landlady filed an application under Section 32(P) read with Section 32F for declaration that the deemed statutory purchase by the tenant was void as there was no required notice under Section 32F(1A) of the Act. = The position as disclosed by a combined and harmonious reading of Sections 31, 32, 32F and 32G may be stated thus : a) Where the landlord has not served on the tenant, a notice of termination (as stated in clause (b) of sub-section (1) of section 32), the tenant is deemed to have purchased the land on the tillers day (1.4.1957); b) Where the tenant is deemed to have purchased the land on the Tillers Day (1.4.1957), the Lands Tribunal is required to issue notice and determine the price of land to be paid by tenant. Where there is a deemed purchase, but the right to purchase is postponed, the Land Tribunal shall determine the price of land, as soon as may be after the postponed date; -------- f) Where a landlord, who is a widow, exercises her right of termination and secures possession of part of the tenanted land for personal cultivation under section 31(1) of the Act, then there is no question of her successorin-title giving a notice of termination within one year from the date on which the widow’s interest ceases to exist. When section 31 (3) ceases to apply, section 32F also will not apply and there is no need for the tenant to give any intimation under section 32F(1A).”= There is no doubt in the case that the appellant admittedly was a tenant of the first respondent. We hold it is a case where there was no need for the appellant to send any intimation within the meaning of Section 32F(1A). He had acquired a deemed status with the rejection of the application filed by the landlord. The appellant was not obliged to do anything further. In view of the matter, we allow the appeals and set aside the impugned decisions passed by the High Court and restore the order passed by the Collector.

Hon'ble Mr. Justice K.M. Joseph
 Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1644-1645 of 2019
[Arising out of SLP(C)No(s).13627-13628 of 2012]
BAYAJI SAMBHU MALI @
BORATE(D) THROUGH LRS. APPELLANT(S)
 VERSUS
NAZIR MOHAMMED BALAL ZARI
THROUGH GPA HOLDER & ORS. RESPONDENT(S)
J U D G M E N T
 K.M. JOSEPH, J.
1. Leave granted.
2. By the impugned judgment and order, the High
Court has dismissed the writ petition filed by the
appellant under Article 227 of the Constitution
against the order dated 09.01.1997 of the Maharashtra
Revenue Tribunal and the review petition filed against
the same.
3. These appeals arise under the Bombay Tenancy and
Agricultural Lands Act, 1948 (hereinafter referred to
as ‘the Act’). The appellant is the tenant and the
1
respondent is the landlord. On what is described as
Tillers day i.e. 01.04.1957, the landlord was a minor.
The controversy, which we are called upon to resolve,
is whether the appellant is a deemed purchaser within
the meaning of Section 29 read with Section 32 of the
Act or whether this is a case under Section 32F of the
Act under which the tenant is obliged
to give a notice under Section 32F(1A).
4. To appreciate the question which arises before
us, it is necessary we should first set out the facts
according to the appellant which are related to the
impugned order.
5. It is the case of the appellant that the first
respondent – landlord claimed that he had attained
majority on 10.09.1966 and filed an application
bearing Tenancy Case No. 1 of 1967 before the
Mamalatdar for his personal cultivation under Section
31(3) of the Act. The appellant claimed that he had
received a notice issued by Tenancy Awwal Karkun and
was directed to appear on 05.06.1967. His statement
was recorded. By order dated 27.07.1967, the
application filed by the landlord seeking possession
2
was dismissed.
6. It is the further case of the appellant that the
first respondent – landlord filed Tenancy Appeal
(bearing No. 148 of 1967) before the Appellate
Authority. The said appeal came to be dismissed on
09.03.1968. The respondent – landlord carried the
matter further before the Tribunal by way of a
Revision Application. The Maharashtra Revenue
Tribunal vide order dated 22.04.1970 dismissed the
Revision Application. It is thereafter the tenantinitiated proceedings under Section 32G of the Act in
the year 1977. The Original Authority, however, took
the view that the tenant did not comply with the
provision of Section 32F of the Act which was
challenged before the Sub-Divisional Officer who
confirmed the order vide order dated 30.09.1978.
7. The Tribunal, on a Revision filed by the
appellant, set aside the order and remanded the matter
for a fresh inquiry under Section 32G of the Act.
8. By order dated 20.07.1990, the Additional
Tehsildar, after noticing certain discrepancies in the
3
extract of Appeal Register relating to the proceeding
commenced by the landlord found that the appellant had
failed to prove that the landlord had exercised his
right to recover possession under Section 31 of the
Act and therefore the provision of Section 32F of the
Act applies. Since the same had not been complied
with, therefore the purchase in favour of the
appellant was found to be ineffective.
9. The Appellate Authority, by order dated
24.04.1992, however, found otherwise and allowed the
appeal filed by the appellant. The landlord
challenged the order of the Appellate Authority. By
order dated 09.01.1997, the Tribunal set aside the
order of the Appellate Authority and confirmed the
order passed by the Additional Tahsildar and found
that the appellant had not complied with the
provisions of Section 32F(1A). It is against the said
order of the Tribunal, the appellant filed the writ
petition. The High Court dismissed the writ petition
and though the appellant filed a review petition, the
same was also rejected.
10. We have heard learned counsel for the parties.
4
11. Learned counsel for the appellant contended that
this is a case where the matter should be treated as
governed by the provisions under Section 29 read with
Section 31 of the Act. In a case governed by these
provisions, learned counsel pointed out that there is
no requirement of issuing notice within the meaning of
Section 32F. He relied on Tukaram Maruti Chavan v.
Maruti Narayan Chavan (D) by Lrs. and Ors. (2008) 9
SCC 358 and Sudam Ganpat Kutwal v. Shevantabai
Tukaram Gulumkar (2006) 7 SCC 200.
12. It is clear that the landlord had filed an
application under Section 29 of the Act and the said
application was rejected and the rejection was upheld
right upto the Tribunal in Revision.
13. These documents have been brushed aside as also
the legal effect of the orders passed. He would
further contend that though he had produced certified
copies along with review petition in the High Court
even then the same were not considered. He would
maintain that in a case where there is a deemed
purchase, there is no requirement to issue a notice
under Section 32F(1A).
5
14. Per contra, learned counsel for the respondent
would support the order of the High Court. He would
contend that it is mandatory to give a notice under
Section 32F(1A). Without giving such a notice, it is
not open to contend that he must be deemed to have
purchased the right. He would also point out that the
case of the respondent is that the application was not
accepted since the certified copies were produced only
after the dismissal of the writ petition that too in
the review. Therefore, no store can be laid by the
said documents. He also contends that it was
appellant’s case that there was substantial compliance
of Section 32F(1A) in the High Court.
15. Time is now apposite to make a survey of
statutory scheme of the Act. The Act was enacted in
the year 1948. We must advert to the following
provisions which we think are relevant for the
purposes of this case.
16. Section 29 deals with Procedure of taking
possession which, inter alia, reads as follows:
29. (1) A tenant or an agricultural
labourer or artisan entitled to
possession of any land or dwelling house
under any of the provisions of this Act
6
may apply in writing for such possession
to the Mamlatdar. The application shall
be made in such form as may be
prescribed [and within a period of two
years from the date on which the right
to obtain possession of the land or
dwelling house is deemed to have accrued
to the tenant, agricultural labourer or
artisan, as the case may be].
(2) [Save as otherwise provided in subsection (3A), no landlord] shall obtain
possession of any land or dwelling house
held by a tenant except under an order
of the Mamlatdar. For obtaining such
order he shall make an application in
the prescribed form [and within a period
of two years from the date on which the
right to obtain possession of the land
or dwelling house, as the case may be,
is deemed to have accrued to him].
(3) On receipt of application under subsection (1) or (2) the Mamlatdar shall,
after holding an inquiry, pass such
order thereon as he deems fit :
[Provided that where an application
under sub-section (2) is made by a
landlord in pursuance of the right
conferred on him under section 31, the
Mamlatdar shall first decide, as
preliminary issues, whether the
conditions specified in clauses (c) and
(d) of section 31A and sub-sections (2)
and (3) of section 31B are satisfied. If
the Mamlatdar finds that any of the said
conditions is not satisfied, he shall
reject the application forthwith].
17. Section 31 deals with Landlord’s right to
terminate tenancy for personal cultivation and non
7
agricultural purpose which reads as follows:
31. (1) Notwithstanding anything
contained in sections 14 and 30 but
subject to sections 31A to 31D (both
inclusive), a 3 [landlord (not being a
landlord within the meaning of Chapter
III-AA) may], after giving notice and
making an application for possession as
provided in sub-section (2), terminate
the tenancy of any land (except a
permanent tenancy), if the landlord
bona-fide requires the land for any of
the following purposes :–– (a) for
cultivating personally, or
(b) for any non-agricultural purpose.
(2) The notice required to be given
under sub-section (1) shall be in
writing, shall state the purpose for
which the landlord requires the land and
shall be served on the tenant on or
before the 31st day of December 1956. A
copy of such notice shall, at the same
time, be sent to the Mamlatdar. An
application for possession under section
29 shall be made to the Mamlatdar on or
before the 31st day of March 1957.
(3) Where a landlord is a minor, or a
widow, or a person subject to mental or
physical disability then such notice may
be given [and an application for
possession under section 29 may be
made,]––
(i) by the minor within one year from
the date on which he attains majority;
(ii) by the successor-in-title of a
widow within one year from the date on
which her interest in the land ceases to
exist;
8
(iii) within one year from the date on
which mental or physical disability
ceases to exist;
[Provided that where a person of such
category is a member of a joint family,
the provisions of this sub-section shall
not apply if at least one member of the
joint family is outside the categories
mentioned in the sub-section unless
before the 31st day of March 1958 the
share of such person in the joint family
has been separated by metes and bounds
and the Mamlatdar on inquiry, is
satisfied that the share of such person
in the land is separated having regard
to the area, assessment, classification
and value of the land, in the same
proportion as the share of that person
in the entire joint family property, and
not in a large proportion].
18. 31A. The right of a landlord to terminate a
tenancy for cultivating the land personally under
section 31 shall be subject to the following
conditions:–
------
(c) The income by the cultivation of the
land of which he is entitled to take
possession is the principal source of
income for his maintenance.
(d) The land leased stands in the record
of rights or in any public record or
similar revenue record on the 1st day of
January 1952 and thereafter during the
9
period between the said date and the
appointed day in the name of the
landlord himself, or of any of his
ancestors 2 [but not of any person from
whom title is derived, whether by
assignment or Court sale or otherwise],
or if the landlord is a member of a
joint family, in the name of a member of
such family].
19. Section 32 deals with Tenants deemed to have
purchased land on tillers’ day. It reads as follows:
32. [(1)] On the first day of April 1957
(hereinafter referred to as “the
tillers’ day”) every tenant shall,
[subject to the other provisions of this
section and the provisions of] the next
succeeding section, be deemed to have
purchased from his landlord, free of all
encumbrances subsisting thereon on the
said day, the land held by him as
tenant, if–
(a) such tenant is a permanent tenant
thereof and cultivates land personally;
(b) such tenant is not a permanent
tenant but cultivates the land leased
personally; and
(i) the landlord has not given notice of
termination of his tenancy under section
31; or
(ii) notice has been given under section
31, but the landlord has not applied to
the Mamlatdar on or before the 31st day
of March 1957 under section 29 for
obtaining possession of the land; [or]
[(iii) the landlord has not terminated
10
his tenancy on any of the grounds
specified in section 14, or has so
terminated the tenancy but has not
applied to the Mamlatdar on or before
the 31st day of March 1957 under section
29 for obtaining possession of the lands
] :
Provided that if an application made by
the landlord under section 29 for
obtaining possession of the land has
been rejected by the Mamlatdar or by the
Collector in appeal or in revision by
the [Maharashtra Revenue Tribunal] under
the provisions of this Act, the tenant
shall be deemed to have purchased the
land on the date on which the final
order of rejection is passed. The date
on which the final order of rejection is
passed is hereinafter referred to as
“the postponed date” : [Provided
further that the tenant of a landlord
who is entitled to the benefit of the
proviso to sub-section (3) of section 31
shall be deemed to have purchased the
land on the 1st day of April 1958, if no
separation of his share has been
effected before the date mentioned in
that proviso].
20. Section 32A provides that Tenants are deemed to
have purchased upto ceiling area.
32A. A tenant shall be deemed to have
purchased land under section 32,- (1) in
the case of a tenant who does not hold
any land as owner but holds land as
tenant in excess of the ceiling area,
upto the ceiling area;
(2) in the case of a tenant who holds
land as owner below the ceiling area,
11
such part of the land only as will raise
his holding to the extent of the ceiling
area.
