The applicant instituted a petition under the Guardian and Wards Act, 1890 (Petition 754 of 2013) before the Civil Judge (Senior Division), Gautam Budh Nagar, UP, for dissolution of marriage and for custody of the children. = Pending the hearing and final disposal of the guardianship proceedings, the respondent shall be entitled to visitation rights and to meet her two minor children, Ranvir and Hridaan in the following manner : The applicant father shall travel with the children to Kolkata, on a Sunday, in the first fortnight of every month so as to enable the respondent mother to meet the children in the manner indicated in the order of the High Court dated 8 October 2013; The respondent shall in the second fortnight of every month be entitled to visitation rights at New Delhi in the manner indicated in the order of the High Court dated 8 October 2013. To facilitate disbursement of the travel and hotel expenses of the respondent and her mother, the applicant shall by means of an electronic transfer of funds deposit a sum of rupees forty thousand per month into a nominated bank account of the respondent by the seventh day of every month. The respondent shall make her own arrangements for travel to and fro from New Delhi and for stay. The respondent shall fetch the children from the chambers of Ms Udita Seth, Advocate (Chamber No.20A, R.K. Garg Block, Supreme Court, Bhagwan Das Road, New Delhi) and return the children to the father at the same place. The period of visitation shall be as prescribed in the order of the High Court dated 8 October 2013.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                             I.A. No. 4 OF 2016

                                     IN

               SPECIAL LEAVE PETITION (CIVIL) No. 4754 OF 2014


HARSHITA BHASIN                   ..... PETITIONER



                                   Versus



STATE OF WEST BENGAL & ORS       .....  RESPONDENT




                                  O R D E R



Dr D Y CHANDRACHUD, J

      The applicant, Mukul Bhasin, was impleaded as the fifth respondent  to
a petition under Article 136 of the Constitution which was  disposed  of  by
this Court on 9 April 2014.  The first respondent  to  the  application  was
the petitioner in the Special Leave Petition.  The applicant and  the  first
respondent were married on 11 July 2007.  They have two children  –  Ranvir,
who was born on 24 July 2008 and Hridaan, born on  16  November  2011.   The
children are now eight and five years old.  There is a  matrimonial  dispute
and parties have been living separately since July 2013.

2     The applicant instituted a petition under the Guardian and Wards  Act,
1890 (Petition 754 of  2013)  before  the  Civil  Judge  (Senior  Division),
Gautam Budh Nagar, UP, for dissolution of marriage and for  custody  of  the
children.  The respondent instituted a habeas  corpus  petition  before  the
Calcutta  High  Court  to  which  the  applicant  filed   an   affidavit-in-
opposition.   An order was  passed  by  the  Calcutta  High  Court  refusing
interim custody to the respondent.  The High Court,  however,  directed  the
applicant to bring the children on a  fortnightly  basis  to  Kolkata  on  a
Sunday and to allow the respondent to meet them between 11 am and  4  pm  at
the residence of the respondent’s advocate.  This led to the  Special  Leave
Petition by the respondent challenging the order  refusing  interim  custody
to her.

3     During the course of the hearing of the Special  Leave  Petition  this
Court recorded by its order dated 13 March  2014  that  it  had  interviewed
both the parties and the minor children to explore  the  possibility  of  an
amicable settlement. By way of a temporary arrangement, interim  custody  of
the children was granted to the respondent for the duration of  the  ensuing
school vacation until the reopening of the school of the elder child,  after
which the children were to be restored to  the  father.   Eventually,  on  9
April 2014 the Special Leave Petition was disposed of  since  the  order  of
the High Court impugned was purely an  interim  arrangement  which  did  not
finally determine the rights and obligations of the parties.   However,  the
Court which  is  seized  of  the  Guardianship  Petition  was  requested  to
expedite its proceedings and to pass  final  orders,  as  far  as  possible,
within three months.  The interim arrangement  regarding  visitation  rights
made by the High Court was directed to continue.

4      The  applicant  moved  the  court  before  which   the   guardianship
proceedings are pending in January 2016 for modification of  the  visitation
orders on the allegation that the respondent  was  misusing  her  visitation
rights.  The trial court dismissed the application on the ground  that  this
would  amount  to  interference  with  the  interim  order  of  custody  and
visitation passed by the High Court and confirmed by this Court.

5     The basis of the present application is set out in  paragraphs  9,  10
and 11 which reads as follows:

      “That the  minor  children  to  comply  with  the  present  visitation
arrangement leave their home at Noida at 3:30 am to  reach  the  airport  in
time to catch a flight to reach Kolkata on time  for  the  visitation.   The
minor children further return to Delhi after the  visitation  between  10:30
pm and 1:00 am on Monday morning and have to wake up for school by  6:15  am
on the same day.  On one occasion the flight of the minor  children  had  to
be diverted to Lucknow and the children only reached Delhi by 3:14 am.   The
present arrangement is not conducive for the minor children keeping in  mind
their tender age and their mental and physical well-being.

      That the present Applicant/Respondent No.5 fears  that  the  strenuous
and constant travelling from Delhi to Kolkata and back on  a  regular  basis
shall have a negative impact on their physical health along with the  mental
psyche of the children and may even  in  the  future  begin  to  affect  the
academics,  extra-curricular  activities,  sports  and  attendance  of   the
children.  That the present Applicant/Respondent No.5  humbly  submits  that
the present visitation arrangement is no longer in  the  best  interest  and
welfare of the children.

      That it is due to these reasons that the present  Applicant/Respondent
No.5 is seeking modification of the order dated 09.04.2014  passed  by  this
Hon’ble Court only to the limited  extent  of  changing  the  venue  of  the
visits  from  Kolkata  to  Delhi.   After  due  consideration  the   present
Applicant/Respondent No.5 humbly states that he is even willing to bear  the
Petitioner’s cost of travel to  Delhi  to  meet  the  minor  children  every
fortnightly Sunday so as to let the petitioner interact with  them.   It  is
further submitted that the Petitioner has relatives and family  members  who
live in Delhi and shall not be adversely affected in  anyway  by  travelling
to Delhi to meet with the minor children and  comply  with  the  fortnightly
visitation arrangement”.



6     The learned counsel appearing on behalf of the applicant submits  that
it is extremely stressful for  the  children  to  travel  to  Kolkata  every
fortnight on a Sunday since they have to leave their home at NOIDA  at  3.30
am in order to take a flight to meet their mother at 10  am.   Moreover,  it
has been submitted that the children return back to New Delhi late at  night
and have to attend school on Monday morning.  The  applicant  has  expressed
his readiness and willingness to bear the cost of travel of  the  respondent
to Delhi where, it has been submitted, the children can meet her during  the
hours fixed by the High Court.  Having regard to the fact that  prima  facie
it appears tiring and stressful for the two young  children  who  are  eight
and five years of age to travel to Kolkata in  the  manner  agreed,  we  had
requested learned  counsel  for  the  parties  to  discuss  the  matter  and
indicate to the Court whether an agreement can  be  broadly  arrived  at  to
facilitate the convenience of the young children  while  at  the  same  time
protecting the legitimate concerns of their mother.

7     Ms. Meenakshi Arora, learned senior counsel  appearing  on  behalf  of
the respondent has fairly stated before the Court that while the  respondent
would  be willing  to  abide  by  any  reasonable  arrangement  which  would
obviate  inconvenience  to  her  children,  this  Court  may   require   the
petitioner to provide for the  airfare  both  for  the  respondent  and  her
mother to travel to New Delhi and the petitioner may  be  directed  to  make
arrangements to facilitate their stay in a room in a hotel in New Delhi  for
two nights.  During the course of the hearing  we  had  indicated  a  viable
arrangement by which instead of being required to travel  to  Kolkata  every
fortnight, the children shall travel once in a month to  Kolkata  while  the
respondent will meet the children in New Delhi once in a  month.   Both  the
learned counsel have fairly agreed to the suggestion.

