NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3368 OF 2019
(Arising out of S.L.P.(C) No.34883 of 2016)
Anant Shankar Bhave ….Appellant(s)
VERSUS
Kalyan Dombivli Municipal
Corporation ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment
and order dated 26.10.2016 passed by the High Court
of Bombay at Mumbai in Second Appeal No.160 of
2016 whereby the High Court dismissed the second
appeal filed by appellant herein.
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3. A few facts need mention for the disposal of this
appeal, which involves a short point.
4. The appellant is the plaintiff and the respondent
is the defendant in the civil suit out of which this
appeal arises.
5. The dispute relates to the land bearing Survey
No.61, Hissa No.1, admeasuring about 493 sq. yards
Survey No. 61 (P) admeasuring about 1441 sq. yards
situated at Mauje Kalyan Adharwadi Dombivali (MH)
(hereinafter referred to as “the suit land”).
6. The appellant (plaintiff) filed a civil suit against
the respondent Municipal Corporation for claiming
the following relief:
“The Hon’ble Court may be pleased to declare
that the act of changing the alignment of the
street line affecting the land bearing Survey
No.61, Hissa No.1 admeasuring about 493 sq.
yards, Survey No.61(P) admeasuring about
1441 sq. yards along with a structure/house
standing upon it bearing Municipal Ali No.61,
House No.14 situated at Mauje Kalyan,
Adharwadi within the limits of Kalyan
Dombivali Municipal Corporation is illegal,
void and ultravires of the Act.
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The Hon’ble Court may be pleased to declare
that the defendants without following the
due process of law and without following the
provisions of the Acts, shall not construct
road from the suit property. The Hon’ble
Court may be further pleased to issue
permanent injunction against the defendants
and to maintain perfect status quo in respect
to the suit property.”
7. The respondent denied the appellant's claim and
contested the suit. By judgment/decree dated
12.08.1999, the Trial Court decreed the appellant's
suit. The respondent felt aggrieved and filed first
appeal (No.76/1999) before the First Appellate Court.
8. By its judgment dated 29.02.2000, the First
Appellate Court allowed the appeal, set aside the
judgment/decree dated 12.08.1999 of the Trial Court
and dismissed the appellant's suit. The appellant
(plaintiff) felt aggrieved and filed Second Appeal in the
High Court of Bombay.
9. By impugned judgment, the High Court
dismissed the second appeal and affirmed the
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judgment/decree dated 29.02.2000 of the First
Appellate Court which has given rise to filing of the
present appeal by way of special leave by the plaintiff
in this Court.
10. So, the short question, which arises for
consideration in this appeal, is whether the High Court
was justified in dismissing the appellant's second
appeal.
11. Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
inclined to dispose of this appeal with the following
observations and liberty granted to the parties.
12. In our considered opinion, the appellant has filed
a misconceived suit and claimed therein improper
reliefs.
13. The real grievance of the appellant should have
been that he was the owner of the suit land and,
therefore, the defendant (respondent) had no right to
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interfere on the suit land and nor had any right to
construct any road or any type of construction without
following a due process of law on the suit land.
14. First, the appellant was required to prove his
ownership over the suit land qua the respondent;
Second, he was required to prove that the respondent
has either entered on the suit land or is trying to enter
upon the suit land with a view to construct the road
on his land or is intending to make some construction
without following the due process of law in acquiring
the suit land and paying adequate compensation to
the appellant for the suit land.
15. The appellant, however, did not come to the
Court for claiming the aforementioned reliefs and nor
he proved the aforementioned facts and instead
claimed improper reliefs as mentioned above.
16. In our view, the proper reliefs, which we have set
out above alone, could have settled the controversy in
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relation to the suit land between the parties and not
the one raised in these proceedings. We also find that
these issues were not tried in these proceedings for
want of proper pleadings and the evidence.
17. It is for these reasons, though we are inclined to
dismiss the appeal finding no merit therein but grant
liberty to the appellant (plaintiff) to file a fresh civil suit
against the respondent to claim the proper reliefs in
relation to the suit land, which we have mentioned
above, by properly pleading and adducing evidence in
support of his case in accordance with law.
18. We, however, make it clear that while trying the
suit, the findings recorded by the Courts below in the
present proceedings will not come against any party
and nor will operate res judicata against any party. In
other words, the issues raised in the fresh suit will be
tried independently on the basis of the pleadings and
evidence adduced therein.
