The principles of damages in public law have to, however, satisfy certain tests. In Nilabati Behera v. State of Orissa5 , it was observed that public law proceedings serve a different purpose than private law proceedings. In that context, it was observed as under: “The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court molds the relief by granting ‘compensation’ in proceedings under Articles 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ‘monetary amends’ under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of ‘exemplary damages’ awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law.”- On a conspectus of the aforesaid facts including the number of pilgrims for whom the petitioners would have been entitled to arrange the Hajj pilgrimage, an amount of Rs.5 lakh per petitioner would be adequate compensation for the loss suffered by them and sub-serve the ends of justice. We are conscious of the fact that there is no quantification based on actual loss, but then the award by us is in the nature of damages in public law. The amount for each of the petitioners be remitted by the respondents within two months from the date of this order failing which the amount would carry interest @ 15 per cent per annum apart from any other remedy available to the petitioners. It will be open to the respondents to recover the amount of damages and costs from the delinquent officers responsible for passing such unsustainable orders.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.631 OF 2016
UNITED AIR TRAVEL SERVICES
Through ITS PROPRIETOR
A.D.M. ANWAR KHAN ….PETITIONER
Versus
UNION OF INDIA
Through SECRETARY
(MINISTRY OF EXTERNAL AFFAIRS) ….RESPONDENT
WITH
Writ Petition (Civil) No.636 of /2016
Writ Petition (Civil) No. 634 of 2016
Writ Petition (Civil) No. 934 of 2016
Writ Petition (Civil) No. 941 of 2016
Writ Petition (Civil) No. 938 of 2016
Writ Petition (Civil) No. 11 of 2017
Writ Petition (Civil) No. 94 of 2017
1
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. A batch of writ petitions raises the issue of Private Tour
Operators (for short ‘PTOs’) who are, inter alia conducting the travel
business for Hajj and Umrah being disqualified for grant of
registration for the year 2016 for the Hajj pilgrimage. The prayer is for
quashing the identical communications dated 27.7.2016 issued by the
respondent rejecting the application of the petitioners for registration
and allocation of quota for the Hajj 2016 on the ground that they have
not complied with certain clauses of the policy for the PTOs as laid
down by this Court.
2. The issue relating to the Hajj policy and the registration of these
PTOs has resulted in two judicial pronouncements by this Court in
Union of India v. Rafique Shaikh Bhikan1
 and Al Ismail Haj Tour v.
Union of India2
. The policy presented on behalf of the Government
was approved by this Court with slight modifications and was annexed
as Appendix-I to the order in Union of India v. Rafique Shaikh
1(2013) 4 SCC 699
2(2016) 15 SCC 246
2
Bhikan3
 case referred to aforesaid to be called as ‘Policy for Private
Tour Operators for hajj 2013 – 2017’. The policy was to remain valid
for a period of five years and was not to be questioned in any court or
authority. The petitioners were all eligible to be qualified as PTOs for
the year 2015 for Hajj pilgrimage but in the process of draw of lots
dated 7.8.2015, luck did not favour them and they thus did not get
quota. The relevant extract of the policy is as under:
“Appendix I
Ministry of External Affairs
(Gulf and Haj Division)
***
Registration of Private Tour Operators — Haj 2013
The Government of Saudi Arabia has notified that Private Tour
Operators (PTOs) registered with the Government of India and
involved in the preparation of the Haj Pilgrimage will be eligible
for grant of Haj group visas subject to fulfilment of other terms
and conditions as laid down by the Saudi Authorities.
2. Applications are invited from eligible PTOs for registration
for Haj 2013. The eligibility criteria are at Annexures A and B.
The applications must be submitted in the prescribed format
(Annexure C) directly to MEA or any other agency appointed by
it.
3(supra)
3
3. It is to be noted that the Government of Saudi Arabia has
stipulated that effective Haj 2013, a PTO should facilitate at
least 150 pilgrims. Accordingly, the PTO Policy has been
reframed. For registration and allotment of quota of Haj seats for
Haj 2013, interested PTOs may apply under the following two
categories:
Category I PTOs registered with MEA and facilitated Hajis
at least for 7 Haj operations or more.
Category II PTOs registered with MEA and facilitated Hajis
for at least for 1 to 6 Haj operations and PTOs
which have facilitated at least 50 umrah pilgrims
in a year for any five years.
4. 70% of the overall quota of seats will be allocated to eligible
PTOs under Category 3(I) and 30% to eligible PTOs under
Category 3(II). Distribution of seats among qualified PTOs will
be done as follows:
(a) 70% of the Haj 2013 PTO seats (31,500) will be allocated to
eligible PTOs under Category 3(I) at the rate of 150 seats per
PTO. In case the number of PTOs exceeds 210, the allocation of
seats will be done on draw of lots. If the number of qualified
PTOs is less than 210, each PTO will be allocated 150 seats and
surplus seats, if any, will be distributed equally among them.
(b) 30% of Haj 2013 PTO seats (9000) will be allocated to
eligible PTOs under Category 3(II) at the rate of 150 seats per
qualified PTO. If the number of qualified PTOs exceeds 90, the
allocation of seats will be done by draw of lots. In case the
number of PTOs is less than 90, each PTO will be allocated 150
seats. Balance seats, if any, will be transferred to Category I and
distributed equally among them. A qualified PTO which fails to
get selected under the draw of lots in any year will be allocated
150 seats in the ensuing year without qurrah if it remains a
qualified PTO.
4
5. This Policy is expected to remain valid for five years 2013-
2017 unless there are substantive developments which affect it.
The allocation of seats to qualified PTOs in each category will
be done every year on the basis of the overall quota of PTO seats
specified in the Annual India-Saudi Arabia Haj Agreement and
the number of qualified PTOs remaining in each category. The
policy envisages cross-category upward movement of PTOs
from Category II to Category I. A qualified PTO shall remain
qualified unless it is otherwise disqualified either by the
Government of India or by the Government of Saudi Arabia for
valid reasons. It is to be noted that the PTOs who do not wish to
take a minimum of 150 Hajis or are unable to do so, need not
apply.
6. Last date for receipt of applications which should be
addressed to the MEA or any other agency appointed by it.
(emphasis supplied)
3. In terms of the aforesaid policy since the qualified PTOs
exceeded 90, a draw of lots was held. Further, since the petitioners
were not successful in the draw of lots, they were entitled, under clause
4(b) of the policy aforesaid, to be allocated 150 seats in the ensuing
year without Qurrah if they remain qualified as PTOs. We may note at
this stage that as per the submissions advanced, in view of certain
changes in the policy of the Saudi Government, the number of seats to
be allocated for 2016 would have been 50.
4. It is also apparent from the Press Release of 7.8.2015 giving the
5
list of PTOs who have qualified but did not get quota, that the
petitioners figured in the said list.
5. On 29.4.2016, the Ministry of External Affairs published the
norms for registration of PTOs for Hajj 2016. Para 3 of this reads as
under:
“3. All the terms and conditions laid down in Annexure A & B
will also apply on PTOs that qualify under Category-II by virtue
of facilitating a minimum of 50 Umrah pilgrims in a year for any
5 years, but with the exception of the terms and conditions
contained under Clause (vii), (x), (xi) and (xii) of Annexure A.
In addition, these PTOs are also required to submit the proof of
payment made through banking or any other authorised channels
towards purchase of tickets and hiring of accommodation in
Makkah and Madinah in respect of Umrah pilgrims facilitated
by them in support of their claim.”
6. The aforesaid, thus, provided that persons like the petitioners
who had qualified for the year 2015 but were not successful in the
draw of lots would have the benefit of exemption of terms and
conditions contained in clauses (vii), (x), (xi) and (xii) of Annexure A.
7. For purposes of completion of record, we enumerate
hereinbelow the said clauses of Annexure A:
“ANNEXURE-A
Terms and Conditions for Registration of
Private Tour Operators (PTOs) for Haj-2016
6
Each PTO should establish that it is a genuine and established
Tour Operator having experience in sending tourists/pilgrims
abroad for which it should produce the following documents:
Sl. No. Terms and Conditions
vii Proof of payment made through banking (Bank
Statement) or other authorized channels towards
purchase of tickets and hiring of accommodation in
Makkah/Madinah for the financial year 2013-14
(Haj2013) or 2014-15 (Haj 2014). Payments towards
purchase of tickets, hiring of accommodation for
pilgrims in Makkah/Madinah, by any other means,
would not be accepted.
x Copies of Registration Certificate issued to the PTO
in support their aim-wise and PTO-wise.
xi Contract for hiring of buildings for pilgrims and
“Tasreeh” together with English translations PTO
category wise. (Please enclose rental receipts and a
copy of lease deed, duly signed with the Saudi owners
for Haj.
xii Copy of Munazzim Card and relevant Haj visa pages
of the Passport of the Proprietor/Owner.
8. The petitioners, however, faced identical rejection letters of
26.7.2016 (sent through e-mail dated 27.7.2016), the contents of which
are as under:
“Subject: Intimation regarding non-allocation of quota to Private
Tour Operators (PTOs) for Haj-2016.
Dear Sirs,
This has reference to your application regarding registration for
Haj 2016.
7
2. On scrutiny of your application submitted for Haj-2016, your
firm has not been found eligible for registration and allocation of
quota for Haj 2016 on the following grounds:
PTO has not complied with clause vii, x, xi and xii of Annexure
A of PTO.
Policy as laid down by Hon’ble Supreme Court for any one of
the Haj year.
3. Your ineligibility for registration and allocation of quota for
Haj 2016, however, does not prejudice your right to debar you
from applying for registration for Haj 2017 on the basis of the
required conditions for Haj 2017.”
9. A bare perusal of the aforesaid letter would show that the reason
cited for disqualification was non-compliance of the very clauses of
which exemption had been granted to the petitioners.
10. Learned Additional Solicitor General appearing for the
respondents could not dispute the aforesaid position but sought to
canvas that the reasons were wrongly communicated in the rejection
letter, and there was actually, some other reason for the rejection. The
aforesaid plea can hardly be countenanced in view of the reasons
referred to and communicated.