In view of the above position, we issue the following directions:-

Pending the hearing and final disposal of the guardianship proceedings,  the
respondent shall be entitled to visitation rights and to meet her two  minor
children, Ranvir and Hridaan in the following manner :

The applicant father shall travel with  the  children  to  Kolkata,    on  a
Sunday, in  the  first  fortnight  of  every  month  so  as  to  enable  the
respondent mother to meet the children in the manner indicated in the  order
of the High Court dated 8 October 2013;

The respondent shall in the second fortnight of every month be  entitled  to
visitation rights at New Delhi in the manner indicated in the order  of  the
High Court dated 8 October 2013. To facilitate disbursement  of  the  travel
and hotel expenses of the respondent and her mother, the applicant shall  by
means of an electronic transfer of funds  deposit  a  sum  of  rupees  forty
thousand per month into a nominated bank account of the  respondent  by  the
seventh day of every month. The respondent shall make her  own  arrangements
for travel to and fro from New Delhi and  for  stay.  The  respondent  shall
fetch the children from the chambers of Ms  Udita  Seth,  Advocate  (Chamber
No.20A, R.K. Garg Block, Supreme Court, Bhagwan Das  Road,  New  Delhi)  and
return the children to  the  father  at  the  same  place.   The  period  of
visitation shall be as prescribed in the order of the  High  Court  dated  8
October 2013.

9     The order of the  High  Court  dated  8  October  2013  shall  in  the
circumstances stand modified by consent to the above extent.

10    The Interlocutory Application is accordingly disposed of.


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


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


..........................................J
                                                     [L NAGESWARA RAO]

New Delhi
December 14, 2016

Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The High Court in this case, has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the appellate authority to impose any other punishment short of removal.- punishment imposed was not shockingly disproportionate, no question of remitting the case to the disciplinary authority arises.

                                                              NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 11975 OF 2016
                  (ARISING OUT OF SLP (C) NO.30710 OF 2014)


|CHIEF EXECUTIVE OFFICER,                     |                          |
|KRISHNA DISTRICT COOPERATIVE CENTRAL BANK    |                          |
|LTD. AND ANOTHER                             |.....APPELLANT(S)         |
|VERSUS                                       |                          |
|K. HANUMANTHA RAO AND ANOTHER                |.....RESPONDENT(S)        |



                               J U D G M E N T


A.K. SIKRI, J.
                 Leave granted.

2.    A departmental inquiry was conducted against respondent  No.1  herein,
an employee of appellant, viz. Krishna  District  Cooperative  Central  Bank
Ltd., into certain charges of misconduct.   In  the  said  inquiry,  charges
were proved and  as  a  result  the  disciplinary  authority  inflicted  the
punishment of dismissal from service upon respondent No.1.  The  High  Court
vide impugned judgment has altered the said penalty of dismissal to that  of
stoppage of two increments for a period of three years.
                 Whether it was permissible for the High Court to do  so  in
the facts of the present case, is the question that needs to  be  determined
in the instant appeal.

The events leading to the filing of this appeal are recapitulated  in  brief
as under:
                  Respondent  No.  1  was  a  Supervisor  of  five   Primary
Agricultural Cooperative Societies (PACS).  He  failed  in  discharging  his
duties properly in supervising the  same,  which  led  to  cheating  by  the
members of the Nidamanuru Primary Agricultural  Cooperative  Society  (PACS)
resulting in misappropriation of the society funds, for  which  disciplinary
action was initiated against him.  The precise  charges  against  him,  vide
charge memo dated 08.03.2002, were that he  had  derelicted  his  duties  as
Supervisor  leading  to  misappropriation  of  the  funds  of  the  society.
Details of fifteen such accounts/instances were  given  wherein  frauds  had
taken place and the amount of fraud involved in  each  such  case  totalling
upto Rs.46,87,950.10.  Names of the persons who  had  misappropriated  these
amounts were also given.  It was mentioned that respondent No.1 worked as  a
Supervisor of the society and it was his  duty  to  have  close  supervision
over the affairs of the society and bring to the  notice  of  the  Bank  the
fraud which took place and safeguard the funds of the society and the  Bank.
 However, he failed  to  discharge  his  legitimate  duties  of  supervision
leading to huge misappropriation that had taken place, which  he  could  not
detect and thwart.  Thus, by derelicting his legitimate duties he paved  way
for huge misappropriation and thereby committed grave  misconduct.   Inquiry
was held and charge of dereliction of duty was  proved  as  per  the  report
given by the Inquiry Officer.

There is no dispute that this inquiry was conducted in accordance  with  the
principle of natural justice  giving  fair  chance  to  respondent  No.1  to
defend himself.  In fact, as per the report of Inquiry  Officer,  respondent
No.1 had even admitted dereliction of duties on his part.

The General Manager, Krishna District Cooperative Central Bank  Ltd.,  after
examining the report of the Inquiry Officer in  detail,  observed  that  the
charged employee committed grave misconduct and acted in  a  way  unbecoming
of an employee of the Bank and passed an order of dismissal from service  of
the Bank.  Feeling aggrieved by the order dated 05.10.2002,  respondent  No.
1 herein filed an appeal/mercy petition  before  the  Chairman,  Person  In-
charge Committee of the Krishna Cooperative Central Bank  Ltd.,  and  prayed
to consider the case  sympathetically  on  humanitarian  grounds  and  issue
reinstatement orders, which was also dismissed  on  22.01.2003.   Respondent
No. 1 thereafter filed writ petition bearing W.P.  No.4238/2003  before  the
High Court of Andhra Pradesh at Hyderabad.

The learned single Judge of the High Court of Andhra Pradesh  at  Hyderabad,
after considering the material available on record  and  after  hearing  the
arguments of the counsel for the parties,  held  that  respondent  No.1  was
negligent in performing his duties and committed an act prejudicial  to  the
interest of the Bank which resulted  in  serious  loss  to  the  Bank.   The
Single Judge of  the  High  Court  further  observed  that  because  of  the
negligence of  respondent  No.1,  an  amount  of  Rs.46,87,950.10  had  been
misappropriated by the staff and members of Nidamanuru PACS.   It  was  held
that there were no grounds to interfere with the punishment imposed  by  the
disciplinary authority and confirmed by the appellate authority.
Feeling aggrieved by the order dated 18.07.2005, respondent  No.1  preferred
Writ Appeal No. 1640/2005, which has been partly  allowed  by  the  Division
Bench of the High Court vide  its  impugned  order  dated  17.08.2014.   The
Division Bench of the High Court has, in fact, interfered with  the  penalty
imposed.  Reason for such a course of  action  adopted  by  the  High  Court
given  in  the  impugned  judgment  is  that  there  was  no  allegation  of
misappropriation against  respondent  No.1.   The  accusation  was  lack  of
proper supervision which holds good against the top administration as well.

After hearing the counsel for the parties, we  are  of  the  view  that  the
impugned judgment of the Division Bench of the High Court is  unsustainable.
 There are more than one reason for coming to  this  conclusion,  which  are
stated hereunder:

(i)   The observation of the High Court that accusation of  lack  of  proper
supervision holds good against the top administration  as  well  is  without
any basis.  The High Court did not appreciate that respondent No.1  was  the
Supervisor and it was his specific duty, in  that  capacity,  to  check  the
accounts etc. and supervise the work of subordinates.  Respondent  No.1,  in
fact, admitted this fact.  Also, there is an admission to  the  effect  that
his  proper  supervision  would  have  prevented  the  persons  named   from
defrauding the Bank.  The High Court failed to appreciate  that  the  duties
of the Supervisor  are  not  identical  and  similar  to  that  of  the  top
management of the Bank.  No such duty by  top  management  of  the  Bank  is
spelled out to show that it was similar to the duty of respondent No.1.