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19. With these observations and the liberty granted,
the appeal fails and is hereby dismissed.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[DINESH MAHESHWARI]
New Delhi;
April 02, 2019
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advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws. This blog is only for information but not for legal opinions
Tuesday, April 9, 2019
Monday, April 8, 2019
State Act will prevail in the State = In this case proceeding on the basis that there is an inconsistency between Section 58(c) of the Transfer of Property Act and Section 37(A) of the State Act, in view of the assent given by the President, the matter falls under Article 254(2). Therefore, despite the inconsistency, Section 37(A) of the State Act will prevail in the State. - 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an 18 existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 8793-8794 OF 2013
ATUL CHANDRA DAS (D) THROUGH LRS. APPELLANT(S)
VERSUS
RABINDRA NATH BHATTACHARYA (D)
THR. LRS. & ORS.ETC. RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.
1. The appellants are the legal representatives of
one Atul Chandra Das. These appeals are directed against
the common judgment of the Calcutta High court dismissing
the First Appeal No.7 of 1989 and First Appeal No.8 of
1989. The appeals were filed by Atul Chandra Das against
the dismissal of E.S. No.782 of 1979 filed by him for
ejectment of the respondents from the plaint schedule
property and decreeing of Suit no.1271 of 1980 filed by
the respondents which would be referred to as the title
suit. Thus, the appeals before us are lodged against the
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concurrent finding of the courts below and maintained by
special leave granted by this Court.
2. The case set up by Atul Chandra Das is as follows:
By a registered deed of conveyance dated 28.11.1959
(the parties shall be referred to as in the position in
the trial Court), the defendants sold for consideration
the plaint schedule property to one Bholanath Auddy
(hereinafter referred to as “Bholanath”).
Simultaneously, Bholanath created tenancy in favour of
the defendants at the monthly rent of Rs.50/-. It was
agreed that the share of corporation tax shall be paid by
the defendants. It was also agreed between Bholanath and
defendants that the defendants were to vacate and deliver
possession on the expiry of two years from 28.11.1959.
Thereafter, an agreement for sale was entered into on
15.8.1960 between Bholanath and Atul Chandra Das. He
agreed to sell plaint schedule property for Rs.9000/-.
Since Bholanath failed to perform the obligation, O.S.
No.171 of 1962 was filed by Atul Chandra Das for specific
performance. On 30.11.1977 a decree was passed in favour
of Atul Chandra Das. In terms of decree he deposited the
balance consideration and finally a sale deed was
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executed in his favour. He claimed to be the landlord of
the building and alleging that defendants have no right
to occupy the premises, he sought recovery of possession
by evicting the defendants. The defendants filed written
statement. That apart they also filed the other suit
namely Suit No.1271 of 1980. Therein the following
averments were made inter alia:
Smt. Annapurna Devi (since deceased) was the owner for
life of the property and on her death, her three sons
namely Late Ashutosh Bhattacharya, Late Dulal Krishna
Bhattacharya and Rabindra Nath Bhattacharya (hereinafter
referred to as ‘Bhattacharyas and who are the defendants
in the suit filed by Atul Chandra Das and plaintiffs in
O.S. No. 1271/1980) were given absolute rights, in terms
of the will executed by Bijoy Kr. Ghosal, the owner of
the property. They set up the case that a sum of
Rs.8000/- came to be borrowed from Bholanath on
28.9.1959. To secure Rs.8000/- Bhattacharyas mortgaged
by conditional sale, on 28.11.1959 the plaint schedule
property in favour of Bholanath. In order to give
effect to mortgage an agreement for sale was entered
into on 07.12.1959 with Aboya Devi (since deceased wife
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of Late Ashutosh Bhattacharya and deceased Late Karuna
Bhattacharya, the wife of first plaintiff in a title
suit and Late Smt. Rama Devi, daughter of Annapurna
Devi) who were the nominees of the mortgagors for the
agreement to sell of the house on payment of a sum of
Rs. 10,000/- which was settled to be the mortgage money,
no rate of interest having been stipulated. Two years
was agreed to be the period of redemption of mortgage.