21. Section 32B provides for the circumstances in
which the tenants are not deemed to have purchased
lands. It provides that if the tenant holds land
partly as owner and partly as tenant but the area of
the land held as owner is equal to or exceeds
ceiling area, he shall not be deemed to have
purchased the land held by him as a tenant under
Section 32.
22. Section 32C permits the tenants entitled to
choose lands to be purchased. Section 32D
contemplates when tenants are deemed to have purchased
fragments. The balance of any land, if any, after the
purchase by the tenant under Section 32 shall be
disposed of in the manner laid down in Section 15 as
if it were land surrendered by the tenant. This is
the mandate of Section 32E.
23. Section 32F deals with Right of tenant to
purchase where landlord is minor etc. which reads as
follows:
32F. (1) Notwithstanding anything
12
contained in the preceding sections,–
(a) where the landlord is a minor, or a
widow, or a person subject to any mental
or physical disability, the tenant
shall have the right to purchase such
land under section 32 within one year
from the expiry of the period during
which such landlord is entitled to
terminate the tenancy under section 31
[and for enabling the tenant to exercise
the right of purchase, the landlord
shall send an intimation to the tenant
of the fact that he has attained
majority, before the expiry of the
period during which such landlord is
entitled to terminate the tenancy under
section 31] :
[Provided that where a person of such
category is a member of a joint family,
the provisions of this sub-section shall
not apply if at least one member of the
joint family is outside the categories
mentioned in this sub-section unless
before the 31st day of March 1958 the
share of such person in the joint family
has been separated by metes and bounds
and the Mamlatdar on inquiry is
satisfied that the share of such person
in the land is separated, having regard
to the area, assessment, classification
and value of the land, in the same
proportion as the share of that person
in the entire joint family property and
not in a larger proportion].
(b) where the tenant is a minor, or a
widow, or a person subject to any mental
or physical disability or a serving
member of the armed forces, then subject
to the provisions of clause (a), the
right to purchase land under section 32
may be exercised–
(i) by the minor within one year from
the date on which he attains majority;
13
(ii) by the successor-in-title of the
widow within one year from the date on
which her interest in the land ceases to
exist;
(iii) within one year from the date on
which the mental or physical disability
of the tenant ceases to exist;
(iv) within one year from the date on
which the tenant ceases to be a serving
member of the armed forces :
[Provided that where a person of such
category is a member of a joint family,
the provisions of this sub-section shall
not apply if at least one member of the
joint family is outside the categories
mentioned in this sub-section unless
before the 31st day of March 1958 the
share of such person in the joint family
has been separated by metes and bounds
and the Mamlatdar on inquiry is
satisfied that the share of such person
in the land is separated, having regard
to the area, assessment, classification
and value of the land, in the same
proportion as the share of that person
in the entire joint family property, and
not in a larger proportion].
[(1A) A tenant desirous of exercising
the right conferred on him under subsection (1) shall give an intimation in
that behalf to the landlord and the
Tribunal in the prescribed manner within
the period specified in that subsection] :
[Provided that, if a tenant holding land
from a landlord (who was a minor and has
attained majority before the
commencement of the Tenancy and
14
Agricultural Lands Laws (Amendment) Act,
1969) has not given intimation as
required by this sub-section but being
in possession of the land on such
commencement is desirous of exercising
the right conferred upon him under subsection (1), he may give such intimation
within a period of two years from the
commencement of that Act].
(2) The provisions of sections 32 to 32E
(both inclusive) and sections 32G to 32R
(both inclusive) shall, so far as may be
applicable, apply to such purchase.
24. Section 32G reads as follows:-
32G. (1) As soon as may be after the
tillers’ day the Tribunal shall publish
or cause to be published a public notice
in the prescribed form in each village
within its jurisdiction calling upon –
(a) all tenants who under section 32 are
deemed to have purchased the lands,
(b) all landlords of such lands, and
(c) all other persons interested
therein, to appear before it on the date
specified in the notice. The Tribunal
shall issue a notice individually to
each such tenant, landlord and also, as
far as practicable, other persons
calling upon each of them to appear
before it on the date specified in the
public notice.
(2) The Tribunal shall record in the
prescribed manner the statement of the
tenant whether he is or is not willing
to purchase the land held by him as
tenant.
15
(3) Where any tenant fails to appear or
makes a statement that he is not willing
to purchase the land, the Tribunal shall
by an order in writing declare that such
tenant is not willing to purchase the
land and that the purchase is
ineffective :
Provided that if such order is passed in
default of the appearance of any party,
the Tribunal shall communicate such
order to the parties and any party on
whose default the order was passed may
within 60 days from the date on which
the order was communicated to him apply
for the review of the same.
(4) If a tenant is willing to purchase,
the Tribunal shall, after giving an
opportunity to the tenant and landlord
and all other persons interested in such
land to be heard and after holding an
inquiry, determine the purchase price of
such land in accordance with the
provisions of section 32H and of subsection (3) of section 63A :
[Provided that where the purchase price
in accordance with the provisions of
section 32H is mutually agreed upon by
the landlord and the tenant, the
Tribunal after satisfying itself in such
manner as may be prescribed that the
tenant’s consent to the agreement is
voluntary may make an order determining
the purchase price and providing for its
payment in accordance with such
agreement].
(5) In the case of a tenant who is
deemed to have purchased the land on the
postponed date the Tribunal shall, as
soon as may be, after such date
16
determine the price of the land.
(6) If any land which, by or under the
provisions of any of the Land Tenures
Abolition Acts referred to in Schedule
III to this Act, is regranted to the
holder thereof on condition that it was
not transferable, such condition shall
not be deemed to affect the right of any
person holding such land on lease
created before the regrant and such
person shall as a tenant be deemed to
have purchased the land under this
section, as if the condition that it was
not transferable was not the condition
of regrant.
25. Section 32H provides for the purchase price and
its maxima.
26. Now that we have the case as setup by learned
counsel for the appellant and learned counsel for the
respondents and also the statutory scheme, we must
delve a little deeper into the facts and also apply
the same in the backdrop of the scheme of the Act.
The High Court has proceeded on the basis that the
appellant has not given notice under Section 32F(1A).
According to the High Court, it is mandatory. Learned
counsel for the respondent also relies on that
reasoning. On the other hand, the case of the
appellant is that in accord with his case, there is no
17
requirement to give a notice under Section 32F(1A).
The landlord would point out that the Court may notice
that it is the case of the appellant that Section
32F(1A) has been substantially complied with by the
appellant.
27. Section 29(2) contemplates that no landlord shall
obtain possession of any land or dwelling house held
by a tenant except under an order of the Mamlatdar.
He is obliged to make an application within two years
from the date on which the right to obtain possession
of the land or dwelling house, as the case may be is
deemed to have accrued on him. Subsection (3)
provides that the Mamlatdar is to pass an order after
conducting such inquiry. In the proviso, it may be
noticed that where an application under subsection (2)
is made by a landlord in pursuance of the right
conferred upon the landlord under Section 31, in such
case, the Mamlatdar is to first decide preliminary
issues which include whether the conditions in clauses
(c) and (d) of Section 31A are satisfied. He must
also be convinced that the conditions mentioned under
subsections (2) and (3) of Section 31B are fulfilled.
18
He is dutybound to reject the application, if the
conditions therein are not fulfilled. With the rest
of the provisions contained in Section 29, we may not
be detained. Therefore, now coming to Section 31,
Section 31 falls under Chapter III titled Special
Rights and Privileges of Tenants and Provisions for
Distribution of Land for Personal Cultivation.
28. Chapter III is divided in two parts. Section 31
falls under Part (I) which provides - Termination of
Tenancy for Personal Cultivation and Non Agricultural
Use. It will be noticed that Section 32 and other
provisions which follow the same fall under Part (II)
which deals with Purchase of Land by Tenants.
29. Reverting back to Section 31, it contemplates
that subject to Sections 31A to 31D both inclusive and
notwithstanding whatever may be contained in Sections
14 and 30, a landlord after giving notice and making
an application for possession as provided in
subsection (2) can terminate the tenancy of any land
barring permanent tenancy, should he require the land
for cultivating personally or for any non agricultural
purpose.
19
30. Subsection (2) provides that a notice is to be
given in writing. It shall state the purpose for
which the landlord requires the land. It is to be
served on or before 31st Day of December 1956. A copy
of the said notice is to be sent to the Mamlatdar. It
is thereafter clearly provided that an application for
possession under Section 29 is to be made to the
Mamlatdar on or before 31st day of March 1957.
31. However, subsection (3) of Section 31
contemplates that where a landlord is a minor or a
widow or a person subject to mental or physical
disability, the notice may be given and an application
for possession under Section 29 may be made by the
minor within one year from the date on which he
attains majority. We are not concerned here with the
other categories. Therefore, we can hold that if a
landlord is a minor, he can invoke provisions of
Section 29 and an application for possession under
Section 29 can be made within one year from the date
on which he attains majority. Section 31A provides
for the conditions of termination of tenancy. It
limits the right of the landlord to terminate a
20
tenancy for cultivating the land personally under
Section 31 by hedging the said right with certain
conditions. The conditions also may not concern us.
It is now that we must pass on to Section 32.
32. Section 32 declares that on Tillers day which is
the First day of April 1957, every tenant shall be
deemed to have purchased from his landlord free of all
encumbrances subsisting thereon on the said day the
land held by him. There are two limitations which can
be culled out from the said provisions. A declaration
under Section 32 is made subject to the other
provisions of the said section. It is further made
dependent on the operation of the next succeeding
sections. In other words, the provisions which follow
Section 32 will control the application of Section 32.
33. What is relevant to us is the first proviso of
Subsection (1) which is relied upon by the appellant.
This came to be added by the Bombay Act 38 of 1957.
If it is broken down, it provides as follows:
1. The application is made by the
landlord under Section 29 for obtaining
possession of the land;
2. it has been rejected by the
Mamalatdar or by the Collector in appeal
21
or in revision by the Maharashtra
Revenue Tribunal. [The Maharashtra
Revenue Tribunal has been brought in by
way of Maharashtra Act 23 of 2007 with
effect from 13.12.2007];
3. if the aforesaid elements are
satisfied the proviso declares that the
tenant shall be deemed to have purchased
the land on the date on which the final
order of rejection is passed;
4. the date on which the final order of
rejection is passed is to be referred to
as 'the postponed date'.
34. Since Section 32 has been made subject to the
next succeeding sections, it will be noted that the
next succeeding sections in the form of Sections 32A,
32B, 32C and 32D provide for the conditions and
limitations subject to which the deeming provision
operates. In other words, the deemed right which is
conferred on a tenant under Section 32 will be enjoyed
subject to the restrictions under Sections 32A to 32D.
35. Before we discuss Section 32F, we deem it
appropriate to refer to Section 32G. Section 32G
deals with the power of the Tribunal to issue notice
and determine the price of the land to be paid by the
tenants. Section 32G(5) declares that in the case of
a tenant who is deemed to have purchased the land on
22
the postponed date the Tribunal shall determine the
price of the land. The ‘Tribunal’ is defined in
Section 2(19) as the Agricultural Lands Tribunal under
Section 67.
36. Section 32G inter alia provides that the Tribunal
shall publish or cause to be published a public notice
calling upon the persons who are deemed to have
purchased the lands. This is apart from calling upon
the landlords and other persons to appear on the date
specified in the notice. The failure of the tenant to
appear or a tenant who makes a statement that he is
not willing to purchase the land will result in the
Tribunal ordering in writing declaring that such
tenant is not willing to purchase and the purchase is
ineffective. If the tenant is willing to purchase,
the Tribunal after giving an opportunity to the
landlord and the tenant determine the price.
37. Reverting back to Section 32F, it begins with a
non obstante clause. The non obstante clause is qua
anything which is stated in the preceding sections.
38. It provides inter alia for a right of the tenant
to purchase where the landlord is a minor tenant. In
23
such a case, he would have the right to purchase
within a period of one year under Section 32. This
period of one year will begin to run from the expiry
of the period during which the landlord is entitled to
terminate the tenancy under Section 31.
39. Section 31 provides for a period of one year from
the date on which the minor attains majority when the
landlord is a minor for him to give notice and
followed by an application under Section 29.
40. Section 32F further provides that the landlord is
obliged to send an intimation to the tenant of the
fact that he has attained majority before the expiry
of the period during which the landlord can terminate
the tenancy under Section 31.
41. We will illustrate working of the Section with a
concrete example.
If a landlord is a minor and he attains
majority as on 01.01.1966 then under Section 31,
he will get a period of one year for terminating
the tenancy. The period will run out on
31.12.1966. The landlord is obliged to intimate
his tenant about the fact that he has attained
24
majority before 31.12.1966. Thereupon, the tenant
if he wishes to purchase, he would have the right
to give a notice within a period of one year from
31.12.1966. Thus, he would have the period till
30.12.1967. As to how the intimation is to be
given under subsection (1) of Section 32F is
provided in Section 32F(1A). Section 32F(1A)
provides he must give an intimation about his
exercising the right under subsection (1) both to
the landlord and the Tribunal in the manner
prescribed within the period mentioned in
subsection (1) which we have explained by way of
an illustration. The proviso which was added by
the Act 49 of 1969 contemplates an extended period
of giving the intimation by a tenant who is in
possession with which we may not be concerned.