            (ii) Even otherwise, the aforesaid reason could not be  a  valid
reason for interfering with  the  punishment  imposed.   It  is  trite  that
Courts, while exercising their power of judicial review over  such  matters,
do not sit as the appellate authority.  Decision qua the nature and  quantum
is the prerogative of the disciplinary authority.  It is  not  the  function
of  the  High  Court  to  decide  the  same.   It  is  only  in  exceptional
circumstances, where it is found that the punishment/penalty awarded by  the
disciplinary authority/ employer is wholly disproportionate, that too to  an
extent that it shakes the conscience of the Court, that the Court  steps  in
and interferes.
            No doubt, the award of punishment, which is  grossly  in  excess
to the allegations, cannot claim immunity and remains open for  interference
under limited scope for judicial review.  This  limited  power  of  judicial
review  to  interfere  with  the  penalty  is  based  on  the  doctrine   of
proportionality which is a well recognised concept  of  judicial  review  in
our jurisprudence.  The punishment should appear to be  so  disproportionate
that it shocks the judicial conscience.  (See State of Jharkhand &  Ors.  v.
Kamal Prasad & Ors.[1]).  It would also be  apt  to  extract  the  following
observations in this behalf from  the  judgment  of  this  Court  in  Deputy
Commissioner, Kendriya Vidyalaya Sangthan & Ors.  v. J. Hussain[2]:
“8.  The order of the appellate authority while having a relook at the  case
would, obviously, examine as  to  whether  the  punishment  imposed  by  the
disciplinary authority is reasonable or not. If the appellate  authority  is
of the opinion that the case warrants lesser  penalty,  it  can  reduce  the
penalty so imposed by the disciplinary authority. Such a power  which  vests
with the appellate authority departmentally is ordinarily not  available  to
the court or a tribunal. The court while undertaking judicial review of  the
matter is not supposed to substitute  its  own  opinion  on  reappraisal  of
facts. (See UT of Dadra & Nagar Haveli v. Gulabhia M. Lad [(2010) 5 SCC  775
: (2010) 2 SCC (L&S) 101]  .  In  exercise  of  power  of  judicial  review,
however, the court can interfere with the  punishment  imposed  when  it  is
found to be totally irrational or is outrageous in defiance of  logic.  This
limited  scope  of  judicial  review  is  permissible  and  interference  is
available  only  when  the  punishment   is   shockingly   disproportionate,
suggesting lack of good faith. Otherwise, merely because in the  opinion  of
the court lesser punishment would have been more appropriate,  cannot  be  a
ground to interfere with the discretion of the departmental authorities.

When the punishment is found to  be  outrageously  disproportionate  to  the
nature of charge, principle of  proportionality  comes  into  play.  It  is,
however, to be borne in mind that this principle would be  attracted,  which
is in tune with the doctrine of Wednesbury  [Associated  Provincial  Picture
Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 :  (1947)  2  All  ER  680
(CA)] rule of reasonableness, only when in the facts  and  circumstances  of
the case, penalty imposed is so disproportionate to  the  nature  of  charge
that it shocks the conscience of the  court  and  the  court  is  forced  to
believe that it is totally unreasonable and  arbitrary.  This  principle  of
proportionality was propounded by Lord Diplock in Council of  Civil  Service
Unions v. Minister for the Civil Service [1985 AC 374 : (1984) 3 WLR 1174  :
(1984) 3 All ER 935 (HL)] in the following words: (AC p. 410 D-E)

“...Judicial review has I think developed to  a  stage  today  when  without
reiterating any analysis of the steps by  which  the  development  has  come
about, one can conveniently classify under three heads of the  grounds  upon
which administrative action is subject to control by  judicial  review.  The
first ground I would call ‘illegality’, the second ‘irrationality’  and  the
third ‘procedural impropriety’. This is not to say that further  development
on a case by case basis may not in course of time  add  further  grounds.  I
have in mind particularly  the  possible  adoption  in  the  future  of  the
principle of ‘proportionality’.”

An imprimatur to the aforesaid principle was accorded by this Court as  well
in Ranjit Thakur v. Union of India [(1987) 4 SCC 611 : 1988 SCC  (L&S)  1  :
(1987) 5 ATC 113] . Speaking for the Court, Venkatachaliah, J. (as  he  then
was) emphasising that “all powers have legal limits” invoked  the  aforesaid
doctrine in the following words: (SCC p. 620, para 25)

“25...The question of the choice and quantum of  punishment  is  within  the
jurisdiction and discretion of the court martial. But the  sentence  has  to
suit the offence and the offender. It should not  be  vindictive  or  unduly
harsh. It should not be so disproportionate to the offence as to  shock  the
conscience and  amount  in  itself  to  conclusive  evidence  of  bias.  The
doctrine of proportionality, as part of  the  concept  of  judicial  review,
would ensure that  even  on  an  aspect  which  is,  otherwise,  within  the
exclusive province of the court martial, if the decision of the  court  even
as to sentence is an outrageous defiance of logic, then the  sentence  would
not be immune from correction. Irrationality and perversity  are  recognised
grounds of judicial review.”


                 No such finding is arrived at by  the  High  Court  to  the
effect that  the  punishment  awarded  to  respondent  No.1  was  shockingly
disproportionate.
                 Even otherwise, we do not find it to be  so  having  regard
to the fact that respondent  No.1  did  not  perform  his  duties  with  due
diligence and his negligence in performing the duties as  a  Supervisor  has
led to serious frauds in number of accounts by the  subordinate  staff.   It
was, therefore, for the disciplinary authority to  consider  as  to  whether
respondent No.1 was fit to continue in the post of Supervisor.
(iii) The impugned order is also faulted for the reason that it is  not  the
function of the High Court to impose a particular punishment even  in  those
cases where it was found that penalty awarded by the employer is  shockingly
disproportionate.  In such a  case,  the  matter  could,  at  the  best,  be
remanded to the disciplinary authority for imposition of  lesser  punishment
leaving it to such authority to consider as to which  lesser  penalty  needs
to be inflicted upon the delinquent employee.  No doubt, the  administrative
authority has to exercise its  powers  reasonably.   However,  the  doctrine
that powers must be exercised reasonably  has  to  be  reconciled  with  the
doctrine that the  Court  must  not  usurp  the  discretion  of  the  public
authority.  The Court must strive  to  apply  an  objective  standard  which
leaves to the deciding authority the  full  range  of  choice.   In  Lucknow
Kshetriya Gramin Bank  &  Anr.  v.  Rajendra  Singh[3],  this  principle  is
formulated in the following manner:


“13.  Indubitably, the well-ingrained principle of law is  that  it  is  the
disciplinary authority, or the appellate authority in appeal,  which  is  to
decide the nature of  punishment  to  be  given  to  a  delinquent  employee
keeping in view the seriousness of  the  misconduct  committed  by  such  an
employee. Courts cannot assume and usurp the function  of  the  disciplinary
authority. In Apparel Export Promotion Council v. A.K. Chopra [(1999) 1  SCC
759 : 1999 SCC (L&S) 405] this principle  was  explained  in  the  following
manner: (SCC p. 773, para 22)


“22...The High Court in our opinion fell in error in  interfering  with  the
punishment, which could be lawfully imposed by the departmental  authorities
on the respondent for his proven misconduct. … The  High  Court  should  not
have substituted  its  own  discretion  for  that  of  the  authority.  What
punishment was required to be imposed, in the  facts  and  circumstances  of
the case, was a matter which fell exclusively  within  the  jurisdiction  of
the competent authority and did not warrant any  interference  by  the  High
Court. The entire approach of the High Court has been faulty.  The  impugned
order of the High Court cannot be sustained on this ground alone.”


