void.

On issue no.4, regarding compensation, the Court though held that the
Plaintiff was entitled to damages, but no decree was granted since the
Plaintiff made a statement that in case specific performance was granted it
would not insist on a decree for compensation.

On issue no.7, it was held that Defendants 7 and 8 were entitled to sell
only one quarter interest in the suit property and not the three quarter
interest of Defendants 1 to 6 and the suit was decreed accordingly. There
was no separate decree in the suit filed by Defendants 7 and 8.

A suit for specific performance, being a suit for equitable relief, this
Court has the duty to see what ultimately is the justice of the case. The
suit property, no doubt is jointly owned by Defendants 1 to 8. But the
agreement for sale was only by the Defendants 1 to 6. They not only
excluded the sister and her husband but made two deliberate and wrong
representations: that Defendants 1, 3 and 5 are the only children of Late
Vishwanta Purshotam Sinai Gaitonde and that the suit property was the only
estate left by their parents. The agreement for specific performance, no
doubt, contained a clause that the sellers would make a good and marketable
title of the property. Fully conscious of the fact that there was another
heir namely the sister and that the property had already been mortgaged to
the Cooperative Bank, a very significant clause was incorporated in the
agreement to the effect that the vendors could execute a proper conveyance
in favour of the purchasers and in that regard, the vendors would make any
other person or persons to join them so as to convey an absolute title to
the purchaser or to redeem any charge or encumbrance. This clause clearly
shows that the Defendants 1 to 6, though acted ill-advisedly by not joining
the sister and her husband in the agreement and by not disclosing the
mortgage, had still genuinely intended to execute the sale covering both
the eventualities namely, joining the sister and her husband and redeeming
the mortgage (see Clause 6 of the Agreement of Sale extracted at
pages 3-4).

At one stage, Defendants 1 to 8 apparently were sailing together, faced
with the distress sale of the suit property by the bank. It was in that
context that the Defendants 1 to 6 made a request to the Plaintiff that in
case the Plaintiff cleared the loan liability, they would get in the sister
also for the conveyance of the property and settle the whole dispute. The
letter which is Exhibit- PW1/F in the suit, which is dated 14/11/1991
reads as follows:
“Sale of Property at Canacona.
Further to the discussion of the undersigned with your Shri A.A. Tandale,
this is to confirm that the undersigned and all his brothers and sister are
agreeable to settle the dispute with you amicably on the following terms:

You should pay off the entire loan outstanding with the Madgaon Urban Co-
op. Bank.

All the parties jointly including the bank shall take a consent decree from
the Court and put an end to litigation.

Upon completion of the above steps, we shall execute deed of conveyance in
your favour.

We expect your co-operation in implementing this compromise with
maximum expedition.

This is however without prejudice to our rights and contentions in
the pending suits.”

Thereafter, Defendants 1 to 6 left the Plaintiff to their fate by
permitting the auction sale to take place and consequently wanted the
agreement to get frustrated.

As far as Defendants 7 and 8 are concerned, they not only went back on
their undertaking in Court to pay the dues to the bank so as to avert the
auction sale, they have not pursued their claim if any, to the title to the
property as per the liberty granted to them by judgment dated 10th October,
1994 of the High Court in Writ Petition No. 277 of 1994. The High Court
apparently was clear in its mind, that if at all Defendants 7 and 8 wanted
to save the situation by exercising their right to preemption under the
Portuguese Laws, they could still do that within six months. Yet, nothing
was done. In any case, more than six months after the judgment dated
10.10.1994, they sold the suit property on 14.11.1995 when as a matter of
fact Defendants 1 to 8 had by their conduct forfeited all rights and
interests in respect of the suit property. Thus, there is no question of
right of preemption available to Defendants 7 and 8.

It may not also be wholly out of context to take note of the fact that the
Defendants 7 and 8 chose, with the assent of Defendants 1 to 6 in the
inventory proceedings, the suit property, fully knowing that the property
was disputed. Normally, one would avoid a disputed property or leave a
disputed property to the authors of the dispute, i.e., the brothers in this
case. It would also be relevant to note that none of the Defendants 1-8
told the District Judge in the inventory proceedings that the property was
already in dispute, and that two civil suits were pending, in which case
the District Judge would have certainly taken note of the litigation.

Under the agreement, the time for performance starts within one month from
the date of the vendors making out a marketable title to the property. The
agreement also contained a provision to join any other person or persons to
convey an absolute title to the purchasers or for redeeming any mortgage.
And thus, the suit by the Plaintiffs originally had the Bank as a party
Defendant, and, after clearing the loan, the Bank was deleted from the
array of parties and Smt. Kishori and her husband were joined as Defendants
7 and 8.

It was vehemently contended by learned Senior Counsel
Shri Dhruv Mehta that it was not necessary to give notice of inventory
proceedings to anybody other than the members of the family who are
entitled to succeed to the estate or disclose any charge on the property.
We are afraid that this submission cannot be appreciated. So long as there
is no bar for transferring the undivided interest in the estate by any of
the legal heirs, any charge or liability to the estate was also to be
disclosed in the inventory proceedings so that the estate could be
partitioned taking note of such charges, and in case of litigation, the
proceedings would have awaited the outcome thereof.

Defendants 7 and 8, viz., Smt. Kishori and her husband knew very well when
they instituted the inventory proceedings that there was an agreement for
sale of one of the items in the estate executed by her brothers and their
wives and that a suit for specific performance of that agreement had
already been pending in Court. And yet, it was not disclosed.
Interestingly, and if not shockingly, the Defendants 1 to 6 also did not
disclose before the court in the inventory proceedings anything about the
mortgage to the bank. Thus, in any case, Defendants 7 and 8 had full
knowledge of the suit for specific performance and also the liability to
the Cooperative Bank when they chose the disputed property as their share
in the inventory proceedings and yet, they were not prepared to even clear
the liability to the Cooperative Bank. It was the Plaintiff who paid the
money and averted the auction sale and redeemed the property. Had the
Plaintiff not cleared the dues to the Bank, the property would have been
auctioned, divesting Defendants 7 and 8 of their rights and interests in
the property.

The issue of lis pendens, in any case, on facts, is clear in the sense that
even assuming for argument’s sake that Civil Suit No. 88 of 1987 stood
dismissed at the time of the order in the inventory proceedings, Civil Suit
No. 105 of 1987 in respect of the same property, wherein a declaration and
injunction had been sought by Defendants 7 and 8 (Plaintiffs in Suit No.
105 of 1987), was pending. Both suits were directed to be tried together as
well. It is significant to note that there was only one set of issues
framed for the purpose of trial of both suits. It is also significant to
note that even according to Defendants 1 to 6 in their written statement,
their stand was:

“….The plaintiffs in the said suit have inter alia challenged the
enforceability and legality of the agreement dated 4.09.85 which is the
subject matter of this suit also…”

The inventory proceedings, thus, would have been subject to the
result of the suits. As far as the transfer of property to Defendant 9 is
concerned, the Plaintiff’s Suit for Specific Performance No. 88 of 1987
stood restored and its Suit No. 329 of 1992 stood pending on the date
(14.11.1995) when Defendant 9 purchased the suit property which would also
be subject to the result of the pending suits.

In view of the conduct of the parties, which we have explained above, we do
not think that this is a fit case to exercise our discretionary
jurisdiction under Article 136 of the Constitution of India. Three
prominent features of this case stare us in the face. First and foremost,
on reading the correspondence between the parties, we are satisfied that
the Plaintiff has throughout been ready and willing to perform its
obligations under the Agreement to Sell. In particular, a reference may be
made to the letters dated 08.04.1986 and 15.04.1987 and the legal notice
dated 08.04.1987. The other unique feature of this case is that the suit
property is an island off the coast of Goa which is not readily capable of
valuation – indeed when asked to give us the present market value, both
sides were unable to do so. This fact also shows that monetary compensation
would not suffice and be an adequate alternative to specific performance.

The third unique feature of this case is that, as has been pointed out
hereinabove, the Plaintiff went to the extent of discharging the mortgage
with the Bank by paying a sum of Rs. 17 lakhs which was almost three times
the amount of the consideration mentioned in the agreement, i.e., Rs.
6,50,000/-. Clause 9 of the Agreement to Sell is set out hereunder:-

“If the Vendor fails and or neglects to complete the sale after the title
being made out as aforesaid or otherwise to carry out any one or more of
the obligations on his part as herein contained or enjoyed upon by any law
for the time being in force the Purchaser shall be at liberty to enforce
specific performance of this Agreement or recover the earnest money with
interest at 21% per annum.”

It is clear that Defendants 1 to 6 failed or neglected to complete the sale
even after clear title was made out when the obstacle of the mortgage was
removed. Clause 9 specifically states that if after the title is made out,
the vendor fails and neglects to complete the sale, and/or to carry out any
of the obligations on his part as contained in the Agreement, the purchaser
shall be at liberty to enforce specific performance of the Agreement or
recover the earnest money with interest at 21 per cent per annum at their
option. Having clearly opted throughout to enforce specific performance, we
are of the view that justice of the case requires that Clause 9 must be
applied in favour of the Plaintiff. After inducing the plaintiff as per PW-
1/F letter to pay Rs.17 lakhs to the cooperative bank to clear the dues on
the clear understanding that the defendants 1 to 8 would thereafter execute
the sale deed, they cannot go back. The clear title stood made out at that
stage and the agreement was enforceable thereafter.