42. We are inclined to proceed in this case on the
basis that the appellant had not given intimation
within the meaning of Section 32F(1A) of the Act. On
the other hand, the specific case which is pressed
before us is that what is crucial is he must be
treated as a deemed tenant having regard to the fact
25
that the respondent – landlord unsuccessfully filed an
application within the meaning of Section 29 read with
Section 32.
43. At this juncture, we must focus on the facts
given by the landlord more closely. As we have
noticed, the case of the appellant is that the
respondent filed an application under Section 29 and
the same came to be rejected by order dated
27.07.1967. The landlord, according to the appellant,
preferred an appeal which was rejected on 09.03.1968.
44. In the order dated 09.03.1968, the Appellate
Authority found glaring loopholes in the evidence of
the first respondent. On the one hand, there was an
entry regarding the date of birth which was in the
school register and on the other hand there was an
entry in the birth register. One date of birth was
shown as 10.09.1947 whereas the other date of birth
was shown as 04.06.1948. The school certificate shows
that the date of birth is 04.06.1948 where as the date
given in the birth register is 10.09.1947.
45. The application was filed by the first respondent
26
- landlord on 20.05.1967. If the date of birth is
taken as 04.06.1948, which was apparently pressed upon
by the first respondent, the application dated
20.05.1967 would have been within time. Whereas if
the date of birth is taken as 10.09.1947, the
application filed by the respondent was clearly time
barred. The Authority did not accept the version of
the landlord.
46. From the orders which are produced before us in
the revision application filed by the first
respondent, the Maharashtra Tribunal has confirmed
this finding. The revision application was dismissed.
47. It is thereafter that the appellant filed an
application purporting under Section 32G. As we have
noticed the matter travelled upto the Tribunal which
remanded it to the Original Authority, it is
thereafter that a new round of litigation commenced
and which culminated in the impugned order of the High
Court. In this round, the order of the Original
Authority went against the appellant and it is found
that the landlord became a major on 04.06.1966.
48. He found that the provisions of Section 32F are
27
applicable. The Original Authority further reasoned
that it was necessary for the appellant to exercise a
right of purchase by giving intimation under Rule 20
of the Rules, 1956 within two years from the date of
attaining majority i.e. by 04.06.1968. This mandatory
provision was not complied with by the tenant and he
lost his right. Regarding the proceedings at the
hands of the first respondent – landlord, it is stated
as regards extract of appeal register, there is some
discrepancy in the extract. It has mentioned that the
date of lower court order is 27.07.1967 and the date
of receipt is 19.06.1967 (apparently the date of
receipt is the date of receipt of the appeal, in other
words, the discrepancy is that the date of the appeal
is earlier than the date of the order which is
impugned in the appeal). It is further stated that
there is no evidence by the first respondent to
establish that the landlord terminated the tenancy and
filed an application for possession of the suit land
under Section 29 read with Section 31 after attaining
majority. Therefore, it was for the tenant to
exercise his right of purchase under Section 32F(1A)
28
which he failed to exercise and thus resulted in the
loss of his right. The Assistant Collector in the
appeal filed by the appellant allowed his appeal. The
Tribunal reversed the order of the Appellate Authority
and restored the order of the Original Authority. The
Tribunal has proceeded on the basis of the discrepancy
in the appeal and the order is substantially on the
lines of what the Original Authority has proceeded to
hold. It is further pointed out that where the party
is to produce the primary evidence it would be a
certified copy and nothing else. The landlord has
denied the filing of the case for possession and the
tenant / appellant has failed to comply with the
provisions of Section 32F. He has lost the right to
purchase the suit land.
49. The High Court has adverted to the provisions and
found there was a serious doubt expressed about the
initiation of proceedings filed by the landlord and
the learned Single Judge could not see how the
Tehsildar and the Agricultural Land Tribunal have
committed an error apparent on the face of the record
or perversity in regard to the finding about giving
29
intimation. It was further found that in the
proceedings under Section 32G, it was permissible to
the landlord to raise an issue of non compliance under
Section 32F(1A) by the tenant.
50. It was reiterated that intimation to the landlord
and the Tribunal under Section 32F(1A) is a mandatory
pre-requisite.
51. The argument of the appellant that the
proceedings after the remand must be treated as a
continuation of an earlier round of litigation and
there is a substantial compliance with Section 32F(1A)
was not accepted.
Interplay between Section 29 read with first proviso
to Section 32(1) and Section 32F
52. A perusal of the First Proviso to Section 32(1)
read with Section 29 would show that when an
application is filed by the landlord for possession
and that application is rejected then the tenant is
deemed to have purchased the land. With reference to
the date on which the order rejecting the landlord's
application under section 29 read with Section 32 is
passed. This is a case of deemed purchase. Section
32F, on the other hand, entitles the tenant to
30
purchase. This is applicable in a situation where the
landlord is a minor and on attaining majority though
he has a period of one year from the date on which he
attains majority to terminate the tenancy and he does
not do so. Then the time starts ticking for the
tenant from the expiry of the period of one year from
which the minor landlord becomes major.
53. If there is no deemed tenancy within the meaning
of Section 32 proviso read with Section 29 then the
only alternative available for the tenant is to
purchase the right by invoking provision of Section
32F. Both cannot exist together viz. if a person has
a deemed status, there is no need for him to apply for
purchase under Section 32F. Section 29 read with
Sections 32 and 32F deal with two mutually exclusive
situations. In a case covered by Section 29 read with
Section 32(1) the tenant acquires the deemed status
and in a case where a matter is covered by Section
32F, there is no deemed status for the tenant but he
has to invoke provision of section 32F and issue a
notice both to the landlord and to the Tribunal within
the meaning of Section 32F(1A) and the matter has to
31
be decided by the Authority.
54. In the facts of this case, if it is established
that provisions contained in Section 32 read with
Section 29 are applicable in so far as if we accept
the case of the appellant that the respondent landlord
had invoked Section 29 read with Section 32, being a
case of a minor who became entitled to apply within a
period of one year from the date of attaining majority
and the application culminated in the rejection of his
case then the appellant would acquire deemed status.
If he acquires deemed status, then there could be no
need to invoke Section 32F. Rather there is no need
for him to again acquire a status which is conferred
upon him by law by a deeming provision. Nothing more
is required to be done by the tenant in such a case.
55. Coming to the merits of the matter, the appellant
has produced material, the orders passed by the
Appellate Authority and also by the Tribunal in
Revision. It does show by invoking Sections 29 and 32,
the first respondent had applied by projecting the
case that he was born in 1948. The application filed
by him stood rejected on the basis that the
32
application was barred as birth register showed that
he was born in 1947. Though the appellant has not
produced certified copies earlier, the appellant has
produced the same in the High Court after the judgment
was delivered in the writ petition along with the
review petition.
56. A reference to case law does not advance the case
of the respondents. In Amrit Bhikaji Kale and Ors.
v. Kashinath Janardhan Trade and Anr. (1983) 3 SCC 437
which related to the proceedings under the Same Act,
this Court held as follows:
“On the tillers’ day the landlord’s
interest in the land gets extinguished
and simultaneously by a statutory sale
without anything more by the parties,
the extinguished title of the landlord
is kindled or created in the tenant.
That very moment landlord-tenant
relationship as understood in common law
of Transfer of Property Act comes to an
end. The link and chain is broken. The
absent non-cultivating landlord ceases
to have that ownership element of the
land and the cultivating tenant, the
tiller of the soil becomes the owner
thereof.
Section 32F has an overriding effect
over Section 32 as it opens with a non
obstante clause. The combined effect of
Sections 32F and 32 is that where the
landlord is under no disability as
envisaged by Section 32F the tenant of
33
such landlord by operation of law would
become the deemed purchaser by where the
landlord is of a class or category as
set out in Section 32F, the date of
compulsory sale would be postponed as
therein provided. Since ‘T’, the
landlord was under no disability and was
alive on April 1, 1957 his tenant ‘J’
became the deemed purchaser on the
tillers’ day. Therefore, the
relationship of landlord and tenant
between ‘T’ and ‘J’ came to be
extinguished and no right could be
claimed either by ‘T’ or anyone claiming
through him such as ‘A’ or the present
purchasers on the footing that they are
the owners of the land on or after April
1, 1957.”
57. In Anna Bhau Magdum, Since Deceased by LRs v.
Babasaheb Anandrao Desai (1995) 5 SCC 243, the Court,
no doubt, held that requirement under Section 32F(1A)
was mandatory. There cannot be any automatic purchase
under Section 32 read with Section 32G in such a case.
However, it is relevant to note para 15.
“15. The submission of Shri Wad is that
if express statement made by the tenant
could not stand in the way of his
availing the right conferred by the Act,
there is no reason why merely because of
inaction on his part a tenant should be
deprived of the right. The observations
aforementioned made in Amrit Bhikaji
Kale have to be read in the context of
the facts of that case where it was
found that the landlord who was major
and was under no disability, was alive
34
on 1-4-1957 and the provisions of
Section 32F were not attracted and there
was deemed purchase of the land by the
tenant by virtue of Section 32. The
subsequent statement made by the tenant
in proceedings before the Aval Karkoon
were, therefore, held to be of no avail.
The position in the instant case is,
however, different. The respondent –
landlord was a minor on 1-4-1957 and the
case was governed by Section 32F and
there has been non compliance of subsection (1A) of Section 32-F.”
58. It is also relevant to note that it was not a
case where the question related to ‘postponed date’
within the meaning of the first proviso to Section
32(1), but the principle relating to deemed status
under Section 32(1) will apply in respect to deemed
status under the proviso.
59. In Sudam Ganpat Kutwal v. Shevantabai Tukaram
Gulumkar (2006) 7 SCC 200, the landlord filed an
application under Section 31 read with Section 29 of
the Act. The claim was accepted and possession of
half of the land was directed to be delivered for a
bona fide cultivation. The other half was to remain
with the tenant. Thereafter, the landlady filed an
application seeking possession of the remaining half
of the land alleging certain defaults by the tenant.
35
Later, the successor-in-interest of the
landlady filed an application under Section 32(P)
read with Section 32F for declaration that the
deemed statutory purchase by the tenant was void
as there was no required notice under Section
32F(1A) of the Act. This Court referred to the
provisions and culled out its conclusions in para
23, which read, inter alia, as follows:
“23. The position as disclosed by a
combined and harmonious reading of
Sections 31, 32, 32F and 32G may be
stated thus :
a) Where the landlord has not served on
the tenant, a notice of termination (as
stated in clause (b) of sub-section (1)
of section 32), the tenant is deemed to
have purchased the land on the tillers
day (1.4.1957);
b) Where the tenant is deemed to have
purchased the land on the Tillers Day
(1.4.1957), the Lands Tribunal is
required to issue notice and determine
the price of land to be paid by tenant.
Where there is a deemed purchase, but
the right to purchase is postponed, the
Land Tribunal shall determine the price
of land, as soon as may be after the
postponed date;
--------
f) Where a landlord, who is a widow,
36
exercises her right of termination and
secures possession of part of the
tenanted land for personal cultivation
under section 31(1) of the Act, then
there is no question of her successorin-title giving a notice of termination
within one year from the date on which
the widow’s interest ceases to exist.
When section 31 (3) ceases to apply,
section 32F also will not apply and
there is no need for the tenant to give
any intimation under section 32F(1A).”
60. In Tukaram Maruti Chavan v. Maruti Narayan
Chavan (Dead) by LRs and Others (2008) 9 SCC 358, the
question was whether the appellant could exercise
right to purchase in the absence of intimation
under Section 32F(1A) to the landlord and to the
Tribunal.
61. The original landlady who was a widow died in
1964 leaving behind him two sons. The original tenant
initiated proceedings under Section 32G which was
ordered in his favour.
62. The Court was of the view that notice under
Section 32F(1A) is mandatory. However, the Court also
inter alia held as follows:
“The required notice is not mandatory
only in a case when a widow landlady has
already exercised her right under
Section 31(1) i.e. when during her
37
lifetime, a notice is served to the
tenant that the landlady requires the
land bona fide. Once a notice under
Section 31(1) is served by such a widow
landlady, the further benefit of Section
31(3) is not available.”
63. No doubt, learned counsel for the respondent
submitted that in the event the Court is inclined to
take a view that the certified copies are to be looked
into, the matter may be remitted back.