The title deeds were to be kept with Bholanath by way of
further security. The agreement which is referred to by
Atul Chandra Das as an agreement for sale in his favour
dated 15.8.1960 is described as a collusive and
fraudulent agreement and it was entered into before the
expiry of period of redemption. The plaint schedule
property comprised of a three storied building standing
upon an area of 1 cottah and 8 chittackas of land and
the value at the relevant time would not have been less
than Rs.30,000/-, the annual municipal value being
Rs.1469/- declared at that point of time. Bholanath was
a mere mortgagee in a mortgage by conditional sale. The
specific performance suit was described as a collusive
suit. Bhattacharyas claimed to be the owners being
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legatees under the will. The relief sought by the
plaintiffs in O.S. No.1271 of 1980 is relevant. The
relevant portion reads as below:-
“20. For the purpose of jurisdiction the suit
is valued for declaration with consequential
relief of perpetual injunction at Rs.51/-
there being no objective standard of
valuation and objectively for Rs.8500/- and
Court fee stamp of Rs.4.15 is paid on the sum
of Rs.51/- being the value for declaration
with injunction and court fee stamp Rs.525.00
is paid on the sum of Rs.6500/- being balance
of the principal due the total court fee paid
being Rs.529.15p.
The plaintiffs therefore pray-
(a) That the suit be decreed for:-
(i) Declaration that the sale dated 28.11.59
for the consideration of Rs.8000/- of the
property described in the schedule “A” below
by Sm. Annapurna Devi since
deceased, Ashutosh Bhattacharyya, since
deceased and the plaintiff nos.1 and 2 to
Bhola Nath Duddya, since deceased followed by
the condition of re-transfer as per agreement
for sale dt. 7.12.59 by Bholanath Auddya
since deceased in favour of Sm. Abhoya Devi,
since deceased Sm. Karuna and Sm. Rama Devi
since deceased, on payment of Rs.10,000/-
within 2 years was on ostensible sale
amounting to a mortgage by conditional sale
and the sallers in the said deed of sale were
mortgagors and the buyer therein was the
mortgagee and the period of redemption was 2
years as provided in the said agreement for
sale dt. 7.12.59.
(ii) declaration that either the defendant
Nos. 2 to 7 are the present mortgagee being
the heirs and legal representatives of the
said Bholanath Auddya, deceased or in
alternative the defendant no. 1 is the
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present mortgages, by subrogation having
stepped in the shoes of the said Bholanath
Auddya by purchase.
(iii) declaration that the right of
redemption of the said mortgage by
conditional sale is still subsisting and the
plaintiffs are entitled to redeem the said
mortgage on deposit of the mortgage money
amounting to Rs.8500/- in court or such
amount as may be determined by the Court or
payment of the same to who ever may be
declared to be the mortgages or mortgagees.
(iv) Declaration that the agreement dated
15.08.60 between the said Bholanath Auddya
since deceased and the defendant No. 1 for
sale of the property described in the
schedule “A” below is a collusive and
fraudulent agreement and not enforceable in
law.
(v) Declaration that the decree dated
30.11.77 of the Hon’ble High Court at
Calcutta in Suit No. 171 of 62 for specific
performance of contract for the sale of the
property described on the schedule “A” below
was obtained by practising fraud upon the
court by the defendant No. 1 and the said
Bhola Nath Auddya since deceased collusively.
(vi) declaration that the said decree of the
Hon’ble High Court at Calcutta and the
conveyance executed thereunder on 26.3.79 by
the Registrar Original Side of the said
Hon’ble High Court for sale of the property
described in the schedule “A” below in favour
of the defendant No. 1 are not enforceable in
law and the defendant No. 1 cannot take any
advantage under the said decree and/ or the
said conveyance in enforcement of the same.
(vii) declaration that the defendant No.
1 has no right title and interest in the
property described in the schedule “A” below
either as owner or as landlord nor has any
right to file the Ej. Suit no. 782 of 1979 in
the city civil court, Calcutta now pending
before the Ld. Registrars’ Bench and/ or
proceeding with the same.
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That the suit be decreed for perpetual
injunction restraining the defendant No. 1.
i. From enforcing the said decree dt.
