whether the award should be held to have not been validly made and on that ground the proceedings should be held to have lapsed.= It is seen from the above resume of the proceedings that the appellants were paid compensation and possession was duly taken. The appellants also preferred reference on which higher compensation was awarded and matter attained finality upto this Court. The appellants thereafter filed a writ petition challenging the acquisition proceedings which was held to barred by delay and latches against which SLP was dismissed by this Court. Of course, an observation was made that the appellants could prefer appropriate proceedings based on their grievance under the 2013 Act.

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION



                        CIVIL APPEAL NO.3790 OF 2017



Jasveer Singh and Anr.                                …APPELLANT(S)

                                   VERSUS

State of U.P. and Ors.                       ...RESPONDENT(S)



                                    With

                        CIVIL APPEAL NO.3787 OF 2017


RAJINDER Singh                                              …APPELLANT(S)

                                   VERSUS

State of U.P. and Ors.                       ...RESPONDENT(S)


                                    WITH

                        CIVIL APPEAL NO.3786 OF 2017


BHAG Singh                                            …APPELLANT(S)

                                   VERSUS

State of U.P. and Ors.                       ...RESPONDENT(S)




                               J U D G M E N T


ADARSH KUMAR GOEL, J.


1.    These appeals have been preferred against the Order of the High  Court
of Allahabad in Writ C. No. 59918  of  2014  rejecting  the  prayer  of  the
appellants for quashing the  land  acquisition  proceedings  initiated  vide
notification dated 18th August 1981 under Sections  4  and  6  of  the  Land
Acquisition Act, 1894.  The acquisition was “for  the  construction  of  New
Broad Gauge Railway Line between Rampur and Haldwani”  in  the  District  of
Rampur.  Urgency clause was invoked.  Possession of the land  was  taken  on
19th September, 1986.  The award was made  on  22nd  September,  1986.   The
appellants  preferred  reference  under  Section  18  for   enhancement   of
compensation which was decided vide Award dated 7th December,  1988  by  the
District Judge, Rampur.  First appeals against the said award  were  decided
by the High Court on 29th January, 2004.  This Court vide order  dated  12th
September, 2005 in Civil Appeal Nos. 5714-15 of 2005  remanded  the  matters
to the High Court having regard to the grievance of  the  appellant  against
denial of statutory benefits.


2.    On 19th December, 2005 the appellants filed  a  writ  petition  before
the High Court seeking quashing of the  acquisition  proceedings  which  was
decided by the High Court on 3rd December,  2010  directing  redetermination
of compensation.  The said order  was  set  aside  by  this  Court  on  16th
October, 2012 in Civil Appeal No.7535 of 2012.  It was observed that :


“After  considering  the  pros  and  cons,  without  entering  into  serious
controversies and making any comment on the merit of the  case,  we  are  of
the considered opinion that in view of the judgment and order of this  Court
dated 26th November, 2010, which was passed in presence of the  counsel  for
both the parties, the High Court ought not to have heard the matter at  all.
 Thus, the judgment and order impugned before  us  has  lost  its  sanctity.
Therefore, the same is hereby set aside.


However, in order to meet the ends of justice, we remand  the  case  to  the
High Court to hear the writ petition afresh expeditiously preferably  within
a period of six months from the date of production of the certified copy  of
the order before the Hon’ble Chief Justice.  The matter may be  assigned  to
any particular Bench by the Hon’ble Chief Justice for final  disposal.   The
parties shall be at liberty to raise all factual and legal  issues  involved
in the case.  The High Court is requested to deal with the  relevant  issues
in detail.


More so, if the respondents are so aggrieved regarding withdrawal  of  their
appeals,  which  had  been  remanded  by  this  Court  for  determining  the
entitlement of interest under Section 23-(1A) of the Land  Acquisition  Act,
1984 and an application is made by the respondent to revive  the  same,  the
High Court may consider and decide the said application in  accordance  with
Law.  All the matters shall be heard simultaneously by  the  same  Bench  if
the appeals are restored. “





3.     Thereafter,  the  High  Court  considered  the  contention   of   the
appellants that the award in respect of compensation was  no  award  in  the
eye of law and though the possession was taken long back  and  railway  line
had been laid out, the acquisition proceedings were liable to be  set  aside
and compensation was liable to be awarded at present market rate.  The  High
Court rejected the said plea vide judgment dated 30th May,  2014  in  Writ-C
No.77449 of 2005.    It  was  observed  that  objection  of  the  appellants
against the award had already been considered  and  remand  by  the  Supreme
Court on 12th September, 2005 was only in  respect  of  statutory  benefits.
For the first time plea was  sought  to  be  raised  in  the  writ  petition
against validity of acquisition which was impermissible in view of law  laid
down by this Court in Aflatoon  versus  Lt.  Governor  of  Delhi[1],  Swaika
Properties Pvt. Ltd. versus  State  of  Rajasthan[2],  Sawaran  Lata  versus
State of Haryana[3] and Banda Development Authority, Banda versus  Moti  Lal
Agarwal[4].  Judgment  of  this  Court  in  Royal  Orchid  Hotel  versus  G.
Tayarama Reddy[5] was distinguished  as  that  case  related  to  fraudulent
exercise of power of eminent domain.  The High Court concluded :


 “ 45. Taking into consideration the entire facts and circumstances  of  the
case, we are of the view that the writ petition is highly barred by  latches
and deserves to be dismissed on the ground of latches alone.


46. As has been observed above,  the  petitioners’  main  grievance  is  for
enhancement of compensation, for which  the  petitioner  has  already  filed
First Appeal No.880 of 1993 and First Appeal No.401 of  1998  which  appeals
are being allowed by order of the date, we see no reason  to  entertain  the
writ petition.


47.  Although,  various  submissions  on  merits  challenging   the   entire
acquisition  proceedings  have  been  raised  by  learned  counsel  for  the
petitioners, but we having taken the view that the writ petition  is  highly
barred  by  latches,  we  do  not  find  it  necessary  to  enter  into  the
submissions raised by learned counsel for the petitioners on merits. ”





4.    The appellant thereafter preferred S.L.P. (Civil) No.  27109  of  2014
which was dismissed.  However,  it  was  observed  that  appellants  are  at
liberty to work out their grievance based on the new  Land  Acquisition  Act
(2013) by preferring  appropriate  proceedings.   The  appellant  thereafter
filed W.P. No.77449 of 2005 from which these appeals have arisen.


5.      The High Court  dismissed  the  writ  petition  with  the  following
observations:


 “ From the facts as noticed herein above, we are of the considered  opinion
that not only the Award had been made, the  petitioners  had  also  filed  a
Reference Application which was rejected and against  the  Reference  Order,
they filed First Appeal, referred to above, which has also  been  dismissed.
There is substance in the allegations made. ”





6.    We have heard learned counsel for the parties.


7.    Learned counsel for the appellants  submitted  that   in  the  present
case the award should be held to have not been  validly  made  and  on  that
ground the proceedings should be held to have lapsed.


8.     We are unable to accept the above submission.  It is  seen  from  the
above resume of the proceedings that the appellants were  paid  compensation
and possession was duly taken.  The appellants also preferred  reference  on
which higher compensation was awarded  and  matter  attained  finality  upto
this Court.  The appellants thereafter filed  a  writ  petition  challenging
the acquisition proceedings which was held to barred by  delay  and  latches
against which SLP was dismissed by this Court.  Of  course,  an  observation
was made that the appellants could prefer appropriate proceedings  based  on
their grievance under the 2013 Act.


9.    The grievance of the appellants  against  acquisition  proceedings  on
the ground that the award was not a valid award was  rejected  and  SLP  was
dismissed by this Court but permitting a fresh challenge.  The fact  remains
that the challenge of the appellants  is  barred  by  laches  and  the  said
finding does not suffer from any infirmity.   Even if  the  appellants  were
permitted to lay a fresh challenge,  they  are  required  to  overcome  this
legal bar which in our view the appellants have not been able  to  overcome.