11. Learned counsel for the petitioner has, thus, rightly drawn our
attention to the Constitution Bench judgment of this Court in
8
Mohinder Singh Gill v. Anr. v. The Chief Election Commissioner,
New Delhi & Ors.4
 to submit that such a plea cannot be accepted. We
may note that this is a well settled legal position in many judicial
pronouncements of this Court, but it is not necessary to revert to the
same. In para 8 of the aforesaid judgment, V.R. Krishna Iyer, J, in his
inimitable style states as under:
“8. The second equally relevant matter is that when a statutory
functionary makes an order based on certain grounds, its validity
must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad inthe beginning may, by the
time it comes to Court on account of a challenge, get validated
by additional grounds later brought out. We may here draw
attention to the observations of Bose, J. in Gordhandas Bhanji:
“Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
subsequently given by the officer making the order of
what he meant, or of what was in his mind, or what he
intended to do. Public orders made by public authorities
are meant to have public effect and are intended to affect
the actings and conduct of those to whom they are
addressed and must be construed objectively with
reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow
older.”
12. The aforesaid legal position, thus, makes the stand of the
4(1978) 1 SCC 405
9
respondent unsustainable, resulting in the quashing of the impugned
letters of rejection.
13. The question, however, rises what relief can be granted in such a
situation. The passage of time has made certain reliefs infructuous.
The time period for conducting Hajj tours for 2016 as well as 2017 is
over. Thus, even the alternative relief prayed for 2017 has become
infructuous. In three of the writ petitions, i.e., WP (C) Nos.631/2016;
634/2016 & 636/2016, there is a specific alternative plea for
compensation to the petitioners for the loss accrued due to non-grant of
registration for the Hajj of 2016. While there is no such specific plea
in the other writ petitions, given the identical situation, we are of the
view that the same principle ought to be applied in all these cases. The
petitioners cannot be left remediless. The mindless action of the
respondents in rejecting the eligibility of the petitioners for the year
2016 on the very grounds on which they were exempted necessitates
that the petitioners should be entitled to damages in public law so that
they are compensated, at least, to some extent for not having been able
to carry on with their business on account of illegal action of the
respondents.
10
14. The principles of damages in public law have to, however,
satisfy certain tests. In Nilabati Behera v. State of Orissa5
, it was
observed that public law proceedings serve a different purpose than
private law proceedings. In that context, it was observed as under:
“The purpose of public law is not only to civilize public power
but also to assure the citizen that they live under a legal system
which aims to protect their interests and preserve their rights.
Therefore, when the court molds the relief by granting
‘compensation’ in proceedings under Articles 32 or 226 of the
Constitution seeking enforcement or protection of fundamental
rights, it does so under the public law by way of penalising the
wrongdoer and fixing the liability for the public wrong on the
State which has failed in its public duty to protect the
fundamental rights of the citizen. The payment of compensation
in such cases is not to be understood, as it is generally
understood in a civil action for damages under the private law
but in the broader sense of providing relief by an order of
making ‘monetary amends’ under the public law for the wrong
done due to breach of public duty, of not protecting the
fundamental rights of the citizen. The compensation is in the
nature of ‘exemplary damages’ awarded against the wrong doer
for the breach of its public law duty and is independent of the
rights available to the aggrieved party to claim compensation
under the private law in an action based on tort, through a suit
instituted in a court of competent jurisdiction or/and prosecute
the offender under the penal law.”
It was also emphasized that it is a sound policy to punish the
wrongdoer and it is in that spirit that the courts have molded the relief
5 (1993) 2 SCC 746
11
by granting compensation in exercise of writ jurisdiction. The
objective is to ensure that public bodies or officials do not act
unlawfully. Since the issue is one of enforcement of public duties, the
remedy would be available under public law notwithstanding that
damages are claimed in those proceedings.
15. The aforesaid aspect was, once again, emphasized in Common
Cause, a Registered Society v. Union of India6
. We may also usefully
refer to N. Nagendra Rao & Co. v. State of A.P.7
qua the proposition
that the determination of vicarious liability of the State being linked
with the negligence of its officer is nothing new if they can be sued
personally for which there is no dearth of authority.
16. In the facts of the present case, the arbitrariness and illegality of
the action of the authority is writ large. The petitioners have been
deprived of their right to secure the quota on a patently wrongful order
passed for reasons, which did not apply to them and for conditions,
which had been specifically exempted. What could be a greater
arbitrariness and illegality? Where there is such patent arbitrariness
and illegality, there is consequent violation of the principles enshrined
6 (1999) 6 SCC 667
7 (1994) 6 SCC 205
12
under Article 14 of the Constitution of India. The facts of the present
case are, thus, undoubtedly giving rise to the satisfaction of parameters
as a fit case for grant of compensation.
17. On a conspectus of the aforesaid facts including the number of
pilgrims for whom the petitioners would have been entitled to arrange
the Hajj pilgrimage, an amount of Rs.5 lakh per petitioner would be
adequate compensation for the loss suffered by them and sub-serve the
ends of justice. We are conscious of the fact that there is no
quantification based on actual loss, but then the award by us is in the
nature of damages in public law.
18. The amount for each of the petitioners be remitted by the
respondents within two months from the date of this order failing
which the amount would carry interest @ 15 per cent per annum apart
from any other remedy available to the petitioners. It will be open to
the respondents to recover the amount of damages and costs from the
delinquent officers responsible for passing such unsustainable orders.
13
19. The writ petitions are allowed in the aforesaid terms with costs
quantified at Rs.10,000 per petition.
..….….…………………….J.
 [J. Chelameswar]
 ...……………………………J.
 [Sanjay Kishan Kaul]
New Delhi.
May 07, 2018.
14

“U.P. Ex-Chief Ministers Residence Allotment Rules, 1997” = The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality. -Once such persons demit the public office earlier held by them there is nothing to distinguish them from the common man. The public office held by them becomes a matter of history and, therefore, cannot form the basis of a reasonable classification to categorize previous holders of public office as a special category of persons entitled to the benefit of special privileges.- Not only that the legislation i.e. Section 4(3) of the 1981 Act recognizing former holders of public office as a special class of citizens, viewed in the aforesaid context, would appear to be arbitrary and discriminatory thereby violating the equality clause.-we hold that Section 4(3) of the 1981 Act cannot pass the test of Article 14 of the Constitution of India and is, therefore, liable to be struck down. We, therefore, hold that the aforesaid Section 4(3) of the Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 is ultra vires the Constitution of India as it transgresses the 29 equality clause under Article 14.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.864 OF 2016
LOK PRAHARI THROUGH ITS GENERAL SECRETARY ...PETITIONER
 VERSUS
THE STATE OF UTTAR PRADESH & ORS. …RESPONDENTS
J U D G M E N T
RANJAN GOGOI, J.
1. This writ petition under Article 32 of the Constitution of
India raises a challenge to the validity of Section 4(3) of the
Uttar Pradesh Ministers (Salaries, Allowances and
Miscellaneous Provisions) Act, 1981 (hereinafter referred to as
“the 1981 Act”), as amended in 2016.
2. The case has a somewhat chequered history. Suffice
it will be to recapitulate that as former Chief Ministers of the
State of Uttar Pradesh continued to occupy their official
accommodation even after demitting office, in clear breach of
Section 4 of the 1981 Act as it had then existed, a writ petition
was filed before the High Court of Allahabad by the present
petitioner. During the pendency of the said writ petition, a set of
2
Rules namely “U.P. Ex-Chief Ministers Residence Allotment
Rules, 1997” (hereinafter referred to as “the 1997 Rules”) were
framed to provide for allotment of government accommodation
to former Chief Ministers. The writ petition was accordingly
amended to challenge the validity of the provisions of the 1997
Rules. However, the same was closed by the High Court on a
statement made on behalf of the State of Uttar Pradesh that
former Chief Ministers would be henceforth allotted only Type V
bungalows and that too on payment of rent etc.
3. In the aforesaid situation, the present petitioner had
filed Writ Petition (C) No.657 of 2004 (Lok Prahari vs. State of
Uttar Pradesh and others) before this Court challenging the
validity of the aforesaid 1997 Rules. By judgment and order
dated 1st August 20161
, the aforesaid writ petition was answered
by this Court by striking down the 1997 Rules, inter alia, on the
ground that the provision for accommodation for ex-Chief
Ministers as made under the aforesaid 1997 Rules was in direct
conflict with the provisions of Section 4 of the 1981 Act.
Paragraphs 33, 37 and 38 of the said report in Lok Prahari
(supra) would be relevant to notice:
“33. We may now turn to the issue whether the
impugned 1997 Rules are ultra vires Article 14 of the
1
(2016) 8 SCC 389
3
Constitution of India and also repugnant to the
provisions of the 1981 Act. The relevant extract of the
1997 Rules is as under:
“4. Allotment of residence.—A residence on falling
vacant will be allotted by the Estate Officer to such exChief
Minister who has given an application under
these Rules. There will be no right for allotment of a
house outside Lucknow under these Rules.
* * *
6. Period for which allotment subsists.—The
allotment of residence to ex-Chief Ministers shall be
effective only during their lifetime. The allotment shall
be deemed to be automatically cancelled upon the
death of ex-Chief Minister and family members
residing therein will have to invariably hand over the
possession of the residence concerned to the Estate
Department within 3 months from the date of death. If
the family members residing in the residence do not
hand over the possession, recovery rent, damages,
etc. shall be taken under the provisions of the U.P.
Public Premises (Eviction of Unauthorised Occupants)
Act, 1972.”
* * *
* * *
37. If we look at the position of other constitutional
post holders like Governors, Chief Justices, Union
Ministers, and Speaker, etc. all of these persons hold
only one “official residence” during their tenure. The
respondents have contended that in a federal set-up,
like the Union, the State has also power to provide
residential bungalow to the former Chief Minister. The
above submission of the respondent State cannot be
accepted for the reason that the 1981 Act does not
make any such provision and the 1997 Rules, which
are only in the nature of executive instructions and
contrary to the provisions of the 1981 Act, cannot be
acted upon.
38. Moreover, the position of the Chief Minister and the
Cabinet Ministers of the State cannot stand on a
separate footing after they demit their office. Moreover,
4
no other dignitary, holding constitutional post is given
such a facility. For the aforestated reasons, the 1997
Rules are not fair, and more so, when the subject of
“salary and allowances” of the Ministers, is governed
by Section 4(2)(a) of the 1981 Act.”