There is also a long line of judgments based on the equitable principle
which states that even if the undivided share of one of the other heirs of
the property cannot be transferred, the remaining share of the other heirs
certainly can be transferred.

In Kartar Singh v. Harjinder Singh and others[1], at paragraph-6, it has
been held that :

“6. As regards the difficulty pointed out by the High Court, namely, that
the decree of specific performance cannot be granted since the property
will have to be partitioned, we are of the view that this is not a legal
difficulty. Whenever a share in the property is sold the vendee has a right
to apply for the partition of the property and get the share demarcated. We
also do not see any difficulty in granting specific performance merely
because the properties are scattered at different places. There is no law
that the properties to be sold must be situated at one place. As regards
the apportionment of consideration, since admittedly the appellant and
respondent's sister each have half share in the properties, the
consideration can easily be reduced by 50% which is what the First
Appellate Court has rightly done.”

In Sardar Singh v. Krishna Devi (Smt) and another[2], at paragraph-17, it
has been held that:

“17. In view of the finding that the appellant had half share in the
property contracted to be sold by Kartar Lal, his brother, the agreement of
sale does not bind the appellant. The decree for specific performance as
against Kartar Lal became final. Admittedly the respondent and her husband
are neighbours. The appellant and his brother being coparceners or co-
owners and the appellant after getting the tenant ejected both the brothers
started living in the house. As a prudent purchaser Joginder Nath ought to
have made enquiries whether Kartar Lal had exclusive title to the property.
Evidence of mutation of names in the Municipal Register establishes that
the property was mutated in the joint names of the appellant and Kartar Lal
and was in joint possession and enjoyment. The courts below, therefore,
have committed manifest error of law in exercising their discretion
directing specific performance of the contract of the entire property. The
house being divisible and the appellant being not a consenting party to the
contract, equity and justice demand partial enforcement of the contract,
instead of refusing specific performance in its entirety, which would meet
the ends of justice. Accordingly we hold that Joginder Nath having
contracted to purchase the property, it must be referable only in respect
of half the right, title and interest held by Kartar Lal, his vendor. The
first respondent being successor in interest, becomes entitled to the
enforcement of the contract of the half share by specific performance. The
decree of the trial court is confirmed only to the extent of half share in
the aforestated property. The appeal is accordingly allowed and the decree
of the High Court is set aside and that of the trial court is modified to
the above extent. The parties are directed to bear their own costs
throughout.”

In A. Abdul Rashid Khan (Dead) and others v. P.A.K.A. Shahul Hamid and
others.[3], at paragraph-14, it has been held that:

“14. Thus we have no hesitation to hold, even where any property is
held jointly, and once any party to the contract has agreed to sell such
joint property agreement, then, even if other co-sharer has not joined at
least to the extent of his share, he is bound to execute, the sale deed.
However, in the absence of other co-sharer there could not be any decree of
any specified part of the property to be partitioned and possession given.
The decree could only be to the extent of transferring the share of the
Appellants in such property to other such contracting party. In the present
case, it is not in dispute that the Appellants have 5/6 share in the
property. So, the Plaintiffs suit for specific performance to the extent of
this 5/6th share was rightly decreed by the High Court which requires no
interference.”

In Surinder Singh v. Kapoor Singh (Dead) Through Lrs. and others[4], at
paragraphs- 3 and 20, it has been held that:

“3. A Letters Patent Appeal filed by the Plaintiffs-Respondents herein
against the said judgment and decree came to be allowed by a Division Bench
of the High Court by reason of the impugned judgment holding that as the
property was owned by the Appellant and the said Tajinder Kaur in equal
share, in view of Kartar Singh (supra), a decree for specific performance
could be granted in favour of the Plaintiffs-Respondents herein in respect
of the share of the Appellant subject to his right to apply for partition
of the property for getting his share demarcated. As regard apportionment
of the sale consideration, it was directed that the same would be reduced
by 50% as the Appellant would only be entitled thereto. As regard the
objection of the Appellant herein that no relief could be granted as the
plaintiffs-Respondents failed to mention Khasra Nos. 39/4 and 39/3/2 in the
plaint, the Division Bench held that such omission was inadvertent. It was
pointed out that such an objection was raised only at the time of argument
whereupon the plaintiffs filed an application for amendment of plaint. It
was held:

"...We are of the view that the trial court was not justified in dismissing
the application on technical grounds. Decree was sought for the entire land
i.e. 153 K 19M. Copies of the agreement as well as jamabandi for the
relevant year were also attached with the plaint. Agreement as well as
jamabandi clearly indicate that relief sought was with regard to the land
measuring 153 K 19M which also includes Khasra Nos. 39/4 and 39/3/2. In
this view of the matter, prayer of the plaintiffs for amendment of the
plaintiff is allowed. Plaint would be deemed to have included Khasra Nos.
39/4 and 39/3/2 apart from other Khasra numbers mentioned in the plaint."

xxx xxx xxx xxx

20. The Appellant furthermore misled the plaintiffs-respondents by
representing that he had the requisite authority to enter into an agreement
for sale on behalf of his sister, which was found to be incorrect. In this
situation, we are of the view that the equity lies in favour of grant of
decree for specific performance of the contract in respect of the share of
the Appellant rather than refusing the same. In any event if the Appellant
and/or his sister have claim as regard the arrears of rent, the same can be
adjudicated upon by the appropriate court in an appropriate proceeding. We
are, therefore, unable to accept the said contention of Mr Talwar.”

In Gajara Vishnu Gosavi v. Prakash Nanasaheb Kamble and others.[5], at
paragraphs- 9 to 13, it has been held that:
“9. Be that as it may, three courts have recorded the concurrent findings
of fact that partition had never been given effect to in respect of the
suit property. Therefore, Housabai could transfer her share. But the
question does arise as to whether without partition by metes and bounds,
she could put her vendee Anjirabai in possession.

10. In Kartar Singh v. Harjinder Singh (1990) 3 SCC 517 : AIR 1990 SC 854,
this Court held that where the shares are separable and a party enters into
an agreement even for sale of share belonging to other co-sharer, a suit
for specific performance was maintainable at least for the share of the
executor of the agreement, if not for the share of other co-sharers. It was
further observed:

“6. As regards the difficulty pointed out by the High Court, namely, that
the decree of specific performance cannot be granted since the property
will have to be partitioned, we are of the view that this is not a legal
difficulty. Whenever a share in the property is sold, the vendee has a
right to apply for the partition of the property and get the share
demarcated.”

11. In a recent judgment in Ramdas v. Sitabai and Ors. (2009) 7 SCC 444 :
JT (2009) 8 SC 224 to which one of us (Dr. B.S. Chauhan J.) was a party
placing reliance upon two earlier judgments of this Court in M.V.S.
Manikayala Rao v. M. Narasimhaswami and Ors. AIR 1966 SC 470; and
Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh and Ors. AIR 1953
SC 487 this Court came to the conclusion that a purchaser of a coparcener's
undivided interest in the joint family property is not entitled to
possession of what he had purchased. He has a right only to sue for
partition of the property and ask for allotment of his share in the suit
property.

12. There is another aspect of the matter. An agricultural land belonging
to the coparceners/co-sharers may be in their joint possession. The sale of
undivided share by one co-sharer may be unlawful/ illegal as various
statutes put an embargo on fragmentation of holdings below the prescribed
extent.

13. Thus, in view of the above, the law emerges to the effect that in a
given case an undivided share of a coparcener can be a subject matter of
sale/transfer, but possession cannot be handed over to the vendee unless
the property is partitioned by metes and bounds, either by the decree of a
Court in a partition suit, or by settlement among the co-sharers.”

The vehement contention, advanced by learned Senior Counsel Shri Dhruv
Mehta, based on Article 2177 of the Portuguese Civil Code, 1867 that there
was an absolute bar for transfer of any portion of the estate or a specific
item of the estate, need not detain us both on account of factual matrix
and on law. As we have already noted hereinabove, Defendants 1-8 had
already given up on their right in the suit property by not taking steps to
avoid the distress sale at the instance of the Bank. Though, there are
different translated versions of the provision, we may extract Article 2177
as provided by Defendants 7 and 8 in their Appeal:

“It is not lawful to a co-owner, however, to dispose a specific part of the
thing held indivisibly, without the same being allotted to him in
partition; and a transfer of the right, which he has to the share belonging
to him, may be restricted in accordance with the law.”

Suffice it to say, Article 2177 does not prohibit alienation of undivided
interest, which is in tune with the principle underlying Section 44 of the
Transfer of Property Act, 1882.

The conduct of the Defendants 7 and 8 also needs to be specifically
commented on. Despite specifically getting reserved a liberty to proceed
further after the redemption of the property by the Plaintiff, nothing was
done by them. They also did not exercise their right of preemption
available under the Portuguese Law. Conspicuously, none of the defendants
entered the witness box despite the voluminous and clinching evidence
tendered by the Plaintiff, obviously to avoid inconvenient questions,
particularly, based on PW-1/F extracted hereinabove. In that view of the
matter, it is also not necessary to deal with the various other contentions
advanced by learned Senior Counsel on both sides since they have no bearing
on the ultimate conclusion.

In our view, no substantial or grave injustice is caused to the Defendants:
on the contrary, the justice of the case, on facts, is in favour of the
Plaintiff, and therefore, no interference under Article 136 of the
Constitution of India is required. Once, it is found that justice of the
case on facts does not require interference, this Court, even at the
appellate stage, is well within its discretion to stay its hands off, as
held in Taherakhatoon (D) by Lrs. v. Salambin Mohammad[6].