14.  Yet again, in State of Meghalaya v. Mecken Singh  N.  Marak  [(2008)  7
SCC 580 : (2008) 2  SCC  (L&S)  431],  this  Court  reiterated  the  law  by
stating: (SCC pp. 584-85, paras 14 and 17)


“14.  In the matter of imposition of sentence, the scope of interference  is
very limited and restricted to exceptional cases. The  jurisdiction  of  the
High Court, to interfere with the  quantum  of  punishment  is  limited  and
cannot be exercised without sufficient reasons.  The  High  Court,  although
has jurisdiction in appropriate case, to consider the question in regard  to
the quantum of punishment, but it has a limited role  to  play.  It  is  now
well settled that the High Courts, in exercise of powers under Article  226,
do  not  interfere  with  the  quantum  of  punishment  unless  there  exist
sufficient reasons therefor. The  punishment  imposed  by  the  disciplinary
authority or the appellate authority unless shocking to  the  conscience  of
the court, cannot be subjected to judicial review. In the impugned order  of
the High Court no reasons whatsoever have  been  indicated  as  to  why  the
punishment was considered disproportionate. Failure to give reasons  amounts
to denial of justice. The mere statement that it is  disproportionate  would
not suffice.

                          xx          xx         xx

17.  Even  in  cases  where  the  punishment  imposed  by  the  disciplinary
authority is found to be shocking to the conscience of the  court,  normally
the disciplinary authority or the appellate authority should be directed  to
reconsider the question of imposition of penalty. The  High  Court  in  this
case,  has  not  only  interfered  with  the  punishment  imposed   by   the
disciplinary authority in a routine manner but overstepped its  jurisdiction
by directing the appellate authority to impose any  other  punishment  short
of removal. By fettering  the  discretion  of  the  appellate  authority  to
impose appropriate punishment  for  serious  misconducts  committed  by  the
respondent, the High  Court  totally  misdirected  itself  while  exercising
jurisdiction under Article 226. Judged in this  background,  the  conclusion
of the Division Bench of the High Court cannot  be  regarded  as  proper  at
all. The High Court has  interfered  with  the  punishment  imposed  by  the
competent authority in a casual manner and, therefore, the appeal will  have
to be accepted.”



In any case, insofar as the instant matter is concerned, since we find  that
the punishment imposed was not shockingly disproportionate, no  question  of
remitting the case to the disciplinary authority arises.  We,  thus,   allow
this appeal and set

aside the impugned judgment of the Division Bench of the High Court.


                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                       (ABHAY MANOHAR SAPRE)

NEW DELHI;
DECEMBER 09, 2016.
-----------------------
[1]   (2014) 7 SCC 223
[2]   (2013) 10 SCC 106
[3]   (2013) 12 SCC 372

accused-appellants did cause the death of eight persons in a barbaric and brutal manner wherein merciless killing of a child of only 1½ years is also involved. Therefore, the accused in the present case do not deserve any sympathy. 21. Hence, all the criminal appeals filed by the appellants are sans merit and are liable to be dismissed. We uphold the judgment passed by the High Court as far as awarding of sentences is concerned. However, the sentences shall run in conformity with the observations made by the Constitution Bench of this Court in its judgment dated 19.07.2016 passed in these appeals. The impugned judgment passed by the High Court is modified to the above extent and all the appeals are disposed of accordingly.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                     CRIMINAL APPEAL NOS.231-233 OF 2009
MUTHURAMALINGAM & ORS.                    .....    Appellant(s)
                                  :Versus:
STATE REPRESENTED BY INSPECTOR OF POLICE …..       Respondent(s)
                                    WITH
                       Criminal Appeal No.225 of 2009
                     Criminal Appeal Nos.226-227 of 2009
                       Criminal Appeal No.895 of 2009
                       Criminal Appeal No.429 of 2015






                                  JUDGMENT
      Pinaki Chandra Ghose, J.
   1. Brief facts giving rise to the initiation of criminal  proceedings  in
      these cases are as follows: A  gruesome  incident  occurred  in  Taluk
      Ramanathapuram, District Tamil  Nadu  in  which  the  appellants,  the
      deceased and  few  witnesses  were  related  to  each  other.  As  per
      prosecution case, on 10.02.1994, accused persons assembled  unlawfully
      with deadly weapons and with the common intention  to  commit  murder,
      they chased the family members of deceased  Rajendran  when  they  got
      down from the bus in the village near Karisalkulam Branch  Road.  They
      were coming back to their village after  attending  the  cremation  of
      Rajendran, who died in another case on 09.02.1994, and the  appellants
      herein and few others were accused in that case. The accused  persons,
      in a gruesome attack  on  the  family  members,  murdered  8  persons,
      including one who succumbed to the injuries later in the Hospital. PW-
      1 immediately after the occurrence proceeded  to  Kovilankulam  Police
      Station and lodged the  complaint,  Ex.P1.  PW-22  who  was  the  Sub-
      Inspector of Police at Kovilankulam Police Station registered the case
      as Crime No.6 of 1994 under Sections 147, 148, 324, 307,  302  of  the
      Indian Penal Code (“IPC”) and under Section 25(1) of Indian Arms  Act.
      After completing  the  investigation,  PW-23  filed  the  charge-sheet
      against the  accused  persons  under  Sections  147,  148,  324,  307,
      506(ii), 307 & 302 read with Section 34 IPC.

   2. Originally there were 21 accused persons. Accused Chandran died during
      the investigation. Hence, 20 accused persons (A1 to A20) were tried by
      the  Court  of  Additional   Sessions   Judge,   Fast   Track   Court,
      Ramanathapuram. However, accused No.7 – Murugan @ Kodarai died  during
      the trial. The learned Additional Sessions Judge,  Fast  Track  Court,
      Ramanathapuram, convicted A1 to A6 and A8 to A20  each  and  sentenced
      them to undergo rigorous imprisonment  for  various  offences.  A18  –
      Malaiyandi died during the pendency of  the  appeal  before  the  High
      Court.  The learned Additional Sessions Judge found the occurrence  to
      be a brutal  and  gruesome  attack  by  the  accused  persons  forming
      unlawful assembly and causing death of eight persons, including  a  1½
      years child, with a common objective of eliminating  everyone  in  the
      deceased’s family.

   3.  Learned  Additional  Sessions  Judge  delivered   his   judgment   on
      30.05.2006, holding all the accused persons guilty and sentenced  them
      as follows:
|ACCUSED                     |CONVICTION                |SENTENCE                |
|A-1 to A-6 & A8 to A20      |U/s 148 IPC               |RI for one year         |
|A-1 to A-6, A-9 to A13, &   |U/s 302 r/w S.34 IPC      |Imprisonment for life   |
|A-15                        |                          |                        |
|                            |                          |                        |
|A-8 and A-17                |U/s 302 r/w S.34 IPC      |Imprisonment for life   |
|                            |(2 counts)                |for each count          |
|A-1 to A-6, A-9 to A-13     |    U/s 302 r/w S.149     |Imprisonment for life   |
|A-15, A-16, A-18 to         |(7 counts)                |for each count          |
|A-20                        |                          |                        |
|                            |                          |                        |
|A-14                        |U/s 302 r/w S.149 IPC     |Imprisonment for life   |
|                            |(8 counts)                |for each count          |
|A-8 and A-17                |   U/s 302 r/w S.149 IPC  |Imprisonment for life   |
|                            |(6 counts)                |for each count          |
|                            |                          |                        |
|A-14 and A15                |U/s 307 IPC               |RI for 10 years         |
|A1 to A6, A8 to A13 and A16 |  U/s 307 r/w S.149 IPC   |RI for 10 years         |
|to A20                      |                          |                        |


   4. Against the judgment and order dated 30.05.2006 passed by the  learned
      Additional Sessions Judge,  criminal  appeals  were  preferred  before
      Madurai Bench of the Madras High Court. The High Court while disposing
      of Criminal Appeal Nos.313, 323, 328, 406, 451 and 539 of 2006,  found
      that there was no evidence to warrant conviction of A5, A13,  A19  and
      A20 in the instant case. However,  the  High  Court  found  all  other
      accused guilty of eight barbaric murders and attempt to  murder  while
      forming unlawful assembly. The High Court,  in  paragraph  66  of  its
      judgment, modified the conviction and sentence imposed  by  the  lower
      Court as follows:
        i. “A1 to A4, A6, A8 to A12 and A14  to  A17  are  convicted  under
           section 148 IPC and sentenced to undergo  rigorous  imprisonment
           for one year;


       ii. A1 to A4, A6, A8 to A12, A14 to A17 are convicted under  section
           302 read with Section 149 IPC(8Counts) instead of 302 read  with
           34 IPC and sentenced to undergo imprisonment for life  for  each
           count;


      iii. We confirm the conviction of A1 to A4, A6, A8 to A12 and A14  to
           A17 under Section 307 read with Section 34 IPC and sentence them
           to undergo rigorous imprisonment for ten years;


       iv. We set aside the conviction and sentence imposed on A5, A13, A19
           and A20.”