64. We are of the view that there is a wealth of
documents showing that the respondent litigated the
matter at three levels i.e. the application filed by
the landlord dated 20.05.1967, the order passed in
appeal and still further the order in revision before
the Tribunal. Relying on some discrepancy as noted as
regards the date of filing of the appeal and the date
of the impugned order, the Authorities and the High
Court should not have found against the appellant.
65. There is no doubt in the case that the appellant
admittedly was a tenant of the first respondent. We
hold it is a case where there was no need for the
appellant to send any intimation within the meaning of
38
Section 32F(1A). He had acquired a deemed status with
the rejection of the application filed by the
landlord. The appellant was not obliged to do
anything further. In view of the matter, we allow the
appeals and set aside the impugned decisions passed by
the High Court and restore the order passed by the
Collector. There will be no order as to costs.
…....................J.
[ASHOK BHUSHAN]
…....................J.
[K.M. JOSEPH]
NEW DELHI;
FEBRUARY 12, 2019.
39

The High Court committed a serious error in converting the conviction of the Respondent from under Section 302 IPC to under Section 304 Part I IPC, without proper appreciation of the scope of Section 300 IPC.

Hon'ble Mr. Justice L. Nageswara Rao
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1842 of 2012
THE STATE OF UTTAR PRADESH

 .... Appellant(s)
Versus
FAQUIREY
 ….Respondent(s)
J U D G M E N T
L. NAGESWARA RAO, J.
1. The Respondent was convicted under Section 302 of
the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’)
and sentenced to undergo life imprisonment by the Trial
Court. The High Court converted the conviction to an
offence under Section 304 Part I, IPC and sentenced the
Respondent to 10 years rigorous imprisonment. Aggrieved
thereby, the State of Uttar Pradesh is in appeal before us.
2. PW-1, Bahadur lodged an FIR on 22.03.2000 in which it
was stated that a Panchayat was held at the residence of
one Kanhai, at noon on 22.03.2000. There was a dispute
between his nephew Nokhey and the Respondent. During
the course of the Panchayat, Rakesh, son of the complainant
arrived at 3.30 p.m. from his agricultural field. The
1
Respondent saw Rakesh and stated that he will kill him prior
to the settlement of the dispute before the Panchayat as
Rakesh had an evil eye on his wife and was visiting his
house. Santosh, the younger brother of the Respondent
also arrived at the spot and exhorted the Respondent to kill
Rakesh. When Rakesh tried to run to save himself, the
Respondent took out a pistol and fired at Rakesh. Rakesh
succumbed to the fire arm injury. The inquest was
conducted on the next day i.e. 23.03.2000 and the dead
body of the deceased Rakesh was sent for post-mortem
examination. As per the post mortem certificate (Ex.Ka.11),
the following injuries were found on the deceased:
“Gunshot wound of entry on right side back level of T/10
and T/11, 2 cm lateral to spine size 2 x 2 cm x chest
cavity. Blackening, tattooing present, margins inverted.
Direction backward to forward.
On the internal examination Doctor recovered 33 small
metallic pallets and wadding pieces from the chest
cavity lower part. The 10th and 12th thoracic vertebra
found fractured on right side. 10th and 12th ribs were
found fractured on right side. Bluera was lacerated.
Right lung was lacerated. 1.2 lt. blood was found in
chest cavity. Right chamber of the heart was full and left
empty. The stomach was empty. Small intestine
contained gases. Large intestine contained faucal
matter and gases. Spleen, kidney were pale. 50 ml.
Urine was present in bladder. In the opinion of the
Doctor deceased had died due to shock and hemorrhage
as a result of ante mortem injuries. He had prepared
the post mortem report in his own hand writing at the
time of post mortem examination which is Ex.Ka.11 on
the record.”
2
3. A charge under Section 302 IPC was framed against
the Respondent and Santosh was charged under Section
302 read with 34 IPC. After a detailed consideration of the
material on record including the oral testimonies of PW-1
and PW-2 who were the eye witnesses, the Trial Court held
that the Respondent had fired at the deceased from his
pistol as he had a doubt that the deceased was visiting his
house with an evil eye on his wife. While the Trial Court
acquitted Santosh, the Respondent was convicted under
Section 302 IPC and sentenced to undergo life imprisonment
and pay a fine of Rs.5,000/-.
4. In the appeal filed by the Respondent, against the
conviction and sentence, there was no contest on merits.
The only submission made on behalf of the Respondent was
that he could not have been convicted under Section 302
IPC. According to the Appellant, his conviction should have
been under Section 304 IPC as the case is covered under
Exception I to Section 300 IPC. The High Court observed
that the intervention of the deceased in the quarrel between
the two factions led to the Respondent losing his self
control. The High Court was of the opinion that this resulted
in grave and sudden provocation. Observing so, the High
3
Court converted the conviction of the Respondent from
Section 302 IPC to Section 304 Part I IPC. The Respondent
was sentenced to suffer rigorous imprisonment for 10 years.
5. Mr. V. Shekhar, learned Senior Counsel appearing for
the Appellant submitted that the High Court committed an
error in converting the conviction of the Respondent from
under Section 302 IPC to Section 304 Part I, IPC. He further
submitted that the case of the defence that Exception I to
Section 300 IPC is applicable is not correct. The Respondent
was enraged at the sight of the deceased in view of the
doubt he had in his mind about the deceased having an evil
eye on his wife. The learned Senior Counsel relied upon the
First Proviso to Exception I of Section 300 IPC to submit that
the accused is not entitled to claim that the crime was
committed due to grave and sudden provocation. Mr. D. K.
Garg, learned counsel appearing for the Respondent
submitted that the judgment of the High Court does not
deserve any interference as the High Court was right in
recording a finding that the Respondent lost his self control
due to grave and sudden provocation which resulted in his
shooting the deceased. He further submitted that the
incident occurred almost 18 years ago and the Respondent
4
has undergone the sentence of 10 years which is an
additional reason for us not to reverse the judgment of the
High Court.
6. After examining the matter carefully, we are of the
opinion that the judgment of the High Court is liable to be
set aside and the judgment of the Trial Court to be restored.
There is no dispute that the shot fired from the pistol by the
Respondent is due to the grudge that he had against the
deceased. Immediately after the deceased arrived at the
place of incident, the Respondent’s attention was diverted
from the dispute that was being settled in the Panchayat.
He turned to the deceased and shot him in view of his past
conduct relating to the visit of the deceased to his house to
become close with his wife.
7. According to Exception I to Section 300 IPC, culpable
homicide is not murder if the offender causes the death of
the person who gave the provocation, whilst deprived of the
power of self-control by grave and sudden provocation. It
would be relevant to refer to the First Proviso to Exception I
which provides that the provocation should be one which is
not sought or voluntarily provoked by the offender as an
excuse for killing or doing harm to any person. No overt
5
act is alleged against the deceased by which it can be
stated that the Respondent was provoked. From the proved
facts of this case it appears that the provocation was
voluntary on the part of the offender. Such provocation
cannot come to the rescue of the Respondent to claim that
he is not liable to be convicted under Section 302 IPC.
8. The High Court committed a serious error in converting
the conviction of the Respondent from under Section 302
IPC to under Section 304 Part I IPC, without proper
appreciation of the scope of Section 300 IPC. There was no
submission made on behalf of the Respondent before the
High Court on the merits of the matter. If the offence
committed by the Respondent is murder, he has to undergo
the imprisonment provided under Section 302 IPC. Though
the Respondent has undergone imprisonment for a period of
10 years, we are of the opinion that the Respondent is liable
to go back to jail to undergo the remaining sentence on
being sentenced to life imprisonment.
9. For the aforementioned reasons, the judgment of the
High Court is set aside and the judgment of the Trial Court
convicting the Respondent under Section 302 IPC and
sentencing him to life imprisonment is restored. The
6
Respondent is directed to surrender within a period of four
weeks to serve the remaining sentence.
10. Accordingly, the appeal is allowed.

 …................................J
 [L. NAGESWARA RAO]
 ..……..........................J
 [SANJAY KISHAN KAUL]

New Delhi,
February 11, 2019
7

The only issue surviving for consideration is with regard to the prosecution being vitiated because PW­10 was the informant as also the Investigating Officer, in view of Mohan Lal (supra). Societal interest therefore mandates that the law laid down in Mohan Lal (supra) cannot be allowed to become a spring board by an accused for being catapulted to acquittal, irrespective of all other considerations pursuant to an investigation and prosecution when the law in that regard was nebulous. Prospective declaration of law is a device innovated by this Court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law, prior to the date of the declaration are validated. This is done in larger public interest. Therefore, the subordinate forums which are bound to apply law declared by this Court are also duty­bound to apply such dictum to cases which would arise in future. Since it is indisputable that a court can overrule a decision there is no valid reason why it should not be restricted to the future and not to the past. Prospective overruling is not only a part of constitutional policy but also an extended facet of stare decisis and not judicial legislation.The criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it uni­directional exercise. A proper administration of the criminal justice delivery system, therefore requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal (supra) is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations. We therefore hold that all pending criminal prosecutions, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by the individual facts of the case.

Hon'ble Mr. Justice Navin Sinha 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
    CRIMINAL APPEAL Nos. 2450­2451 OF 2010
VARINDER KUMAR ....APPELLANT(S)
VERSUS
STATE OF HIMACHAL PRADESH      ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The   appellant   assails   the   order   reversing   his   acquittal   and
convicting   him   under   Section   20(ii)(c)   of   the   Narcotic   Drugs   and
Psychotropic Substances Act, 1985 (hereinafter referred to as “the
NDPS Act”), sentencing him for 20 years, along with fine of Rs.2 lacs,
with a default stipulation.
2. The appellant is stated to have been apprehended on 31.03.1995
carrying “charas” on his scooter, in two gunny bags, with varying
quantities. The Trial Court acquitted the appellant on grounds of noncompliance with Section 100(4) of the Code of Criminal Procedure,
with regard to independent witnesses. Further, there had been noncompliance with Sections 50, 52 and 57 of the NDPS Act, and that the
1
seal prepared at the time of seizure and handed over to PW­5, Naresh
Kumar had not been produced in the court.
3. The   High   Court,   reversing   the   acquittal   held   that   the   seals
prepared at the time of seizure, and also at the time of deposit in the
Malkhana had been produced and marked as Exhibits PH and PK.
The   chemical   examiners   report   confirmed   the   seized   material   as
“charas”.   The   seizure   of   the   contraband   being   from   gunny   bags,
Section 50 of the NDPS Act had no application.  Merely because the
two independent witnesses were not from the same locality, would not
ipso facto amount to violation of Section 100(4), Cr.P.C.
4. Shri Dhruv Pall, learned counsel for the appellant submitted that
the appellant had been falsely implicated because he had lodged a
complaint against the C.I.D., for improper investigation in the case
relating to his father’s death.  PW­5, Naresh Kumar, the independent
witness, had turned hostile and did not support the prosecution case
with regard to search and seizure.  The second independent witness
Jeevan   Kumar,   was   withheld   by   the   prosecution   without   any
explanation.  In  the  facts  of  the  case,  the  absence  of  independent
witnesses from the same locality as required by Section 100(4) Cr.P.C.
2
assumes importance. PW­10 Sub­ Inspector Prem Singh, being the
informant himself, was also the Investigating Officer, and which alone
vitiates the conviction irrespective of all other issues.  Strong reliance
was placed on a recent decision of this Court in Mohan Lal vs. State
of Punjab, AIR 2018 SC 3853.
5. Shri Abhinav Mukerji, learned counsel appearing for the State,
opposing the appeal submitted that the order of the High Court being
well reasoned and considered merits no interference. The appellant
has a previous history of convictions under the NDPS Act.  The ground
that PW­10 being the informant could not have been the investigating
officer also, had not been raised at any stage.  The order of conviction
therefore may not be tested on a ground to which the High Court had
no occasion to apply its mind.   It has also not been pleaded in the
appeal.
6. We have considered the respective submissions.  PW­10 is stated
to have received secret information at 2.45 P.M. on 31.03.1995.  He
immediately reduced it into writing and sent the same to PW­8, Shri
Jaipal   Singh,   Dy.S.P.,   C.I.D.,   Shimla.     At   3.05   P.M.   PW­7,   Head
Constable Surender Kumar stopped PW­5, Naresh Kumar and another
3
independent witness, Jeevan Kumar travelling together, whereafter the
appellant was apprehended at 3.30 P.M. with two Gunny Bags on his
Scooter which contained varying quantities of ‘charas’.   PW­8, Shri
Jaipal Singh, Dy.S.P., C.I.D., Shimla who had arrived by then gave
notice to the appellant and obtained his consent for carrying out the
search. Two samples of 25 gms. each were taken from the two Gunny
Bags and sealed with the seal ‘S’, and given to PW­5.  PW­2, Jaswinder
Singh the Malkhana Head Constable resealed it with the seal ‘P’.  The
conclusion of the Trial Court that the seal had not been produced in
the   Court   is   therefore   perverse   in   view   of   the   two   specimen   seal
impressions having been marked as Exhibits PH and PK.  It is not the
case  of   the   appellant  that   the  seals  were  found   tampered  in   any
manner.