20.11.77 in suit no. 171 of 62 of the Hon’ble
High Court at Calcutta and/ or enforcing the
conveyance dt. 26.3.79 executed by the
Registrar Original side, High Court at
Calcutta in favour of the defendant No. 1
under the said decree and/ or taking any
advantage under the said decree and/ or
taking any and/ or the said conveyance and
interfering with the possession of the
plaintiffs in the property described in the
schedule “A” below in any way including
recording his name in Calcutta Corporation
and/ or in the Calcutta Collectorate.
ii. From preceding with the Ej. Suit No. 782
of 79 now pending before the ld. Registrar’s
Bench City Civil Court, Calcutta.
iii. For temporary Injunction to the effect
as prayed for in prayer Nos. b(i) and (ii)
above till the disposal of this suit.
iv. That the suit be decreed for Rs.8500/-
or such other sum as may be determined by the
court as the present balance of the mortgage
money payable by the plaintiffs for
redemption of the mortgage.
c. That the property described in schedule
“A” below be freed from the mortgage on
deposit in court or payment to whoever will
be declared to be the mortgagee or mortgagees
by the plaintiffs of the mortgage money to be
decreed by the court.
d. That the suit be decreed for Costs.
e. That the suit be decreed for any other
relief or reliefs to which the plaintiffs may
be entitled under law and equity. “
3. The trial Court proceeded to consider the
evidence and on the basis of same came to the conclusion
8
that there is no merit in the case set up by Atul Chandra
Das. It was found to be a case of mortgage by conditional
sale and suit filed by Atul Chandra Das was dismissed and
the suit filed by the Bhattacharyas came to be decreed.
As already noticed, the High Court has confirmed the said
decree.
4. We heard the learned counsel for the appellant
and learned counsel for the Bhattacharyas.
5. The learned counsel for the appellant would
submit before us that the courts below have proceeded to
find that the sale dated 28.11.1959 executed by the
previous owners, namely the defendants in favour of
Bholanath was a mortgage without noticing that such a
finding will be in the teeth of the proviso to Section
58(c) of the Transfer of Property Act. In other words,
in order to constitute a mortgage by way of conditional
sale, the proviso to Section 58(c) of the Transfer of
Property Act mandates that the condition of agreement to
sell which is what is relied upon by the Bhattacharyas to
make Bholanath a mortgagee must have been incorporated in
9
one document. In this case on the other hand, there is
no dispute that the Bhattacharyas relied upon a separate
and distinct document namely an agreement to sell
executed by Bholanath in favour of the Bhattacharyas
dated 7.12.1959. There is no condition for reconveying
the property contained in the sale deed dated 28.11.1959.
6. The second submission is that the courts have
gone wrong in relying on Section 37A of the Bengal MoneyLenders Act, 1940 (hereinafter referred to as ‘the State
Act’). It is her contention that the suit filed by the
Bhattacharhyas was not filed under the State Act. There
was no account demanded within the meaning of the Act.
Support was sought to be drawn from the judgment of the
Single Bench reported in Swarnalata Tat v. Chandni Charan
Dey and Ors. AIR 1984 Calcutta page 130.
7. The last submission is as follows:-
Section 37(A) contained under the State Act is repugnant
to Central Law namely Section 58(c) of the Transfer of
Property Act.
10
8. Per contra, the learned counsel for the
respondent supported the judgment. He submitted that
Bholanath had not obtained any title under the purported
sale deed dated 27.11.1959. He could not have conveyed
any title to the Atul Chandra Das. The suit for specific
performance was a collusive suit.
9. Section 58(c) of the Transfer of Property Act
reads as follows:-
“58(c). Mortgage by conditional sale – Where,
the mortgagor ostensibly sells the mortgaged
propertyon condition that on default of payment of the
mortgage-money on a certain date the sale shall
become absolute, or
on condition that on such payment being made
the sale shall become void, or
on condition that on such payment being made
the buyer shall transfer the property to the
seller,
the transaction is called mortgage by
conditional sale and the mortgagee a mortgagee
by conditional sale,
[Provided that no such transaction shall be
deemed to be a mortgage, unless the condition
is embodied in the document which effects or
purports to effect the sale]”
It is undoubtedly true that under Section 58(c), the
proviso makes it indispensable to constitute a
transaction a mortgage that one of the conditions
11
mentioned in Section 58(c) be incorporated in the
document by which the conditional sale is effected.
However, it is now time to refer to Section 37(a) of the
State Act. It reads as under:-
“37(a) Saving as to mortgage by conditional
sale. – In the case where any loan is secured
by a mortgage and the mortgagor ostensible
sells the mortgaged property on any of the
conditions specified in sub-section (c) of
section 58 of the Transfer of Property Act,
1882 (4 of 1882) then, notwithstanding anything
to the contrary contained in the proviso to the
said sub-section, the transaction shall always
be deemed to be a mortgage by a conditional
sale and the mortgagee a mortgagee by
conditional sale for the purpose of the said
sub-section.”