      The High Court in paragraph 73 of the impugned judgment, confirmed the
      direction given  by  the  Trial  Court  that  the  sentences  of  life
      imprisonment imposed for each count and sentence of  imprisonment  for
      10 years, shall run consecutively. Aggrieved by the judgment and order
      dated 14.12.2007, passed  by  the  High  Court,  the  appellants  have
      approached this Court invoking the jurisdiction under Article  136  of
      the Constitution of India. All  the  connected  appeals  were  clubbed
      together for common adjudication since they are arising  out  of  same
      impugned judgment.

   5. Since legitimacy of the consecutive life sentences  in  the  light  of
      Section 31 of the Code of Criminal Procedure (in short ‘Cr.P.C.)   was
      challenged  in  these  appeals,  before  arriving  at  the  conclusive
      findings, a three-Judge Bench of this Court  referred  the  matter  to
      larger Bench and the said larger Bench – Constitution Bench, vide  its
      judgment  dated  19.07.2016,  upheld  the  legitimacy  of  consecutive
      sentences of life imprisonment and held that “while multiple sentences
      of  imprisonment for life can be awarded for multiple murders or other
      offences punishable with imprisonment for life, the life sentences  so
      awarded cannot be directed to  run  consecutively.”  The  Constitution
      Bench further held as follows:

           “The power of the Court to direct the order in  which  sentences
           will run is unquestionable in view of the language  employed  in
           Section 31 of the Cr.P.C. The Court can, therefore, legitimately
           direct that the prisoners shall first undergo the term  sentence
           before the commencement of his life sentence. Such  a  direction
           shall be perfectly legitimate and in tune with Section  31.  The
           converse however may not be true for if the  Court  directs  the
           life sentence to start first it would necessarily imply that the
           term sentence would run concurrently. That is because  once  the
           prisoner spends his life in jail, there is no  question  of  his
           undergoing any further sentence.”

   6. Therefore,  the  only  substantial  question  which  remains  for  our
      consideration in the present case is whether the  High  Court  in  the
      facts and circumstances of the case, was justified  in  modifying  the
      conviction from that under Section 302 read with  Section  34  IPC  to
      that of Section 302 read with Section 149 IPC.

   7. Mr. ATM Ranga Ramanujam, learned  senior  counsel  appearing  for  the
      appellants submitted that in view of the deposition of PW12,  all  the
      eye-witnesses (PW1-PW4) cannot be believed as it  casts  suspicion  on
      the prosecution version as it  is  admitted  by  PW12  in  his  cross-
      examination that he saw only  three  bodies  strewed  and  no  injured
      person at the place of  occurrence.  He  further  submitted  that  the
      investigation has not been done properly  in  the  present  case,  and
      therefore, the accused persons deserve to be acquitted. It was further
      submitted that there is substantive difference between Section 34  and
      Section 149 of IPC and substitution of  Section  34  for  Section  149
      would result in prejudice to the accused and therefore  the  same  may
      not  be  permitted.  Further,  no  satisfactory  explanation  to  such
      substitution was given. He further submitted that there was  delay  in
      the lodging of FIR which creates doubts.

   8. Per contra, Mr.  M.  Yogesh  Kanna,  learned  counsel  for  respondent
      submitted that the  volunteered  statement  of  A5  was  reduced  into
      writing, being Exh.29, whereby 7 aruvals, 10 velsticks, a toy gun  and
      3  knives  were  recovered  and  it  was  clearly  spoken  to  by  the
      prosecution witnesses that A1 stabbed deceased (in short ‘D’) D1  with
      velkambu on his stomach; A2, A3, A4, A6, A10, A14,  A18  attacked  D4,
      D5, D6 with velstick and aruval;  A7  attempted  to  attack  PW3  with
      velstick; A8 stabbed D7 with velstick on his left arm; A9 attacked  D1
      repeatedly with aruval;  A11 stabbed D2 on his stomach with  velstick;
      A12 stabbed D3 with velstick on his stomach and chest, left thigh  and
      other parts of body; A15 attacked D2 with aruval on his left hand; A16
      attacked D3 with aruval on his right hand; A17 attacked D7 with aruval
      on his left hand. It was further submitted that all the  accused  were
      armed with sharp and deadly weapons and were  hiding  in  the  bushes.
      When the deceased  came  near  the  place  of  occurrence,  appellants
      attacked them shouting slogans that “kill them”, “hack them” and  thus
      their act itself substantiates the  commission  of  crime  within  the
      meaning of Section 302 read with 149 of IPC.

   9.  Learned  counsel  for  the  respondent  further  submitted  that  the
      averments  made  by  the  appellants  in  the  present  case  are  not
      sustainable as eye-witnesses have vividly spoken  about  the  presence
      and modus-operandi of the  offence  committed  showing  their  motive,
      which are also  essential  ingredients  to  confirm  conviction  under
      Section 149 of IPC. The plea of the appellants  that  a  weapon,  like
      velstick, cannot cause death was rightly rejected by the High Court as
      it was observed by the High Court that  cut  injury  could  have  been
      caused by velstick, depending upon the manner in which the weapon  was
      used. Since PW-12 is not the eye-witness of the occurrence, he  cannot
      state any substantive part of the offence and the manner in which  the
      offence would have been committed. It  was  lastly  submitted  by  the
      learned counsel for the respondent  that  albeit  there  was  agitated
      atmosphere at the village, complaint was given the same day  at  05:30
      pm and thus there was no delay in lodging the FIR.

  10. Having heard the learned counsel on both sides, the  legality  of  the
      conviction under Section 302 read with Section  149,  has  been  found
      disputed. As regards the case in the light of common intention as  per
      Section 34 IPC, this Court in Devi Lal Vs. State of Rajasthan,  (1971)
      3 SCC 471, in para 13 held that “the  words  ‘in  furtherance  of  the
      common intention of all’ are a most essential part of  Section  34  of
      the Indian Penal Code. It is common  intention  to  commit  the  crime
      actually committed. The common intention is anterior in  time  to  the
      commission of the crime. Common intention means a pre-arranged plan.”

  11. But this case doesn’t appear  to  fulfill  the  essentials  of  common
      intention. The emphasis of such sort of constructive liability and the
      legality of conviction by applying Section 34 or Section 149 IPC, have
      been examined by Courts in several cases. In Willie (William)  Stanley
      Vs. State of M.P., AIR 1956 SC 116, it was held as follows:
           “Section 34, 114 and 149 of the Indian Penal  Code  provide  for
           criminal liability viewed from  different  angles  as  regarding
           actual participants, accessories and men actuated  by  a  common
           object or a common intention and ‘the charge  is  rolled-up  one
           involving the direct liability and the  constructive  liability’
           without specifying who are directly liable and who are sought to
           be made constructively liable. In such a situation, the  absence
           of a charge under one or other of the various heads of  criminal
           liability for the offence cannot be said to be fatal by  itself,
           and before a conviction for  a  substantive  offence  without  a
           charge can be set aside, prejudice will have to be made out.”

  12. Moreover,  a  distinction  between  ‘’common  intention’  and  ‘common
      object’ was made out by this Court in the case of Chhitarmal Vs. State
      of Rajasthan, (2003) 2 SCC 266 as under:
           “A clear distinction is made out between  common  intention  and
           common object in that common intention denotes action in concert
           and necessarily postulates the existence of a pre-arranged  plan
           implying a prior meeting of the minds, while common object  does
           not necessarily require proof of prior meeting of minds or  pre-
           concert. Though there is substantial difference between the  two
           sections, they also to some extent overlap and it is a  question
           to be determined on the facts of each case  whether  the  charge
           under section 149 overlaps the ground covered by section 34.”