7. Section 50 of NDPS Act patently has no application since the
recovery was not from the person of the appellant but the gunny bags
carried on the scooter.  PW­5 the independent witness who had signed
the   search   and   seizure   documents   but   turned   hostile,   was   duly
confronted under Section 145 of the Evidence Act, 1872 with his
earlier statements to the contrary under Section 161 Cr.P.C. and did
not deny his signatures.  The order sheet dated 08.11.1995 of the Trial
4
Court reveals that independent witness Jeevan Kumar was present on
that   date   to   depose,   but   was   bound   down   on   objection   from   the
defence side that he be examined on another date along with other
witnesses. It is therefore very reasonable to conclude that the witness
did not appear subsequently because he may have been won over by
the appellant. There is no material to conclude that the witness was
withheld or suppressed by the prosecution with any ulterior motive.
There is no material for us to conclude that PW­5 and the other
independent   witness   Jeevan   Kumar   were   not   respectable   persons.
Given the very short span of time in which events took place it is not
possible to hold any violation of Section 100(4) Cr.P.C.  In any event,
no prejudice on that account has been demonstrated.   Sections 52
and 57 of NDPS Act being directory in nature is of no avail to the
appellant.
8. The appellant took a defence under Section 313 Cr.P.C. of false
implication but failed to produce any evidence with regard to the
complaint lodged by him against the C.I.D. department, a fact noticed
by the Trial Court itself.  We therefore find no reason to come to any
different conclusion than that arrived at by the High Court.
5
9. The only issue surviving for consideration is with regard to the
prosecution being vitiated because PW­10 was the informant as also
the Investigating Officer, in view of Mohan Lal  (supra).  The ground
not   having   been   raised   at   any   earlier   stage   quite   obviously,   the
prosecution never had a chance to contest the same.  It has not even
been pleaded in the appeal. Nonetheless in view of the reliance placed,
we shall examine the issue.
10. In  Mohan   Lal  (supra)  our attention  had  been invited  to  the
divergent views being taken on the issue with regard to the informant
and   the   investigating   officer   being   the   same   person   in   criminal
prosecutions, and the varying conclusions arrived at in respect of the
same.  The facts in Mohan Lal  (supra), were indeed extremely telling
in so far as the defaults on part of the prosecution was concerned.  In
that back ground it was held that the issue could not be left to be
decided on the facts of a case, impinging on the right of a fair trial to
an accused under Article 21 of the Constitution of India, observing as
follows:
“25.   In   view   of   the   conflicting   opinions   expressed   by
different two Judge Benches of this Court, the importance
of a fair investigation from the point of view of an accused
as a guaranteed constitutional right under Article 21 of
6
the Constitution of India, it is considered necessary that
the law in this regard be laid down with certainty.   To
leave the matter for being determined on the individual
facts of a case, may not only lead to a possible abuse of
powers, but more importantly will leave the police, the
accused,   the   lawyer   and   the   courts   in   a   state   of
uncertainty and confusion which has to be avoided.  It is
therefore held that a fair investigation, which is but the
very foundation of fair trial, necessarily postulates that
the informant and the investigator must not be the same
person.  Justice must not only be done, but must appear
to be done also. Any possibility of bias or a predetermined
conclusion has to be excluded.  This requirement is all the
more   imperative   in   laws   carrying   a   reverse   burden   of
proof.”
11.  The paramount consideration being to interpret the law so that
it operates fairly, the facts of that case did not show any need to
visualise what all exceptions must be carved out and provided for.
The   attention   of   the   Court   was   also   not   invited   to   the   need   for
considering the carving out of exceptions.
12. Individual rights of the accused are undoubtedly important.  But
equally important is the societal interest for bringing the offender to
book and for the system to send the right message to all in the society
—be   it   the   law­abiding   citizen   or   the  potential   offender.     ‘Human
rights’ are not only of the accused but, extent apart, also of the victim,
the symbolic member of the society as the potential victim and the
society as a whole.
7
13. Law   has   to   cater   to   wide   variety   of   situations   as   appear   in
society.  Law being dynamic, the certainty of the legislation appears
rigid at times whenever a circumstance (set of facts) appears which is
not catered for explicitly.   Expediency then dictates that the higher
judiciary, while interpreting the law, considers such exception(s) as
are  called  for  without  disturbing the  pith  and  substance  and  the
original intention of the legislature.  This is required primarily for the
reason to help strike a balance between competing forces – justice
being the end – and also because the process of fresh legislation could
take a long time, which would mean failure of justice, and with it
erosion of public confidence and trust in the justice delivery system.
14. The principle of fair trial now informs and energises many areas
of the law.  It is a constant, ongoing, evolutionary process continually
adapting itself to changing circumstances, and endeavouring to meet
the exigencies of the situation – peculiar at times – and related to the
nature of crime, persons involved, directly or operating from behind,
and so many other powerful factors which may come in the way of
administration  of   criminal   justice,  wherefore   the  endeavour   of  the
higher courts, while interpreting the law, is to strike the right balance.
8
15.  Societal interest therefore mandates that the law laid down in
Mohan Lal (supra) cannot be allowed to become a spring board by an
accused   for   being   catapulted   to   acquittal,   irrespective   of   all   other
considerations pursuant to an investigation and prosecution when the
law in that regard was nebulous.  Criminal jurisprudence mandates
balancing the rights of the accused and the prosecution.  If the facts
in Mohan Lal (supra) were telling with regard to the prosecution, the
facts in the present case are equally telling with regard to the accused.
There is a history of previous convictions of the appellant also.   We
cannot be oblivious of the fact that while the law stood nebulous,
charge sheets have been submitted, trials in progress or concluded,
and appeals pending all of which will necessarily be impacted. 
16. In Sonu alias Amar vs. State of Haryana, (2017) 8 SCC 570, it
was observed as follows:
“37.…… A large number of trials have been held during
the period between 4.8.2005 and 18.9.2014.  Electronic
records without a certificate might have been adduced
in evidence.  There is no doubt that the judgment of this
Court in Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC
473 has   to   be   retrospective   in   operation   unless   the
judicial   tool   of   “prospective   overruling”   is   applied.
However, retrospective application of the judgment is
not   in   the   interest   of   administration   of   justice   as   it
would necessitate the reopening of a large number of
9
criminal cases.  Criminal cases decided on the basis of
electronic   records   adduced   in   evidence   without
certification have to be revisited as and when objections
are   taken   by   the   accused   at   the   appellate   stage.
Attempts   will   be   made   to   reopen   cases   which   have
become final.”

17. That  subsequent  events  noticed,  may require revisiting of   an
earlier   decision,   to   save   actions   already   taken   was   considered   in
Harsh  Dhingra   vs.  State  of  Haryana  and  Others, (2001) 9 SCC
550, observing as follows:
“6.  Further, when the decision of the High Court in
S.R. Dass case [(1999)3 SCC 362] had held the field for
nearly a decade and the Government, HUDA and the
parties to whom the allotments have been made have
acted upon and adjusted their affairs in terms of the
said decision, to disturb that state of affairs on the basis
that now certain other rigorous principles are declared
to be applied in  Anil  Sabharwal  case  [(1997) 2 Punj
LR7] would be setting the rules of the game after the
game is over, by which several parties have altered their
position to their disadvantage.  Therefore, we think that
in   the   larger   public   interest   and   to   avoid   the
discrimination   which   this   Court   had   noticed   in   the
order dated 5.12.1997 [(1998) 8 SCC 373] the decision
of the High Court in  Anil Sabharwal case  should be
made effective from a prospective date and in this case
from the date on which interim order had been passed
on 23.4.1996.  Therefore, it would be appropriate to fix
that date as the date from which the judgment of the
High Court would become effective.   If this course is
adopted, various anomalies pointed out in respect of
different parties referred to above and other instances
which we have not adverted to will be ironed out and
the   creases   smoothened   so   that   discrimination   is
avoided.
7. Prospective declaration of law is a device innovated
10
by this Court to avoid reopening of settled issues and to
prevent multiplicity of proceedings.   It is also a device
adopted to avoid uncertainty and avoidable litigation.
By the very object of prospective declaration of law, it is
deemed   that   all   actions   taken   contrary   to   the
declaration of law, prior to the date of the declaration
are validated.   This is done in larger public interest.
Therefore, the subordinate forums which are bound to
apply law declared by this Court are also duty­bound to
apply such dictum to cases which would arise in future.
Since   it   is   indisputable   that   a   court   can   overrule   a
decision there is no valid reason why it should not be
restricted to the future and not to the past.  Prospective
overruling is not only a part of constitutional policy but
also an extended facet of stare decisis and not judicial
legislation.     These   principles   are   enunciated   by   this
Court in  Baburam  vs. C.C.  Jacob,  (1999) 3 SCC 362
and  Ashok Kumar  Gupta vs. State of U.P.,  (1997) 5
SCC 201.”
18. The criminal justice delivery system, cannot be allowed to veer
exclusively to the benefit of the offender making it uni­directional
exercise.     A   proper   administration   of   the   criminal   justice   delivery
system, therefore requires balancing the rights of the accused and the
prosecution, so that the law laid down in  Mohan Lal  (supra) is not
allowed to become a spring board for acquittal in prosecutions prior to
the same, irrespective of all other considerations.   We therefore hold
that all pending criminal prosecutions, trials and appeals prior to the
law laid down in Mohan Lal (supra) shall continue to be governed by
the individual facts of the case.
11
19. The present appeals lack merit and are therefore dismissed.
…………...................CJI.
[RANJAN GOGOI]
…………...................J.
[NAVIN SINHA]
…………...................J.
[K.M. JOSEPH]
NEW DELHI
FEBRUARY 11, 2019.
12

Both Petitioner Nos. 1 and 2 were not holding the post of Senior Stenographer Grade­I. Petitioner Nos.1 and 2 were promoted as Stenographer Grade­I only w.e.f. 02.11.2017 and 12.07.2018 respectively. Thus, both Petitioner Nos. 1 and 2 became Stenographer Grade­I, only when the 6th and 7th Pay Commission were operational and they were already drawing their pay in the pay scale of Rs.9300­34800 with grade pay of Rs.4200. Petitioner No.3 never got regular promotion during her entire period of service and retired on 28.02.2016 as Junior Stenographer (Stenographer Grade­II) only and thus is not eligible to claim the pay scale of Senior Stenographer (Stenographer ‘C’/Stenographer Grade­I) at all.

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO(s).333 OF 2018
ANJALI ARORA AND OTHERS ….PETITIONER(S)
VERSUS
UNION OF INDIA AND ANOTHER ….RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The   Petitioners   seek   mandamus   under   Article   32   of   the
Constitution, for grant of pay scale on the basis of parity as granted by
this Court on 21.10.2010 to the appellants in Yogeshwar Prasad &
Ors.   vs.   National   Institute   of   Educational   Planning   and
Administration & Ors. (in short, “National Institute”), (2010) 14 SCC
323.
2. It is the  contention  of  the  petitioners that  they  are similarly
situated as the appellants in Yogeshwar Prasad (supra), working in the
National Institute and  are therefore also  entitled to the benefit of
1
Regulation 4(2) of the National Institute Regulations for grant of pay
scale at par with that being given to persons holding similar posts in
the Central Government.   The petitioners have been pursuing the
matter with the respondents by filing representations since 2015 and
were assured that their claims were under consideration till it was
finally rejected on 05.02.2018.  Even while the respondents contend
that this Court had confined the relief to the appellants only in the
aforesaid appeal, nonetheless they have themselves granted similar
relief to four other persons who were not parties to the appeal, by
order   dated   02.11.2012.     The   petitioners   have   therefore   been
subjected to arbitrary and hostile discrimination. 
3. The respondents have denied entitlement to relief on the basis of
parity.   It is their contention that the petitioners are not similarly
situated   as   the   appellants   in   Yogeshwar   Prasad(supra)   or   those
granted relief on the basis of the same.
4. We have considered the submission on behalf of the parties.  The
controversy relates to the grant of pay scale of Rs.1640­2900 with
effect from 01.01.1986 pursuant to the 4th  Central Pay Commission
recommendation, and the consequent revisions of that scale.   It is not
in   dispute   that   the   petitioners   are   also   working   in   the   National
2
Institute   alike   the   appellants   in   Yogeshwar   Prasad   (supra).     The
petitioners will therefore be equally entitled to the benefit of Regulation
4(2) of the National Institute which reads as follows:
“4(2) Group ‘A’ officers, other than faculty members
and those on UGC grades of pay groups ‘B’, ‘C’ and
‘D’ employees shall draw salary and allowances in
such   scales   of   pay   as   may   be   applicable   to   the
corresponding   categories   of   Central   Government
employees   and   be   subject   to   such   conditions   of
service   as   are   or   may   be   applicable   to   Central
Government employees from time to time.”