Thus, viewed from any angle, justice was done to the Plaintiff as per the
decree granted to them by the High Court and no injustice is caused to the
Defendants, in particular, Defendant No. 9, who, with open eyes, purchased
litigation. As we have decided not to interfere with the judgment of the
High Court in favour of the Plaintiff, we also dismiss the Plaintiff’s
appeal against the impugned judgment seeking the entire property.
We, however, find it difficult to agree with the reasoning of the impugned
judgment on many aspects, and hence, while dismissing all the appeals,
including the appeal of M/s Primella Sanitary Products Private Limited, we
leave the questions of law open. The Contempt Petition (Civil) No. 89 of
2016 also stands dismissed as we see no contemptuous conduct on part of the
alleged contemnors.

There shall be no order as to costs.

....….…………………………….J.
(KURIAN JOSEPH)

….….…………………………….J.
(ROHINTON FALI NARIMAN)

NEW DELHI;
SEPTEMBER 19, 2016.
-----------------------
[1]

(1990) 3 SCC 517
[2] (1994) 4 SCC 18
[3] (2000) 10 SCC 636

[4] (2005) 5 SCC 142

[5] (2009) 10 SCC 654

[6] (1999) 2 SCC 635

-----------------------
1

promotion= the appellant had fulfilled the necessary criteria prescribed in Rule 10.= First, it is an admitted case that the appellant being an in service candidate, his case for promotion from the post of Silt Observer/Analyst to the next promotional post of "Research Assistant Grade B” was required to be considered as an in service candidate as provided in Rule 10. Second, it was again an admitted case that the appellant was working as a Silt Observer/Analyst and in addition to the duties assigned to this post, he was also performing the duties of Research Assistant Grade B as per the directives of the office. Third, the appellant had admittedly fulfilled the eligibility criteria and qualification prescribed in Rule 10 (1)(b)(i) and (2) as also the qualifications prescribed for appointment to the post in question for direct recruits. Fourth, the competent authorities had also recommended the case of the promotion of the appellant certifying that the appellant is fit for promotion. Fifth, the appellant worked on the promotional post and performed the duties assigned to the promotional post from 14.12.2001 till 10.12.2002. Sixth, since the Government, despite merging the Grade C post in Grade-B post, did not amend the Rules and on the other hand continued with the un-amended Rules for filling the vacancies including vacancies by promotion, hence, the case of the appellant had to be considered in the light of the requirement of the Rules. In other words, it was necessary for the State to have made appropriate amendments in the Rules after merger of one post into another, but so long as this exercise was not done by the State, the employees, who had otherwise fulfilled the requirement prescribed in the existing Rules for consideration of their cases for promotion, they could not be denied the benefits flowing from the Rules and lastly, in the absence of any adverse entries or/and record of the appellant and further in the absence of any allegation made against the appellant for suppressing any material information, we do not find any justification on the part of the State to have recalled the promotional order of the appellant on the basis of some complaints said to have been made by someone after a long lapse of time which also had no factual or/and legal foundation. we do not agree with the view taken by the High Court and accordingly allow the appeal and set aside the impugned order of the High Court and, in consequence, allow the writ petition filed by the appellant (writ petitioner) and set aside the order dated 10.12.2002 (Annexure P-9) impugned in the writ petition. As a consequence, the appellant is restored to the promotional post of Research Assistance Grade B. If the appellant has discharged the duties of Research Assistant Grade B after the cancellation of his promotional order for any reason in addition to his duties assigned during the period in question then he would be entitled to claim the salary of the promotional post from the date of cancellation order after adjusting his salary, which he has received as Silt Observer during such period.

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 2127 OF 2009

Raminder Singh …….Appellant(s)

VERSUS

State of Punjab & Anr. ……Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed against the final judgment and order dated
31.10.2008 passed by the High Court of Punjab and Haryana at Chandigarh in
Civil Writ Petition No. 1066 of 2006 whereby the High Court dismissed the
writ petition filed by the appellant herein against the office order dated
13.01.2006 by which the promotion of the appellant was cancelled and he was
reverted from the post of Research Assistant Grade B to Silt Observer.
2) Facts of the case need mention, in brief, infra to appreciate the
controversy involved in the appeal.
3) The appellant was recruited as Silt Observer in the year 1986 in
Irrigation and Power Research Institute, Amritsar, which is a Branch of
Public Works Department, Government of Punjab. At the time of his
appointment, his qualification was matriculation with Science subjects and
B.A. with Economics and Political Science. While working as Silt Observer,
the appellant was performing the duties of Research Assistant Grade B, as
per the directives of his superiors.
4) The State of Punjab promulgated the Punjab Public Works Department
(Irrigation Branch), Research Assistants’ State Service Class III Rules,
1956 (in short “the Rules”). The Rules, inter alia, provides three Grades
in the cadre of “Research Assistant” in Public Works Department (Irrigation
Branch), namely, Research Assistant Grade A, Research Assistant Grade B and
Research Assistant Grade C. Rule 10 with which we are concerned here deals
with the Method of Recruitment and appointment to various Grades of the
Service, which reads as under:
“10. Method of recruitment –
Appointment to the various grades of the Service shall be made-

(a) in the case of Research Assistants, Grade A:-

by promotion from amongst Research Assistants Grade B; or

by transfer of an official already in the service of the Government of a
State or of the Union; or

by direct appointment;

(b) in the case of Research Assistants, Grade B:-

by promotion from amongst Research Assistants Grade C; or
by transfer of an official already in service of the Government of a State
or of the Union; or

by direct appointment;

(c) in the case of Research Assistants, Grade C:-

by promotion from amongst Analysts or Silt Analysts or other ranks already
working in the Institute or Laboratories under the control of Institute,
provided the official so promoted is reported to be fit for research work
expected of Research Assistants and has worked in the Institute or
Laboratories for at least 5 years and has also passed the F.Sc. examination
of a recognized university; or

by transfer of an official already in service of the Government of a State
or of the Union; or

by direct appointment.

For promotion from Grade C to Grade B and from Grade B to Grade A, a
Research Assistant must have crossed the efficiency bar in the Grade from
which he is promoted.

Appointment to any post to be filled either by the promotion of officials
already in the Service or by the transfer of officials already in the
service of the Government of a State or of the Union shall be made purely
by selection and no official shall have any claim to such appointment as of
right.

Note : When any vacancy arises and the recruitment is to take place through
the Punjab Public Service Commission the method of recruitment shall always
be decided in consultation with them.”

5) In the year 1967-68, the State of Punjab abolished the post of
Research Assistant Grade C and it was merged in Research Assistant Grade B.
Despite merger of the post, Rules were not amended.