  13. In the present case, motive is seen in the collective testimony of eye-
      witnesses PW1-PW3 when accused came out from the bushes shouting “kill
      them”, “hack them”, “fire them”, as also mentioned  in  the  complaint
      Exhibit P-1. A child was also mercilessly  attacked  in  the  incident
      with a spear on his chest. Accused No.7-Muthuramalingam snatched  away
      the child from her mother  Indira  Gandhi  and  killed  her  too  with
      velstick.


  14. Even PW4 (though not an eye–witness of whole occurrence) also  hid  in
      the nearby  bushes  to  save  his  life.  In  his  statement  he  also
      corroborated the factum of hearing shooting and also after identifying
      accused Muthuramlingam stated  that  “his  wife  was  also  killed  by
      accused Muthuramlingam with knife and accused Dhakshinamoorthi cut his
      wife with aruval”. In a similar case of Umesh Singh & Anr.  Vs.  State
      of Bihar, (2000) 6 SCC 89, this Court observed:
           “A report was made by Jugeshwar Singh (PW 7) alleging  that  the
           appellants herein along with  several  other  persons  numbering
           about 20 came to the “khalihan” (threshing floor) of Bhola Singh
           where he and other members of his family were  threshing  paddy.
           They tried to take away the paddy. Upendra Singh threatened that
           any resistance would be met with such action  which  might  even
           result in death. Thereafter Rajendra Singh hit Bhola Singh  with
           a lathi and Upendra Singh moved backwards  and  fired  at  Bhola
           Singh with a gun as a result of which Bhola Singh  was  hit  and
           fell down writhing in pain. Saryu Singh was shot at by  Rajendra
           Singh and Bhagwat Dayal Singh, who was also inflicted  a  bhala-
           blow by Arvind Singh, appellant in the connected  matter,  Umesh
           Singh and Sheonandan Singh fired at Rajdeo Singh as a result  of
           which he fell down. When Dharmshila, wife of Bhola Singh reached
           the threshing floor with her child  aged  about  one-and-a-half-
           years old in her arms, named Rinku,  Sheonandan  Singh  snatched
           the child and threw the child on the ground as a result of which
           the child died. After  investigation,  the  police  submitted  a
           charge-sheet against seven persons named in the FIR as three  of
           them had died during the  pendency  of  the  investigation.  The
           trial court convicted Sheonandan Singh and Upendra  Singh  under
           Section 302 IPC and sentenced them to death, one of the  accused
           — Satyendra Singh, was acquitted and the  rest  of  the  accused
           persons were convicted under Section 302 IPC read  with  Section
           149 and  sentenced  to  life  imprisonment.  They  were  further
           convicted under Section 324 read with Section 148 IPC and  under
           Section 27 of the  Arms  Act.  On  appeal  to  the  High  Court,
           conviction  was  maintained  while  the  sentence  of  death  on
           Sheonandan Singh and Upendra Singh was reduced from one of death
           to life imprisonment thereafter.  Appeals  have  been  preferred
           before this Court”.



      And later at Para No.3 of the judgment it was held:

           “Therefore, there is ample evidence on record in  the  shape  of
           the evidence of the  eyewitnesses  and  the  witnesses  who  had
           sustained injuries, sounding a ring of truth to the  prosecution
           case put forward, with the trial court and the High Court having
           taken identical views, we do not think there is any good  reason
           to upset those findings.”.


      Thus, we are of the considered opinion that prosecution case has  been
      well established by  the  testimonies  of  eye-witnesses  PW1-PW3  and
      corroborated by PW4, wherein factum of unlawful assembly was proved.

  15. Before arriving at the conclusion, we wish to supply emphasis  in  the
      case of Mohan Singh Vs. State of Punjab, AIR 1963 SC 174  =  192  Supp
      (3) SCR 848, where the law on common object in  an  unlawful  assembly
      was explained as under:
           “8.  The  true  legal  position  in  regard  to  the   essential
           ingredients  of  an  offence  specified  by s.149 are   not   in
           doubt. Section  149 prescribes  for  vicarious  or  constructive
           criminal liability for all members of an unlawful assembly where
           an offence is committed  by  any  member  of  such  an  unlawful
           assembly in prosecution of the common object of that assembly or
           such as the members of that assembly knew to  be  likely  to  be
           committed in prosecution  of  that  object.  It  would  thus  be
           noticed that one of the essential ingredients of section  149 is
           that the offence must have been committed by any  member  of  an
           unlawful assembly, and s. 141 makes it clear  that  it  is  only
           where five or more  persons  constituted  an  assembly  that  an
           unlawful assembly  is  born,  provided,  of  course;  the  other
           requirements of the said section as to the common object of  the
           persons composing that assembly are satisfied. In  other  words,
           it is an essential condition of an unlawful  assembly  that  its
           membership must be five or more.”

  16. Moreover, in the case of Mahadeo Singh Vs. State of  Bihar,  (1970)  3
      SCC 46, it was observed by this Court:
           “10. In the present case the facts and  the  circumstances  show
           that the assault and the demolition of the stairs  of  the  well
           took place in the same transaction because the  members  of  the
           unlawful assembly attacked Ram Prasad and his people and injured
           some of them simultaneously  or  in  'quick  succession.  Sarjug
           Mahto and Suraj Mahto both  said  that  at  the  instigation  of
           accused Ram Charan accused Manogi gave a  bhala  blow  near  the
           left elbow of Sarjug Mahto. Sarjug also said that  accused  Sheo
           Pujan gave him a bhala blow below the elbow of the left hand and
           the appellant gave him a bhala blow on the finger of right hand.
           According to Suraj Mahto the appellant struck  Sarjug  Mahto  on
           the finger of his right hand. Suraj and Sarjug  then  raised  an
           alarm. On hearing the alarm Ram Prasad, Bharat and Lakhan  came.
           Ram Prasad protested to the accused against the attack on Sarjug
           Mahto.  At  the  instigation  of  accused  Ram  Charan   accused
           Rajballam struck Ram Prasad With a bhala. Ram Prasad  fell  down
           and died there. Ram Lakhan then struck Bharat with a garasa. Ram
           Charan struck him on the head with a bhala. The assailants  then
           fled away. The evidence proves that the common object of all the
           members of the  assembly  was  that  murder  was  likely  to  be
           committed in prosecution of a common object, namely,  to  commit
           murder, assault, mischief and criminal trespass. All the members
           of the assembly were armed with weapons; they knew  that  murder
           was to be committed in prosecution of that  object.  It  cannot,
           therefore, be said that the  appellant  is  not  guilty  of  the
           charge under Sections 302/149 of the Indian Penal Code.”

  17. However, an overt act is not always an inflexible requirement of  rule
      of law to establish culpability of a member of an  unlawful  assembly.
      The crucial question is whether  the  assembly  entertained  a  common
      unlawful object and whether the accused was one of the members of such
      an assembly by intentionally joining it or by continuing in  it  being
      aware of the facts  which  rendered  the  assembly  unlawful.  Without
      unlawful object no assembly becomes an unlawful assembly.