10. Keeping Section 58(c) side by side with Section
37(a) of the State Act, the conclusion is inevitable that
the State legislature has intended to override the effect
of proviso to Section 58(c) of the Transfer of Property
Act by enacting Section 37(a) in the State Act. Section
37(a) was incorporated by way of an amendment in the
State Act. Reading of Section 37(a) brings out the
Legislative intent with unambiguous clarity and therefore
the High court was right in relying upon Section 37(a) of
the State Act to find that though it was by agreement
dated 07.12.1959 which is a separate document that
12
condition to make it a mortgage was incorporated it would
not make any difference. We may also notice that despite
the sale deed dated 27.11.1959, the Bhattacharyas
continued to be in possession of the plaint scheduled
property and it has been found that they paid the taxes.
It is further found that the market value of the property
would not have been less than Rs.30 thousand as on the
date of the alleged sale namely 27.11.1959.
11. The next contention is that suit filed by
Bhattacharya was not under the State Act. Support was
sought to be drawn from the judgment of the Single Judge
reported in Swarnalata Tat case (Supra). Para 12 of the
judgment relied upon by the appellants reads as follows:-
“12. The first question which calls for
determination is whether the present suit is
a suit under the Bengal Money Lenders Act,
1940 (hereinafter referred to as the said
Act). Section 36(1) of the said Act empowers
the Court to re-open a decree in any suit to
which the Act applies or in any suit brought
by a borrower for relief under the Section,
to re-open the transaction whether the suit
has been heard ex parte or otherwise. Nowhere
in Section 36, it is provided that a fixed
court fee of Re. 1 is to be paid for
initiating proceeding under Section 36 of the
said Act. Section 38 provides that any
borrower may make any application at any time
to a Court which would have jurisdiction to
entertain suit by the lender for the recovery
of the principal and interest of a loan
13
before or after the commencement of the said
Act for taking accounts and for declaring
amount due to the lender. Such application
shall be in the prescribed form and shall be
accompanied by a fee of one rupee and on
receipt of such application the Court shall
cause a notice thereon to be served on the
lender. The Court shall thereafter take an
account of the transaction between the
parties and declare the amount, if any due
and payable but not due by the borrower to
the lender, whether as principal or interest
or both. A proceeding under Section 38 shall
be deemed to be a suit for the purpose of
Section 11 of the Civil P.C. 1908.
Admittedly, the plaintiff has not filed any
application under Section 38 of the Act far
less in the prescribed form. As such the
question of payment of a fixed court fee of
one rupee would not arise. Section 38 does
not contemplate any suit. It enables a
borrower to make an application in the
prescribed form asking the Court to take an
account and to declare the amount due to the
lender. Merely because a fixed court fee of
one rupee has been paid, the suit cannot be
corrected into an application under Section
38 of the said Act. Assuming that the Court
should have treated the suit as an
application under Section 38 of the said Act,
even then the plaintiff cannot succeed in her
contention. The requirements of Section 38
have not been complied with. There is no
prayer for taking account and for declaring
the amount due to the lender. No borrower can
call in and the procedure prescribed under
Section 38 unless he asks for account and
determination of the amount due to the
lender. Even if the loan is secured, the
borrower need not ask for redemption. He will
be at liberty to file an application for
determination only of the amount due from
him. This was not done by the plaintiff, who
claims to be the successor-in-interest of the
borrower. On the contrary, the plaintiff has
asked, inter alia, for the following reliefs
in the plaint:—
(a) For a decree declaring the aforesaid
transaction is a loan transaction and
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declaring that the aforesaid deed of sale is
an ostensible deed of sale as a security to
repayment of the said loan is repaid.
(b) For a decree of permanent injunction
restraining the defendant No. 1 from claiming
any right of ownership in the property in
suit by virtue of the aforesaid deed of sale.
Having regard to the provisions of Ss. 36 and
38 of the said Act and the averments made in
the plaint and the reliefs claimed in the
suit, I am unable to accept the contention of
Mr. Mullick that the present suit is suit
under the Bengal Money Lenders Act, 1940.”
12. It is at once necessary to notice Section 2(12)
of the State Act which defines the word “loan”.