6) On 21.06.2001, respondent No.2 invited applications for filling up
the post of Research Assistant Grade B from amongst the cadre of research
staff working as Silt Analyst and other categories in the Irrigation
laboratories. The said invitation specifically mentions that the
officials, who are employed as Silt Analyst or Observer should be working
in the Institute or laboratories of the Department of Irrigation for at
least 5 years and has also passed F.Sc. examination or equivalent.
7) In response to the said invitation, the appellant submitted his
application without concealing any fact or qualification along with the
attested photocopies of his educational qualification certificates.
8) On consideration of his application and the experience, the Research
Officer, Chemistry Branch of the Irrigation and Power Research Institute,
Amritsar recommended the case of the appellant for being promoted as
Research Assistant Grade B. After consideration, the appellant was promoted
as Research Assistant Grade B on 14.12.2001 and accordingly his pay and
other allowances were also fixed. Since 14.12.2001, the appellant was
continuing to work as Research Assistant Grade B.
9) After the promotions, some complaints were received by the Punjab
Government regarding the promotion of the appellant as well as other
promotions made subsequently and the Under Secretary, Irrigation
Department, Government of Punjab asked for the detailed comments and
records from respondent No.2 regarding promotions made by him during the
period 2001-2002.
10) On 24.05.2002, respondent No.2 submitted detailed comments to the
Under Secretary whereby the promotions of the appellant and others were
explained.
11) On 10.10.2002, the Under Secretary, Irrigation Department, Government
of Punjab directed the appellant and seven other promotees to appear before
the Special Secretary, Irrigation Department, on 16.10.2002 regarding the
complaint about their promotion.
12) Accordingly, the appellant and other promotees appeared before the
Special Secretary on 16.10.2002 and explained to him about their
eligibility under the Rules for promotion to the post of Research Assistant
Grade B.
13) After considering the matter, vide order dated 10.12.2002, the
promotion of the appellant was cancelled on the ground that he did not
fulfill the requisite qualification and experience and that he was not
promoted in accordance with Rules.
14) Challenging the order of cancellation of promotion, the appellant
along with one Sohan Lal, who was also promoted with him, filed C.W.P. No.
19893 of 2002 before the High Court for quashing the order of cancellation
of promotion.
15) The High Court by order dated 01.04.2004 disposed of the petition
directing the Department to examine the case of the appellant in view of
the decision of the High Court rendered in C.W.P. No. 19906 of 2002 (Kuldip
Singh & Ors. Vs. State of Punjab & Anr.).
16) In compliance with the directions issued by the High Court, the claim
of the appellant was reconsidered and the same was rejected on the ground
that he did not fulfill the prescribed qualification for promotion.
17) By order dated 13.01.2006, the promotion of the appellant was
cancelled and was reverted to the post from which he was promoted.
18) Challenging the said cancellation order, the appellant filed writ
petition being C.W.P. No. 1066 of 2006 before the High Court. By impugned
judgment dated 31.10.2008, the High Court dismissed the petition filed by
the appellant herein.
19) Aggrieved by the said judgment, the appellant has filed this appeal
by way of special leave before this Court.
20) Heard Ms. Niharika Ahluwalia, learned counsel for the appellant and
Ms. Disha Singh, learned counsel for the respondents.
21) Learned Counsel for the appellant while assailing the legality and
correctness of the impugned order made three-fold submissions.
22) In the first place, learned counsel contended that the High Court
erred in dismissing the appellant's writ petition and thereby erred in
upholding the order impugned in the writ petition by which the appellant's
promotion to the post of Research Assistant Grade B was cancelled and he
was reverted to the post of Silt Observer.
23) In the second place, learned counsel contended that when admittedly
the appellant had possessed the requisite qualification as provided in Rule
10 (1)(b)(i) and (2) for the next promotional post of Research Assistant
Grade B and further the competent authority had duly recommended the
appellant's case for promotion to the post of Research Assistant Grade B
pursuant to which the appellant was promoted and worked on the promoted
post from 14.12.2001 to 10.12.2002, there was no justification on the part
of the State to have cancelled the appellant's promotion order and revert
him to his original post.
24) In the third place, learned counsel contended that when the State
merged the Grade C post in Grade B and after merger, did not amend the
Rules by providing any separate qualifications for the posts in question
nor did provide any other requirement by making any amendment in the
existing rules, there was no reason much less justifiable reason for the
State to cancel the appellant's promotion.
25) In reply, learned counsel for the respondents supported the reasoning
and the conclusion arrived at by the High Court and prayed for its
upholding.
26) Having heard the learned counsel for the parties and on perusal of
the record of the case, we find force in the submissions urged by the
learned counsel for the appellant.
27) The short question that arises in this appeal is whether the State
was justified in cancelling the promotion order of the appellant by which
he was promoted to the post of Research Assistant Grade B from the post of
Silt Analyst/Silt observer?
28) In our considered opinion, the State was not justified in cancelling
the appellant's promotion order as also the High Court was not justified in
upholding the cancellation order.
29) This we say for more than one reason. First, it is an admitted case
that the appellant being an in service candidate, his case for promotion
from the post of Silt Observer/Analyst to the next promotional post of
"Research Assistant Grade B” was required to be considered as an in service
candidate as provided in Rule 10. Second, it was again an admitted case
that the appellant was working as a Silt Observer/Analyst and in addition
to the duties assigned to this post, he was also performing the duties of
Research Assistant Grade B as per the directives of the office. Third, the
appellant had admittedly fulfilled the eligibility criteria and
qualification prescribed in Rule 10 (1)(b)(i) and (2) as also the
qualifications prescribed for appointment to the post in question for
direct recruits. Fourth, the competent authorities had also recommended the
case of the promotion of the appellant certifying that the appellant is fit
for promotion. Fifth, the appellant worked on the promotional post and
performed the duties assigned to the promotional post from 14.12.2001 till
10.12.2002. Sixth, since the Government, despite merging the Grade C post
in Grade-B post, did not amend the Rules and on the other hand continued
with the un-amended Rules for filling the vacancies including vacancies by
promotion, hence, the case of the appellant had to be considered in the
light of the requirement of the Rules. In other words, it was necessary
for the State to have made appropriate amendments in the Rules after merger
of one post into another, but so long as this exercise was not done by the
State, the employees, who had otherwise fulfilled the requirement
prescribed in the existing Rules for consideration of their cases for
promotion, they could not be denied the benefits flowing from the Rules and
lastly, in the absence of any adverse entries or/and record of the
appellant and further in the absence of any allegation made against the
appellant for suppressing any material information, we do not find any
justification on the part of the State to have recalled the promotional
order of the appellant on the basis of some complaints said to have been
made by someone after a long lapse of time which also had no factual or/and
legal foundation.
30) Learned Counsel for the respondents, however, contended that the
appellant did not possess the requisite qualifications that were necessary
for the promotional post as prescribed in the advertisement and hence
cancellation of the appellant’s promotion was appropriate. We do not find
any force in this contention.
31) As held supra, the appellant had fulfilled the necessary criteria
prescribed in Rule 10. It was, in our view, sufficient compliance for the
in service candidate. Anything prescribed in the advertisement, which was
de hors the Rules was bad in law.
32) In the light of foregoing discussion, we do not agree with the view
taken by the High Court and accordingly allow the appeal and set aside the
impugned order of the High Court and, in consequence, allow the writ
petition filed by the appellant (writ petitioner) and set aside the order
dated 10.12.2002 (Annexure P-9) impugned in the writ petition.
33) As a consequence, the appellant is restored to the promotional post
of Research Assistance Grade B. If the appellant has discharged the duties
of Research Assistant Grade B after the cancellation of his promotional
order for any reason in addition to his duties assigned during the period
in question then he would be entitled to claim the salary of the
promotional post from the date of cancellation order after adjusting his
salary, which he has received as Silt Observer during such period.

………...................................J.
[J. CHELAMESWAR]

…...……..................................J.
[ABHAY MANOHAR SAPRE] New Delhi;
September 19, 2016

-----------------------
17

Saturday, September 17, 2016

doctrine of contemporanea exposition is applied as an admissible aid to its construction. The doctrine is based upon the precept that the words used in a statutory provision must be understood in the same way in which they are usually understood in ordinary common parlance by the people in the area and business. (See : G.P. Singh’s Principles of Statutory Interpretation, 13th Edition-2012 at page 344). It has been held in Rohitash Kumar and others v. Om Prakash Sharma and others[7] that the said doctrine has to be applied with caution and the Rule must give way when the language of the statute is plain and unambiguous. On a careful scrutiny of the language employed in paragraph 3 of the notification dated 21.01.2000, it is difficult to hold that the said notification is ambiguous or susceptible to two views of interpretations. The language being plain and clear, it does not admit of two different interpretations.= In this regard, we may state that the circular dated 15.04.1994 was ambiguous and, therefore, as long as it was in operation and applicable possibly doctrine of contemporanea exposition could be taken aid of for its applicability. It is absolutely clear that the benefit and advantage was given under the circular and not under the notification dated 07.03.1994, which was lucid and couched in different terms. The circular having been withdrawn, the contention of contemporanea exposition does not commend acceptation and has to be repelled and we do so. We hold that it would certainly not apply to the notification dated 21.01.2000.

THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.102 OF 2010

J.K. Lakshmi Cement Ltd. ... Appellant

Versus

Commercial Tax Officer, Pali ...Respondent

WITH
CIVIL APPEAL NO. 6136 OF 2013

J U D G M E N T

Dipak Misra, J.

Civil Appeal No. 102 of 2010

The appellant is a Public Limited Company incorporated under the
Companies Act, 1956 and engaged in the business of manufacturing and
selling Grey Portland Cement. In exercise of powers conferred by
Section 8(5) of the Central Sales Tax Act, 1956 (for short, “CST Act”), the
Government of Rajasthan had issued a Notification No.
F4(72)FD/Gr.IV/81-18 dated 06.05.1986 allowing partial exemptions from the
sales tax payable in respect of inter-State sales in the manner and subject
to the conditions mentioned therein. Partial exemption was granted under
the said notification at the rate of 50%/75% on the basis of increase in
the percentage of the entire inter-State sales and decrease in percentage
of stock transfers but the benefit under the said notification was not
available on levy cement. From the assessment year 1989-90 to 1997-98 the
appellant had been granted benefit of partial exemption under the
notification dated 06.05.1986 except for the assessment year 1995-96 and
1996-97 as no claims were made by the appellants being not eligible.
2. It is necessary to state here that the State, in exercise of powers
conferred by Section 8(5) of the CST Act, issued Notification No.
F4(8)FD/GR.IV/94-70 dated 07.03.1994 superseding the notification dated
09.01.1990 and directing that in respect of inter-State sales of cement,
tax payable under sub-sections (1) and (2) of the said Section shall be
calculated at the rate of 4% without furnishing declaration in Form ‘C’,
inter alia, subject to the condition that the dealer making inter-State
sales under this notification shall not be eligible to claim benefit
provided by partial exemption notification dated 06.05.1986. This
notification remained in force from 01.04.1994 to 31.03.1997.
3. The CCT vide Circular No. 2/94-95 dated 15.04.1994 clarified that
inter-State sales of cement duly supported by ‘C’ and ‘D’ forms shall be
eligible for benefit of partial exemption notification dated 06.05.1986 and
that such benefit would not apply to inter-State sales which are not
supported by declarations in declarations in Forms ‘C’/‘D’.
4. By Notification No. 97-122 dated 12.03.1997 issued under Section
8(5) of the CST Act, the State Government rescinded the Notification No. 94-
70 dated 07.03.1994 and directed that CST on inter-State sales of cement
shall be calculated at the rate of 4% inter alia subject to fulfilment of
the condition that the dealer making inter-State sales under this
notification shall not be eligible to claim benefit provided by partial
exemption notification dated 06.05.1986. This notification remained in
force upto 31.03.1998.