5. But parity of pay scale can be granted to the petitioners provided
they were similarly situated as the appellants in the Yogeshwar Prasad
(supra).   If that  be so, they would undoubtedly be entitled to be
considered for grant of similar relief notwithstanding the observations
in Yogeshwar Prasad (supra) confining grant of relief to the appellants
therein, in view of the respondents having granted similar relief to
others situated alike on 02.11.2012.
6. The   respondents   in   their   counter   affidavits   have   specifically
contended   that   the   petitioners   are   not   similarly   situated   as   the
appellants   in   Yogeshwar   Prasad   (supra).     The   petitioners   were
appointed as Junior Stenographer/Stenographer Grade­II which is a
post lower than that of Senior Stenographer/Stenographer Grade­I
held by the appellants in Yogeshwar Prasad (supra).  The posts carry
3
different pay scales and merely acquiring ACP/MACP to the pay scales
of Rs.1400­2600/5000­8000 under the 4th  Central Pay Commission
and the 5th Central Pay Commission does not entitle the petitioners to
grant   of   similar   relief   as   granted   to   those   holding   higher   posts.
Therefore, UDCs/Junior Stenographer (Stenographer Grade II) who
acquired   identical   pay   scales   as   those   of   Assistants/Senior
Stenographers/Stenographer Grade­I by virtue of ACP/MACP cannot
be considered at par so as to be entitled to parity of pay scales.
7. The pay scale of Rs.1640­2900 for the post of Stenographer ‘C’
(Senior   Stenographer/Stenographer/Stenographer   Grade­I)   was
operationalized   in   terms   of   Government   of   India’s   order   dated
31.07.1990, during the regime of 5th Central Pay Commission which
was   during   the   period   w.e.f   01.01.1996   till   31.12.2005.     Both
Petitioner   Nos.   1   and   2   were   not   holding   the   post   of   Senior
Stenographer   Grade­I.     Petitioner   Nos.1   and   2   were   promoted   as
Stenographer   Grade­I   only   w.e.f.   02.11.2017   and   12.07.2018
respectively.     Thus,   both   Petitioner   Nos.     1   and   2   became
Stenographer Grade­I, only when the 6th and 7th Pay Commission were
operational and they were already drawing their pay in the pay scale of
Rs.9300­34800 with grade pay of Rs.4200.      Petitioner No.3 never
4
got regular promotion during her entire period of service and retired
on 28.02.2016 as Junior Stenographer (Stenographer Grade­II) only
and thus is not eligible to claim the pay scale of Senior Stenographer
(Stenographer ‘C’/Stenographer Grade­I) at all.
8.  The petitioners not being similarly situated as the appellants in
Yogeshwar   Prasad   (supra),   we   find   no   merit   in   the   present   Writ
Petition.  The Writ Petition is dismissed.
…………...................J.
[R.F. NARIMAN]
…………...................J.
[NAVIN SINHA]
NEW DELHI
FEBRUARY 11, 2019
5

to award parity between the Bhutan Compensatory Allowance payable to the Indian Military Training Team (in short, “the IMTRAT”) posted in Bhutan, and the Foreign Allowance payable to Indian diplomatic personnel serving in Bhutan under the Ministry of External Affairs, Government of India (in short, “the MEA”). It is relevant to mention here itself that the IMTRAT consists of Service Officers and Personnel Below Officer Rank (in short, “PBORs”). UNION OF INDIA THROUGH CABINET …APPELLANTS SECRETARY & ORS. VERSUS CAPTAIN GURDEV SINGH & ANR. …RESPONDENTS

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2763 OF 2009
UNION OF INDIA THROUGH CABINET …APPELLANTS
SECRETARY & ORS.
VERSUS
CAPTAIN GURDEV SINGH & ANR. …RESPONDENTS
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
This appeal arises out of the final judgment and order dated
07.05.2007   passed   by   the   High   Court   of   Delhi   in   C.M.   No.
12743/2006 in W.P. (C) Nos. 17184­17185/2004, allowing the
application   filed   by   the   respondents   herein   for   direction   and
clarification of the order of the High Court dated 22.11.2005.
2. Vide   the   judgment   dated   07.05.2007   (henceforth   “the
impugned judgment”), the appellants herein, i.e. the Union of
India and the Ministries of Defence, External Affairs and Finance,
were directed to award parity between the Bhutan Compensatory
Allowance payable to the Indian Military Training Team (in short,
1
“the   IMTRAT”)   posted   in   Bhutan,   and   the   Foreign   Allowance
payable to Indian diplomatic personnel serving in Bhutan under
the Ministry of External Affairs, Government of India (in short,
“the MEA”). It is relevant to mention here itself that the IMTRAT
consists of Service Officers and Personnel Below Officer Rank (in
short, “PBORs”).
3. The facts leading to the instant appeal are as follows:
The   instant   case   revolves   around   the   payment   of
compensatory allowances to three classes of personnel. The first
category is that of personnel belonging to the IMTRAT, which has
been posted in Bhutan to train personnel in the Bhutanese Army.
IMTRAT personnel receive a compensatory allowance for being
posted in Bhutan, called the Bhutan Compensatory Allowance (in
short,   “the   BCA”),   which   used   to   have   a   depression   (i.e.
deduction) upon it of 22.5% for Service Officers and 10% for
PBORs. This was due to the provision of free mess and canteen
facilities  to  the  Service  Officers  and  free ration,  clothing and
accommodation to the PBORs. The second category of personnel
constitutes   civilian   personnel   working   in   various   projects   in
Bhutan (which are self­financed or aided by the Government of
2
India) such as the Border Road Organisation’s Project Dantak,
the Tata Hydroelectric Project, the Central Water Commission,
etc.   The   BCA   is   payable  without  any   depression   to   such
personnel.   The  third  category   constitutes   MEA   personnel   in
Bhutan, who receive a different compensatory allowance called
the   Foreign   Allowance   (in   short,   “the   FA”),   under   the   Indian
Foreign Service (Pay, Leave, Compensatory Allowance and other
Conditions of Service) Rules, 1981 (in short “the IFS Rules”).
4. There was a demand by IMTRAT personnel for the removal
of the depression being imposed upon the BCA being paid to
them, which was rejected by the Fifth Central Pay Commission.
The issue was thereafter considered by a High Level Committee,
which recommended reconsideration of the demand, which was
subsequently considered by a Group of Officers chaired by the
Cabinet Secretary.  The Group of Officers recommended, vide its
report submitted on 05.07.1999, that IMTRAT service personnel
should   be   paid   the   BCA   at   the   same   rate   as   their   civilian
counterparts, and the existing depression be done away with,
subject to the levy of  appropriate charges on  the facilities that
were   hitherto   free.   These   recommendations   of   the   Group   of
3
Officers   were   accepted   vide   the   Cabinet   decision   dated
30.11.1999.
5.  Writ Petition Nos. 17184­85/2004 were filed by two IMTRAT
personnel, posted in Bhutan since 2003­2004, on two counts.
Firstly, they sought parity between the BCA payable to IMTRAT
personnel  and   the  FA payable  to  their  ‘civilian   counterparts’,
who,   according   to   them,   were   the   Indian   civil
personnel/deputationists   under   the   Indian   Embassy/MEA   in
Bhutan (i.e., the  third  category of personnel mentioned supra).
This was on the ground that parity between the two allowances
had existed for 25 years (from 1973 to 1997), after which the FA
for MEA personnel had been revised regularly, but the BCA had
been revised only twice, once by 25% on 01.01.2001 and once
again by 11% on 01.04.2005, and that too in an ad hoc manner,
which   had   still   failed   to   re­establish   parity   between   the   two
allowances. Secondly, they sought implementation of the Cabinet
decision dated 30.11.1999 regarding removal of depression and
imposition of charges for free facilities, which had not yet been
implemented.
4
6. During the pendency of the above writ petitions, the Cabinet
decision dated 30.11.1999 was given effect to through an order of
the Ministry of Defence dated 20.09.2005, removing the existing
depression and directing that the payment of the BCA to IMTRAT
personnel   be   made   at   the   same   rates   as   to   their   civilian
counterparts, subject to the recovery of nominal charges @ 6%
and 4% for Service Officers and PBORs respectively for providing
mess facilities, etc. The said order was prospective in operation.
7. The writ petitions were allowed by the High Court vide order
dated 22.11.2005 (hereinafter “the original order”), setting aside
the Ministry of Defence order dated 20.09.2005 to the extent it
gave   relief   prospectively.   The   High   Court   gave   effect   to   the
Cabinet decision dated 30.11.1999 from 01.12.1999, after taking
into account the two ad hoc revisions. It would not be out of
place to mention here that the operative portions of the Cabinet
decision and the Ministry of Defence order were identical, except
for   the   important   difference   that   the   Cabinet   decision   dated
30.11.1999 did not specify the rates of the nominal charges to be
imposed on the personnel in lieu of the depression, which only
came   to   be   specified   by   the   Ministry   of   Defence   order   dated
5
20.09.2005.   The   direction   in   the   writ   petitions   effectively
amounted   to   giving  retrospective   operation   to   the   Ministry   of
Defence   order   dated   20.09.2005,   which   is   evident   from   the
following observations made in  the original order (reproduced
from the SLP paper book):
“14. Accordingly,  the writ petition is allowed and the
    order   dated   20th
    September,   2005   to   the   extent   it
grants   the   relief   prospectively   to   the   petitioners   is
quashed   and   set   aside   and   the   respondents   are
    directed to implement the Cabinet decision dated 30th
November, 1999 with effect from 1st
   December, 1999 in
favour of the petitioner after taking into account the
    two   ad   hoc   revisions   on  1st
    January,   2001   and   1st
April,  2005  and  are further  directed  to  pay all  the
arrears consequently payable  to the petitioners on or
before 31st January, 2006.
15. The learned counsel for the petitioner pressed for
interest   in   view   of   the   fact   that   the   dues   were
wrongfully   withheld.   The   learned   counsel   for   the
respondent sought time to obtain instructions from the
respondent in respect of the interest sought by the
petitioner consequent to the retrospective operation of
    the communication/letter dated 20th
   September, 2005
in consonance with the above decision in this petition.
However, we are of the view that it is appropriate to
await the decision of the respondent and if the decision
is taken by the Government itself to award the BCA as
approved by the Group of Officers w.e.f. 30th November,
1999, then interest on the said amount may not be
6
granted by this Court to the petitioner. However, in
case the decision is otherwise, this Court will consider
the prayer for grant of interest at an appropriate rate.”
            (emphasis
supplied)
8.  The Union of India sought multiple opportunities to comply
with the order, in which interregnum, the Ministry of Defence
issued   a   corrigendum   on   23.02.2006   to   its   order   dated
20.09.2005,   directing   that   the   removal   of   depression   and
recovery of charges at the specified rates be given retrospective
effect from 01.12.1999.
9.  However,  in   its  order   dated  07.03.2006,  the  High   Court
observed that although one part of the directions in the original
order   had   been   complied   with,   the   “remaining   part”   of   the
directions was still unimplemented, and granted further time for
such compliance. After this order, an additional affidavit was filed
by the MEA, claiming that with the issue of the corrigendum
making the removal of depression effective from 01.12.1999, the
directions   issued   in   the   original   order had   been   effectively
complied   with.   It   was   further   stated   that   the   direction   with
respect to periodic revision of the BCA had also been taken note
of, and such revisions would be duly considered from time to
7
time. It was also placed on record that IMTRAT personnel were
being paid the same BCA as other Indian civilian personnel in
Bhutan (i.e. the second category of personnel mentioned supra).
10. Subsequently,   in   light   of   the   above   affidavit,   the
respondents   filed   an   application   i.e.   CM   No.   12743/2006   for
direction and clarification of the original order, on the basis that
the Union of India was incorrectly interpreting the term “civilian
counterparts”   as   referring   to   persons   on   deputation   with   the
Royal Government of Bhutan, and seeking a clarification that the
original order directed the maintenance of parity between the
BCA and the FA paid to MEA personnel at the Indian Embassy in
Bhutan. On this application, the impugned judgment was passed
affirming parity between the BCA and the FA, leading to the
instant appeal by the appellants on the ground that the High
Court erred in granting the relief of such parity, which was not
contemplated in the directions issued in the original order, and
that the BCA could not be held to be at par with the FA.