4. Section 4 of the 1981 Act was amended in the year
2016. Under Section 4(3) brought in by the 2016 Amendment
(U.P. Act No.22 of 2016), former Chief Ministers of the State
became entitled to allotment of government accommodation for
their life time. The validity of the aforesaid Section 4(3), as
amended, has been questioned by the writ petitioner, a
registered body, which claims to be “committed to upholding of
the Constitution and enforcement of the Rule of law”.
5. Section 4 of the 1981 Act as originally enacted and as
amended in the year 2016 by 2016 Amendment is in the
following terms:
Section 4 of the Act, as
originally enacted
Section 4 of the Act, as
amended in the year 2016
by 2016 Amendment (U.P
Act No. 22 of 2016)
4.Residence.-(1) Each
Minister shall be entitled
without payment of any rent
to the use throughout the
term of his office and for
period of fifteen days
thereafter, of a residence at
Lucknow which shall be
furnished and maintained at
4. For section 4 of the
principal Act, the following
sections shall be substituted,
namely:-
4(1) The Chief Minister and
each Minister shall be entitled,
without payment of any rent to
the use, throughout the term
of his office and for a period of
5
public expenses at the
prescribed scale.
(2) Where a Minister has not
been provided with a
residence in accordance with
sub-Section (1), or does not
avail of the benefit of the
said sub section, he shall be
entitled to a compensatory
allowance at the rate of-
(a) three hundred rupees per
month in the case of Deputy
Minister, and
(b) five hundred rupees per
month in any other case.
fifteen days thereafter, of a
residence at Lucknow which
shall be furnished and
maintained at public expense
at the prescribed scale.
(2) Where the Chief Minister
or a Minister has not been
provided with a residence in
accordance with subsection(1)
or does not avail of
the benefit of the said subsection,
he shall be entitled to
a compensatory allowance at
the rate of –
(a) ten thousand rupees per
month in the case of the Chief
Minister, a Minister, a Minister
of State (Independent
Charge) and a Minister of
State;
(b) eight thousand rupees per
month in the case of a Deputy
Minister.
(3) A government residence
shall be allotted to a former
Chief Minister of Uttar
Pradesh, at his/her request,
for his/her life time, on
payment of such rent as may
be determined from time to
time by the Estate
Department of the State
Government.
6. The 1981 Act was amended by the Uttar Pradesh
Ministers and State Legislature, Officers and Members
Amenities Laws (Amendment) Act, 1990 (U.P. Act No.5 of 1990)
(hereinafter referred to as “1990 Amendment”) by insertion of
6
sub-section (1-A) to Section 4 which is in the following terms:
“(1-A) Each Minister for whose use a
residence at Lucknow has been provided
under sub-section (1) shall immediately after
the expiration of the period referred to in that
sub-section, vacate such accommodation and
an officer authorized by the State Government
in this behalf may take possession of the
accommodation and may for the purpose use
such force as may be necessary in the
circumstances.
Explanation – For the purposes of this subsection
‘Minister’ includes a person who has
ceased to be a Minister”, and also includes a
person who was given the status of a Minister.”
7. By another amendment to the 1981 Act by the Uttar
Pradesh Ministers and State Legislature, Officers and Members
Amenities Laws (Amendment) Act, 1997 (U.P. Act No.8 of 1997)
(hereinafter referred to as “1997 Amendment”) Section 4-A was
inserted, which is to the following effect:
“4-A. Special provisions regarding certain
accommodations.- (1) On and from the
commencement of the Uttar Pradesh Ministers
and State Legislature Officers and Members
Amenities Laws (Amendment) Act, 1997, the
State Government may, with a view to
ensuring timely availability of residence to a
Minister under sub-section (1) of Section 4, by
a notified order, specify any type-VI
accommodation or an accommodation in
which a Minister was in occupation at any
time, under the control and Management of
the Estate Department of the State
Government, as Minister’s residence and an
accommodation so specified shall be allotted
to a Minister only and not to any other person.
7
(2) The State Government, or an officer
authorized by it in this behalf may, if a person
other than a Minister referred to in sub-section
(1-A) of Section 4 is in occupation of an
accommodation specified as Minister’s
residence under sub-section (1) on the basis
of any allotment order or otherwise, cancel the
allotment order of such person, if any, and by
notice in writing require such person to vacate
the said accommodation within fifteen days
from the date of service upon him of such
notice, and if such person fails to vacate the
said accommodation within the said period, an
officer authorized by the State Government in
this behalf may take possession of the
accommodation and may for the purpose use
such force as may be necessary in the
circumstances”.
8. It will be worthwhile to note at this stage that while
Section 4(1-A) of the 1981 Act has been deleted by the 2016
Amendment Section 4-A continues to remain on the statute
book.
9. Section 4-A(2) of the 1981 Act, extracted above,
visualize that if any person other than the Minister is in
occupation of accommodation specified as Minister’s residence
under sub-section (1) of Section 4-A (Type VI accommodation)
the allotment order of such person shall be cancelled and the
occupant would be required to vacate the said accommodation
within fifteen days from the date of service of notice, failing
8
which, the Authorized Officer would be competent in law to take
possession of the accommodation, if necessary, by use of such
force, as may be required.
10. Having noted the salient features of the provisions of
the 1981 Act the question that arises for determination in the
present proceedings may be summarized as follows:
“Whether retention of official accommodation by the
functionaries mentioned in Section 4(3) of the 1981 Act after
they had demitted office violate the equality clause guaranteed
by Article 14 of the Constitution of India.”
11. The petitioner - body which is a registered society
under the Societies Registration Act, 1860 is represented in
these proceedings by its Secretary Shri S.N. Shukla, who is a
retired I.A.S. Officer. Though Shri Shukla had advanced his
arguments and contentions with great clarity, yet, having regard
to the importance of the question raised we had thought it
proper to take the assistance of Shri Gopal Subramanium,
learned Senior Counsel of this Court and to assist him we had
thought it proper to request Shri Gopal Sankaranarayanan,
learned counsel, a member of the Supreme Court Bar
Association. Both Shri Gopal Subramanium, learned Senior
9
Counsel and Shri Gopal Sankaranarayanan, learned counsel
have rendered their valuable assistance to this Court which
assistance is being acknowledged by the Court at the very
outset of the present order.
12. Though the issue in the present proceeding is strictly
confined to the provisions of the 1981 Act, having regard to the
fact that there may be similar/pari materia provisions in force in
different States/Union Territories and also in the Union we had
thought it proper to inform, through the learned Amicus Curiae,
the law officers of the Union and all the States/Union Territories
of the pendency of the present writ petition and the issues
arising therein. Pursuant thereto, the responses of the Union
and the States of Assam, Bihar, Tamil Nadu and Odisha have
been received. Shri Aman Lekhi, learned ASG has submitted
that the Government Accommodation is provided to former
Presidents, Vice-Presidents, Prime Ministers of the country. The
issue had come up for consideration in this Court in Shiv Sagar
Tiwari vs. Union of India and others2
 wherein this Court has
approved the action taken in the matter of provision of official
accommodation to the aforesaid dignitaries under the extant
Rules in the following manner:
2
(1997) 1 SCC 444
10
“72. Keeping in view the very high
constitutional position occupied by the
President, Vice-President and Prime Minister,
we feel no difficulty in stating that they should
be accommodated in government premises
after demitting of office by them, so that
problem of suitable residence does not trouble
them in the evening of life. What should be the
terms of the same is a matter to be decided by
the Government.”
13. Insofar as the States of Tamil Nadu and Odisha are
concerned, it is clear from the communications received from
the Advocate Generals of the said States by the office of the
learned Amicus Curiae Shri Gopal Subramanium that no
provision for official accommodation to former Chief Ministers
has been made by the said two states whereas in the case of
States of Bihar and Assam such provision has been made by
executive instructions issued by the State under Article 162 of
the Constitution of India.
14. We had thought it proper to request the learned
Amicus Curiae to sound the Advocate Generals of the States on
the pendency of this writ petition to enable the States to render
assistance to the Court in the matter of adjudication of
11
the validity of Section 4(3) of the 1981 Act in view of the fact that
some of the States may have pari materia provisions in force.
No such contest by the States with regard to the validity of the
Section 4(3) of the 1981 Act had been forthcoming except to the
extent mentioned hereinabove on behalf of the Union of India.
We, therefore, proceed to undertake the present exercise which,
we make it clear, is confined to the issue of validity of Section
4(3) of the 1981 Act.
15. It would be appropriate to initiate the discourse by
remembering the preamble to the Constitution of India which is
in the following terms.
WE, THE PEOPLE OF INDIA, having solemnly
resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC
and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY, of thought, expression, belief, faith and
worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the
individual and the unity and integrity of the
Nation;
IN OUR CONSTITUENT ASSEMBLY this twentysixth
day of November, 1949, DO HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS
12
CONSTITUTION.
16. The preamble to the Constitution of India embodies,
inter alia, the principles of equality and fraternity and it is on the
basis of these principles of equality and fraternity that the
Constitution recognizes only one single class of citizens with
one singular voice (vote) in the democratic process subject to
provisions made for backward classes, women, children, SC/ST,
minorities, etc. A special class of citizens, subject to the
exception noted above, is abhorrent to the constitutional ethos.
17. The resolve of ‘the People of India’ to have a
republican form of Government is a manifestation of the
constitutional philosophy that does not recognize any arbitrary
sovereign power and domination of citizens by the State. The
republican liberty and the doctrine of equality is the central
feature of the Indian democracy.
18. It is, therefore, axiomatic that in a democratic
republican government public servants entrusted with duties of
public nature must act in a manner that reflects that ultimate
authority is vested in the citizens and it is to the citizens that
holders of all public offices are eventually accountable. Such a
situation would only be possible within a framework of equality
13
and when all privileges, rights and benefits conferred on holders
of public office are reasonable, rational and proportionate.
19. It may be necessary herein to recapitulate the Seven
Principles of Public Life Report by Lord Nolan which find
mention in the judgment of this Court in Vineet Narain and
others vs. Union of India and another3
 (paragraph 54). This
Court in paragraph 55 of the report in Vineet Narain (supra)
had observed:
 “These principles of public life are of general
application in every democracy and one is
expected to bear them in mind while
scrutinizing the conduct of every holder of a
public office.”