10.   We, thus, do not find any error in the view taken by the  High  Court.
The appeals are dismissed.




                                                      ………………………………………………..J.
                                                        [ADARSH KUMAR GOEL ]



                                                      ………………………………………………..J.
                                                   [ Rohinton Fali Nariman ]

NEW DELHI
May 01, 2017







-----------------------
[1]
      [2] (1975) 4 SCC 285
[3]
      [4] (2008) 4 SCC 695
[5]
      [6] (2010) 4 SCC 532
[7]
      [8] (2011) 5 SCC 394
[9]
      [10] (2011) 10 SCC 608

As a matter of fact, in absence of specific denial about the execution or existence of the said Will by the Appellants – defendants, the question of examining the issue of admissibility of that Will pales into insignificance. ;The fact that demarcation of 10 cents out of the suit property (which has been bequeathed to the brother of Respondent No.1, Achuthan Nair) under a Will executed by their father has still not been done, that would not negate the Respondent No.1 from being a co-owner in the suit property along with his brother and to have undivided share therein. Being a co-owner of the suit property, there is nothing wrong if Respondent No.1, with a view to protect the suit property from any further encroachment, was to construct a compound wall within the portion of the suit property as specified by the High Court. The limited relief granted by the High Court to construct such compound wall, is very specific and in no manner likely to adversely affect the Appellants. Nothing has been brought to our notice to the contrary. Indeed, the construction of compound wall must conform to the mandate of municipal laws and other compliances in that behalf.

                                                       NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.5366 OF 2017
                (Arising out of SLP (Civil) No.3873 of 2014)



Poonnamma Jagadamma & Others.                …. Appellants


Versus

Narayanan Nair & Others.                            .... Respondents




                               J U D G M E N T

A.M.KHANWILKAR, J.

This is third round of  proceedings  between  the  parties  in  relation  to
property bearing Survey No.2063 at  Anchamada  Village,  Thiruvananthapuram,
admeasuring around 79 cents. The father of Respondent No.1  was  the  owner,
who, during his life-time sold 20 cents of the said land to a  third  party.
The remaining 59 cents were purportedly given by the  father  of  Respondent
No.1 to him and his brother Achuthan Nair by a registered Will. The  present
proceedings pertain to the said 59 cents  of  land  bearing  Survey  No.2063
(for short “suit  property”).  The  Appellants  are  in  occupation  of  the
neighbouring  property  bearing  Survey  No.2061  and  have  constructed   a
building thereon.


Respondent No.1 had filed a suit before the Munsiff Court in the  year  1975
being O.S. No.1004 of 1975 against the  predecessor  of  the  Appellants  in
respect  of  the  suit  property.  That  suit,  however,  was  dismissed  on
11.11.1977 against which Respondent No.1  preferred  an  appeal  before  the
District Court but was unsuccessful  due  to  dismissal  of  the  appeal  on
29.02.1980. In the intervening period, the  predecessor  of  the  Appellants
filed a suit for injunction against Respondent No.1 in respect of  the  suit
property, being O.S. No.1069 of 1976. This suit, however, was  dismissed  on
25.03.1978 by the Munsiff  Court  at  Trivandrum.  The  predecessor  of  the
Appellants filed an appeal against the said  decision  before  the  District
Court which, however, was dismissed on 20.03.1981.  Thus,  both  sides  were
unsuccessful in getting relief of injunction  against  the  other  party  in
their respective suits.



Respondent No.1 however, filed a fresh suit (from which the  present  appeal
arises) being O.S. No.547 of 1981 before the  Munsiff  Court  at  Trivandrum
for relief of mandatory injunction and prohibition against  the  Appellants.
In this suit, it has been asserted by the Respondent No.1  that  his  father
bequeathed 59 cents of the property described in Schedule B  to  the  plaint
to him and his brother by way of a registered Will.  Thus,  asserting  title
over the 59 cents in Survey No.2063,  Respondent  No.1  sought  a  mandatory
injunction against the Appellants and also a direction that  the  Appellants
shall remove the portion of the building on the western  side  of  the  suit
property, being an encroachment made  by  the  Appellants.  Respondent  No.1
further prayed for  reliefs  of  injunction  and  declaration  that  he  was
entitled to put up a boundary wall to separate the two  Survey  Nos.  namely
2061 and 2063, owned and occupied  by  the  respective  parties.  Respondent
No.1 also sought  a  prohibitory  injunction  against  the  Appellants  from
entering upon the suit property which was in possession  of  the  Respondent
No.1.



The Appellants resisted the said suit by  filing  their  written  statement.
According to the  Appellants,  Respondent  No.1  was  not  representing  his
brother Achuthan Nair and the suit for mandatory injunction on the basis  of
title was bad for non joinder of necessary parties. The Appellants  asserted
that they were in occupation/possession of Survey No.2061 which had a  clear
boundary separating the property allegedly owned and occupied by  Respondent
No.1. Further,  the  matter  in  issue  in  the  present  suit  was  already
considered in the previous suits filed by the parties and could not  be  re-
agitated once again between the parties. The parties  produced  evidence  in
support of their respective claims. After considering the rival  contentions
and the evidence on record, the Trial Court,  by  the  judgment  and  decree
dated 09.02.1990, was pleased to decree the suit in the following words:

“In the result a mandatory injunction is issued directing the defendants  to
demolish the portion of their building that abuts on the plaint  B  Schedule
property as seen in Exhibit C1 (a) plan. The defendants  are  also  directed
to remove the newly erected bathroom and latrine  to  fill  up  the  pit  as
shown in Exhibit C1 (a) plan. In case the  defendants  will  not  abbey  the
injunction within a period of three months from today, the  plaintiff  shall
be entitled to have  the  same  demolished  and  removed  through  court  in
execution at the expense of the defendants. The defendants  are  permanently
restrained from trespassing  into  the  plaint  B  Schedule  property,  from
demolishing its boundary and from  making  any  construction  therein  after
complying  the  mandatory  injunction.  Plaintiff  is  allowed  to  put   up
permanent boundary wall  on  the  eastern  boundary  of  plaint  B  Schedule
property through the C.D. line in Exhibit C1 (b) plan. Exhibits C1  (a)  and
C1 (b) plan will form part of the decree. No costs.”



Against this  decision,  the  Appellants  preferred  an  appeal  before  the
District Judge, Thiruvananthapuram, being Appeal Suit No. 201 of  1990.  The
first Appellate Court,  on  the  basis  of  rival  submissions,  framed  the
following points for consideration:



“(i)  Whether the plaintiff is entitled  for  fixation  and  putting  up  of
boundary.

Whether the plaintiff is entitled for a mandatory injunction  directing  the
defendants from demolishing the part  of  the  building  which  situates  in
Survey No.2063.

Whether the plaintiff is entitled to the prohibitory injunction prayed  for.


Whether there is sufficient reason to  interfere  with  the  decree  of  the
lower court.

Reliefs and costs.”





The first Appellate Court allowed the appeal and was pleased  to  set  aside
the judgment and decree passed by  the  Trial  Court.  The  first  Appellate
Court took the view that on the  basis  of  the  Will  relied  upon  by  the
Respondent No.1- plaintiff, it could be seen that 10 cents out of  59  cents
of the property was bequeathed to Achuthan Nair and the  Respondent  No.1  –
plaintiff was allotted the balance  49  cents.  The  first  Appellate  Court
noted that the said Achuthan Nair was  not  made  party  in  the  suit.  The
Appellate Court held that the Will was not probated by the  Respondent  No.1
– plaintiff. On that analysis, it proceeded  to  hold  that  the  Respondent
No.1 - plaintiff was not able to substantiate his title over  the  whole  of
the suit property and thus, was not entitled  to  any  relief  of  mandatory
injunction or prohibitory injunction against the Appellants.





5.    Aggrieved by the said decision, Respondent No.1  -  plaintiff  carried
the matter in second appeal before the High Court of  Kerala,  being  Second
Appeal No.105 of 1998(D). The High Court entertained the second  appeal  and
framed the following substantial questions of law:

“(i)  When a will relied on is not denied or  disputed  and  genuineness  is
not questioned is the Will still to be strictly proved under Section  68  of
the Evidence Act?