11. This Court is conscious of the fact that the original order
was never challenged by either the appellants or the respondents,
and has thus attained finality. The fundamental issue before us,
8
therefore, is whether the impugned judgment went beyond the
scope of the original order in directing parity between the FA and
the BCA payable to IMTRAT personnel.
12.  To that end, the appellants submitted that the original order
did not direct the two allowances to be maintained at par, and
while dealing with the issue of parity between the two allowances
it only contemplated that periodic revisions be undertaken to the
BCA just like periodic revisions had been undertaken for the FA.
Furthermore, it was submitted that the direction for granting
retrospective effect to the removal of the depression on the BCA,
payable to IMTRAT personnel had to be considered in the light of
the underlying recommendation of the High Level Committee and
the   Group   of   Officers,   and   the   Cabinet   decision   dated
30.11.1999. These were to the effect that the BCA be paid to the
IMTRAT at the same rate as their “civilian counterparts”, which
did not make any reference whatsoever to the FA paid to MEA
personnel, and were only meant to ensure parity with civilian
deputationists in Bhutan who receive the BCA, albeit without any
depression.
9
13.  The respondents, on the other hand, submitted that there
were two parts to the directions in the original order and only one
of them had been complied with by the appellants, i.e. removal of
depression   and   its   retrospective   operation.   The   impugned
judgment in no way went beyond the judgment being clarified, as
the clarification was in consonance with the second part of the
directions in the original order in paragraphs 12 and 13, on the
issue of parity between the FA and the BCA. This claim was
based on the argument that the recommendation of the Group of
Officers and the Cabinet decision dated 30.11.1999 to the effect
that the BCA be paid to the IMTRAT at the same rate as their
“civilian   counterparts”   could   only   mean   parity   with   MEA
personnel. It was further argued that the appellants themselves
had submitted before the High Court while the writ petitions were
being heard that the grievances of the respondents had been fully
met post the removal of depression on the BCA, which indicated
acceptance of the interpretation of the term “civilian counterparts”
as MEA personnel; and that in the order of the High Court dated
07.03.2006 (already mentioned supra), it had been observed that
10
the appellants had not complied with the “remaining part of the
directions” given in the original order.
14.  To determine the validity of the clarification made vide the
impugned judgment, it is essential to first examine the original
order. The High Court acknowledged while passing the original
order that two grievances had been raised by the writ petitioners
(the respondents herein)—i.e., concerning removal of depression,
and concerning parity with MEA personnel in the quantum of the
respective allowances in the form of the BCA and the FA. With
regard to the question of depression, the grievance was in terms
of   the   non­implementation   of   the   Cabinet   decision   dated
30.11.1999. It was contended by the writ petitioners that the
decision needed to be enforced retrospectively from 30.11.1999,
when the Cabinet decision was made, or from 01.08.1997, the
date suggested by the Group of Officers.
15.  The High Court went on to conclude that the writ petitioners
were justified in claiming retrospective benefit of the Ministry of
Defence   order   dated   20.09.2005,  the   prospective   operation   of
which was arbitrary insofar as it did not disclose any reason for
the same, and unreasonable insofar as it failed to address the
11
lack of parity between the BCA and FA  payable to IMTRAT and
MEA personnel respectively between 1997 and 2005, as they had
been at par since the institution of the FA in 1973 until 1997,
due to non­revision of the BCA when the FA was revised. The
High Court further reasoned that the writ petitioners’ stance was
vindicated by the recommendation of the Group of Officers and
the Cabinet decision dated 30.11.1999. On this basis, the High
Court directed that the Cabinet decision dated 30.11.1999 be
given effect from 01.12.1999, after taking into account the two ad
hoc revisions of the BCA undertaken previously, and to pay all
consequent arrears.
16.  However, it is evident that though the above observations
were made by the High Court concerning parity between the two
allowances, no direction was issued to that effect. In this respect,
it would be useful to revisit the directions actually and finally
issued   in   the   original   order   (reproduced   from   the   SLP   paper
book): 
“14. Accordingly,  the writ petition is allowed and the
    order   dated   20th
    September,   2005   to   the   extent   it
grants   the   relief   prospectively   to   the   petitioners   is
quashed   and   set   aside   and   the   respondents   are
    directed to implement the Cabinet decision dated 30th
November, 1999 with effect from 1st
   December, 1999 in
12
favour of the petitioner after taking into account the
    two   ad   hoc   revisions   on  1st
    January,   2001   and   1st
April,  2005  and  are further  directed  to  pay all  the
arrears consequently payable  to the petitioners on or
before 31st January, 2006.
15. The learned counsel for the petitioner pressed for
interest   in   view   of   the   fact   that   the   dues   were
wrongfully   withheld.   The   learned   counsel   for   the
respondent sought time to obtain instructions from the
respondent in respect of the interest sought by the
petitioner consequent to the retrospective operation of
the communication/letter dated 20th September, 2005
in consonance with the above decision in this petition.
However, we are of the view that it is appropriate to
await the decision of the respondent and if the decision
is taken by the Government itself to award the BCA as
approved by the Group of Officers w.e.f. 30th November,
1999, then interest on the said amount may not be
granted by this Court to the petitioner. However, in
case the decision is otherwise, this Court will consider
the prayer for grant of interest at an appropriate rate.”
      (emphasis supplied)
17.   It   is   clear   that   the   operative   portion   of   the   order
unambiguously   states  only  that   the   Cabinet   decision   dated
30.11.1999   has   to   be   given   effect   from   01.12.1999   (i.e.   the
Ministry   of   Defence   order   dated   20.09.2005   has   to   be   given
retrospective effect from 01.12.1999). This direction stands duly
complied   with   after   the   issuance   of   the   corrigendum   dated
23.02.2006 to the Ministry of Defence order dated 20.09.2005.
Evidently, the observations made by the High Court regarding
13
parity between the BCA and the FA noted above are based on a
conflation of two  distinct  grievances of the writ petitioners, i.e.,
firstly,   removal   of   the   depression   from   the   BCA   payable   to
IMTRAT personnel, and secondly, the reinstatement of parity of
the BCA with the FA. Such conflation, in turn, appears to be
based upon the implicit assumption of the High Court that the
term “civilian counterparts” in the underlying recommendations of
the High Level Committee and Group of Officers, and the Cabinet
decision   dated   30.11.1999,   refers   to   MEA   officials   posted   in
Bhutan, though the term “civilian  counterparts” itself has not
been defined in any of the above recommendations/orders.
18.   The   impugned   judgment   throws   light   on   the   lack   of
consideration of this issue by the High Court while disposing of
the writ petitions. It is noted in the impugned judgment that the
Government could not at that stage (i.e. while the High Court was
considering the application for clarification of the original order)
raise the argument regarding non­parity between the BCA and
the FA, or between IMTRAT and MEA personnel, after failing to
raise it while the writ petitions were being heard. Moreover, while
noting   in   paragraph   4   of   the   impugned   judgment   that   the
14
Government had specifically submitted before the High Court
earlier that the grievances of the writ petitioners had been met
through  the   Ministry  of  Defence  order  dated  20.09.2005,   the
High Court articulated the implicit assumption which had been
made in the original order that the civilian counterparts of the
IMTRAT   personnel   referred   to   in   the   report   of   the   Group   of
Officers, Cabinet decision, etc. were MEA officials. It would be
useful   to   compare   and   contrast   extracts   from   the   relevant
paragraphs from the two judgments, i.e. paragraphs 10­13 of the
original order and paragraph 4 of the impugned judgment, at this
juncture.
The relevant extract from paragraphs 10­13 of the original order
(reproduced from the SLP paper book)  is as follows:
“10.   The   learned   counsel   for   the   respondent   Ms.
Sangeeta Tomar has handed over a decision of the
Government dated 20th September, 2005 which showed
the acceptance of the parity claimed by the petitioners
to a large extent by the Government  and records the
following:­
“1(9)/2000/D(Pay/Services)
Government of India
Ministry of Defence
New Delhi, the 20th September, 2005
To,
15
The Chief of Army Staff,
The Chief of Air Staff,
The Chief of Naval Staff.
Subject:  Removal   of   anomalies   arising   out   of   the
implementation   of   the   revised   pay   scales   and
allowances   consequent   to   the   fifth   CPC
recommendations­   Bhutan   Compensatory   Allowance
Removal of Depression
Sir,
I   am   directed   to   refer   to   this   Ministry’s   letter   No.
A/00787/AG/PS­3(a)/51­S/D(Pay/Services) dated 17th
January,   1974   and   No.   54452/AG/PS­3(a)/1808­
S/D(Pay/Services) dated the 14th  December, 1976 on
the above subject and to state that the issue regarding
certain anomalies arising from the implementation of
the revised pay scales and allowances consequent to
the fifth CPC award for Defence Service Officers and
Personnel   Below   Officer   Rank   (PBORs)   has   been
considered   by   the   Government   in   the   light   of   the
recommendations   of   the   Committee   specially
constituted   on   the   above   subject   and   it   has   been
decided   that   the   depression   of   22.5%   and   10%   for
Officers   and   PBORs   respectively   from   the   Bhutan
Compensatory Allowance may be removed and service
personnel posted at IMTRAT, Bhutan be paid Bhutan
Compensatory   Allowance   at   the   rates   applicable   to
their civilian counterparts subject to the condition that
full   and   final   charges   in   respect   of   free   facilities
provided to them are recovered.
2. The charges in lieu of free facilities at the following
rates will be recovered from the BCA laid down in this
Ministry’s letter No. 4(1)/2005/D(Pay/Services) dated
7
th September, 2005:­
(i) Officers 6%
(ii) Personnel Below Officer Rank 4%
16
   X X  X
Yours faithfully
Sd/­
Under Secretary to the Government of India”
11.   The   learned   counsel   for   the   respondent   Ms.
Sangita   Tomar   has  thus   contended   that   since   the
grievance of the petitioner has been met by the order
    dated 20th
    September, 2005, nothing survives in the
present writ petition and therefore, the writ petition
should be disposed of as having become infructuous.
The   learned   senior   counsel   for   the   petitioner,   Mr.
Gaurab   Banerji,   however,   drew   our   attention,   what
according to him, to the glaring infirmity in the above
order. He submitted that the decision in paragraph 4
of   the   communication/letter   dated   20th  September,
2005 clearly states that it was prospective in nature
i.e.   with   effect   from   20th  September,   2005.   He   has
submitted that while the grievances raised in the writ
petition   have   been   met   in   respect   of   the   period
subsequent to 20th September, 2005, at least from 30th
November, 1999 the date of the Cabinet Approval, if
not  from 1st  August,  1997  as  recommended  by  the
Group of Officers, the allowances as approved by the
order dated 20th September, 2005 ought to have been
paid at least from the 30th November, 1999 when the
Cabinet approved the said proposal.
12. While we do appreciate that the Government has
taken a fair stand in acceding to the demands raised
by   the   petitioners   who   represent   the   IMTRAT
nevertheless   there   appears   to   be   substance   in   the
grievance   raised   by   the   learned   counsel   for   the
petitioner. There appears to be no reason averred or
17
discernible why the parity between the MEA and the
BCA which was in existence from 1973 to 1997 should
not   continue   right   upto   20th  September,   2005.   The
allowance having been granted for being stationed in
high cost of living area like Bhutan, there is no reason
why   it   is   not   being   paid   from   1999   to   2005.   The
petitioners ought not to be deprived of this allowance
for the period when the disparity between the BCA and
the   foreign   allowance   existed.   The   stand   of   the
petitioner has indeed been vindicated as far back as
1997   by   the   recommendation   of   the   G.O.   and   the
approval of the Cabinet on 30th November, 1999. There
is   no   rational   cause   justifying   the   delay   in   its
implementation and the Government cannot make the
petitioner the victim of its inaction and lethargy. In so
far as the amount deducted towards the free facilities
provided   is   concerned,   we   are   satisfied   that   no
anomaly can be found in respect of the decision taken
by the Ministry of Defence to deduct a lump sum of 6%
and   4%   from  the   allowance   of   Officers   and  PBORs
respectively. Consequently, the prayer made in the writ
petition   qua   the   recovery   of   lump   sum   charges   of
22.5% and 10% for officers and PBORs respectively no
longer survives.
13. Accordingly, we are of the view that the petitioners
are entitled to the allowance from 30th November, 1999
when the Cabinet approved the proposal of the Group
of Officers. The denial of the BCA at least from 30th
November, 1999 to the petitioners is wholly arbitrary
and no reason whatsoever is discernible from the order
why   it   was   made   prospective   only.   The   prospective
operation of the order of 20th September, 2005 is not
only   arbitrary   as   the   order   does   not   disclose   any
reason nor is it reasonable as the parity between the
BCA payable to the IMTRAT and the foreign allowances
payable to the personnel of MEA was disturbed due to
18
the   non   revision   of   BCA   as   and   when   the   foreign
allowances   were   revised.   Since   the   anomaly   has
occurred   due   to   the   respondent’s   inaction   the
petitioner cannot be made to suffer for the fault of the
respondents. The action of the respondents in denying
the   parity   retrospectively   violates   Article   14   for
arbitrariness and unreasonableness, and such action
is also violative of Article 14 and 16 of the Constitution
in so far as foreign allowances to MEA personnel have
undergone   periodic   revisions   without   giving   such
benefits   to   the   petitioners   notwithstanding   the
erstwhile parity in force from 1973 to 1997.”