The seven principles of public life stated in the Report by
Lord Nolan are as follows:
“THE SEVEN PRINCIPLES OF PUBLIC LIFE
Selflessness
Holders of public office should take
decisions solely in terms of the public interest.
They should not do so in order to gain financial
or other material benefits for themselves, their
family, or their friends.
Integrity
Holders of public office should not place
themselves under any financial or other
obligation to outside individuals or
organisations that might influence them in the
performance of their official duties.
Objectivity
3
(1998) 1 SCC 226
14
In carrying out public business, including
making public appointments, awarding
contracts, or recommending individuals for
rewards and benefits, holders of public office
should make choices on merit.
Accountability
Holders of public office are accountable for
their decisions and actions to the public and
must submit themselves to whatever scrutiny
is appropriate to their office.
Openness
Holders of public office should be as open
as possible about all the decisions and actions
that they take. They should give reasons for
their decisions and restrict information only
when the wider public interest clearly
demands.
Honesty
Holders of public office have a duty to
declare any private interests relating to their
public duties and to take steps to resolve any
conflicts arising in a way that protects the
public interest.
Leadership
Holders of public office should promote and
support these principles by leadership and
example.”
20. It would be significant to note that the legislative
anxiety to bring in a classless society, a constitutional
vision, inter alia, found manifestation in the Twenty-sixth
(26th) Amendment to the Constitution of India by which
Articles 291 and 362 were repealed and a new Article 366A
was incorporated, resulting in depriving the Rulers of
Princely States the recognition accorded to them and
15
declaring the abolition of the privy purse. In the resultant
challenge by a co-Ruler of an erstwhile sovereign Indian
State of Kurundwad Jr. this Court in Shri Raghunathrao
Ganpatrao vs. Union of India4 while dealing with the
challenge, inter alia, spoke as follows:
“96. Permanent retention of the privy purse
and the privileges of rights would be
incompatible with the sovereign and republican
form of Government. Such a retention will also
be incompatible with the egalitarian form of our
Constitution. That is the opinion of the
Parliament which acted to repeal the aforesaid
provisions in exercise of its constituent power.
The repudiation of the right to privy purse
privileges, dignities etc. by the deletion of
Articles 291 and 362, insertion of Article 363-A
and amendment of clause (22) of Article 366
by which the recognition of the Rulers and
payment of privy purse are withdrawn cannot
be said to have offended Article 14 or 19(g)
[sic 19(1)(f)] and we do not find any logic in
such a submission. No principle of justice,
either economic, political or social is violated
by the Twenty-sixth Amendment. Political
justice relates to the principle of rights of the
people, i.e. right to universal suffrage, right to
democratic form of Government and right to
participation in political affairs. Economic
justice is enshrined in Article 39 of the
Constitution. Social justice is enshrined in
Article 38. Both are in the directive principles
of the Constitution. None of these rights are
abridged or modified by this Amendment. We
feel that this contention need not detain us any
more and, therefore, we shall pass on to the
next point in debate.”
4 AIR 1993 SC 1267
16
21. An instance of State action inconsistent with the
constitutional goal to secure socio-economic justice was dealt
with by this Court in Victorian Granites (P) Ltd. Vs. P. Rama
 Rao and others5
. In the said case, the state action approving
the assignment of a lease granted to an individual on expiry
thereof in favour of a private Company, at the request of the
outgoing lessee, without any publicity and without inviting
objections from others was explicitly disapproved by this Court
by holding that such a transfer was opposed to the common
good and the constitutional objective of securing socioeconomic
justice which was described as the arch of the
Constitution. Material resources of the community must be
distributed to sub-serve the common good, this Court had
opined.
22. Similarly, in Akhil Bhartiya Upbhokta Congress vs.
 State of Madhya Pradesh and others6
this Court held that:
“48. Part IV contains “directive principles of
State policy” which are fundamental in the
governance of the country and it is the duty of
the State to apply these principles in making
laws. Article 39 specifies certain principles of
policy which are required to be followed by the
State. Clause (b) thereof provides that the
5
(1996) 10 SCC 665
6
(2011) 5 SCC 29
17
State shall, in particular, direct its policy
towards securing that the ownership and
control of the material resources of the
community are so distributed as best to
subserve the common good. Parliament and
legislatures of the States have enacted several
laws and the Governments have, from time to
time, framed policies so that the national
wealth and natural resources are equitably
distributed among all sections of people so
that have-nots of the society can aspire to
compete with haves.”
23. In Akhil Bhartiya (supra), this Court examined the
legality of the action of the Madhya Pradesh Government to
allot twenty acres of land to an Institution on the basis of
application made by the Trust. This Court held that the
distribution of State largesse allocation of land, grant of permit,
licence etc. should always be in a fair and equitable manner. It
was held that the elements of favouritism or nepotism shall not
influence the exercise of discretion by the decision maker.
Observing that every action of the public authority should be
guided by public interest, free from arbitrariness, in para (65), it
was held as under:-
“65. What needs to be emphasised is that the
State and/or its agencies/instrumentalities
cannot give largesse to any person according to
the sweet will and whims of the political entities
and/or officers of the State. Every
action/decision of the State and/or its
agencies/instrumentalities to give largesse or
confer benefit must be founded on a sound,
18
transparent, discernible and well-defined policy,
which shall be made known to the public by
publication in the Official Gazette and other
recognised modes of publicity and such policy
must be implemented/executed by adopting a
non-discriminatory and non-arbitrary method
irrespective of the class or category of persons
proposed to be benefited by the policy. The
distribution of largesse like allotment of land,
grant of quota, permit licence, etc. by the State
and its agencies/instrumentalities should always
be done in a fair and equitable manner and the
element of favouritism or nepotism shall not
influence the exercise of discretion, if any,
conferred upon the particular functionary or
officer of the State.
(Underlining is ours)
24. In Sachidanand Pandey and another vs. State of
 West Bengal and others7
, this Court after referring to some of
the available precedents, laid the following principles:-
“40. On a consideration of the relevant cases
cited at the Bar the following propositions may
be taken as well established: State-owned or
public-owned property is not to be dealt with at
the absolute discretion of the executive.
Certain precepts and principles have to be
observed. Public interest is the paramount
consideration. One of the methods of securing
the public interest, when it is considered
necessary to dispose of a property, is to sell
the property by public auction or by inviting
tenders. Though that is the ordinary rule, it is
not an invariable rule. There may be situations
where there are compelling reasons
necessitating departure from the rule but then
the reasons for the departure must be rational
and should not be suggestive of
discrimination. Appearance of public justice is
7
(1987) 2 SCC 295
19
as important as doing justice. Nothing should
be done which gives an appearance of bias,
jobbery or nepotism.”
(Underlining is ours)
25. After Akhil Bhartiya (supra) and Sachidanand
Pandey (supra), in Centre for Public Interest Litigation and
others v. Union of India and others8
, it was held as under:-
“89. In conclusion, we hold that the State is
the legal owner of the natural resources as a
trustee of the people and although it is
empowered to distribute the same, the process
of distribution must be guided by the
constitutional principles including the doctrine
of equality and larger public good.”
26. In Natural Resources Allocation, in Re, Special
 Reference No. 1 of 20129
, while considering the allocation of
2G Spectrum, this Court observed that as natural resources are
public goods, the ‘Doctrine of Equality’ which emerges from the
concepts of justice and fairness must guide the State in
determining the actual mechanism for distribution of natural
resources. Any further detailed reference to the opinion
rendered is being avoided as the principles evolved are in
furtherance of what has been had been laid down earlier, as
noticed above.
8
(2012) 3 SCC 1
9
(2012) 10 SCC 1
20
27. Coming back to the issue in hand a brief look at the
contentions advanced may be appropriate at this stage. The
State of Uttar Pradesh has sought to defeat the writ petition by
contending that the same being under Article 32 of the
Constitution of India a direct infringement of the fundamental
rights of the petitioner must be established which is nowhere
apparent even on a close scrutiny. The writ petition, therefore,
is not maintainable. Alternatively, it has been argued that
infringement of the equality clause under Article 14 of the
Constitution of India is a far cry as there is an intelligible
differentia to justify a separate and exclusive treatment to former
Chief Ministers who form a class of their own.
28. While it is true that Article 32 of the Constitution is to
be invoked for enforcement of the fundamental rights of a
citizen or a non citizen, as may be, and there must be a
violation or infringement thereof we have moved away from the
theory of infringement of the fundamental rights of an individual
citizen or non citizen to one of infringement of rights of a class.
In fact, the above transformation is the foundation of what had
developed as an independent and innovative stream of
jurisprudence called “Public Interest Litigation” or class action.
21
Though evolved much earlier, a Solemn affirmation of the
aforesaid principle is to be found in paragraph 48 of the report in
Vineet Narain (supra) which would be eminently worthy of
recapitulation and, therefore, is extracted below:
“48. In view of the common perception shared
by everyone including the Government of India
and the Independent Review Committee (IRC) of
the need for insulation of the CBI from
extraneous influence of any kind, it is imperative
that some action is urgently taken to prevent the
continuance of this situation with a view to
ensure proper implementation of the rule of law.
This is the need of equality guaranteed in the
Constitution. The right to equality in a situation
like this is that of the Indian polity and not merely
of a few individuals. The powers conferred on
this Court by the Constitution are ample to
remedy this defect and to ensure enforcement of
the concept of equality.”
(Underlining is ours)
29. Along with the aforesaid shift in the judicial thinking
there has been an equally important shift from the classical test
(classification test) for the purpose of enquiry with regard to
infringement of the equality clause under Article 14 of the
Constitution of India to, what may be termed, a more dynamic
test of arbitrariness. The shift which depicts two different
dimensions of a challenge on the anvil of Article 14 is best
demonstrated by a comparative reading of the judgments of this
Court in the case of Budhan Choudhry and others vs. State
22
 of Bihar10, and E.P. Royappa vs. State of Tamil Nadu and
 another.11
30. In Budhan Choudhry (supra), the classical test
based on a reasonable classification to give legitimacy to an act
of differential treatment was expounded in the following terms:
“……It is now well established that while
Article 14 forbids class legislation, it does not
forbid reasonable classification for the
purposes of legislation. In order, however, to
pass the test of permissible classification two
conditions must be fulfilled, namely, (i) that the
classification must be founded on an
intelligible differentia which distinguishes
persons or things that are grouped together
from others left out of the group and, (ii) that
differentia must have a rational relation to the
object sought to be achieved by the statute in
question. The classification may be founded
on different bases; namely, geographical, or
according to objects or occupations or the like.