(ii)  Is not the 1st Appellate Court bound to evaluate the entire  oral  and
documentary evidence in the case?

(iii) When only a portion of the building is  abutting  into  another  man’s
property is not enough that mandatory injunction alone is sought for and  is
it necessary that  recovery  of  possession  of  the  site  should  also  be
claimed?

(iv)  When title and possession of plaintiff is not disputed or denied  over
the entire property but is denied only in respect  of  portion  on  which  a
building is abutting, should not the Court grant a decree  declaring  title,
possession and injunction in respect of that portion. In a case where  there
is no distinction  demarcating  the  boundary  between  the  two  properties
should not the relief of fixation of boundary be granted?”





The High Court noticed that the attestors to Ext. A-1 were not alive at  the
time of filing of the suit and therefore, could not be  examined.  The  High
Court also noted that Ext. A-1, A-4, A-5, and Book No.III Volume 18 and  the
Thumb Impression register were produced before  the  Trial  Court  and  duly
considered. From the evidence of PW2 relied upon  in  respect  of  Ext.  A-1
Will, the same was proved. The High Court then noted the contention  of  the
Respondent No.1 –  plaintiff,  that  the  execution  of  the  Will  was  not
specifically denied by the defendants; and that even if  the  Will  was  not
proved, the right of the Respondent No.1 - plaintiff over the suit  property
as the co-owner, being one  of  the  sons  of  the  original  owner  of  the
property, was indisputable. For that reason, it was unnecessary to  go  into
the question of genuineness of the Will. It was open to the co-owner to  ask
for a prohibitory injunction and that could not be refused. To that  extent,
Respondent No.1 succeeded before the High  Court.  While  dealing  with  the
issue of proper description of the suit property, the  High  Court  adverted
to the Commissioner’s report and held that since part of  the  area  in  the
suit was found to have been trespassed upon but as  the  Respondent  No.1  -
plaintiff had failed to establish his exclusive title  over  the  entire  59
cents including the portion on which stated  encroachment  was  noticed,  he
was not entitled to mandatory injunction of removal of encroachment  against
the defendants. The High Court observed that 10 cents of the suit  land  was
bequeathed to the brother of the Respondent No.1 –  plaintiff.  It  was  not
demarcated. Further, the decree  passed  by  the  Court  below  had  already
become final.  The  High  Court,  however,  then  noted  the  stand  of  the
Respondent No.1 - plaintiff that even if his claim regarding title  over  59
cents of suit property was not accepted, considering the fact  that  he  was
indisputably a co-owner of suit property, he was  entitled  to  protect  the
suit property by erecting the boundary wall so that no further  encroachment
or interference from the Appellants-defendants need be countenanced.  Moreso
in the present case, the Appellants  -  defendants  were  not  claiming  any
right over the suit property bearing Survey No.2063 owned  and  occupied  by
the Respondent No.1 plaintiff. This contention found favour  with  the  High
Court. The High Court held that to meet the ends of justice in the  peculiar
facts of the present case, it would be just and proper that  the  Respondent
No.1 - plaintiff is allowed to put up a compound wall by leaving  aside  the
portion  of  trespassed  portion  in  Survey  No.2063  by   the   Appellants
–defendants; and also leaving some more land so as to avoid further  dispute
pertaining to the same. The High  Court  thus,  thought  it  appropriate  to
mould the reliefs to do substantial justice to the parties. The  High  Court
then outlined the location where the compound wall could be constructed,  on
the basis of the plan which had come on record. The relevant portion of  the
impugned judgment of the High Court reads thus:
“22.  I find that in order to meet the ends of justice,  it  would  be  just
and proper that the plaintiff is allowed to  put  up  a  compound  wall  but
leaving that part of the area which was trespassed  upon  by  the  defendant
and also leaving  out  some  more  land  so  as  to  avoid  further  dispute
pertaining to the same.

23.   Point ‘M’ shall be marked four links to the west of  point  ‘D’  shown
in Ext. C1 (a) plan. Another point ‘Q’ shall be marked on ‘CD’ line  at  its
middle; that is, 12 links to the south of the point ‘D’.  Two  perpendicular
lines, one from point ‘M’ towards sought and another from point ‘Q’  towards
west shall be drawn which will meet at point ‘Y’. That  plot  ‘DMYQD’  shall
be  left  out  to  be   used   and   possessed   by   the   defendant.   The
plaintiff/appellant is permitted to put up a compound wall along ‘MY’,  ‘YQ’
and ‘QC’ lines.


24.   In the result, this R.S.A. is disposed of as follows:-

25.   Since the prayer for declaration of title was rejected  the  plaintiff
is not entitled to get the mandatory injunction as sought for  and  to  that
extent the Second Appeal fails. But in order to see that justice is done  to
the parties the plaintiff/appellant is permitted to put up a  compound  wall
along the line ‘MY ‘YQ’ and ‘QC’ mentioned above. The plot ‘DMYQD’ shall  be
excluded and that plot shall be used and possessed by the defendant.

The assistance of a Surveyor  to  assist  the  Amin  shall  be  ordered  for
executing the decree. If necessary, an Advocate  Commissioner  can  also  be
appointed by the execution Court to assist the Amin to execute the  decree.”



6.    This decision has been  assailed  by  the  Appellants  mainly  on  the
argument that the High  Court  exceeded  its  jurisdiction  in  exercise  of
powers under Section 100 of CPC. The High Court re-appreciated the  evidence
on record to reverse the decision of the District Court, which  had  allowed
the appeal preferred by the Appellants by setting aside  the  decree  passed
by the Trial Court in its entirety and also dismissed the suit filed by  the
Respondent No.1- plaintiff. As a matter of fact,  the  High  Court  did  not
answer the substantial questions of law formulated by  it  but  went  on  to
carve out an arrangement which it found would  meet  the  ends  of  justice.
According to the  Appellants,  even  though  the  High  Court  affirmed  the
finding recorded by the Courts below that the Respondent  No.1  -  plaintiff
had not substantiated his title and moreso  his  exclusive  possession  over
the suit property where the proposed compound wall has been  allowed  to  be
constructed, the question of granting any relief to the  Respondent  No.1  -
plaintiff did not arise.

7.    Respondent No.1 on the other hand contended that the fact that he  was
one of the co-owners of the suit property was indisputable. Even if  the  10
cents of the suit property bequeathed to Achuthan  Nair  (his  brother)  has
not been demarcated, that would make no difference to  the  co-ownership  of
Respondent No.1 over the suit property. On the basis of this  claim  of  co-
ownership, there was nothing wrong in the order passed  by  the  High  Court
granting limited relief to Respondent No.1 to erect  the  compound  wall  in
the suit property. According to Respondent No.1, it  was  not  the  case  of
Appellants that the location where the compound wall has been  permitted  to
be constructed by the High Court was not on the suit property or in any  way
affecting  the  occupation  and  possession  of  any  neighbouring  property
including that of the Appellants bearing  Survey  No.2061.  Respondent  No.1
submitted, in that sense, the decision  of  the  High  Court  was  a  benign
direction which did not affect the rights of the Appellants in  any  manner.
In other words, the High Court permitted the Respondent No.1 to do  what  he
was otherwise entitled to do in law, to put up a compound wall on  the  suit
property without affecting the rights of any  neighbouring  property  owner.
The Appellants cannot  claim  any  right  over  that  portion  of  the  suit
property on which the compound wall has  been  allowed  to  be  constructed.
According to Respondent No.1, in the fact situation  of  the  present  case,
this Court ought to be loath to interfere with a just and fair order  passed
by the High Court and  moreso  because  the  same  is  not  adverse  to  the
Appellants in any manner.