5. As the factual score has been depicted, for the assessment year 1997-
98, dispute arose whether the sale of levy cement in the base year, i.e.,
1984-85, can be included and taken into consideration for calculating the
base year’s figure for the purpose of calculating the benefits under the
notification dated 06.05.1986. A re-assessment notice was issued to the
appellant for disallowing the said partial exemption on the ground that
while calculating the benefits under notification dated 06.05.1986 the
appellant-company had not included the figure of sale of levy cement made
in the base year, that is, 1984-85. The said re-assessment notice was
challenged by the appellant which formed the subject matter of Writ
Petition No. 1790 of 2001 which was dismissed by the Rajasthan High Court
vide order dated 24.07.2002. A Special Appeal bearing No. 497 of 2002 was
filed against the order dated 24.07.2002 before the Division Bench and on a
reference being made by the Division Bench, the matter was referred to a
larger Bench and the same is pending consideration. A similar dispute about
inclusion of levy cement had also arisen for the assessment year 1991-92
which had been decided by the Tax Board, Rajasthan vide order dated
16.01.2003 in favour of the appellant which attained finality since no
revision petition was filed by the State against the said decision. For
the assessment year 1999-2000, the appellant was asked vide show cause
notice dated 16.10.2001 to explain why the benefit of partial exemption
under notification dated 06.05.1986 should not be disallowed on the ground
that while calculating the benefits under notification dated 06.05.1986 the
appellant had not included the figure of sale of levy cement made in the
base year, that is, 1984-85. Against the said show cause notice writ
petition bearing No. 4300 of 2001 was filed and vide order dated 14.08.2002
the High Court disposed of the said writ petition in light of the order
dated 24.07.2002 passed in Writ Petition No. 1790 of 2001. Being
aggrieved by the said order, the appellant had filed a DB Special Appeal
No. 539 of 2002 which is pending consideration. We may immediately clarify
that we are not concerned with the said assessment years.
6. For the assessment year 2000-2001, a Show Cause Notice dated
11.01.2001 was issued to the appellant seeking to disallow the benefit
under notification dated 06.05.1986 on the ground that the appellant had
not calculated the benefits under notification dated 06.05.1986 after
including the figure of sale of levy cement in the base year, that is, 1984-
85. Against the said show cause notice Writ Petition bearing No. 551 of
2002 was filed which is pending before the High Court.

7. In exercise of power under Section 8(5) of the CST Act the State
Government vide Notification No. 97-266 dated 21.1.2000 directed that tax
payable under sub-sections (1) and (2) of the said Section on the inter-
State sales of cement shall be calculated at the rate of 6% inter alia
subject to the condition that the dealer making inter-State sales under
this notification shall not be eligible to claim benefit provided under
partial exemption notification dated 06.05.1986.

8. After a lapse of seven years from the previous circular dated
15.04.1994, the CCT issued another Circular No. 94-95/119 dated
16.04.2001 purporting to clarify the applicability of partial exemption
notification dated 06.05.1986 vis-a-vis notification dated 07.03.1994 and
subsequent notifications dated 12.03.1997 and 21.01.2000. By the said
circular the competent authority purported to state that the dealer can
avail of the benefit of either of these two notifications in any financial
year meaning thereby that if he opts for the benefit under notification
dated 06.05.1986 for the year 2000-2001, he would not be entitled to claim
simultaneous benefit in respect of the same year under the notification
dated 21.01.2000.

9. For the assessment year 2000-2001, a show cause notice dated
19.08.2003 was issued by the Commercial Taxes Officer to the appellant
seeking to disallow the benefits under notification dated 06.05.1986 on a
purported retrospective application of the Circular dated 16.04.2001.
Appellant challenged the said show cause notice before the High Court by
way of a Writ Petition bearing No. 6192 of 2003. The High Court vide order
dated 18.11.2003 held that the said show cause notice dated 19.08.2003 was
not justified as Circular dated 16.04.2001 could apply only prospectively
and not retrospectively.
10. While finalizing the assessment for the assessment year 2001-2002, a
show cause notice dated 19.08.2003 was issued purportedly based on Circular
dated 16.04.2001 requiring the appellant to show cause why the partial
exemption claimed under State Government’s notification No.
F4(72)FD/Gr.IV/81-18 dated 06.05.1986 should not be disallowed. The
appellant submitted its reply but the assessing authority vide order dated
26.08.2003 rejected the claim of partial exemption only on the basis of
Circular dated 16.04.2001 and imposed additional tax on the assessee for
the assessment year 2001-2002.

11. The appellant filed an appeal before the Deputy Commissioner
(Appeals), who allowed the appeal on 03.01.2004 holding that the appellant
would be entitled to avail such partial exemption in respect of inter-State
sales made on which concessional rate of 6% was not availed of by it under
notification dated 21.01.2000.

12. Being aggrieved by the order of the appellate authority, the revenue
approached the Rajasthan Tax Board in appeal contending, inter alia, that
as per circular dated 16.04.2001 the benefit could not be claimed under
notification dated 06.05.1986 if the unit had made sales under notification
dated 21.01.2000. In essence, it was urged that benefit of both the
notifications could not be availed of in the same financial year. The Tax
Board allowed the appeal filed by the revenue. Against the order of the
Tax Board, the appellant filed revision petition before the High Court and
the learned Single Judge vide order dated 17.04.2009 considering the
submissions put forth by the parties and upon analysing the principle
stated in Tata Cummins Ltd. v. State of Jharkhand[1], M/s Vividh Marbles
Pvt. Ltd. v. Commercial Tax Officer[2], State of Rajasthan v. J.K. Udaipur
Udyog Ltd. and another[3], MRF Ltd. Kottayam v. Asstt. Commissioner
(Assessment) Sales Tax and ors.[4] and other authorities came to hold that
condition no. 3 of Notification No. 21.01.2000 has to be given its plain
and clear meaning and cannot be restricted only to the specific transaction
of sale covered by notification dated 21.01.2000 itself and when the
condition no. 3 unequivocally states that once the assessee avails of the
benefit of concessional rate of tax under notification dated 21.01.2000, he
cannot get the partial benefit as envisaged in the Notification dated
06.05.1986 and accordingly repelled the stand of the assessee.

13. We have heard Mr. S. Ganesh, learned senior counsel for the appellant
and Mr. Jatinder Kumar Bhatia, learned counsel for the respondent.

14. The seminal issue that arises for consideration, succinctly put, is
whether the appellant is entitled to dual benefit of partial exemption
under the notification dated 06.05.1986 and also the lower rate of tax @ 6%
under notification dated 21.01.2000. To answer the issue raised, it is
necessary to refer to the notifications and the language employed therein
to ascertain the fundamental intention therein and to appreciate whether
grant of simultaneous exemptions and benefits would be contrary to the said
notifications. The first notification dated 06.05.1986 reads as under:-
“Notification No.F.4(72)FD/Gr.IV/81-18, S.O. 23, May 6, 1986.

In exercise of the powers conferred by sub-section (5) of section 8 of the
Central Sales Tax Act, 1956( Central Act 74 of 1956), the State Government,
on being satisfied that it is necessary so to do in the public interest, in
supersession of the Finance Department Notification No. F.4 (72) FD/Gr.
IV/81-36, dated December 3, 1985, hereby directs that, with immediate
effect, any dealer, having his place of business and manufacturing goods in
the State of Rajasthan, may claim partial exemption from the tax payable in
respect of the sales by him of such goods in the course of inter-State
trade or commerce by way of reduction at the rate of 50% of the tax so
payable on increased sales upto 50% and at the rate of 75% of the tax so
payable on increased sales made over and above the aforesaid 50%, in the
manner and subject to the conditions as follows:-

(1) Such reduction of tax shall be allowed to a dealer only after and in
respect of the increase which is effected in the percentage of the quantum
of goods sold in the course of inter-State trade or commerce out of the
total quantum of goods sold within the State and in the course of inter-
State trade or commerce and dispatched to Head Office, Branch Office, Depot
or agent outside the State for sale outside the State, during any
accounting year as against such percentage during the accounting year 1984-
85.

(2)In the case of a dealer who commenced the manufacture of goods in the
State of Rajasthan “on or after 1.1.1985”, the average of the aforesaid
percentages in respect of the other manufacturers in the State in the
relevant industry during the accounting year 1984-85, calculated and
determined by the assessing authority with the approval of the
Commissioner, shall be deemed to be the percentage in respect of such
dealer for the accounting year 1984-85;

(3) This increase effected in the percentage, as referred to in clause (1)
above in respect of the sales in the course of inter-State trade or
commerce, to be considered shall be limited to the extent of the decrease
in the percentage in respect of the despatch of goods to Head Office,
Branch Office, Depot or agent outside the State for sale outside the State,
during the relevant accounting year as against such percentage during the
accounting year 1984-85; and

(4) No claim for such reduction of tax shall be allowed in respect of levy-
cement.”

15. The notification dated 21.01.2000 is as under:-
“[No.F.4(1) FD/Tax Div. 97-266]
Jaipur, 21st January, 2000
In exercise of the powers conferred by sub-section (5) of section 8
of the Central Sales Tax Act, 1956 the State Government being satisfied
that it is necessary in the public interest so to do, hereby directs that
the tax payable under sub-sections (1) and (2) of the said section, by any
dealer having his place of business in the State, in respect of sale of
cement made by him from any such place of business in the State, in the
course of inter-state trade or commerce, shall be calculated at the rate of
6% on the following conditions, namely:-

1. That the dealer shall record the correct name with full and complete
address of the purchaser in the bill or cash memorandum for such inter-
State sale to be issued by him;

2. That the burden of proof that the transaction was in the nature of inter-
State sale shall be on the dealer; and

3. That the dealer making inter-State sales under this notification shall
not be eligible to claim benefits provided by notification No.F.4(72)
FD/GR.IV/81-18 dated 6.5.1986 as amended from time to time.”