(emphasis supplied)
The relevant extract from paragraph 4 of the impugned judgment
(reproduced from the SLP paper book)  is as follows:
“4. The Government itself reiterated as recorded
in   paragraph   10   of   the   Judgment   that  the   parity
claimed by the Petitioner qua the civilian counter parts
in Bhutan, which is naturally the officials of MEA was
redressed by the decision of the Ministry of Defence
dated 20th September, 2005 …”
(emphasis supplied)
19.  It is evident from the original order that no reference was
made by the Government to equivalence between the MEA and
IMTRAT personnel, though they made an implied reference to
equivalence between the IMTRAT and their civilian counterparts.
Despite   the   same,   the   High   Court   came   to   the   erroneous
conclusion  that the  Government  also  impliedly conceded that
there   should   be   equivalence   between   IMTRAT   and   MEA
19
personnel.   All   through,   it   was   the   specific   contention   of   the
appellants that the BCA payable to IMTRAT personnel should be
on par with the BCA of their civilian counterparts. As mentioned
supra,   the   Government   always   maintained   that   “civilian
counterparts” means the civilians working on projects, etc. but
not the diplomatic personnel who come under the MEA. However,
we hasten to add here itself that the Government’s conduct in the
form of certain submissions before the High Court may have
generated confusion in the mind of the High Court while arriving
at the conclusion that parity should be maintained between the
MEA   and   the   IMTRAT.   However,   the   Court   should   not   have
confused itself based on such conduct.
20. The High Court had thus reached the conclusion in the
original   order   that   the   only   point   of   contention   between   the
parties was with respect to the retrospectivity of the Ministry of
Defence order dated 20.09.2005, and on this basis the Court
further   formed   the   opinion   that   giving   effect   to   the   Cabinet
decision dated 30.11.1999 from 01.12.1999 (which essentially
amounted to giving retrospective effect to the Ministry of Defence
order dated 20.09.2005) would lead to reinstatement of parity
20
between the FA and the BCA. In the impugned judgment too, the
Court made the  same conflation of  the  issue of retrospective
application of removal of the depression with the issue of parity
between the BCA and the FA, based on the above interpretation
of the term “civilian counterparts” in the Group of Officers report,
the Cabinet decision, etc.
21.  In   the   absence   of   any   argument   before   the   High   Court
during the hearing of the writ petitions on the meaning of the
term “civilian counterparts”, and in the absence of any specific
finding recorded by the High Court in the original order to the
effect   that   the   term   “civilian   counterparts”   refers   to   MEA
personnel, the  High Court in the  impugned judgment should
have   restricted   itself   to   the   directions   actually   issued   in   the
original order, which were limited to the relief of implementing
the   Cabinet   decision   dated   30.11.1999   from   01.12.1999.   By
granting the relief of parity, the Court went beyond the relief
explicitly granted in the original order. It was not open to the
Court to interpret the relief granted in such a manner so as to
expand its scope to include the second relief prayed for but not
granted. It must be kept in mind that the Court’s power in a
21
clarificatory   proceeding   is   different   from   that   in   revision   or
appeal.
22.  Therefore, in our considered opinion, the argument of the
respondents,   which   effectively   is   that   though   the   substantive
relief of parity was not specified in the directions issued by the
High   Court   in   the  original   order,  the   surrounding  discussion
reveals the true intent of the High Court and the same was
validly   accounted   for   in   the   impugned   judgment,   cannot   be
accepted, inasmuch as the High Court has erred in going beyond
the explicit directions issued in the original order.
23.  The learned counsel on both sides, incidentally, also argued
on the merits of the matter on the issue of parity/equivalence
between the BCA payable to the IMTRAT and the FA payable to
the MEA personnel. The case of the appellants, in this regard,
fundamentally   is   that   the   FA   and   BCA   are   incomparable
allowances paid to persons whose scope and nature of duties are
completely different and whose service conditions are governed
by different sets of rules/terms and conditions. Other notable
arguments put forth by the appellants are that parity between
the two allowances until 1997 was a mere coincidence arising out
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of similar methods of calculation and could not be demanded by
way of legitimate expectation by the IMTRAT personnel since the
Government   never   made  any   promise  to   that  effect;  that   the
parity was discontinued once the FA was linked to the United
Nations Retail Price Index (in short “the UNRPI”); that granting
the relief of parity would lead to demands for parity between the
FA   and   the   compensatory   allowances   paid   to   other
deputationists/defence personnel in various countries and may
have grave financial implications, and may even have security
implications due to the possible reduction of military personnel
in Bhutan; and that the difference between civilian and military
personnel is anyway a valid ground for classification.
24.  On the other hand, the case of the respondents in this
regard primarily is that IMTRAT personnel cannot be equated
with civilian personnel on deputation, who according to them are
personnel under the control of the Royal Government of Bhutan
in various projects aided by the Government of India, or those
self­financed by the Bhutanese Government, whereas both the
MEA and IMTRAT personnel work under the direct control of the
Government of India, and therefore cannot be held at par with
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deputationists   and   are  inter­se  comparable.   Other   important
arguments submitted by the respondents, in brief, are that the
two allowances are of the same nature, i.e. their purpose is to
offset the higher cost of living in a foreign country; that the BCA
should be paid to IMTRAT personnel at an equivalent, if not
greater, rate compared to the FA since they are working in a
difficult terrain and in the deeply hostile atmosphere bordering
Bhutan and China, with an exorbitant cost of living; that parity
between IMTRAT and MEA personnel will not create grounds for
parity between deputationists and the MEA, since the IMTRAT
and deputationists constitute two separate classes; that there is
parity between the compensatory allowances paid to IMTRAT­like
teams and MEA personnel in other countries; that there was
parity   between   the   two   allowances   for   25   years   which   was
arbitrarily   discontinued;   that   the   linkage   of   the   FA   with   the
UNRPI is not a valid ground for disparity since by the admission
of the Government even the BCA payable to IMTRAT personnel
was supposed to be linked to UN indices after 2002.
25.  After duly considering the material placed on record before
us, we are of the opinion that the High Court while passing the
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impugned   judgment   was   not   justified   in   concluding   that   a
legitimate case for parity between the BCA payable to IMTRAT
personnel and the FA payable to MEA personnel can be made
out. Of course, it cannot be disputed that the purpose of both
allowances is fundamentally the same, i.e. to meet the higher
cost of living abroad, but at the same time the requirements that
have to be met out of the two are somewhat different. IMTRAT
personnel benefit to a larger extent compared to MEA personnel
in terms of getting food and other purchases at a cheaper cost
due to the provision of facilities such as mess, canteen, etc.
Moreover,   a   comparison   between   the   different   allowances   to
which these two classes of personnel are entitled shows that
IMTRAT personnel are entitled to an additional allowance called
“Difficult Area Allowance”, and also receive Military Service Pay,
in addition to Basic Pay which is paid to both MEA and IMTRAT
personnel according to the respective grades of the personnel.
26.  Moreover, it has not been shown by the respondents that
the nature of the work done by the IMTRAT and MEA personnel
is   one   and   the   same,   or   even   comparable.   The   terms   of
appointment and conditions of service of the IMTRAT and MEA
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personnel are also completely different. This aspect in itself is
sufficient to negate the case for parity pled by the respondents.
The institution of the IMTRAT team for Bhutan can be traced to
the sanction letter of the Government of India dated 27.8.1962,
by   which   a   military   team   (the   IMTRAT)   was   loaned   out   for
training purposes to the Government of Bhutan. As indicated by
the letter dated 28.01.1985 from the Army Headquarters to the
IMTRAT containing administrative instructions for the team, the
IMTRAT is fully under the control of the Government of India and
is an integral part of the Indian Armed Forces, functioning under
the direct command of the Army Headquarters, Government of
India. In contrast, MEA personnel are governed by the IFS Rules.
In Rule 2, the said rules are stated to be applicable to:
“(i) all persons who have been, or may hereafter be,
appointed to the Service; and (ii) any other officer of an
All India Service or Central Civil Service, subject to the
option,   if   any,   exercised   by   such   officer   under   the
provisions of the Indian Foreign Service Rules.”
It is relevant to note that Rule 7 of the same refers to the
FA, stating that:
“A member of the Service serving outside India may be
granted a foreign allowance at such rates and subject
to   such   conditions   as   may   be   prescribed   by   the
Government from time to time.”
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27.  At this juncture, it would be apt to observe that this Court
has on several occasions affirmed that the difference between
civilian   and   defence   personnel   is   a   valid   classification.   (For
instance, see :  Confederation  of   Ex­Servicemen  Associations  v.
Union of India, (2006) 8 SCC 399;  Union of India v. K.P. Singh,
(2017) 3 SCC 289).
28.  Moreover, though it may be true that IMTRAT­like teams in
other   countries   like   Zambia,   Lesotho   and   Botswana   receive
compensatory allowances at par with the FA paid to the Indian
diplomats   in   those   countries,   it   cannot   be   forgotten   that
IMTRAT­like teams working in certain other countries (except the
aforementioned)   have   been   stated   to   be   receiving   lesser
compensatory allowances than the FA paid to MEA personnel
posted in those countries. It is for the State to take a pragmatic
view   in   the   matter   of   fixing   compensatory   allowances   on   a
country­to­country   basis,   depending   on   the   facts   and
circumstances   of   each   case,   and   Courts   in   such   matters
generally may not interfere, particularly when the decision to be
taken by the State in such matters is akin to a policy decision.
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29.  Additionally, it is an undisputed fact that parity had existed
between the two allowances for 25 years, but that does not mean
that such action of the Government can be taken to mean that
the Government should continue such parity in the future also.
As mentioned supra, it is open for the State to modulate the
allowances depending on the attending circumstances.
30.  However, we accept the submission of the respondents that
IMTRAT   personnel   cannot   be   termed   as   deputationists.   It   is
evident   from   the   letter   dated   26.11.2008   from   the   Army
Headquarters that IMTRAT personnel are not deputationists. Be
that as it may, this in itself is not a sufficient ground to grant
parity between IMTRAT and MEA personnel. Even a perusal of
the recommendations of the 5th  Central Pay Commission, the
High Level Committee and the Group of Officers, as well as the
Cabinet   decision   dated   30.11.1999,   do   not   suggest   in   any
manner that the civilian counterparts of the IMTRAT personnel
are MEA personnel. The issue before them being the arbitrary
depression imposed upon the BCA payable to IMTRAT personnel,
the reference to “civilian counterparts” would naturally mean nonmilitary   personnel   who   are   receiving   the   BCA   without   any
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depression. It is relevant to note here that the 6th and 7th Central
Pay Commissions also recommended maintaining the status quo
with respect to the BCA payable to IMTRAT personnel.
31.  In view of the above discussion, we hold not only that the
clarification made through the impugned judgment is beyond the
scope of the original order dated 22.11.2005, but also that there
were   no   valid   grounds   for   the   High   Court   while   passing   the
impugned judgment to grant parity between the BCA payable to
IMTRAT personnel and the FA payable to MEA personnel. The
directions made in the original order are only to the effect that
the   removal   of   depression   on   the   BCA   payable   to   IMTRAT
personnel,   and   its   replacement   with   nominal   charges   for   the
erstwhile free facilities, be made effective from 01.12.1999. As
noted supra, the same have been fully complied with by the
appellants   after   the   issuance   of   the   corrigendum   dated
23.02.2006. It is also pertinent to note that seven revisions of the
BCA   payable   to   IMTRAT   personnel   have   been   undertaken
between   2007­2017   as   per   the   appellants.   However,   having
regard to the fact that the IMTRAT personnel are working in
difficult areas of Bhutan bordering China, and as they have to be
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vigilant all through in the interest of our nation, they deserve to
be   provided   the   BCA   without   any   depression.   Hence,   having
regard to the totality of the facts and circumstances, we direct
the   Government   to   remove   the   depression   of   6%   and   4%
respectively on the BCA payable to IMTRAT personnel, being the
Service Officers and PBORs, with immediate effect.
32.  Accordingly, we allow the instant appeal in part and set
aside   the   impugned   judgment   dated   07.05.2007   with   the
aforementioned directions.
……………..…………………..J.
[ N.V. Ramana]
        ……………..…………………..J.
    [Mohan M. Shantanagoudar] 
New Delhi;
February 11, 2019.
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