8.    Having  considered  the  rival  submissions,  we  find  force  in  the
argument of Respondent No.1 that  even  if  the  claim  of  Respondent  No.1
regarding title over the whole of the  suit  property  is  answered  against
him, that does not necessarily negate his claim of being a co-owner  of  the
suit property along with his brother. The fact that demarcation of 10  cents
out of the suit property (which  has  been  bequeathed  to  the  brother  of
Respondent No.1, Achuthan Nair) under a Will executed by  their  father  has
still not been done, that would not negate the Respondent No.1 from being  a
co-owner in the suit property along with his brother and to  have  undivided
share therein. Being a co-owner of  the  suit  property,  there  is  nothing
wrong if Respondent No.1, with a view to protect the suit property from  any
further encroachment, was to construct a compound wall  within  the  portion
of the suit property as specified by the  High  Court.  The  limited  relief
granted by the High Court to construct such compound wall, is very  specific
and in no manner likely to adversely  affect  the  Appellants.  Nothing  has
been brought to our notice to the  contrary.  Indeed,  the  construction  of
compound wall must conform to  the  mandate  of  municipal  laws  and  other
compliances in that behalf.

9.    So long as the compound wall is constructed by the Respondent No.1  on
the portion of suit property over which the Appellants have no right,  title
or interest; and by leaving out the portion which has been  encroached  upon
by the Appellants/ defendants  and  some  more  land  from  such  trespassed
portion, the Appellants can have no grievance whatsoever. It is a  different
matter that the High Court has  not  dealt  with  each  of  the  substantial
questions of law formulated while entertaining the  second  appeal.  As  the
arrangement provided by the High Court would meet the ends  of  justice  and
also avoid any further litigation between  the  parties,  it  would  not  be
necessary to deal with all the substantial questions of law. As a matter  of
fact, in absence of specific denial about the execution or existence of  the
said Will by the Appellants – defendants,  the  question  of  examining  the
issue of admissibility of that Will  pales  into  insignificance.  The  High
Court also justly noted that the beneficiary under the Will was  not  before
the Court. Even for this reason, it  would  be  unnecessary  to  answer  the
substantial questions of law formulated at the instance of the Appellants  -
defendants and because the nature of the arrangement predicated by the  High
Court is such that it would not  affect  the  rights  of  the  Appellants  -
defendants in any manner with regard to the enjoyment of the property  owned
or occupied  by  them  bearing  Survey  No.2061  and  including  the  stated
encroached portion in Survey No.2063. In that sense, there is no  subsisting
cause for the Appellants to question the correctness  of  the  Will  nor  is
there any tangible ground to assail the arrangement specified  by  the  High
Court while disposing of the second appeal filed by Respondent No.1.

10.   Accordingly, we find no reason to interfere in the fact  situation  of
this case. The appeal is, therefore, dismissed with no order as to costs.

...……………………………..J.
                                     (Dipak Misra)





                                              ..…..…………………………..J.
                                  (A.M.Khanwilkar)

New Delhi,
Dated: May 1, 2017

“if a finding reached by the trial Judge cannot be said to be an unreasonable finding, then the appellate court should not disturb that finding even if it is possible to reach a different conclusion on the basis of the material on record.”

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NO.          OF 2017
                (Arising out of S.L.P.(Crl.)No.8717 of 2014)



      Arun Kumar                             ….Appellant(s)


                             VERSUS


      The State of Bihar & Ors.                 ….Respondent(s)





                               J U D G M E N T

     Abhay Manohar Sapre, J.
      1)    Leave granted.
      2)    This appeal is filed by the son of the deceased-Sheo Kumar  Pati
      Tiwari against the final Order dated 21.04.2014  passed  by  the  High
      Court of Judicature at Patna in Criminal Appeal(D.B.) No.1030 of  2013
      whereby the Division Bench of the  High  Court  dismissed  the  appeal
      filed by the appellant  herein  under  Section  372  of  the  Code  of
      Criminal Procedure, 1973  (hereinafter  referred  to  as  “the  Code”)
      against the acquittal of  respondent  Nos.2-5  of  the  charges  under
      Sections  302/34,  201  and  307  of  the  Indian  Penal  Code,   1860
      (hereinafter referred to as  “IPC”)  vide  judgment  dated  17.09.2013
      passed by the Ad-hoc Additional District & Sessions  Judge-III,  Siwan
      in Sessions Trial No.32 of 1993.

      3)    The prosecution case, in short, is  that  on  24.07.1991,  after
      having dinner at 9.00 p.m., the informant-Uma Pati Tiwari  along  with
      his elder brother Ram Tapasya Pati Tiwari and nephew Sheo  Kumar  Pati
      Tiwari were talking with each other at the Bathan situated at  Village
      Kashidat Diara District  Siwan,  Bihar.   At  that  time,  Ram  Naresh
      Chaudhary with Gun, Sukhraj Mallah with Gun, Janardan Ahir with Lathi,
      Chandeshwar Kurmi with Gun, Anil Singh with Gun,  Balinder  Ahir  with
      Lathi, Naga Bhar with Lathi and  Dwarika  Chaudhary  with  Lathi  came
      there in group and attacked them.  Janardan Ahir and Balinder Ahir hit
      on the right hand of the informant with lathi five times  and  Sukhraj
      Mallah fired gun shot on Ram Tapsya Pati Tiwari, the  brother  of  the
      informant.  Ram Naresh Chaudhary, Anil Singh and Sukhraj Mallah  fired
      bullets from gun at Shiv Kumar Pati Tiwari.   The  informant  and  the
      people with him fell down being injured.  Shiv Kumar Pati Tiwari  died
      and the accused persons fled away with his dead  body  towards  South.
      The informant had injuries on his right hand and back and  Ram  Tapsya
      Pati Tiwari had gun shot injury on his left eye, left ear and also  at
      nose.  The other villagers saw the incident.
      4)    The cause of the incident was that some days  ago,  the  accused
      persons had cut and stolen away the barbed wire of the  field  of  the
      informant upon which, they scolded the accused persons.
      5)    The informant stated that he had recognized the accused  persons
      in moon light and torch light. The injured persons  were  admitted  in
      Sadar Hospital, Siwan.
      6)    On 25.07.1991, at about 10.00 a.m., Mr. Mahender  Pandey,  Thana
      In-charge, after hearing about the incident, came in the Hospital  and
      recorded the statement of the deceased’s father in his  station  diary
      at entry No. 393.  Thereafter, sub-Inspector Mr. J.N. Prasad proceeded
      to inspect the scene of the crime, collected sample of  blood  stained
      earth etc. and recorded the statements of the witnesses.  At 1.00 p.m.
       Mr. A.A. Khan-Sub-Inspector recorded the statement of the  deceased’s
      uncle in the Hospital.
      7)    On the basis of the station diary  entry  No.393,  Sub-Inspector
      Mr. J.N. Prasad registered FIR No.42/1991 dated 25.07.1991 was  lodged
      against eight accused persons in Assaon Police Station.   The  accused
      persons were apprehended.
      8)     After  investigation,  charge-sheet  No.32/91  was   filed   on
      21.10.1991 against Ram Naresh Chaudhary, Balvinder Ahir,  Anil  Singh,
      Sukhraj Mallah, Chandreshwar  Kurmi,  Janardan  Ahir,  Naga  Bhar  and
      Dwarika Chaudhary.
      9)    Subsequently, a supplementary  charge-sheet  No.3  of  1992  was
      filed on 09.06.1992 against Anil Singh, Naga Bhar and Sukhraj  Mallah,
      Chandreshwar Kurmi, Janardan Ahir and Dwarika Chaudhary.
      10)   After cognizance on  17.09.1992,  the  trial  of  three  accused
      Sukhraj Mallah, Chandreshwar Ahir and Dwarika Chaudhary was separated.
       Thereafter the trial of Naga Bhar was also separated.
      11)   Thereafter, on the basis  of  original  charge  sheet,  Sessions
      Trial No.32/93 and on the basis  of  the  supplementary  charge  sheet
      Sessions Trial No.76/93  was  lodged.   Both  the  trials  were  tried
      together.
      12)   Charges were framed against  the  accused  persons.   Respondent
      Nos. 3 & 4  were  charged  with  offences  punishable  under  Sections
      201/302/34 IPC.  Respondent Nos. 2 & 5 were charged with the  offences
      punishable under Sections 323/324/325/307 IPC.  All the  four  accused
      were charged with the offences of rioting and committing  murder  with
      common object.   The prosecution examined 13 witnesses.
      13)   By judgment dated 17.09.2013, the Trial Court acquitted all  the
      accused persons of the offences charged against them.
      14)   Challenging the said judgment, the son  of  the  deceased  filed
      appeal before the High Court.
      15)   By impugned order, the High Court dismissed the appeal filed  by
      the appellant.
      16)   Hence, the appellant has filed this appeal  by  way  of  special
      leave petition before this Court.
      17)   Having heard the learned Counsel for the parties and on  perusal
      of the record of the case including perusing the  written  submissions
      filed by the respondents, we are inclined to allow the appeal in  part
      and remand the case to the High Court for hearing the appeal on merits
      afresh in accordance with law.
      18)   We are of the considered opinion that the  appeal  needs  to  be
      remanded to the High  Court  for  its  hearing  on  merits  afresh  in
      accordance with law. The need to remand the case has occasioned due to
      the reason that we find that  the  High  Court  dismissed  the  appeal
      cursorily and by a cryptic order.
      19)   The High Court though in the  impugned  order  referred  to  the
      evidence of some witnesses but neither referred  and  nor  appreciated
      much less discussed the entire evidence adduced by the prosecution  of
      as many as 13 witnesses in proper perspective. In other words, we find
      that the High Court  did  not  exercise  its  appellate  powers  while
      hearing the appeal in the manner it ought to have  and  dismissed  the
      appeal finding no fault in the order impugned before it  by  observing
      in its conclusion that since the view taken by the Sessions Court is a
      plausible view, the same does not call for  any  interference  by  the
      High Court.
      20)   It is true that the appeal before the High Court was against the
      acquittal order of the Sessions Judge whereby all the accused  charged
      for the offences punishable under Sections 302/34, 201 and 307 of  IPC
      stood acquitted yet, in our considered view, the law laid down by this
      Court  on the question of the powers  of  the  Appellate  Court  while
      hearing the appeal arising out of  acquittal  order  of  the  Sessions
      Judge in  Lalit Kumar Sharma & Ors. Vs. Superintendent &  Remembrancer
      of Legal Affairs, Govt. of West Bengal, 1989 Supp(2)  SCC  140  should
      have been kept in consideration by the High Court  while  hearing  the
      appeal and further the High Court should have called for the record of
      the case from the Trial Court as provided under Section 385 (2) of the
      Code which it seems was not called for.
      21)   It is apposite to quote the law laid down by this Court  in  the
      case of  Lalit Kumar  (supra).