What is necessary is that there must be a
nexus between the basis of classification and
the object of the Act under consideration. It is
also well established by the decisions of this
Court that Article 14 condemns discrimination
not only by a substantive law but also by a law
of procedure.”
31. The more dynamic version came two decades later in
the case of E.P. Royappa (supra) wherein Bhagwati, J.
expanded the scope of Article 14 of the Constitution of India in
10 AIR 1955 SC 191
11 (1974) 4 SCC 3
23
the following terms:
“85…….From a positivistic point of view,
equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies;
one belongs to the rule of law in a republic
while the other, to the whim and caprice of an
absolute monarch. Where an act is arbitrary, it
is implicit in it that it is unequal both according
to political logic and constitutional law and is
therefore violative of Article 14, and if it effects
any matter relating to public employment, it is
also violative of Article 16. Articles 14 and 16
strike at arbitrariness in State action and
ensure fairness and equality of treatment.
They require that State action must be based
on valid relevant principles applicable alike to
all similarly situate and it must not be guided
by any extraneous or irrelevant considerations
because that would be denial of equality.
Where the operative reason for State action,
as distinguished from motive inducing from the
antechamber of the mind, is not legitimate and
relevant but is extraneous and outside the
area of permissible considerations, it would
amount to mala fide exercise of power and that
is hit by Articles 14 and 16. Mala fide exercise
of power and arbitrariness are different lethal
radiations emanating from the same vice: in
fact the latter comprehends the former. Both
are inhibited by Articles 14 and 16.”
32. The evolution of the dynamic facet of Article 14 of the
Constitution of India was carried forward in numerous
pronouncements of this Court of which reference must be
made, illustratively, to Ramana Dayaram Shetty vs.
 International Airport Authority of India and others12;
12 (1979) 3 SCC 489
24
Sharma Transport vs. Govt. of A.P. and others13; Kumari
Shrilekha Vidyarthi and others vs. State of U.P. and others14;
State of Punjab and another vs. Brijeshwar Singh Chahal
 and another15
.
33. Paragraph 23 and 35 of Kumari Shrilekha (supra)
may be extracted with profit only to notice the absolute clarity in
carrying forward the principle laid down by Hon. Bhagwati J., in
Royappa (supra).
“23. Thus, in a case like the present, if it is
shown that the impugned State action is
arbitrary and, therefore, violative of Article 14
of the Constitution, there can be no
impediment in striking down the impugned act
irrespective of the question whether an
additional right, contractual or statutory, if any,
is also available to the aggrieved persons.
…………
35. It is now too well settled that every State
action, in order to survive, must not be
susceptible to the vice of arbitrariness which is
the crux of Article 14 of the Constitution and
basic to the rule of law, the system which
governs us. Arbitrariness is the very negation
of the rule of law. Satisfaction of this basic test
in every State action is sine qua non to its
validity and in this respect, the State cannot
claim comparison with a private individual
even in the field of contract. This distinction
between the State and a private individual in
the field of contract has to be borne in the
13 (2002) 2 SCC 188
14 (1991) 1 SCC 212
15 (2016) 6 SCC 1
25
mind.”
34. The “final” culmination is in Shayara Bano vs. Union
 of India and others16 where two members of the Bench
(Hon’ble R.F. Nariman and Uday Umesh Lalit, JJ.) wrote as
follows:
“101. It will be noticed that a Constitution
Bench of this Court in Indian Express
Newspapers (Bombay) (P) Ltd. v. Union of
India stated that it was settled law that
subordinate legislation can be challenged on
any of the grounds available for challenge
against plenary legislation. This being the
case, there is no rational distinction between
the two types of legislation when it comes to
this ground of challenge under Article 14. The
test of manifest arbitrariness, therefore, as laid
down in the aforesaid judgments would apply
to invalidate legislation as well as subordinate
legislation under Article 14. Manifest
arbitrariness, therefore, must be something
done by the legislature capriciously, irrationally
and/or without adequate determining principle.
Also, when something is done which is
excessive and disproportionate, such
legislation would be manifestly arbitrary. We
are, therefore, of the view that arbitrariness in
the sense of manifest arbitrariness as pointed
out by us above would apply to negate
legislation as well under Article 14.”
35. The above view received support of a third member of
the Constitution Bench (Hon’ble Kurian Joseph, J.)
16 (2017) 9 SCC 1
26
36. In the light of the above views the allocation of
government bungalows to constitutional functionaries
enumerated in Section 4(3) of the 1981 Act after such
functionaries demit public office(s) would be clearly subject to
judicial review on the touchstone of Article 14 of the Constitution
of India. This is particularly so as such bungalows constitute
public property which by itself is scarce and meant for use of
current holders of public offices. The above is manifested by
the institution of Section 4-A in the 1981 Act by the Amendment
Act of 1997 (Act 8 of 1997). The questions relating to allocation
of such property, therefore, undoubtedly, are questions of public
character and, therefore, the same would be amenable for
being adjudicated on the touchstone of reasonable classification
as well as arbitrariness.
37. The present petitioner, as already noticed in the
opening paragraphs of this judgment, had earlier approached
this Court under Article 32 of the Constitution challenging the
validity of the 1997 Rules. Not only the said writ petition was
entertained but the 1997 Rules were, in fact, struck down. In
doing so, this Court had, inter alia, considered the validity of the
1997 Rules in the light of Article 14 of the Constitution of India.
27
The insertion of Section 4(3) by the 2016 Amendment as a
substantive provision of the statute when the 1997 Rules to the
same effect were declared invalid by the Court would require
the curing of the invalidity found by this Court in the matter of
allotment of government accommodation to former Chief
Ministers. The defect found earlier persists. The impugned
legislation, therefore, can very well be construed to be an
attempt to overreach the judgment of this Court in Lok Prahari
(supra).
38. Natural resources, public lands and the public goods
like government bungalows/official residence are public property
that belongs to the people of the country. The ‘Doctrine of
Equality’ which emerges from the concepts of justice, fairness
must guide the State in the distribution/allocation of the same.
The Chief Minister, once he/she demits the office, is at par with
the common citizen, though by virtue of the office held, he/she
may be entitled to security and other protocols. But allotment of
government bungalow, to be occupied during his/her lifetime,
would not be guided by the constitutional principle of equality.
39. Undoubtedly, Section 4(3) of the 1981 Act would have
the effect of creating a separate class of citizens for conferment
28
of benefits by way of distribution of public property on the basis
of the previous public office held by them. Once such persons
demit the public office earlier held by them there is nothing to
distinguish them from the common man. The public office held
by them becomes a matter of history and, therefore, cannot
form the basis of a reasonable classification to categorize
previous holders of public office as a special category of
persons entitled to the benefit of special privileges. The test of
reasonable classification, therefore, has to fail. Not only that the
legislation i.e. Section 4(3) of the 1981 Act recognizing former
holders of public office as a special class of citizens, viewed in
the aforesaid context, would appear to be arbitrary and
discriminatory thereby violating the equality clause. It is a
legislative exercise based on irrelevant and legally
unacceptable considerations, unsupported by any constitutional
sanctity.
40. Consequently, we hold that Section 4(3) of the 1981
Act cannot pass the test of Article 14 of the Constitution of India
and is, therefore, liable to be struck down. We, therefore, hold
that the aforesaid Section 4(3) of the Uttar Pradesh Ministers
(Salaries, Allowances and Miscellaneous Provisions) Act, 1981
is ultra vires the Constitution of India as it transgresses the
29
equality clause under Article 14. The writ petition in question,
therefore, is allowed.
……….................J.
 (RANJAN GOGOI)
……….................J.
(R. BANUMATHI)
NEW DELHI
MAY 07, 2018.

when recovery proved - non examination of other witness is of no consequences =The recovery of the atlas cycle on the confession of the appellant, identified by PW­7 as belonging to him, as also the recovery of the milk can on the same basis with the name of PW­7 inscribed on it with nail polish and the fact that the appellant was absconding after the occurrence till his arrest on 16.09.2007 7 are additional incriminating factors which complete the links in the chain of circumstances. The recovery having been proved by PW­7, the failure to examine the other seizure witness, Kheda, is of no consequence.

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1892 OF 2017
SATPAL .........APPELLANT(S)
VERSUS
STATE OF HARYANA .....RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellant assails his conviction under Section 302 read
with Section 201 I.P.C., by the Additional Sessions Judge, Hissar
in case No.54­SC (RBT) of 2008, affirmed by the High Court,
based on the last seen theory.
2. PW­7, Krishan Kumar lodged an F.I.R. on 11.09.2007 with
regard to his missing nephew, the deceased Kapil Kumar who was
thirteen   years   old.   The   deceased   had   gone   to   the   village   the
previous evening at about 6:00 PM to deliver milk to customers.
The   witness   and   his   relative   PW­9,   Richhpal   had   seen   the
1
deceased with the appellant at about 9:00 PM on the Khairpur
Road, Sarangpur, going on a bicycle together. The deceased did
not return home at night. His dead body was found the next
morning lying concealed in a heap of dry fodder in the fields of
Subhash.   The appellant was stated to have had an altercation
with the deceased a few days ago with regard to payment of milk.
The disclosure by the appellant under Section 27 of the Evidence
Act after his arrest, led to recovery of the atlas bicycle belonging
to PW­7, and the milk can with the name of the witness inscribed
on it.
3. Learned Counsel for the appellant assailing the conviction,
submitted   that   the   dead   body   was   found   at   a   considerable
distance from where he was last seen with the deceased and in
the opposite direction.   It is highly unlikely that the appellant
would have carried the dead body for the long distance.   The
recovery is planted, as the second seizure witness Kheda had not
been examined.  The appellant would not have hidden the bicycle
and the milk can near his own house to facilitate his implication.
The story of the milk can and an altercation few days earlier in
2
Court, were improvements as no such statement had been made
by PW­7 in the FIR or statement under Section 161 Cr.P.C.