16. On a careful scanning of the notification dated 06.05.1986, it is
evident that it allows partial exemption from sales-tax on inter-State
sales, subject to and in the manner stipulated therein. The exemption of
75% or 50% is granted with reference to the quantum of goods sold in the
course of inter-State trade or commerce out of the total quantum of goods
sold within the State, as against such percentage during the accounting
year 1984-85, which is treated as the base year. As per the notification,
it is applicable to a dealer who has his place of business; and he must be
manufacturing goods inside the State. The intention is to encourage inter-
State sale of goods manufactured and sold by a dealer in the State of
Rajasthan. It has a purpose. The increase in quantum of goods sold in
inter-State trade or commerce with reduction in quantum of stock transfers
by way of branch or depot transfers on which NIL or no Central Sales tax is
applicable would increase the revenue of the State. Clause 4 of the
notification envisages that no reduction of tax is to be allowed in respect
of levy cement. Computation of the total quantum of goods with reference
to the exclusion of levy cement is not a subject matter of the present
appeal and that is pending for consideration before the Appellate Bench and
Single Judge of the High Court. Nevertheless, it is apparent that changes
in figures of the quantum of goods, whether with reference to inter-State
sales and intra-State sales in the base year and in the year in which
benefit is claimed, would impact the determination and quantification of
the benefit. Therefore, the exclusion or inclusion in the quantum or
turnover is critical and significant.

17. The 21.01.2000 notification applies to a dealer having a place of
business in the State and is in respect of sale of cement made by him from
any place of business within the State in the course of inter-State trade
or commerce. Apart from the above, certain other conditions are to be
satisfied. They are (a) sales-tax in respect of inter-State sales as per
the notification would be calculated at the rate of 6% and (b) the dealer
making inter-State sales under notification dated 21.01.2000 would not be
eligible to claim benefit provided in the notification dated 06.05.1986.
Clause 3 of the notification lays down that if a dealer claims benefit
under notification dated 21.01.2000, he is not eligible to claim the
benefit under notification dated 06.05.1986. Benefit under the two
notifications cannot be claimed at the same time. It is simple and clear.

18. A dealer making inter-State sales under the notification dated
21.01.2000 is disqualified and not eligible to claim benefit under the
notification dated 06.05.1986. The reason is to deny dual benefit and also
the notification dated 06.05.1986 computes the benefit on the basis of
turnover. Bifurcation and division of turnover would lead to distortion
and cause anomalies.

19. To get over the aforesaid impasse, the learned counsel for the
appellant has raised three contentions. The two notifications being
beneficial should be liberally construed, for it cannot be assumed that the
intendment was that if an assessee claims and was entitled to a relatively
small or partial exemption under notification dated 06.05.1986, he would be
deprived of the exemption even if he meets the conditions in paragraphs 1
and 2 of the notification dated 21.01.2000. The submission is that the
assessee can get benefit of both the notifications but not the dual benefit
in the sense that inter-State sales on which benefit of concessional rate
of tax of 6% is not availed of could be granted partial exemption under
notification dated 06.05.1986. Quite apart from the aforesaid argument, it
is urged that partial exemption could be granted under the notification
dated 06.05.1986 in respect of such intra- State sales not covered by the
notification dated 21.01.2000; and benefit of partial exemption under
notification dated 06.05.1986 would co-exist with the notification dated
21.01.2000, though in respect of different and distinct transactions. The
second limb of argument is that this interpretation was the understanding
of the respondents, as they had issued circular dated 15.04.1994 and
pursuant to the said circular, the appellant and the other assessees were
extended benefit of the notification dated 06.05.1986 and also the
notification dated 07.03.1994, which has now been replaced and re-
introduced in the form of notification dated 21.01.2000. The plea of
consistency especially when the revenue in earlier years had accepted the
said interpretation is highlighted. The last plank of argument is the
circular dated 15.04.1994 was clarificatory and had rightly interpreted and
expounded the interplay between the two notifications. Therefore, the
circular dated 15.04.1994 under the notification dated 07.03.1994 would
equally apply and would guide the interpretation of the notification
dated 21.01.2000.

20. In order to appreciate the contentions raised, it is imperative to
reproduce notification dated 07.03.1994 and the circular dated 15.04.1994,
and the circular dated 16.04.2001 by which circular dated 15.04.1994 was
withdrawn. The notification dated 07.03.1994 reads as under:-
“Notification No.F.4 (8) FD/Gr.IV/94-70 S.O. No. 200, Jaipur, dated March
7, 1994.

In exercise of the powers conferred by sub-section (5) of section 8 of the
Central Sales Tax Act, 1956 (Central Act 74 of 1956), and in supersession
of this Department Notification No.F.4 (72) FD/Gr.IV/82-34, dated
27.06.1990, the State Government being satisfied that it is necessary in
the public interest so to do, hereby directs that the tax payable under sub-
sections (1) and (2) of the said section, by any dealer having his place of
business in the State, in respect of the sales of cement made by him from
any such place of business in the course of inter-State trade or commerce
shall be calculated at the rate of 4 percent without furnishing of
declaration in form “C” or certification in form “D” on the following
conditions, namely:-

(i) that the dealer shall record the name and full and complete address of
the purchaser in the bill or cash memorandum for such inter-State sale to
be issued by him;

(ii) that the burden to prove that the transaction was in the nature of
inter-State sale, shall be on the dealer; and

(iii) that the dealer making inter-State sales under this notification
shall not be eligible to claim benefit provided for by the notification
No.F.4. (72) FD/Gr.IV/81-18, dated 6.5.1986, as amended from time to time.

This notification shall come into force from 1st April, 1994 and shall
remain in force upto 31st March, 1997.”

21. The circular dated 15.4.1994 is reproduced below:-
“Tax Policy circular No.2/94-95
State of Rajasthan
Commercial Tax Department
No. Pa. 16/Budget/Tax/Commissioner/94-95/108
Dated 15/4/1994

To,

All Deputy Commissioners, Commercial Tax
All Assistant Commissioners, Commercial Tax
All Commercial/Assistant Commercial Tax Officers

Circular

The notification No. Pa. 4 (8) FD/Group-4/94-70 dated 7/3/1994 was issued
by the State Government and the rate of central tax on the inter-State sale
of cement is fixed unconditionally at 4 percent in case the declaration
form-‘C’ or form-‘D’ is not submitted between 1/4/1994 to 31/3/1997. Under
the said notification the trader doing the inter-State sale shall not be
entitled to claim for the benefit made available through the notification
No. F4 (72) FD/Group-4/61-18 dated 6/5/1986 amended from time to time.

It is made clear in this respect that the benefits made available through
the notification No. F 4 (72) FDR-Group-4/81-18 dated 6/5/1986 as amended
from time to time with respect to the inter-State sale of the cement done
with the form-‘C’ or form-‘D’, but aforesaid benefit shall not be available
in case the inter-State sale is done without the form-‘C’ or form-‘D’.”

22. The circular dated 16.04.2001 withdrawing the circular dated
15.04.1994 is as follows:-
“GOVERNMENT OF RAJASTHAN
COMMERCIAL TAXES DEPARTMENT
No.F-16 (Budget) Tax/CCT/94-95/119 Dated April 16th, 2001

All Dy. Commissioners
All Assistant Commissioners
All Commercial Taxes Officers.
All Assistant Commercial Taxes Officers.

CIRCULAR

A question has been raised as to the applicability of Finance Department
notification No.F.4(72)FD/Br.IV/ 81-18 dated 06.05.1986 vis-a-vis
notification No.F/(8) FD/Gr.IV/94-70 dated 07.03.1994 and similar
subsequent notification dated 12.03.1997 and the existing notification
dated 21.01.2000. The issue has been examined and it is clarified that a
dealer can avail the benefit of either of these two notifications in any
financial year. For instance, if he opts for benefit under notification
dated 06.05.1986 for the financial year 2000-2001, he would not be entitled
to claim simultaneous benefit in the same year under the notification
providing for reduce rate of tax on cement in course of inter-state trade
or commerce without any supportive Form C or D. Consequently, if the
benefit of notification dated 21.01.2000 is being availed in any financial
year, the dealer shall be debarred from claiming any benefit under
notification dated 6.5.1986 for the same assessment year.

Keeping in view the above status, the Circular No.F.16 (Budget)Tax/CCT/94-
95/108 dated 15.04.1994 is hereby withdrawn and the dealers will be
entitled to claim benefit of either of the two notifications in any
financial year. Action may be taken accordingly.

Sd/-
(P.K.Deb) Commissioner”

23. As the factual score would depict, Notification dated 07.03.1994 was
applicable from 1st April, 1994 to 31st March, 1997. It was not applicable
with effect from 1st April, 1997. In such a situation, the plea of the
appellant that dual benefits were availed of under notification dated
07.03.1994 post 1st April, 1997 is unacceptable and has to be rejected. Be
it noted, by another notification No. 97-122 dated 12.03.1997, the State
Government had rescinded notification dated 07.03.1994 and directed that
the Central Sales Tax shall be calculated @ 4%, subject to the condition
that the dealer making inter State sales in this notification would not be
eligible to claim benefit of partial exemption under the notification dated
06.05.1986. The notification dated 12.03.1997 had remained in force upto
31st March, 1998. The circular dated 15.04.1994 in express words was not
applicable to the notification dated 21.01.2000.