  18. Further, in paragraph 6 of Shambhunath Singh Vs. State of  Bihar,  AIR
      1960 SC 725, it was held by this Court:
           “Section 149 of the Indian  Penal  Code  is  declaratory  of  the
           vicarious liability of the members of an  unlawful  assembly  for
           acts done in prosecution of the common object of that assembly or
           for such offences as the members of the unlawful assembly knew to
           be likely to be committed in prosecution of that  object.  If  an
           unlawful assembly is formed with the common object of  committing
           an offence, and if that offence is committed  in  prosecution  of
           the object by any  member  of  the  unlawful  assembly,  all  the
           members of the assembly  will  be  vicariously  liable  for  that
           offence even if one or more, but not all committed  the  offence.
           Again, if an offence is committed by  a  member  of  an  unlawful
           assembly and that  offence  is  one  which  the  members  of  the
           unlawful  assembly  knew  to  be  likely  to  be   committed   in
           prosecution of the common  object,  every  member  who  had  that
           knowledge will  be  guilty  of  the  offence  so  committed.  But
           "members of an unlawful assembly may have a community  of  object
           upto a certain point, beyond  which  they  may  differ  in  their
           objects, and the knowledge possessed by each member  of  what  is
           likely to be committed in prosecution of their common object  may
           vary not only according to the information at  his  command,  but
           also according to the extent to which he shares the community  of
           object and as a consequence of this the effect of Section  149 of
           the Indian Penal Code may be different on  different  members  of
           the same unlawful assembly." Jahiruddin v. Queen Empress,  ILR 22
           Cal 306.”



  19. Furthermore, in the case of Mizaji Vs. State of UP, AIR 1959  SC  572,
      this Court observed:
           “From this conduct it  appears  that  members  of  the  unlawful
           assembly were prepared to take forcible possession at  any  cost
           and the murder must be held to be immediately connected with the
           common object and therefore the case  falls  under s.149, Indian
           Penal Code and they are all guilty of murder. This  evidence  of
           Hansram and Matadin which relates to a point of time immediately
           before the firing of the pistol shows that the  members  of  the
           assembly at least knew that the offence of murder was likely  to
           be  committed  to  accomplish  the  common  object  of  forcible
           possession.”



  20. After careful consideration of the submissions  made  by  the  learned
      counsel on both sides, we are  of  the  considered  opinion  that  the
      accused-appellants did cause the death of eight persons in a  barbaric
      and brutal manner wherein merciless killing of  a  child  of  only  1½
      years is also involved. Therefore, the accused in the present case  do
      not deserve any sympathy.

  21. Hence, all the criminal appeals filed by the appellants are sans merit
      and are liable to be dismissed. We uphold the judgment passed  by  the
      High Court as far as awarding of sentences is concerned. However,  the
      sentences shall run in conformity with the observations  made  by  the
      Constitution Bench of this Court  in  its  judgment  dated  19.07.2016
      passed in these appeals. The impugned  judgment  passed  by  the  High
      Court is modified to the above extent and all the appeals are disposed
      of accordingly.






                     . . . . . . . . . . . . . . . . . .
                                     .J
                                               (Pinaki Chandra Ghose)








                     . . . . . . . . . . . . . . . . . .
                                     .J
                                               (Amitava Roy)
      New Delhi;
      December 9, 2016.

The appellant Vidya Prasarak Samithi, Ramdurg, a Trust registered under the Bombay Public Trusts Act and Basaveshwar Vidya Vardhak Sangha (“BVVS” for short), respondent No.3 herein, are running educational institutions at Ramdurg. The dispute between them is in respect of the Government land, being CTS No.1674/1, in respect of which there are rival claims by Vidya Prasarak Samithi and BVVS for use as playground for students of their respective institutions. As there was no playground in the college run by the appellant, it appears from the facts that on an application made by the appellant, the Assistant Commissioner, Belgaum, by his order dated 18th February, 1970, granted the land in question in favour of the appellant.- the management of the Government school was transferred in favour of the Respondent No.3 - BVVS and since the payment of the land in question has already been made by BVVS, and once the ownership of the said land has vested in it, it cannot be granted in favour of any other person or institution. Accordingly, we find that the reasoning given by the High Court cannot be questioned in the given facts. We accept the reasoning given by the High Court and uphold the order passed by the Division Bench of the High Court setting aside the order passed by the learned Single Judge as also the orders passed by the second respondent and first respondent.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL  APPELLATE JURISDICTION

                       CIVIL APPEAL  NO. …………. OF 2016
                 (Arising out of S.L.P.(C) No.5603 of 2008)

President, Vidya Prasarak Samithi, Ramdurg         Appellant(s)
                                  :Versus:
Deputy Commissioner, Belgaum District & Ors.       Respondent(s)





                               J U D G M E N T
Pinaki Chandra Ghose, J.
Leave granted.
This appeal is directed against the judgment and order dated  29th  October,
2007 passed by the High Court of  Karnataka  at  Bangalore  in  Writ  Appeal
No.850 of  2004,  whereby  the  High  Court  allowed  the  appeal  filed  by
Respondent No.3 herein. The High Court by the impugned  judgment  held  that
the orders passed by the Assistant  Commissioner  (Respondent  No.2  herein)
and confirmed by Deputy Commissioner, Belgaum (Respondent No.1 herein),  are
not legal and valid and set aside the order passed  by  the  learned  Single
Judge affirming the orders passed by the said respondents.
  The facts of the  case  are  as  follows:  The  appellant  Vidya  Prasarak
Samithi, Ramdurg, a Trust registered under the Bombay Public Trusts Act  and
Basaveshwar  Vidya  Vardhak  Sangha  (“BVVS”  for  short),  respondent  No.3
herein,  are  running  educational  institutions  at  Ramdurg.  The  dispute
between them is in respect of the Government land, being CTS  No.1674/1,  in
respect of which there are rival claims by Vidya Prasarak Samithi  and  BVVS
for use as playground for students  of  their  respective  institutions.  As
there was no playground in the college run  by  the  appellant,  it  appears
from the facts that on an application made by the appellant,  the  Assistant
Commissioner, Belgaum, by his order dated 18th February, 1970,  granted  the
land in question in favour of  the appellant. This order was  challenged  by
Respondent  No.3  by  filing  an  appeal  before  the  Deputy  Commissioner,
Belgaum. The Deputy  Commissioner  confirmed  the  order  of  the  Assistant
Commissioner granting  land.  The  order  of  the  Deputy  Commissioner  was
further confirmed by the Divisional Commissioner.

Against the said order passed by the Assistant  Commissioner  granting  land
in favour of the appellant herein, an appeal was preferred  by  BVVS  before
the Deputy Commissioner, Belgaum.  The  Deputy  Commissioner  dismissed  the
said appeal. Further, an appeal was preferred by BVVS before the  Divisional
Commissioner, who allowed the  appeal,  cancelled  the  grant  of  land  and
further directed that both the institutions, instead of  litigating,  should
evolve an arrangement for the common use of the playground for  the  benefit
of their students.

Against the said order, Vidya Prasarak Samithi  filed  a  revision  petition
before the Karnataka Appellate Tribunal. The  said  Tribunal  dismissed  the
revision petition and confirmed the arrangement suggested by the  Divisional
Commissioner. Hence, Vidya Prasarak Samithi filed  a  writ  petition  before
the High Court,  being  Writ  Petition  No.3314  of  1979.   The  said  writ
petition was disposed of by the High Court by its  order  dated  20th  June,
1980 remanding the matter to the Assistant  Commissioner,  Belgaum,  with  a
direction to make an inquiry  as  to  whether  BVVS  has  since  acquired  a
separate plot for the purpose of playground and whether that land  would  be
sufficient as required by the institution and if the  points  are  found  in
the affirmative, then the Assistant Commissioner would be  well  advised  to
grant the land involved, being CTS No.1674/1, exclusively to Vidya  Prasarak
Samithi.  It is further held by the High Court that if  the  plot  purchased
by BVVS is not sufficient for  its  requirement  or  if  there  is  no  such
purchase, then the Assistant Commissioner should  work  out  a  satisfactory
arrangement to share CTS No.1674/1, for use  as  playground  on  alternative
dates by the said two institutions. The High Court  further  held  that  the
Assistant  Commissioner   should   also   hold   inquiry   after   affording
opportunities to the parties of being heard.