           “8. Before dealing with the contentions raised by the respective
           learned counsel, we shall examine whether the  judgment  of  the
           trial court was manifestly  perverse  and  wholly  unreasonable,
           compelling the appellate court to step  in  with  the  order  of
           acquittal. It is now well settled that the power of an appellate
           court to review evidence in  appeals  against  acquittal  is  as
           extensive as its powers in appeals against convictions, but that
           power is with a note of caution that the appellate court  should
           be slow in interfering with the orders of acquittal unless there
           are compelling reasons to do so. This Court in Mathai Methews v.
           State of Maharashtra1 has pointed out that (SCC pp. 773-74, para
           5):
                 “if a finding reached by the trial Judge cannot be said  to
                 be an unreasonable finding, then the appellate court should
                 not disturb that finding even if it is possible to reach  a
                 different conclusion  on  the  basis  of  the  material  on
                 record.”
           Regarding the power of  the  appellate  court  in  dislodging  a
           finding of acquittal of a trial court,  there  are  plethora  of
           decisions, but we feel that it is not necessary for us to  refer
           to all those decisions because we are of the firm view that  the
           impugned judgment is liable to be set aside even on  the  ground
           that the appellate court has gone wrong  in  setting  aside  the
           order  of  acquittal  on  the  re-appraisal  of  the   available
           evidence.”


      22)   As mentioned above, since the  High  Court  decided  the  appeal
      without keeping in view the law laid down by this Court quoted  supra,
      it has committed an error and hence it is not possible for this  Court
      to sustain the impugned order which deserves to be set aside.
      23)   This Court cannot  undertake  the  exercise  of  discussing  and
      appreciating the evidence as a first  Appellate  Court  and  secondly,
      having regard to the nature of charges  leveled  against  the  accused
      persons and the evidence adduced by the prosecution,  we  consider  it
      just and proper to request the High Court to decide the appeal  afresh
      on merits keeping in view the law laid down by this Court in the  case
      of Lalit Kumar Sharma (supra).
      24)   We have also  perused  the  written  submissions  filed  by  the
      respondents as permitted by the Court. However, we are  not  persuaded
      to accept the submissions of the respondents urged  in  their  written
      submissions for the reasons  mentioned  above.  In  our  opinion,  the
      cursory manner in which the High Court disposed of the appeal does not
      command us to uphold the impugned order.
      25)    In  any  event,  the  respondents  (accused)  would  have  full
      opportunity to place their case before the High Court  on  remand  and
      urge all their submissions in support of the  order  of  the  Sessions
      Judge on the merits.
      26)   Before parting with the case, we consider it proper to  make  it
      clear that we have not recorded any finding on the merits of the  case
      having formed an opinion to remand the case  to  the  High  Court  for
      hearing the appeal afresh on merits on the grounds mentioned above.
      27)   The High Court will, therefore, decide the  appeal  strictly  in
      accordance with law uninfluenced by any of our  observations  made  in
      this order.
      28)   In view of foregoing discussion,  the  appeal  succeeds  and  is
      accordingly allowed in part. Impugned order is set aside. The criminal
      appeal out of which this appeal arises is accordingly restored to  its
      original file to enable the  High  Court  to  decide  the  appeal,  as
      directed, expeditiously.




                           ………...................................J.
                                  [R.K. AGRAWAL]


                           …...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
      May 01, 2017

We have already held that there were large scale malpractices at the examination process and the State was entitled to take appropriate remedial action. In the context of the occurrence of such malpractice obviously there can be two classes of candidates: those who had resorted to malpractice and others who did not. By the impugned action, no doubt, all of them were treated alike. Whether such herding together would amount to the denial of the equal protection guaranteed under Article 14? is the question. Identifying all the candidates who are guilty of malpractice either by criminal prosecution or even by an administrative enquiry is certainly a time consuming process. If it were to be the requirement of law that such identification of the wrong doers is a must and only the identified wrongdoers be eliminated from the selection process, and until such identification is completed the process cannot be carried on, it would not only result in a great inconvenience to the administration, but also result in a loss of time even to the innocent candidates. On the other hand, by virtue of the impugned action, the innocent candidates (for that matter all the candidates including the wrong doers) still get an opportunity of participating in the fresh examination process to be conducted by the State. The only legal disadvantage if at all is that some of them might have crossed the upper age limit for appearing in the fresh recruitment process. That aspect of the matter is taken care of by the State. Therefore, it cannot be said that the impugned action is vitiated by lack of nexus with the object sought to be achieved by the State, by herding all the candidates at the examination together.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NOS.5680-83  OF 2017
   (Arising out of Special Leave Petition (Civil) Nos.19570-19573 OF 2016)

Gohil Vishvaraj Hanubhai & Others            …   Appellants

Versus

State of Gujarat & Others                                …   Respondents

                               J U D G M E N T

CHELAMESWAR, J.

1.    Leave granted.


2.    These appeals are preferred against the final judgement dated 27  June
2016 of the High court of Gujarat in Letters Patent Appeal No.  73  of  2016
in Special Civil Application No. 11149 of 2015 with  Letters  Patent  Appeal
No.  74  of  2016  in  Civil  Application  No.  11685  of  2015  with  Civil
Application No.1066 of 2016 in Letters Patent Appeal No.  74  of  2016  with
Special Civil Application No  11149  of  2015.  The  facts  leading  to  the
instant litigation are as follows:

3.    The Appellants herein are candidates who successfully appeared in  the
examination conducted by the Respondents for  recruitment  to  the  post  of
Revenue Talati but were not appointed.