4. There was a contradiction between the evidence of PW­7 and
PW­9 with regard to intimation given to the Sarpanch at night
itself.  There was also a contradiction between the statement of
the two witnesses with regard to time when the dead body was
discovered   and   the   police   reached   the   spot.     There   was   no
evidence with regard to the bicycle as belonging to PW­7.   The
father of the deceased, PW­8, Subhash had come to the village in
the morning itself looking for his son which is suggestive that the
deceased was missing since earlier creating doubts about the last
seen theory.  Alternately, if the deceased was missing since the
previous night, the conduct of PW­7 in not informing PW­8 at
night itself was highly unnatural.  PW­7 and PW­9 were thus not
reliable   witnesses.     To   sustain   a   conviction   on   basis   of
circumstantial evidence, it was necessary that all links in the
chain of circumstances must be complete leading to the only
hypothesis for guilt of the accused.  If there were any missing link
in the chain of circumstances and the possibility of innocence
cannot   be   ruled   out,   the   benefit   of   doubt   must   be   given   by
3
acquittal.  Any recovery on basis of confession, under Section 27
of the Evidence Act, cannot form the basis for conviction. 
5. Learned counsel for the State submitted that the deceased
was last seen with the appellant the previous night at about 9.00
PM going on a bicycle and did not return at night.  The dead body
was found next morning in the vicinity of the area they were last
seen together.   The post­mortem conducted on 12.09.2007 at
2:15 PM estimates the time elapsed since death as 24­36 hours
and which coincides with when the deceased was last seen with
the appellant.  Motive for the crime existed.  The conduct of the
appellant   in   absconding   after   the   occurrence   is   also   an
incriminating factor against him.  PW­7 had identified the bicycle
as belonging to him and the milk can had his name inscribed on
it. 
6. We   have   considered   the   respective   submissions   and   the
evidence on record.  There is no eye witness to the occurrence but
only circumstances coupled with the fact of the deceased having
been last seen with the appellant.   Criminal jurisprudence and
4
the   plethora   of   judicial   precedents   leave   little   room   for
reconsideration of the basic principles for invocation of the last
seen theory as a facet of circumstantial evidence.   Succinctly
stated, it may be a weak kind of evidence by itself to found
conviction upon the same singularly.  But when it is coupled with
other circumstances such as the time when the deceased was last
seen with the accused, and the recovery of the corpse being in
very close proximity of time, the accused owes an explanation
under   Section   106   of   the   Evidence   Act   with   regard   to   the
circumstances under which death may have taken place. If the
accused offers no explanation, or furnishes a wrong explanation,
absconds,   motive   is   established,   and   there   is   corroborative
evidence available inter alia in the form of recovery or otherwise
forming a chain of circumstances leading to the only inference for
guilt of the accused, incompatible with any possible hypothesis of
innocence, conviction can be based on the same.  If there be any
doubt or break in the link of chain of circumstances, the benefit
of doubt must go to the accused.  Each case will therefore have to
be examined on its own facts for invocation of the doctrine.
5
7. Both PW­7 and PW­9 have consistently stated having seen
the deceased going with the appellant on a bicycle at 9.00 PM the
previous evening.   The deceased did not return home at night.
The appellant was also not to be found at home.  The corpse of
the deceased was recovered the next morning hidden in a heap of
fodder in the fields.  The FIR was lodged promptly on 11.09.2007
naming the appellant as a suspect.  An FIR is not to be read as
an encyclopedia requiring every minute detail of the occurrence to
be mentioned therein.   The absence of any mention in it with
regard to the previous altercation, or the presence of the milk
can, cannot affect its veracity so as to doubt the entire case of the
prosecution.   The   altercation   suffices   to   establish   motive.   The
appellant has not led any evidence regarding his not being in the
company of the deceased or that they had subsequently parted
ways.   The   appellant   has   not   led   any   evidence,   despite   his
statement under Section 313 Cr.P.C. that he would do so, why he
did not return home at night or his whereabouts otherwise. PW­8,
father   of   the   deceased,   was   informed   in   the   morning   of
11.09.2007  by   PW­7  after  which   he   came   to  the  village.   The
6
deceased was a thirteen year old hardly in a position to resist the
appellant.  We see no reason why the two witnesses being related
to the deceased would depose falsely and shield the real offender,
especially when the appellant has not given any reason or led any
evidence for his false implication. 
8. The post­mortem was done on 12.09.2007 at about 2:15 PM
by PW­12, Dr. Sunil Gambhir opining that death was due to
strangulation by manual throttling.  The time elapsed since death
has been estimated as 24 to 36 hours.  The witness has deposed
that death could be estimated to have occurred at about 10.00
PM on 10.09.2007.  The body has been recovered in the vicinity of
where the deceased was last seen with the appellant.   The fact
that it may be in the opposite direction is hardly relevant.
9.    The recovery of the atlas cycle on the confession of the
appellant, identified by PW­7 as belonging to him, as also the
recovery of the milk can on the same basis with the name of PW­7
inscribed on it with nail polish and the fact that the appellant was
absconding  after  the   occurrence  till   his  arrest   on   16.09.2007
7
are additional incriminating factors which complete the links in
the chain of circumstances.  The recovery having been proved by
PW­7, the failure to examine the other seizure witness, Kheda, is
of no consequence. 
10. In the entirety of the facts and circumstances of the case, we
find no reason to interfere with the conviction of the appellant.
11. The appeal is dismissed.
………………………………….J.
 (Kurian Joseph)
………………………………….J.
 (Mohan M. Shantanagoudar)
.……….………………………..J.
   (Navin Sinha)
New Delhi,
May 01, 2018
8

seven circumstances set out by the High Court for holding the appellants guilty cannot be faulted with = Chandra Bhawan Singh-the appellant herein was the first to lodge the FIR about the incident wherein he stated that Satyawati has committed suicide. Apparently, this fact proves that first, he was present in the house where Satyawati was found dead and second, he falsely stated that Satyawati committed suicide because he wanted to divert the attention of the police from the reality. - both the accused (appellants herein) in their statements recorded under Section 313 of the Criminal Procedure Code, 1973 failed to give any explanation when asked about the circumstances in which the incident occurred in their house. When the incident admittedly occurred in their house, the appellants were required to explain the circumstances in which Satyawati died. They, however, failed to give any explanation. We also find that Tribuhuwan Singh said that he was not present in the house at the time of the occurrence and on that day he was in Allahabad. He also failed to adduce any evidence to prove this fact.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 654 OF 2018
(Arising out of S.L.P.(Crl.)No.7049 of 2014)
Chandra Bhawan Singh ….Appellant(s)
VERSUS
The State of Uttar Pradesh ….Respondent(s)
WITH
CRIMINAL APPEAL NO. 655 OF 2018
(Arising out of S.L.P.(Crl.) No. 7664 of 2014)

J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. These appeals are filed by the accused persons
against the final judgment and order dated 20.05.2014
passed by the High Court of Judicature at Allahabad
in Criminal Appeal No.1114 of 1986 whereby the High
1
Court dismissed the appeal in respect of the
appellants-accused and affirmed the judgment and
order dated 07.05.1986 passed by the Additional
Sessions Judge, Fatehpur in Sessions Trial No. 291 of
1984.
3. In order to appreciate the issues involved in the
appeals, it is necessary to set out the facts of the case.
4. Four persons, namely, (1) Tribhuwan Singh
(appellant), (2) Chandra Bhawan Singh (appellant) (3)
Smt. Makoi Devi and (4) Jwala Singh were prosecuted
for committing murder of one lady by name
"Satyawati".
5. The Additional Sessions Judge, Fatehpur by his
judgment dated 07.05.1986 in Sessions Trial No. 291
of 1984 acquitted one accused-Jwala Singh but
convicted the remaining three accused. Tribhuwan
Singh was convicted under Section 302/34 of the
Indian Penal Code, 1860 (hereinafter referred to as
2
“IPC”) and sentenced him to undergo imprisonment for
life and to pay a fine of Rs.5000/- in default of
payment of fine, to further undergo rigorous
imprisonment for one year. Smt. Makoi Devi was
convicted under Section 302/34 IPC and was
sentenced to undergo imprisonment for life. Chandra
Bhawan Singh was convicted under Section 32/34 IPC
and was sentenced to undergo imprisonment for life
and further convicted under Section 201 IPC and was
sentenced to undergo rigorous imprisonment for five
years. All the sentences of Chandra Bhawan Singh
would run concurrently.
6. The aforementioned three-convicted accused felt
aggrieved of their respective conviction and sentence
awarded by the Additional Sessions Judge filed appeal
in the High Court. The High Court, by impugned
judgment, allowed the appeal in respect of one
accused – Smt. Makoi Devi and accordingly acquitted
3
her from the charges leveled against her but dismissed
the appeal in respect of remaining two accused
persons, namely, (1) Tribhuwan Singh and (2)
Chandra Bhawan Singh and accordingly confirmed
their conviction and the sentence awarded by the
Additional Sessions Judge.
7. The remaining two accused felt aggrieved by their
respective conviction and award of sentence filed
separate special leave petitions in this Court.
8. So far as SLP(Crl.) No. 7049 of 2014 is
concerned, it is filed by Chandra Bhawan Singh
whereas SLP(Crl.) No. 7664 of 2014 is concerned, it is
filed by Tribhuwan Singh.
9. In both these special leave petitions, the
challenge is to the impugned judgment of the High
Court, which has confirmed their conviction and
sentence.
10. In short, the case of the prosecution is as under:
4
11. All the four accused named above are the
members of one family. Smt. Makoi Devi is the mother
of Tribhuwan Singh and Chandra Bhawan Singh. In
other words, Tribhuwan Singh and Chandra Bhawan
Singh are real brothers being the two sons of Smt.
Makoi Devi.
12. The deceased-Satyawati was the wife of
Tribhuwan Singh. Their marriage was performed in the
year 1981. Satyawati stayed in her matrimonial home
with her husband for 8 days and then returned to her
parents’ house.
13. It is the case of the prosecution that the members
of Satyawati in-laws family, which included the four
accused named above, were harassing her while she
was staying in her in-laws house for not bringing any
dowry in her marriage. The family members had been
demanding "motor cycle" in dowry. Due to constant
harassment given to her by the aforementioned four
5
accused persons, it had become unbearable for her to
stay in the house and, therefore, she returned to her
parents’ house and started living with her parents.