“2(12). “loan” means an advance, whether or
money or in kind, made on condition or
repayment with interest and includes any
transaction which is in substance a loan but
does not include-
(a) * * * *
(b) * * * *
(c) A loan taken or advanced by, by the Central
Government or any State Government or by any
local authority in West Bengal;
(d) A loan advanced before or after the
commencement of this Act –
(i) by a bank; or
(ii) by a co-operative life insurance society, cooperative society, insurance company, life
assurance company, Life Insurance Corporation
of India, mutual insurance company, provident
insurance society or from a provident fund;
(e) an advance made on the basis of a negotiable
instrument as defined in the Negotiable
Instruments Act, 1881, (26 of 1881) other
than a promissory note;
(f) Omitted by W.B. Money Lender Amendment Act,
(Act IV of 1931)
(g) * * * *
(h) a loan made to or by the Administrator General
and Official Trustee of West Bengal or the
Commissioner of Wakfs or the Official
Assignee or the Official Receiver of the High
15
Court in Calcutta;
(i) a loan or debenture in respect of which
dealings are listed on any Stock Exchange;”
13. Commercial loan is defined in Section 2(4) of
the State Act. Section 2(22) defines suit to which this
Act applies. It reads as follows:-
“2(22) “suit to which this Act applies” means any
suit or proceeding instituted or filed on or after
the 1st day of January, 1939 or pending on that
date and includes a proceeding in execution-
(a) for the recovery of a loan advanced before or
after the commencement of this Act;
(b) for the enforcement of any agreement entered
into before or after the commencement of this
Act, whether by way of settlement of account
or otherwise, or of any security so taken, in
respect of any loan advanced whether before or
after the commencement of this Act; or
(c) for the redemption of any security given
before or after the commencement of this Act
in respect of any loan advanced whether before
or after the commencement of this Act.”
14. Section 36 comes under the heading ‘Reopening of
transactions’. It deals with the power of the Court to
exercise all or any of the various powers which are
mentioned therein. Sub Section 4 of Section 36 reads as
follows:-
“36(4). This Section shall apply to any Suit,
whatever it forms may be, if such suit is
substantially one for the recovery of a loan or
for the enforcement of any agreement of
security in respect of a loan or for the
redemption of money such security.”
16
15. It will be noticed that a Suit for redemption is
mentioned as suit to which Section 36 applies. Section 38
undoubtedly enables the borrowers to seek a direction for
taking accounts.
16. We have noticed the relief which was sought in
the suit which was considered by the learned Single Judge
in Swarnalata Tat AIR 1984 Calcutta 130. In fact, Court
in the said case could not find a mortgage proved also.
The reliefs on the other hand in the suit filed by
Bhattacharya include reliefs relating to redemption in
the form it is asked for. In fact, no issue in this
regard was taken before the Trial Court. We see no
reason to non-suit, the Bhattacharyas on this ground
which is taken for the reasons which we have given.
17. The last contention taken is that Section 37(a)
of the State Act is repugnant to Section 58(c) of the
Central Act namely, the Transfer of Property Act. The
contention runs as follows:-
Money lending falls as entry (30) in the State List.
17
Transfer of Property other than agricultural land falls
in Entry 6 in the concurrent list. The State legislature
in enacting Section 37(a) of the State Act, a law
relating to money lending has made a law which is
inconsistent and therefore, repugnant to the law made by
the Parliament in Section 58(c) of the Transfer of
Property Act.
This contention is taken for the first time in this
Court. We also see no merit in the same at any rate.
Section 37(A) is traceable to the Entry ‘Transfer of
Property’ which is found in the concurrent list. Article
254 of the Constitution of India reads as follows:-
“254. Inconsistency between laws made by
Parliament and laws made by the Legislatures
of States
(1) If any provision of a law made by the
Legislature of a State is repugnant to any
provision of a law made by Parliament which
Parliament is competent to enact, or to any
provision of an existing law with respect to
one of the matters enumerated in the
Concurrent List, then, subject to the
provisions of clause ( 2 ), the law made by
Parliament, whether passed before or after
the law made by the Legislature of such
State, or, as the case may be, the existing
law, shall prevail and the law made by the
Legislature of the State shall, to the extent
of the repugnancy, be void.
(2) Where a law made by the Legislature of a
State with respect to one of the matters
enumerated in the concurrent List contains
any provision repugnant to the provisions of
an earlier law made by Parliament or an
18
existing law with respect to that matter,
then, the law so made by the Legislature of
such State shall, if it has been reserved for
the consideration of the President and has
received his assent, prevail in that State:
Provided that nothing in this clause shall
prevent Parliament from enacting at any time
any law with respect to the same matter
including a law adding to, amending, varying
or repealing the law so made by the
Legislature of the State.”