24. It is limpid that the circular dated 15.04.1994, when in force, had
referred to the notifications dated 07.03.1994 as well as 06.05.1986. Under
the notification dated 07.03.1994, the rate of central tax on inter-State
sale of cement was unconditionally fixed at 4%, even when there was no
declaration in Form C and Form D. The notification dated 06.05.1986
relating to inter-State sale required Form C and Form D, for availing the
benefit. The circular did not in clear and categorical terms lay down that
dual or multiple benefits under the two notifications could be availed of
by the same dealer. It, however, appears that both the assessee and the
Revenue had understood the circular dated 15.04.1994 to mean that inter-
State transactions would qualify and would be entitled to partial exemption
under the notification dated 06.05.1986, when accompanied with Form C and D
and for inter-State sale transactions without Form C and D, benefit of
notification dated 07.03.1994 would apply.

25. The understanding by the assessee and the Revenue, in the obtaining
factual matrix, has its own limitation. It is because the principle of res
judicata would have no application in spite of the understanding by the
assessee and the Revenue, for the circular dated 15.04.1994, is not to the
specific effect as suggested and, further notification dated 07.03.1994 was
valid between 1st April, 1994 up to 31st March, 1997 (upto 31st March, 1997
vide notification dated 12.03.1997) and not thereafter. The Commercial
Tax Department, by a circular, could have extended the benefit under a
notification and, therefore, principle of estoppel would apply, though
there are authorities which opine that a circular could not have altered
and restricted the notification to the determent of the assessee. Circulars
issued under tax enactments can tone down the rigour of law, for an
authority which wields power for its own advantage is given right to forego
advantage when required and considered necessary. This power to issue
circulars is for just, proper and efficient management of the work and in
public interest. It is a beneficial power for proper administration of
fiscal law, so that undue hardship may not be caused. Circulars are binding
on the authorities administering the enactment but cannot alter the
provision of the enactment, etc. to the detriment of the assessee.
Needless to emphasise that a circular should not be adverse and cause
prejudice to the assessee. (See : UCO Bank, Calcutta v. Commissioner of
Income Tax, West Bengal[5]).

26. In Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire
Industries[6], it has been held that circulars and instructions issued by
the Board are binding on the authorities under respective statute, but when
this Court or High Court lays down a principle, it would be appropriate for
the Court to direct that the circular should not be given effect to, for
the circulars are not binding on the Court. In the case at hand, once
circular dated 15.04.1994 stands withdrawn vide circular dated 16.04.2001,
the appellant-assessee cannot claim the benefit of the withdrawn circular.

27. The controversy herein centres round the period from 1st April, 2001
to 31st March, 2002. The period in question is mostly post the circular
dated 16.04.2001. As we find, the appellant-assessee has pleaded to take
benefit of the circular dated 15.04.1994, which stands withdrawn and was
only applicable to the notification dated 07.03.1994. It was not
specifically applicable to the notification dated 21.01.2000. The fact that
the third paragraph of the notification dated 21.01.2000 is identically
worded to the third paragraph of the notification dated 07.03.1994 but that
would not by itself justify the applicability of circular dated 15.04.1994.

28. In this context, we may note another contention that has been
advanced before us. It is based upon the doctrine of contemporanea
exposition. In our considered opinion, the said doctrine would not be
applicable and cannot be pressed into service. Usage or practice developed
under a statute is indicative of the meaning prescribed to its words by
contemporary opinion. In case of an ancient statute, doctrine of
contemporanea exposition is applied as an admissible aid to its
construction. The doctrine is based upon the precept that the words used
in a statutory provision must be understood in the same way in which they
are usually understood in ordinary common parlance by the people in the
area and business. (See : G.P. Singh’s Principles of Statutory
Interpretation, 13th Edition-2012 at page 344). It has been held in
Rohitash Kumar and others v. Om Prakash Sharma and others[7] that the said
doctrine has to be applied with caution and the Rule must give way when the
language of the statute is plain and unambiguous. On a careful scrutiny of
the language employed in paragraph 3 of the notification dated 21.01.2000,
it is difficult to hold that the said notification is ambiguous or
susceptible to two views of interpretations. The language being plain and
clear, it does not admit of two different interpretations.

29. In this regard, we may state that the circular dated 15.04.1994 was
ambiguous and, therefore, as long as it was in operation and applicable
possibly doctrine of contemporanea exposition could be taken aid of for its
applicability. It is absolutely clear that the benefit and advantage was
given under the circular and not under the notification dated 07.03.1994,
which was lucid and couched in different terms. The circular having been
withdrawn, the contention of contemporanea exposition does not commend
acceptation and has to be repelled and we do so. We hold that it would
certainly not apply to the notification dated 21.01.2000.

30. In view of the aforesaid analysis, we do not find any merit in the
instant appeal and the same is, accordingly, dismissed. There shall be no
order as to costs.

Civil Appeal No. 6136 of 2013

31. In view of the judgment passed in Civil Appeal No. 102 of 2010, this
appeal also stands dismissed. There shall be no order as to costs.

…………………………..J.
[Dipak Misra]

……………………….….J.
[C. Nagappan]

New Delhi;
September 16, 2016

-----------------------
[1] 2006 (16) Tax update 199
[2] 2007 (17) Tax update 307
[3] (2004) 137 STC 438
[4] (2006) 8 SCC 702
[5] (1999) 4 SCC 599
[6] (2008) 13 SCC 1
[7] (2013) 11 SCC 451

awarded punishment of death under Section 302 IPC, RI for life and a fine of Rs.1,000/- with default stipulation for offence under Section 364 IPC, RI for seven years with similar fine for offence under Section 363 IPC, RI for seven years with similar fine for offence under Section 376(2)(f)/511 IPC and RI for seven years with similar fine for offence under Section 201 IPC. = “rarest of rare” case so as to confirm the death sentence of the appellant. The death penalty is therefore not confirmed. The question as to what would be the appropriate period out of imprisonment for the whole natural life that the appellant must spend in prison is not an easy one to be answered. As per submissions of learned counsel for the appellant in total an actual period of 20 years behind the bars would serve the ends of justice in the present case. Contra, learned State counsel has argued for whole of natural life. Rajendra Pralhadrao Wasnik v. State of Maharashtra[3] and Shankar Kisanrao Khade v. State of Maharashtra[4] catalogue the relevant factors which should be looked for and examined for awarding or confirming death sentence. He highlighted factors such as brutality, helplessness of the victim, unprovoked and pre-meditated attack as well as societal concern in respect of a particular brutal or heinous crime. According to him the facts of the case showed brutality, helplessness of the victim as well as unprovoked and pre-meditated design to assault. Learned counsel for the State also referred to some other cases where death penalty had been confirmed by this Court on the basis of peculiar facts of those cases. Since there are large number of judgments either confirming death sentence or commuting the same into life imprisonment, rendered on the basis of peculiar facts of those cases, it would not be of any real help to consider those judgments for deciding the issue as to whether in the facts of the present case death sentence should be confirmed or commuted. The occurrence is of the year 2011 when the appellant was said to be about 27 years old. Considering the fact that the deceased, a helpless child fell victim of the crime of lust at the hands of the appellant and there may be probabilities of such crime being repeated in case the appellant is allowed to come out of the prison on completing usual period of imprisonment for life which is taken to be 14 years for certain purposes, we are of the view that the appellant should be inflicted with imprisonment for life with a further direction that he shall not be released from prison till he completes actual period of 25 years of imprisonment. With this modification in the sentence, the appeals of the appellant are dismissed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 292-293 OF 2014

Tattu Lodhi @ Pancham Lodhi …..Appellant

Versus

State of Madhya Pradesh …..Respondent

J U D G M E N T

SHIVA KIRTI SINGH, J.

The appellant, charge-sheeted for offences under Section 366(A), 363, 364,
376(2)(f)/511 and 201 of the Indian Penal Code (for brevity ‘IPC’) was
tried by the Twelfth Additional Sessions Judge, Jabalpur in Sessions Trial
No. 324 of 2011. He was found guilty of committing the murder of a minor
girl, aged about seven years and also of kidnapping and attempt to commit
rape on her and for destruction of evidence relating to the crime. The
trial court awarded punishment of death under Section 302 IPC, RI for life
and a fine of Rs.1,000/- with default stipulation for offence under Section
364 IPC, RI for seven years with similar fine for offence under Section
363 IPC, RI for seven years with similar fine for offence under Section
376(2)(f)/511 IPC and RI for seven years with similar fine for offence
under Section 201 IPC. All the punishments of imprisonment were directed to
run concurrently. By the impugned judgment the High Court of Madhya Pradesh
agreed with the findings of the trial court and answered the criminal
reference in affirmative, confirming the death sentence and dismissed the
criminal appeal preferred by the appellant.
2. Learned senior advocate for the appellant, Ms. Meenakshi Arora
initially made an attempt to challenge the conviction of the appellant
itself by pointing out absence of any eye-witness of the incident and
dependence of the entire prosecution case on circumstantial evidence alone.
Learned counsel for the State countered the challenge to conviction by
submitting that in law there is no hurdle in securing conviction purely on
circumstantial evidence. On facts, he highlighted that the trial court
considered the entire evidence on record fairly and in detail and found the
following five circumstances proved against the accused:
(i) The accused asked the victim soon before the incident to purchase and
bring “Gutka” for him and after sometime she became untraceable.