14. On 15.03.1984, Jwala Singh and Chandra
Bhawan Singh went to Satywati's parents’ house and
brought Satyawati back to her in-laws house. On
18.03.1984 (after 3 days), Satyawati was found dead
in her in-laws house. She died due to gun shot
injuries.
15. Chandra Bhawan Singh-the elder brother of
Tribhuwan Singh lodged a FIR in the Police Station,
Kishanpur on the same day, i.e., 18.03.1984,
informing therein that Satyawati committed suicide in
the house by gun shot injuries and that her dead body
was lying in the courtyard of the house. One FIR was
also lodged by village Pradhan. It was registered as FIR
No. 30/1984 (GD No. 14/84) at PS Kishanpur. The
brother of the deceased-Rajender (PW-1) lodged the
6
FIR on the same day stating therein that all the four
accused named above have killed his sister because of
non-fulfillment of their demand for dowry.
16. On 19/20.04.1984, all the four accused persons
were arrested. In the investigation, the police recovered
the Gun at the instance of Tribhuwan Singh from his
house, which was alleged to be used in commission of
the offence. The post mortem of the dead body was
performed which disclosed that Satyawati was
murdered. The police then made further investigation,
collected evidence, obtained ballistic report from the
experts and recorded the statements of the accused
persons and other witnesses.
17. On 09.06.1984 the police filed Challan. The case
was committed to the Additional Sessions Judge,
Fatehpur for trial. The Additional Sessions Judge
framed charges against the four accused persons for
commission of the offences punishable under Sections
7
302/34 and 201 of IPC read with Section 4 of the DP
Act. The prosecution examined six witnesses to prove
their case.
18. By order dated 07.05.1986, the Additional
Sessions Judge acquitted Jwala Singh finding no
evidence against him but convicted Tribhuwan Singh
(husband), Smt. Makoi Devi (mother-in-law) and
Chandra Bhawan Singh (brother-in-law) and
sentenced them to undergo life imprisonment for
killing Satyawati.
19. Thribhuwan Singh, Smt Makoi Devi and Chandra
Bhawan Singh felt aggrieved and filed appeal in the
High Court at Allahabad against their conviction and
sentence awarded by the Additional Sessions Judge.
20. By impugned judgment, the High Court
dismissed the appeal filed by Tribhuwan Singh and
Chandra Bhawan Singh and accordingly upheld their
conviction and sentence. However, the High Court
8
acquitted Smt. Makoi Devi (mother-in-law) from all the
charges finding no evidence against her.
21. It is against this judgment, the accused
Tribhuwan Singh and Chandra Bhawan Singh have
filed the present two appeals by way of special leave in
this Court.
22. So far as acquittal of Jwala Singh and Smt.
Makoi Devi is concerned, it has attained finality
because the State did not file any appeal in the High
Court and nor in this Court.
23. Heard Mr. Nagendra Rai, learned senior counsel
for the appellants(accused) and Mr. Ratnakar Dash,
learned senior counsel for the respondent(State).
24. Mr. Nagendra Rai, learned senior counsel for the
appellants(accused) while assailing the legality and
correctness of the impugned judgment contended that
firstly, the conviction of both the appellants, though
9
concurrent in nature, is neither factually and nor
legally sustainable.
25. In the Second place, he contended that since the
entire case of prosecution is founded on circumstantial
evidence, it was necessary for the prosecution to have
adduced evidence to prove the complete chain of
events. Learned counsel contended that there is no
evidence much less sufficient evidence adduced by the
prosecution to prove the chain of events leading to the
guilt of committing the murder of Satyawati by the
appellants and hence the conviction is bad in law.
26. In the third place, learned counsel to support his
second submission took us through the evidence with
a view to show that chain of events to prove the guilt
qua the appellants is not established.
27. In the fourth place, learned counsel contended
that the circumstances appearing in the case from the
10
evidence would show that Satyawati committed
suicide.
28. In reply, learned counsel for the respondent
(State) supported the reasoning and the conclusion
arrived at by both the Courts below and prayed for
dismissal of the appeals calling for no interference in
the concurrent findings of both the Courts below.
29. Having heard the learned counsel for the parties
and on perusal of the record of the case, we find no
merit in the appeals.
30. In our opinion, both the Courts below properly
appreciated the evidence and came to a right
conclusion that the appellants were responsible for
commission of the offence of murder of Satyawati.
31. It is a settled principle of law that when the
Courts below have recorded concurrent findings
against the accused persons which are based on due
appreciation of evidence, this Court under Article 136
11
of the Constitution of India would be slow to interfere
in such concurrent findings and secondly would not
appreciate the evidence de novo unless it is prima facie
shown that both the Courts below did not either
consider the relevant piece of evidence or there exists
any perversity or/and absurdity in the findings
recorded by both the Courts below etc.
32. We, however, made endeavour to peruse the
evidence with a view to find out as to whether the
concurrent findings of both the Courts below have any
kind of infirmity or/and whether the concurrent
findings are capable of being legally and factually
sustainable in law or need to be reversed. Having gone
through the evidence, we are of the view that the
findings are legally and factually sustainable.
33. We find that there is evidence to prove the factum
of demand of dowry. Rajender(PW-1) is the real
brother of the deceased. He was the complainant. His
12
evidence was rightly relied on by the two Courts below
for holding that the appellants were persistently
making a demand of dowry (motor cycle) from
Satyawati and her family members and they used to
harass her for such cause. The testimony of PW-1 is
natural and consistent having no material
contradiction, we, therefore, find no justification to
disbelieve it. The same deserves to be accepted.
34. So far as the story of suicide set up by the
appellants is concerned, it is, in our view, wholly
unbelievable on the evidence brought on record.
35. First, it is not possible rather difficult for a
person to commit suicide by using DBBL Gun; Second,
it has come in evidence that there were as many as 7
gun shot injuries noticed on the body of Satyawati. In
our view, It is not possible for a person to commit
suicide by firing seven gun shots one after the other on
his/her body with the use of DBBL Gun in hands.
13
However, one can commit suicide by firing one shot
with a pistol. Such was, however, not the case of the
appellants.
36. Coming to the involvement of the appellants in
commission of the offence, we find that the High Court
relied on the following circumstances appearing
against the appellants for holding them guilty of
commission of the offence of murder of Satyawati.
These circumstances are extracted hereinbelow:
“Here prosecution has discharged its part
of the burden by leading evidence of which it
was capable by substantiating the fact (i) that
there has been demand of dowry (ii) deceased
has been taken to her in laws house (iii) at the
time of death, deceased has been staying with
her in laws and appellants are the inmates of
the house (iv) death in question has taken
place inside the house (v) injuries caused
clearly reflects that it is case of murder (vi)
story of suicide set up by appellant No.3 was
not at all supported by medical evidence (vii)
DBBL gun has been used in the commission of
offence and once chain of events are clearly
linked up then in view of Section 106 of
Evidence Act, as young bride in question has
been killed inside the house, then there is
corresponding burden on the inmates of the
house to give cogent explanation as to how the
crime was committed. The inmates of the
house cannot get away by simply keeping quiet
14
and offering no explanation on the supposed
premise that the burden to establish its case
lies entirely upon the prosecution and there is
no duty at all on an accused to offer any
explanation. The principle is that when an
incriminating circumstance is put to the
accused and said accused does not offer any
explanation which on the face of it is found
false or untrue, then the same becomes
additional link in the chain of circumstances
to make it complete.”
37. In our considered opinion, the aforementioned
seven circumstances set out by the High Court for
holding the appellants guilty cannot be faulted with.
These seven circumstances do establish the chain of
events and being directly connected with the incident
in question, establish the involvement of the
appellants in commission of the offence beyond
reasonable doubt. In our opinion, the test laid down
to prove the guilt by circumstantial evidence in this
case is fully satisfied by the aforementioned seven
circumstances against the appellants.
38. That apart, we also find from the evidence that
Chandra Bhawan Singh-the appellant herein was the
15
first to lodge the FIR about the incident wherein he
stated that Satyawati has committed suicide.
Apparently, this fact proves that first, he was present
in the house where Satyawati was found dead and
second, he falsely stated that Satyawati committed
suicide because he wanted to divert the attention of
the police from the reality. As held above, no evidence
was led to prove that it was a case of suicide.
39. We also find that both the accused (appellants
herein) in their statements recorded under Section 313
of the Criminal Procedure Code, 1973 failed to give any
explanation when asked about the circumstances in
which the incident occurred in their house. When the
incident admittedly occurred in their house, the
appellants were required to explain the circumstances
in which Satyawati died. They, however, failed to give
any explanation.
16
40. We also find that Tribuhuwan Singh said that he
was not present in the house at the time of the
occurrence and on that day he was in Allahabad. He
also failed to adduce any evidence to prove this fact.
41. We are, therefore, of the considered view that
both the Courts below rightly held the appellants
guilty for commission of the offence in question and,
therefore, we find no good ground to take a different
view than what is taken by the two Courts below.
42. In view of the foregoing discussion, the appeals
fail and are accordingly dismissed.
 ………...................................J.
[R.K. AGRAWAL]


 …...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
May 01, 2018
17

arbitration - Jurisdiction of India courts -challenged the legality, validity and correctness of the award made by the arbitrators in respondent's favour in one international commercial arbitration proceeding between the appellant (Union of India) and the respondent (foreign company).= In our opinion, though, the question regarding the “seat” and “venue” for holding arbitration proceedings by the arbitrators arising under the Arbitration Agreement/International Commercial Arbitration Agreement is primarily required to be decided keeping in view the terms of the arbitration agreement itself, but having regard to the law laid down by this Court in several decisions by the Benches of variable strength as detailed above, and further taking into consideration the aforementioned submissions urged by the learned counsel for the parties and also keeping in view the issues involved in the appeal, which frequently arise in International Commercial Arbitration matters, we are of the considered view that this is a fit case to exercise our power under Order VI Rule 2 of the Supreme Court 12 Rules, 2013 and refer this case (appeal ) to be dealt with by the larger Bench of this Court for its hearing We, accordingly direct the Registry to place the matter before the Hon'ble the Chief Justice of India for constituting the appropriate Bench for hearing and disposal of this appeal.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPERAL NO. 4628 OF 2018
[Arising out of SLP (C) No.31356 of 2016]
Union of India .. Appellant(s)
Versus
Hardy Exploration and Production
(India) INC .. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal arises from the final judgment and
order dated 27.07.2016 passed by the High Court of
Delhi at New Delhi in FAO No.59 of 2016 whereby the
Division Bench of the High Court dismissed the
appeal filed by the Union of India (appellant herein)
1
challenging the order dated 09.07.2015 passed by
the Single Judge in OMP No.693 of 2013 and order
dated 20.01.2016 in Review Petition No.400 of 2015
in OMP No.693 of 2013.