Pursuant to and in terms of the order  of  the  High  Court,  the  Assistant
Commissioner  conducted  an  inquiry  into  the  matter  and  after   giving
opportunities to the parties of being heard,  made the  following  findings:

BVVS acquired 4 acres of land in Ramdurg town  under  the  Land  Acquisition
Act and its possession was handed over to the BVVS on 19th  December,  1979.
The BVVS constructed a school building meant for  Girls  Junior  College  on
this land. The remaining  area  (120  Mtr.  x  40  Mtr.)  is  available  for
playground. It has been leveled and developed as playground. The  playground
developed by BVVS at its newly acquired land is sufficient for its  purpose.
 The plea taken by BVVS that it cannot be used  by  the  students  of  Girls
Junior College and Boys Junior College, cannot be accepted, while  both  the
colleges were run in the same building before acquisition of the said  land.
BVVS Ramdurg is not having any land for  its  playground  and  in  fact  the
college itself is being run in a rented building.

Considering the above facts, the Assistant Commissioner by its  order  dated
14th October, 1990 granted the land being CTS No.1674/1,  of  Ramdurg  Town,
exclusively in favour of Vidya Prasaraka Samithi,  Ramdurg.  An  appeal  was
preferred by Respondent  No.3  before  the  Deputy  Commissioner  which  was
dismissed. Respondent No.1 by order dated 22nd January, 1994  confirmed  the
order of the Assistant Commissioner dated 14th October, 1990.

Being aggrieved by the order passed  by  Respondent  No.1,  Respondent  No.3
filed a writ petition before the Karnataka  Appellate  Tribunal,  Bangalore.
The said Tribunal by its order  dated  31st  January,  1996  set  aside  the
orders passed by Respondent Nos.1 & 2  and  again  remanded  the  matter  to
Respondent No.2.  Respondent No.2 again conducted  fresh  inquiry  and  spot
inspection and further  confirmed  the  grant  of  land  in  favour  of  the
appellant by his order dated 25th  October,  1997.   BVVS  filed  an  appeal
before  Respondent  No.1  -  The  Deputy  Commissioner,  Belgaum   District.
Respondent No.1 by his order dated 23 January, 1999 confirmed the  order  of
Respondent No.2 and dismissed the appeal. BVVS (Respondent  No.3)  filed  an
appeal  being  Appeal  No.129  of  1999,  before  the  Karnataka   Appellate
Tribunal. The Appellate Tribunal by  its  order  dated  27th  August,  1999,
modified  the  orders  passed  by  the  Assistant  Commissioner  and  Deputy
Commissioner and ordered the  appellant  and  Respondent  No.3  to  use  the
playground bearing CTS No.1674/1 on alternative days.  Respondent  No.3  was
given a preference to make use of it on Sunday and alternative days and  the
appellant was to use it from Monday and alternative days.

In these  circumstances,  the  appellant  feeling  aggrieved  filed  a  writ
petition, being Writ Petition No.2325 of 2003,  before  the  High  Court  of
Karnataka. The learned Single Judge of the High Court  by  his  order  dated
24.11.2003 allowed the writ petition filed by the appellant  and  set  aside
the order passed by the Karnataka Appellate Tribunal  confirming  the  grant
of  land in favour of the appellant. The reasonings  given  by  the  learned
Single Judge of the High Court are:
(a) On remand the Assistant Commissioner duly  considered  the  case  afresh
and after inspection of the property in question, found  that  certain  land
measuring 120 Mtr. x 40  Mtr.,  which  is  vacant  land  belonging  to  BVVS
(respondent No.3), is sufficient for it to use it as playground.
(b) BVVS has not made any application for grant of land before  the  Revenue
Authorities and in the absence of any such application for grant,  BVVS  has
no right to challenge the order of grant.
(c) The said point was not considered by the Tribunal.


Furthermore, the learned Single Judge  of  the  High  Court  held  that  the
Government at the instance of respondent No.3 has acquired 4 acres  of  land
for the purpose of playground. Therefore, it  was  the  duty  of  Respondent
No.3 to reserve sufficient extent of land for use as playground and rest  of
the land would have been utilized for construction of the  school.   On  the
other hand, the appellant has no land of its own for use as  playground  and
BVVS did not ever question  the  said  plea  of  the  appellant.   In  these
circumstances, the learned Single Judge of the Karnataka High Court  allowed
the writ petition and quashed the order passed by  the  Karnataka  Appellate
Tribunal. It appears that the Division  Bench  of  the  High  Court  without
considering such facts and without taking into consideration the land  grant
rules, quashed the order of grant of land.

Being aggrieved, BVVS filed an appeal before the Division Bench of the  High
Court. The Division Bench noted that by a Government Order dated 23rd  July,
1966, the management of the Government School was transferred in  favour  of
BVVS with certain conditions. One of  the  important  conditions  enumerated
therein was that the ownership of the immovable property  in  question  will
vest with the Government. Subsequent thereto the Government  passed  another
order dated  26.1.1967,  wherein  it  was  stated  that  consequent  on  the
transfer of administration of the State High School, Ramdurg to the  control
and management  of  BVVS,  vide  Government  order  dated  23.7.1966,  on  a
permanent basis, the Government has carefully  considered  the  question  of
transfer of its properties after proper  valuation  and  directed  that  the
properties including buildings and playground, should be transferred to  the
management of the School at the prevailing market rate to be  fixed  by  the
competent valuer of the Public Works  Department.  Accordingly,  the  Public
Works Department fixed the market value  of  the  property  in  question  at
Rs.51,600/- vide valuation letter, which was duly paid by BVVS in favour  of
the Public Works Department by challan vide document produced at Annexure R-
3 in the office of Bagalkot Treasury on 8.11.1982 which was brought  to  the
notice of  the  Public  Works  Department.  Thereafter,  a  trust  deed  was
registered by BVVS (Respondent No.3) wherefrom it would be evident that  the
property in question though belonged to the Education Department, since  the
administration and management of  the  High  School  run  by  the  Education
Department was transferred to BVVS, its  property,  namely,  playground  was
also transferred in favour of BVVS for its market value. The Division  Bench
of the High Court further held that there is clinching documentary  evidence
in favour of BVVS to justify its  claim  of  ownership  in  respect  of  the
property in question and, therefore, the land in question was not  available
for grant as was observed by the learned Single Judge. It was  further  held
that the land could have been granted if the land was available in the  list
of available lands for  the  purpose  of  grant  in  favour  of  either  the
appellant or any eligible person for educational purposes.  The  High  Court
further held that the land was not available at the  time  of  granting  the
same in favour of the appellant Vidya Prasarak Samithi. The  Division  Bench
also held that the undisputed fact was that the said  playground  was  being
used by the Government High School and the said  property  was  one  of  its
properties, and the same had been  transferred  to  BVVS  after  fixing  the
market value by the Public Works Department and that  therefore,  Respondent
Nos.1 and 2 have committed  illegality  in  law  in  granting  the  land  in
question in favour of Vidya Prasarak Samithi, the appellant herein.

Accordingly, the High Court  held  that  the  order  passed  by  the  second
respondent and confirmed by the first respondent are not  legal  and  valid.
Hence, the said orders and the order of the  learned  Single  Judge  of  the
High Court were set aside by the Division Bench.


It appears to us, after hearing the parties  and  after  going  through  the
facts of this case, that the High Court correctly  came  to  the  conclusion
that the school was transferred in favour of the Respondent No.3 - BVVS  and
since the payment of the land in question has already  been  made  by  BVVS,
and once the ownership of the said land has  vested  in  it,  it  cannot  be
granted in favour of any other person or institution. Accordingly,  we  find
that the reasoning given by the High  Court  cannot  be  questioned  in  the
given facts. We accept the reasoning given by the High Court and uphold  the
order passed by the Division Bench of  the  High  Court  setting  aside  the
order passed by the learned Single Judge as also the orders  passed  by  the
second respondent and first respondent. Accordingly, this appeal  fails  and
is hereby dismissed.



………………………………….J
(Pinaki Chandra Ghose)




………………………………….J
(Amitava Roy)
      New Delhi;
December 9, 2016.