(ii) Victim was last seen alive with the accused

(iii)The accused avoided to hand over the keys of his house for the search
of victim.
(iv) Recovery and seizure of victim’s dead body in a gunny bag from the
house of the accused.
(v) Seizure of blood-stained clothes including bed sheet from the house
of accused pursuant to his memorandum statement.
3. In view of submission advanced on behalf of the appellant that
the chain of evidence to prove his guilt beyond reasonable doubt was not
complete, we have examined the relevant evidence and also the discussion
thereof made by the trial court in detail from paragraphs 15 to 32 of its
judgment and similar exercise by the High Court. On a careful consideration
of the evidence of shopkeeker Anil Kumar Jain (PW-7) from where the victim
bought “Gutka” for the accused and the evidence of complainant Gappu @
Kshirsagar, Hemraj, Ram Kumar, Sitaram, Maharaj Singh along with medical
evidence, seizure report and report from the forensic science laboratory
confirming the presence of human blood on the gunny bag, bed-sheet and bed-
cover which were seized from the house of accused, we find no good reason
to interfere with the findings of the trial court duly confirmed by the
High Court that the appellant-accused kidnapped the victim and after
subjecting her to sexual abuse, throttled her to death. The first
submission on behalf of the appellant that the chain of circumstantial
evidence is not complete and does not prove the guilt of accused is found
to be without any substance. We have no hesitation in confirming the
conviction.
4. Since there was no appeal before the High Court from the side
of the State or the complainant nor there is any such appeal in this Court,
We have confirmed the conviction as made by the trial court but we have no
hesitation in indicating our disapproval of the error committed by the
trial court in convicting the accused only for the attempted rape. The post-
mortem report, besides showing injuries on the neck and face showed several
bruise marks on the left and right side of the abdomen as well as an injury
on the left side of the vagina. The internal examination clearly records
thus: “……………….. in the reproductive organ the hymen membrane was ruptured.
Mild bleeding and inflammation were found. Vagina was congested and one
finger could be inserted. White discharge was coming out of vagina.” In
view of aforesaid findings recorded in the post-mortem report of the seven
year old victim duly proved by Dr. Khare (PW-9), there was no justification
not to hold the accused guilty of rape simply because PW-9 in his oral
deposition made a casual statement that there was attempt to commit rape on
the deceased before her death. It may only be noticed that the Doctor
confirmed that the death of the deceased was caused by asphyxia from
choking out the throat by strangulation of the neck and all the injuries
were ante mortem in nature. It may also be noted here that the post-mortem
report (Ex. P-13) was prepared and signed not only by Dr. Rakesh Khare (PW-
9) but also by his colleague Dr. Ashish Raj who had also participated in
the autopsy of the deceased.
5. Be that as it may, we have now to consider the next plea
advanced on behalf of the appellant that the facts of the case do not make
the crime to be “rarest of rare” and hence in such a case the Courts below
should not have awarded the death sentence. In support of the aforesaid
plea, learned senior counsel has submitted that at the time of occurrence
accused was aged only about twenty seven years and there was no material to
negate the chance of accused being reformed on account of sentence of
imprisonment and gaining further maturity. On the basis of injuries which
can be associated with rape, learned senior counsel submitted that no doubt
it was a heinous offence as the victim was only seven years old but there
were neither any broken bones nor brutal tearing etc. to make out a case of
extreme brutality. Learned senior counsel referred to the statement of the
accused recorded under Section 313 of the Code of Criminal Procedure to
point out that since sometime back the accused was living alone as his wife
had deserted him and he also admitted that there was only one case under
Section 354 IPC pending against him. Reference was also made to memorandum
statement of the accused recorded by the police in presence of some
witnesses to show that as per such statement the accused killed the
deceased because of loud cries by her. According to learned counsel the
murder was in a state of panic and not a premeditated act and therefore,
the appellant deserves a lenient punishment, anything other than death.
6. Ms. Arora, learned senior counsel for the appellant placed
reliance upon judgment in the case of Swamy Shraddananda(2) v. State of
Karnataka[1] to underscore that although Swamy Shraddananda’s conviction
under Sections 302 and 201 of the IPC was affirmed with a finding that the
crime was a cold blooded murder yet this Court was not convinced to confirm
the sentence of death even after discussing the diabolical crime in which a
wealthy married woman fell in trap, divorced her husband married the
accused and suffered death at his hands only for lust of her huge property.
The dead body was found buried under the floor of her residential house,
obviously to conceal the ghastly crime. In such a crime, while mulling
over the vexed issue of adequate sentence in lieu of death sentence, this
Court held that the Court had the power to substitute death by imprisonment
for life and also to direct that the convict would not be released from
prison for the rest of his life. A Constitution Bench judgment in the case
of Union of India v. V. Sriharan alias Murugan & Ors.[2] has also been
cited to show that judgment in the case of Swamy Shraddananda (2) (supra)
has been approved and followed. In paragraphs 89 and 90 of this judgment
it was explained that life imprisonment means the whole life span of the
person convicted and therefore in the facts of a case while not confirming
death penalty, this Court may, while exercising its power to impose the
punishment of life imprisonment, specify the period upto which the sentence
of life must remain intact so as to be proportionate to the nature of the
crime committed.
7. The submissions advanced on behalf of the State will be
considered hereinafter, but keeping in mind all the submissions, it is
clear that there is no opposition to the contention advanced by learned
senior counsel for the appellant on the basis of Swamy Shraddananda(2)
(supra) and the Constitution Bench Judgment in Sriharan (supra). In that
view of the matter and even otherwise we are in respectful agreement with
the views expressed in those judgments. The judicial innovation of
bridging the gap between death sentence on the one extreme and only 14
years of actual imprisonment in the name of life imprisonment on the other,
in our view serves a laudable purpose as explained in those judgments and
does not violate any positive mandate of law in the Indian Penal Code or in
the Code of Criminal Procedure. Hence, for doing complete justice in any
case, this court can definitely follow the law laid down in the aforesaid
judgments even by virtue of Article 142 of the Constitution of India. The
innovative approach reflected in the aforesaid judgments, on the one hand
helps the convict in getting rid of death penalty in appropriate cases, on
the other it takes care of genuine concerns of the victim including the
society by ensuring that life imprisonment shall actually mean imprisonment
for whole of the natural life or to a lesser extent as indicated by the
court in the light of facts of a particular case. Since there is no party
who is actually a looser on account of such an approach in appropriate
cases, we feel no hesitation in accepting the submissions advanced by the
appellant. Hence the law is reiterated that in appropriate cases where
this court is hesitant in maintaining death sentence, it may order that the
convict shall undergo imprisonment for whole of natural life or to a lesser
extent as may be specified.
8. Learned counsel for the State has made a strong attempt to
support the death sentence. According to him the judgments in the case of
Rajendra Pralhadrao Wasnik v. State of Maharashtra[3] and Shankar Kisanrao
Khade v. State of Maharashtra[4] catalogue the relevant factors which
should be looked for and examined for awarding or confirming death
sentence. He highlighted factors such as brutality, helplessness of the
victim, unprovoked and pre-meditated attack as well as societal concern in
respect of a particular brutal or heinous crime. According to him the
facts of the case showed brutality, helplessness of the victim as well as
unprovoked and pre-meditated design to assault. Learned counsel for the
State also referred to some other cases where death penalty had been
confirmed by this Court on the basis of peculiar facts of those cases.
Since there are large number of judgments either confirming death sentence
or commuting the same into life imprisonment, rendered on the basis of
peculiar facts of those cases, it would not be of any real help to consider
those judgments for deciding the issue as to whether in the facts of the
present case death sentence should be confirmed or commuted.
9. Having considered the rival submissions as well as judgments
relied upon, we are of the considered view that the facts of this case do
not make out a “rarest of rare” case so as to confirm the death sentence of
the appellant. The death penalty is therefore not confirmed. The question
as to what would be the appropriate period out of imprisonment for the
whole natural life that the appellant must spend in prison is not an easy
one to be answered. As per submissions of learned counsel for the
appellant in total an actual period of 20 years behind the bars would serve
the ends of justice in the present case. Contra, learned State counsel has
argued for whole of natural life.
10. The occurrence is of the year 2011 when the appellant was said
to be about 27 years old. Considering the fact that the deceased, a
helpless child fell victim of the crime of lust at the hands of the
appellant and there may be probabilities of such crime being repeated in
case the appellant is allowed to come out of the prison on completing usual
period of imprisonment for life which is taken to be 14 years for certain
purposes, we are of the view that the appellant should be inflicted with
imprisonment for life with a further direction that he shall not be
released from prison till he completes actual period of 25 years of
imprisonment. With this modification in the sentence, the appeals of the
appellant are dismissed.
…………………………………….J.
[J. CHELAMESWAR]

……………………………………..J.
[SHIVA KIRTI SINGH]

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

New Delhi.
September 16, 2016.
-----------------------
[1]
[2] (2008) 13 SCC 767
[3]
[4] (2016) 7 SCC 1
[5]
[6] (2012) 4 SCC 37
[7]
[8] (2013) 5 SCC 546

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8

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