4.    The State of Gujarat decided to create a new post of  Revenue  Talati,
under the  control  of  the  Revenue  Department.  Revenue  talatis  are  to
maintain revenue records, collect revenue etc. The creation of  these  posts
is meant to ease the burden on existing talati-cum-mantris  who  were  under
the control of the  Panchayat  Department,  performing  duties  relating  to
maintenance of land records and various duties incidental thereto.

5.    A total of 1800 posts of Revenue Talati were created by  a  Government
Resolution dated 23.10.2008. Ordinarily recruitment to such post is  carried
out by Gujarat Subordinate Service Selection Board (GSSSB).  The  board  was
requested to do so.  The board expressed  its  inability  to  undertake  the
task within the time frame decided by the state.

6.    Given the urgency of the situation, the Revenue board of the State  of
Gujarat decided  to  undertake  the  recruitment  process  by  itself.   The
proposal was approved by the State by  a  Resolution  dated  4.12.2013  (for
convenience GR-I) of the General Administration Department.  By  another  GR
dated  11.12.2013,  the  Revenue  Talati  Recruitment  Committee  (hereafter
COMMITTEE) was constituted under  the  chairmanship  of  Revenue  Inspection
Commissioner, who is an Ex-Officio Secretary to the State  of  Gujarat  with
Collector, Ahmedabad and  Collector,  Gandhinagar  and  Joint  Secretary  of
Revenue department as Members of the COMMITTEE, to “carry out the  procedure
of direct recruitment” and matters incidental thereto  and  subject  to  the
various limitations imposed under the said GR.   The  COMMITTEE  decided  to
avail the assistance of Gujarat Technological University  (hereinafter  GTU)
for conducting the examination.[1]

7.    On 15.1.2014 an advertisement for filling up of 1500 posts of  Revenue
Talatis was published. Performance of the candidates at  an  objective  type
written examination for 100  marks  was  stipulated  to  be  the  basis  for
selection.  The examination was conducted in 2691  centres  spread  over  33
districts. 7,53,703 candidates appeared in the examination.

8.    A day  prior  to  the  examination,  i.e.,  15.02.2014,  a  crime  was
registered in F.I.R. No.46 of 2014 in Sector-7 police  station,  Gandhinagar
under sections 406, 420 and  144  of  the  Indian  Penal  Code  against  two
persons, namely  Kalyanish  Mulsinh  and  Nileshbhai  Umeshbhai  Shah.   The
allegation is that they had collected money from some of the candidates  who
were to appear in the said examination by assuring them appointments.

9.    However  the  examination  process  went  ahead.  In  the  process  of
evaluating the OMR sheets, it was noticed that a large number of OMR  sheets
had specific markings. On 26.05.2014 the  police  authorities  informed  the
Chairman of the COMMITTEE that during  interrogation  of  the  two  arrested
persons, it emerged that they had advised the candidates to put a  ‘b’  mark
on the right side of the OMR sheet.

10.   Thereafter, the entire data was sent to a forensic science  laboratory
for further investigation. The investigation revealed 284  OMR  sheets  with
the specific mark. The COMMITTEE decided to eliminate those candidates  from
consideration.  Therefore,  a  provisional  merit  list  was   declared   on
10.10.2014. 8465 candidates were placed in the list.

11.   In the meanwhile, complaints were received  by  different  authorities
of the State alleging the commission of a large number  of  malpractices  in
connection with the examination:

-     a complaint from Bhubhai Damor on 17.10.2014.

-     The Collector, Sabrakantha District forwarded a complaint received  by
him from Mr R.D. Patel detailing various irregularities.

-     Similar complaint of irregularities was  addressed  to  the  Principal
Secretary,  General  Administration  Department  by  one   Kameshbhai   from
Rupakheda, District Dahod.

-      Another  complaint  was  filed  in  the   local   crime   branch   of
Surendranagar against one Hiren Narottambhai Kaoisha alleging  that  he  had
collected an amount of Rs.1.55 crores from 62 candidates.

-     Further complaint alleging that one Dhirubhai Bhil,  who  was  working
as a peon in the office  of  the  Secretary,  Land  Reforms  and  one  woman
employee  from  the  same  office  had  accepted  money  from  a  number  of
candidates promising  to  ensure  that  these  candidates  would  clear  the
examination. The Secretary, Land  Reforms  was  also  the  Chairman  of  the
Recruitment Committee.

12.   In view of receipt of a large  number  of  complaints,  the  COMMITTEE
probed into the matter.   Some irregularities  were  noticed.  For  example,
127 candidates belonging to one family were placed in the provisional  merit
list. 178 candidates were found to have given  same  residential  addresses.
Both these sets of candidates had 47 candidates in common etc.

13.   The  COMMITTEE  thought  it  fit  to  cancel  the  entire  examination
process.  Accordingly,  Government  issued  orders  by  a  Resolution  dated
03.07.2015 (hereafter GR-II) cancelling  the  recruitment  process.  It  was
further ordered inter alia thereunder:

“3.   On cancelling the entire  recruitment  procedure  for  filling-up  the
1500 posts of Revenue Talati class and by  adding  900  vacancies  from  the
other years, it is,  hereby,  resolved  to  fill-up  the  total  2400  posts
through Gujarat Subsidiary Service Selection Board.

4.    As stated at No.1, the candidates, whose name  figured  in  the  list,
whose upper age limit is  about  to  attain,  now,  as  they  shall  not  be
entitled to appear in the examination that shall  be  conducted  now,  as  a
special case, a relaxation of five years is given in the upper age limit.”



14.   Aggrieved by the abovementioned GR,  the  appellants  herein  filed  a
Writ  Petition  (Special  Civil   Application   No.11149/2015)   seeking   a
declaration that the GR was illegal and arbitrary. Further  the  Petitioners
filed an application (Civil  Application  No.  11685  of  2015)  seeking  to
restrain the  Respondents  from  publishing  any  fresh  advertisements  for
recruitment. The Gujarat High Court vide an Interim Order  dated  14.12.2015
disposed of Civil Application No.11685 of 2015 allowing the  Respondents  to
proceed with fresh recruitment for 980 seats.  The  Petitioners  filed  LPAs
No.73 and 74 of 2016 challenging the 14.12.2015 order. The Petitioners  also
filed  an  application  seeking  a  stay  on  fresh  recruitment  being  LPA
No.74/2016. The Gujarat High Court dismissed all  applications  and  appeals
vide the impugned judgment holding that the decision of  the  COMMITTEE  was
not unreasonable since there was some material on the  basis  of  which  the
decision was made, viz. the various allegations  that  have  cast  a  shadow
over the sanctity of the recruitment process. Hence this appeal.

15.   The  appellants  argued  (i)  that  cancellation  of  the  examination
without any  investigation  or  proof  of  the  allegations  of  a  vitiated
examination process is illegal; (ii) the  legality  of  the  GR-II  must  be
tested on the touchstone of the  principle  of  ‘Wednesbury  Reasonableness’
and the principle of proportionality; (iii)  Tested  in  the  light  of  the
twin principles mentioned above, the  decision  of  the  COMMITTEE  is  both
unreasonable and disproportionate to  the  alleged  mischief,   unreasonable
since it is based on  the  irrelevant  consideration  of  the  embarrassment
caused to the government and disproportionate since the allegations  pertain
to  a  small  number  of  candidates  whose  candidature  could  have   been
segregated and rejected.

 16.  Two questions need to be examined:

(1)   What are the principles which govern the jurisdiction  of  the  Courts
which exercise the power of judicial review of administrative action in  the
context of a situation  like  the  one  presented  by  the  facts  of  these
appeals;

(2)    Whether  those  legal  principles  are  strictly  followed   by   the
respondents while taking the impugned decision?



17.   The basic principles governing the judicial review  of  administrative
action are too well settled.  Two judgments which are frequently  quoted  in
this regard are - Associated Provincial Picture Houses  Ltd.  v.  Wednesbury
Corporation[2] and Council of Civil Service Unions  v.  Minister  for  Civil
Service[3].