3) In order to appreciate the controversy involved
in the appeal, few relevant facts, which lie in a
narrow compass, need to be stated hereinbelow.
4) This appeal arises out of the proceedings (OMP
693/2013) filed by the appellant (Union of India)
against the respondent-Company under Section 34 of
the Arbitration and Conciliation Act, 1996
(hereinafter referred to as “the Act”) wherein the
appellant had challenged the legality, validity and
correctness of the award made by the arbitrators in
respondent's favour in one international commercial
arbitration proceeding between the appellant (Union
of India) and the respondent (foreign company).
2
5) The respondent contested the appellant's
application by raising several objections. One such
preliminary objection, which went to the root of the
application, was in relation to the maintainability of
appellant's application filed under Section 34 of the
Act in Courts in India.
6) According to the respondent, the Indian Courts
have no jurisdiction to entertain the appellant's
application filed under Section 34 of the Act to
challenge the legality and correctness of an award in
question.
7) The Single Judge by order dated 09.07.2015
upheld the respondent's preliminary objection and
held that keeping in view the terms of the agreement
in question coupled with the law laid down by this
Court in several decisions governing the issues
arising in the case, Indian Courts have no
jurisdiction to entertain the application filed by the
3
appellant under Section 34 of the Act to question the
legality and correctness of the award in question and
accordingly dismissed the appellant's application as
being not maintainable in Indian Courts.
8) Since the appellant's application was dismissed
on the ground of lack of jurisdiction of the Indian
Courts, the Single Judge did not consider it
necessary to decide the issues arising in the case on
the merits.
9) The appellant (Union of India) felt aggrieved by
the order of the Single Judge, filed appeal under
Section 37(2) of the Act before the Division Bench of
the High Court at Delhi.
10) By impugned judgment, the Division Bench
concurred with the reasoning and the conclusion
arrived at by the Single Judge and held that the
Indian Courts have no jurisdiction to entertain the
appellant's application under Section 34 of the Act to
4
question the legality of award rendered in
international commercial arbitration proceedings.
11) It is against this order, the Union of India felt
aggrieved and has filed the present appeal by special
leave in this Court.
12) Heard Mr. Tushar Mehta, learned Additional
Solicitor General for the appellant and Dr. Abhishek
Manu Singhvi, learned senior counsel for the
respondent.
13) At the outset, we may state that Mr. Tushar
Mehta, learned ASG appearing for the appellant
(Union of India) and Dr. Abhishek Manu Singhvi
learned senior counsel appearing for the respondent
very ably presented their respective arguments in
support of their case. The arguments indeed lasted
for few months in intervals with lucidity.
14) In their submissions, both the learned senior
counsel argued on almost every issue, which has
5
arisen in the appeal directly, indirectly and even
remotely.
15) Learned counsel, in support of their
submissions, cited almost every decision of this
Court including English Courts decisions which dealt
with the subject and the issues arising in this case
and made sincere attempt to either distinguish
or/and place reliance on them to show how and why
these decisions apply to the facts of the case at hand
or how and why they do not apply.
16) Learned counsel for the parties mainly cited
these cases:
Foreign Cases: Naviera Amazonica Peruana S.A.
vs. Compania Internacional De Seguros Del Peru
(1988) (1) Lloyd's Law Reports 116, Hiscox vs.
Outhwaite (1992) 1 AC 562, Union of India vs.
McDonnell Douglas Corpn. (1993) 2 Lloyd’s Law
Rep. 48, C vs. D (2007) EWCA Civ 1282 (CA), C vs. D
6
(2008) 1 Lloyd’s Law Rep 239, Braes of Doune Wind
Farm (Scotland) Limited vs. Alfred McAlpine
Business Services Limited (2008) EWHC 426 (TCC),
Shashoua and Ors. vs. Sharma (2009) EWHC 957
(Comm.), Sulamerica Cia Nacional De Seguros S.A.
& Ors. vs. Enesa Engenharia SA & Ors., (2012)
EWCA Civ 638, (1) Enercon GMBH (2) Wobben
Properties GMBH vs. Enercon (India) Ltd. (2012)
EWHC 3711 (Comm), Govt. of India vs. Petrocon
India Ltd. (2016) SCC Online MYFC 35.
Indian Cases: National Thermal Power Corporation
vs. Singer Co. And Ors. (1992) 3 SCC 551,
Sumitomo Heavy Industries Ltd. vs ONGC Ltd.
and Ors. (1998) 1 SCC 305, Sundaram Finance Ltd.
vs. NEPC India Ltd. (1999) 2 SCC 479, Bhatia
International vs. Bulk Trading S.A. and Anr.(2002)
4 SCC 105, Venture Global Engineering vs. Satyam
Computer Services Ltd. & Anr. (2008) 4 SCC 190,
7
Indtel Technical Services Pvt. Ltd. vs. W.S. Atkins
Rail Ltd., (2008) 10 SCC 308, Bank of India & Anr.
vs. K. Mohan Das & Ors., (2009) 5 SCC 313,
Citation Infowares Ltd. vs. Equinox Corporation
(2009) 7 SCC 220, State of Rajasthan & Anr. vs.
Ferro Concrete Construction (P) Ltd. (2009) 12
SCC 1, Videocon Industries Limited vs. Union of
India and Anr. (2011) 6 SCC 161, Dozco India
Private Ltd. vs. Doosan Infracore Co. Limited
(2011) 6 SCC 179, Yograj Infrastructure Limited
vs. Ssang Yong Engineering and Construction Co.
Limited (2011) 9 SCC 735, Bharat Aluminium
Company vs. Kaiser Aluminium Technical
Services INC (2012) 9 SCC 552, Enercon (India)
Ltd. & Ors. vs. Enercon GMBH & Anr. (2014) 5 SCC
1, Reliance Industries Limited and Anr. Union of
India (2014) 7 SCC 603, Harmony Innovation
Shipping Ltd. vs. Gupta Coal India Ltd. & Anr.,
8
(2015) 9 SCC 172, Union of India vs. Reliance
Industries and Ors.(2015) 10 SCC 213, Bharat
Aluminum Company vs. Kaiser Aluminum
Technical Services INC (2016) 4 SCC 126, Eitzen
Bulk A/S & Ors. vs. Ashapur Minechem Ltd. &
Anr. (2016) 11 SCC 508, Imax Corporation vs
E-City Entertainment(India) Pvt. Ltd. (2017) 5 SCC
331, Roger Shashoua and Ors. vs. Mukesh Sharma
& Ors., 2017 (14) SCC 722.
17) The argument of both the learned senior
counsel mainly centered around to one question
which, in our opinion, does arise in the appeal,
namely, when the arbitration agreement specify the
“venue” for holding the arbitration sittings by the
arbitrators but does not specify the “seat”, then on
what basis and by which principle, the parties have
to decide the place of “seat” which has a material
bearing for determining the applicability of laws of a
9
particular country for deciding the post award
arbitration proceedings.
18) Several other ancillary questions connected with
the main question were also urged by the learned
senior counsel with the aid of law laid down in the
aforementioned cases and the terms of the
arbitration agreement in question.
19) Learned counsel for the parties also addressed
the Court by pointing out that some decisions which
have bearing over the questions arising in this appeal
have been rendered by the Constitution Bench, some
by Three Judge Bench and remaining by the Two
Judge Bench.
20) One of the arguments of Dr. Singhvi, learned
senior counsel was that the decision rendered by
Three Judge Bench in the case of Sumitomo Heavy
Industries Ltd. vs. ONGC Ltd. & Others (supra) on
which great reliance was placed by Mr. Tushar
10
Mehta, learned ASG has lost its efficacy, though
approved by another recent decision of Three Judge
Bench in Bharat Aluminum Company vs. Kaiser
Aluminum Technical Services INC (supra), for the
reason that it was rendered under the Arbitration
Act, 1940 which now stands repealed by Arbitration
Act, 1996 and secondly, it was rendered in relation to
Section 9 of the Foreign Awards (Recognition and
Enforcement) Act, 1961 which also now stands
repealed by 1996 Act.
21) It was his submission that while approving the
ratio of Sumitomo Heavy Industries Ltd. (supra)
these two factors which have some relevance on its
efficacy do not seem to have been examined in the
case of Bharat Aluminum Company (supra) .
22) Dr. Singhvi also urged that what is the effect of
UNCITRAL Model Law, when they are made part of
the arbitration agreement for deciding the question of
11
“seat” has also not been so far decided in any of the
earlier decisions.
23) In our opinion, though, the question regarding
the “seat” and “venue” for holding arbitration
proceedings by the arbitrators arising under the
Arbitration Agreement/International Commercial
Arbitration Agreement is primarily required to be
decided keeping in view the terms of the arbitration
agreement itself, but having regard to the law laid
down by this Court in several decisions by the
Benches of variable strength as detailed above, and
further taking into consideration the aforementioned
submissions urged by the learned counsel for the
parties and also keeping in view the issues involved
in the appeal, which frequently arise in International
Commercial Arbitration matters, we are of the
considered view that this is a fit case to exercise our
power under Order VI Rule 2 of the Supreme Court
12
Rules, 2013 and refer this case (appeal ) to be dealt
with by the larger Bench of this Court for its hearing.
24) It is for this reason, we refrain from recording
our findings on any of the issues arising in the
appeal and leave the questions/issues to be dealt
with by the appropriate larger Bench.
25) We, accordingly direct the Registry to place the
matter before the Hon'ble the Chief Justice of India
for constituting the appropriate Bench for hearing
and disposal of this appeal.
.………………………………..J
(R.K. AGRAWAL)
 ..………………………………J.
 (ABHAY MANOHAR SAPRE)
New Delhi,
May 01, 2018
13