18.   Lord Diplock in his celebrated opinion in  Council  of  Civil  Service
Unions summarised the principles as follows:

“… 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  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.” That 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” which is  recognised  in  the  administrative
law of several of our fellow members of  the  European  Economic  Community;
but to dispose of the instant case the three already well-established  heads
that I have  mentioned  will  suffice.  By  “illegality”  as  a  ground  for
judicial review I mean that the  decision-maker  must  understand  correctly
the law that regulates his decision-making power and  must  give  effect  to
it. Whether he has or not is par excellence a  justiciable  question  to  be
decided, in the event of dispute, by those persons, the judges, by whom  the
judicial power of the state is exercisable. By “irrationality” I  mean  what
can by now  be  succinctly  referred  to  as  “Wednesbury  unreasonableness”
(Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation  [1948]
1 KB 223). It applies to a decision which is so outrageous in  its  defiance
of logic or of accepted moral standards that  no  sensible  person  who  had
applied his mind to the question to be decided could  have  arrived  at  it.
Whether a decision falls within this category is a question that  judges  by
their training and experience should be well equipped  to  answer,  or  else
there would be something badly wrong with our judicial  system.  To  justify
the court's exercise of this role, resort I think is today no longer  needed
to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow  [1956]
AC 14 of irrationality as a ground for a court's reversal of a  decision  by
ascribing it to an inferred though unidentifiable  mistake  of  law  by  the
decision-maker. “Irrationality” by now can stand upon its  own  feet  as  an
accepted ground on which a decision may be attacked by  judicial  review.  I
have described the  third  head  as  “procedural  impropriety”  rather  than
failure to observe basic rules of natural justice or  failure  to  act  with
procedural  fairness  towards  the  person  who  will  be  affected  by  the
decision. This is because susceptibility to judicial review under this  head
covers also failure by an  administrative  tribunal  to  observe  procedural
rules that are expressly laid down in the legislative  instrument  by  which
its jurisdiction is conferred, even where such failure does not involve  any
denial of natural justice. But the instant case is not  concerned  with  the
proceedings of an administrative tribunal at all.”

It can be seen from the above extract, Lord Diplock identified  three  heads
under which judicial review is undertaken, i.e.,  illegality,  irrationality
and procedural impropriety. He also recognised the possibility of new  heads
such as ‘proportionality’ being identified  in  future.   He  explained  the
concepts of the three already identified heads.  He declared that  the  head
‘irrationality’ is synonymous with ‘Wednesbury unreasonableness’.

19.   The principle laid down in Council of Civil Service  Unions  has  been
quoted with approval by this Court in Tata Cellular  v.  Union  of  India[4]
and Siemens Public Communication v. Union of India[5].

20.   Normally while exercising the power of judicial review,  Courts  would
only examine the decision making process of the  administrative  authorities
but not the decision itself.  The said principle has been repeatedly  stated
by this Court on number of occasions.[6]

21.   We shall now examine the questions raised by  the  appellants  in  the
light  of  the  abovementioned  principles  in  which  judicial  review   of
administrative action is undertaken.

The 1st submission of the appellant is that there is no proof  of  tampering
with  the  examination  process  on  a  large  scale  as  asserted  by   the
respondent, but there are only allegations of such tampering, the  truth  of
which has never been tested by any established process of  law.   Therefore,
the decision of the respondent to cancel the examination in its entirety  is
without any basis in law.

22.   Purity of the examination process - whether such  examination  process
pertains to assessment of the  academic  accomplishment  or  suitability  of
candidates  for  employment  under  the  State  -   is   an   unquestionable
requirement of the rationality of any examination process.   Rationality  is
an indispensable aspect of public administration under our  Constitution[7].
 The authority of the State to take appropriate  measures  to  maintain  the
purity of any  examination  process  is  unquestionable.   It  is  too  well
settled a principle of law in light of  the  various  earlier  decisions  of
this Court that where there are  allegations  of  the  occurrence  of  large
scale malpractices in the course of the conduct of any examination  process,
the  State  or  its   instrumentalities   are   entitled   to   cancel   the
examination.[8] This Court has on numerous occasions approved the action  of
the State or its instrumentalities  to  cancel  examinations  whenever  such
action is believed to be necessary on the basis of some reasonable  material
to indicate that the examination process is  vitiated.  They  are  also  not
obliged to seek proof of each and every fact which vitiated the  examination
process.[9]

23.   Coming to the case on hand, there  were  allegations  of  large  scale
tampering with the examination  process.   Scrutiny  of  the  answer  sheets
(OMR) revealed that there  were  glaring  aberrations  which  provide  prima
facie proof of the occurrence of a large scale tampering of the  examination
process.   Denying power to  the  State  from  taking  appropriate  remedial
actions in  such  circumstances  on  the  ground  that  the  State  did  not
establish the truth of those allegations in accordance  with  the  rules  of
evidence relevant for the proof of facts in a Court  of  law  (either  in  a
criminal or a civil  proceeding),  would  neither  be  consistent  with  the
demands of larger public interest nor would be conducive to  the  efficiency
of administration.   No binding precedent is brought  to  our  notice  which
compels us to hold otherwise. Therefore, the 1st submission is rejected.

24.   The next question is whether the impugned decision could be  sustained
judged in the light of the principles of ‘Wednesbury  unreasonableness’.  In
the language of Lord Diplock, the principle is that “a decision which is  so
outrageous in its defiance of logic or of accepted moral standards  that  no
sensible person who had applied his mind  to  the  question  to  be  decided
could have arrived at it”.  Having regard to the nature of  the  allegations
and the prima facie proof indicating the possibility of occurrence of  large
scale tampering with the examination  process  which  led  to  the  impugned
action, it cannot be said that the impugned action of the respondent is  “so
outrageous in its defiance of logic” or “moral standards”.   Therefore,  the
2nd submission of the appellant is also required to be rejected.

25.   We are left with the 3rd question  –  whether  the  magnitude  of  the
impugned action  is  so  disproportionate  to  the  mischief  sought  to  be
addressed  by  the  respondents  that  the  cancellation   of   the   entire
examination process affecting lakhs of candidates  cannot  be  justified  on
the basis of doctrine of proportionality.

26.   The doctrine of proportionality, its origin and its  application  both
in the context of legislative and administrative action  was  considered  in
some detail by this Court in Om Kumar & Others v. Union of India,  (2001)  2
SCC 386.

This Court drew a distinction between administrative  action  which  affects
fundamental freedoms[10] under Articles  19(1)  and  21  and  administrative
action which is violative of  Article  14  of  the  Constitution  of  India.
This Court held  that  in  the  context  of  the  violation  of  fundamental
freedoms;

“54.  …..  the  proportionality  of  administrative  action  affecting   the
freedoms under Article 19(1) or Article 21 has been tested by the courts  as
a  primary  reviewing  authority  and  not  on  the  basis   of   Wednesbury
principles.   It may be that the courts did not  call  this  proportionality
but it really was.


This Court, thereafter took note of the  fact  that  the  Supreme  Court  of
Israel recognised proportionality as a  separate  ground  in  administrative
law to be different from unreasonableness.

27.   It is nobody’s case before us that the impugned  action  is  violative
of any of the fundamental freedoms of the appellants.  We  are  called  upon
to examine the proportionality of the  administrative  action  only  on  the
ground of violation of Article 14.  It is  therefore  necessary  to  examine
the principles laid down by this Court in this regard.

This Court posed the question in Omkar’s Case;

61.   When does the court apply, under Article 14, the proportionality  test
as a  primary  reviewing  authority  and  when  does  the  court  apply  the
Wednesbury rule as  a  secondary  reviewing  authority?   From  the  earlier
review of basic principles, the answer becomes simple.   In  fact,  we  have
further guidance in this behalf.

and concluded;

“66.   It  is  clear  from  the  above  discussion  that  in   India   where
administrative  action   is   challenged   under   Article   14   as   being
discriminatory,  equals  are  treated  unequally  or  unequals  are  treated
equally, the question is for the Constitutional Courts as primary  reviewing
courts to consider correctness of the level of  discrimination  applied  and
whether it is excessive and whether  it  has  a  nexus  with  the  objective
intended to be achieved by the administrator.  Here  the  court  deals  with
the merits of the balancing action of the administrator and is, in  essence,
applying “proportionality” and is a primary reviewing authority.

67.   But where an administrative action is challenged as “arbitrary”  under
Article 14 on the basis of E.P. Royappa v. State of T.N., (1974)  4  SCC  3,
(as in cases where punishments in disciplinary cases  are  challenged),  the
question  will  be  whether  the  administrative  order  is  “rational”   or
“reasonable” and the test then is the Wednesbury  test.   The  courts  would
then be confined only to a secondary role and will only have to see  whether
the administrator has done well in his primary role, whether  he  has  acted
illegally or has omitted relevant factors from consideration  or  has  taken
irrelevant factors into consideration or whether his view is  one  which  no
reasonable person could have taken.  If his action does  not  satisfy  these
rules, it is to be  treated  as  arbitrary.   In  G.B.  Mahajan  v.  Jalgaon
Municipal Council, (1991) 3 SCC 91, Venkatachaliah,  J.  (as  he  then  was)
pointed out that “reasonableness” of the administrator under Article  14  in
the context of administrative law has to be judged from the stand  point  of
Wednesbury rules.  In Tata Cellular v. Union of India,  (1994)  6  SCC  651,
Indian Express Newspapers Bombay (P) Ltd. v. Union of India,  (1985)  1  SCC
641, Supreme Court Employees’ Welfare Assn. v. Union of India, (1989) 4  SCC
187, and U.P. Financial Corpn. V. Gem Cap (India) (P)  Ltd.,  (1993)  2  SCC
299, while judging whether the administrative action  is  “arbitrary”  under
Article 14 (i.e.  otherwise  then  being  discriminatory),  this  Court  has
confined itself to a Wednesbury review always.

68.   Thus, when administrative action is attacked as  discriminatory  under
Article 14, the principle of primary review is for the  courts  by  applying
proportionality.  However, where  administrative  action  is  questioned  as
“arbitrary” under Article 14, the principle of  secondary  review  based  on
Wednesbury principles applies.”



28.   The submission by the appellants is that the mere fact  that  some  of
the candidates resorted to some malpractice cannot lead  to  the  conclusion
that the entire examination process is required to be cancelled as it  would
cause undue hardship to huge  number  of  innocent  candidates.    In  other
words, the appellants urge this Court to apply the primary review test.



29.   We have already held that there were large scale malpractices  at  the
examination process and the State was entitled to take appropriate  remedial
action.  In the context of the  occurrence  of  such  malpractice  obviously
there  can  be  two  classes  of  candidates:  those  who  had  resorted  to
malpractice and others who did not.   By the impugned action, no doubt,  all
of them were treated alike.  Whether such herding together would  amount  to
the denial of the equal protection  guaranteed  under  Article  14?  is  the
question.

Identifying all the candidates who  are  guilty  of  malpractice  either  by
criminal prosecution or even by an administrative  enquiry  is  certainly  a
time consuming process.  If it were to be the requirement of law  that  such
identification of the  wrong  doers  is  a  must  and  only  the  identified
wrongdoers  be  eliminated  from  the  selection  process,  and  until  such
identification is completed the process cannot be carried on, it  would  not
only result in a great inconvenience to the administration, but also  result
in a loss of time even to the innocent candidates.  On the  other  hand,  by
virtue of the impugned action, the innocent candidates (for that matter  all
the candidates including the  wrong  doers)  still  get  an  opportunity  of
participating in the fresh  examination  process  to  be  conducted  by  the
State.  The only legal disadvantage if at all is that  some  of  them  might
have crossed the upper age limit for  appearing  in  the  fresh  recruitment
process.   That aspect of  the  matter  is  taken  care  of  by  the  State.
Therefore, it cannot be said that the impugned action is  vitiated  by  lack
of nexus with the object sought to be achieved by the State, by herding  all
the candidates at the examination together.

30.   We see no reason to interfere with the judgment  under  appeal.    The
appeals are, therefore, dismissed, with no order as to costs.


                                                             ….………………………….J.
                                                   (J. Chelameswar)



                                                             …….……………………….J.
                                             (Abhay Manohar Sapre)
New Delhi;
April 28, 2017
-----------------------
[1]    The Recruitment Committee has resolved to hand over the procedure  of
setting question paper, taking examination and declaring  results,  thereof,
to the Gujarat  Technological  University,  and  hence,  for  the  aforesaid
purpose, you are requested to send the rates chargeable for  each  procedure
to the Department, at the earliest.    – Letter  of  the  Member  Secretary,
Recruitment Committee to Registrar, GTU dated 15.1.2014
[2]     (1948) 1 KB 223
[3]     1984 3 All ER 935 (HL)

[4]    (1994) 6 SCC 651
[5]    AIR 2009 SC 1204
[6]    Chairman, All India Railway Recruitment Board Vs. K  Shyam  Kumar,  (
2010) 6 SCC 614 at para 21; Sterling Computers  Ltd.  v.  M.N.  Publications
Ltd., (1993) 1 SCC 445; State of A.P. v. P.V. Hanumantha Rao, (2003) 10  SCC
121
[7]    Ramana Dayaram Shetty v. International Airport Authority of India &
Others, (1979) 3 SCC 489
[8]    Nidhi Kaim v. State of Madhya Pradesh & Others, (2016) 7 SCC  615  at
para 23: “Even otherwise, the argument of the appellants is required  to  be
rejected for the following reasons: Under the scheme  of  our  Constitution,
the executive power of  the  State  is  co-extensive  with  its  legislative
power. In the absence of any  operative  legislation,  the  executive  power
could certainly be exercised to protect the public interest.  The  right  of
each one of the appellants herein for admission to the medical  colleges  in
the State of Madhya Pradesh is itself an emanation of the State’s  executive
action. No doubt, even executive action of  the  State  can  create  rights.
Unless there is something either in the Constitution or law which  prohibits
the abrogation or abridgment of rights, it is permissible for the  State  to
do so by executive action in accordance with  some  specified  procedure  of
law. No doubt, that the overarching  requirement  of  Constitution  is  that
every action of the State must be  informed  with  reason  and  must  be  in
public interest. Nothing has been brought to our notice which prohibits  the
impugned executive action. If it is established that the adoption of  unfair
means  on  large  scale  resulted  in  the  contamination  of  the  entrance
examination (PMT) process of successive years, the State  undoubtedly  would
have the power to take appropriate action to protect  the  public  interest.
I, therefore, reject the submission of the appellants.”;
      In the case of Union of India v. Anand Kumar Pandey, 1994  5  SCC  663
large scale cheating occurred in the Railway Recruitment Board  Examination,
specifically in two rooms of a center. The Board took a decision to  subject
the successful candidates from that center to  a  re-examination.  This  was
set aside by the Central Administrative Tribunal on the ground that  such  a
decision was taken in violation of the principles  of  natural  justice.  It
was  held  that  there  cannot  be  any  straight-jacket  formula  for   the
application of the principles of natural justice. This Court  did  not  find
any fault with the decision to conduct a fresh examination.;
      In the case of Chairman All India Railway Recruitment Board &  Another
v. K. Shyam Kumar  &  Others,  2010  6  SCC  614,  large-scale  malpractices
surfaced in the written test. The recruitment board ordered a retest,  which
was challenged in the Central Administrative  Tribunal.  The  tribunal  held
that a retest was valid.  High  Court  reversed  invoking  the  wednesbury’s
principles of reasonableness. This Court held  that  in  the  face  of  such
large scale allegations supported by reports  of  the  vigilance  department
and the CBI, the High Court was wrong in reversing the tribunal’s decision.
[9]     Nidhi Kaim v. State of Madhya Pradesh & Others, (2016) 7 SCC 615
see para 42.1 and 42.2 at 649
[10]   See paras 52 to 54