18. In this case proceeding on the basis that there
is an inconsistency between Section 58(c) of the Transfer
of Property Act and Section 37(A) of the State Act, in
view of the assent given by the President, the matter
falls under Article 254(2). Therefore, despite the
inconsistency, Section 37(A) of the State Act will
prevail in the State.
19. The argument that being part of State Act which
is the Money Lending Act and Money lending is in the
state list and therefore, it is a case of legislative,
incompetence, does not appeal to us. We have found that
the provisions of 37(A) is traceable to the Entry
‘Transfer of Property’ in the Concurrent List and that
Article 254(2) saves the provision.
19
20. We see no merit in the appeals and the appeals
stand dismissed.
…....................J.
[ASHOK BHUSHAN]
…....................J.
[K.M. JOSEPH]
NEW DELHI;
APRIL 04, 2019.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 8793-8794 OF 2013
ATUL CHANDRA DAS (D) THROUGH LRS. APPELLANT(S)
VERSUS
RABINDRA NATH BHATTACHARYA (D)
THR. LRS. & ORS.ETC. RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.
1. The appellants are the legal representatives of
one Atul Chandra Das. These appeals are directed against
the common judgment of the Calcutta High court dismissing
the First Appeal No.7 of 1989 and First Appeal No.8 of
1989. The appeals were filed by Atul Chandra Das against
the dismissal of E.S. No.782 of 1979 filed by him for
ejectment of the respondents from the plaint schedule
property and decreeing of Suit no.1271 of 1980 filed by
the respondents which would be referred to as the title
suit. Thus, the appeals before us are lodged against the
2
concurrent finding of the courts below and maintained by
special leave granted by this Court.
2. The case set up by Atul Chandra Das is as follows:
By a registered deed of conveyance dated 28.11.1959
(the parties shall be referred to as in the position in
the trial Court), the defendants sold for consideration
the plaint schedule property to one Bholanath Auddy
(hereinafter referred to as “Bholanath”).
Simultaneously, Bholanath created tenancy in favour of
the defendants at the monthly rent of Rs.50/-. It was
agreed that the share of corporation tax shall be paid by
the defendants. It was also agreed between Bholanath and
defendants that the defendants were to vacate and deliver
possession on the expiry of two years from 28.11.1959.
Thereafter, an agreement for sale was entered into on
15.8.1960 between Bholanath and Atul Chandra Das. He
agreed to sell plaint schedule property for Rs.9000/-.
Since Bholanath failed to perform the obligation, O.S.
No.171 of 1962 was filed by Atul Chandra Das for specific
performance. On 30.11.1977 a decree was passed in favour
of Atul Chandra Das. In terms of decree he deposited the
balance consideration and finally a sale deed was
3
executed in his favour. He claimed to be the landlord of
the building and alleging that defendants have no right
to occupy the premises, he sought recovery of possession
by evicting the defendants. The defendants filed written
statement. That apart they also filed the other suit
namely Suit No.1271 of 1980. Therein the following
averments were made inter alia:
Smt. Annapurna Devi (since deceased) was the owner for
life of the property and on her death, her three sons
namely Late Ashutosh Bhattacharya, Late Dulal Krishna
Bhattacharya and Rabindra Nath Bhattacharya (hereinafter
referred to as ‘Bhattacharyas and who are the defendants
in the suit filed by Atul Chandra Das and plaintiffs in
O.S. No. 1271/1980) were given absolute rights, in terms
of the will executed by Bijoy Kr. Ghosal, the owner of
the property. They set up the case that a sum of
Rs.8000/- came to be borrowed from Bholanath on
28.9.1959. To secure Rs.8000/- Bhattacharyas mortgaged
by conditional sale, on 28.11.1959 the plaint schedule
property in favour of Bholanath. In order to give
effect to mortgage an agreement for sale was entered
into on 07.12.1959 with Aboya Devi (since deceased wife
4
of Late Ashutosh Bhattacharya and deceased Late Karuna
Bhattacharya, the wife of first plaintiff in a title
suit and Late Smt. Rama Devi, daughter of Annapurna
Devi) who were the nominees of the mortgagors for the
agreement to sell of the house on payment of a sum of
Rs. 10,000/- which was settled to be the mortgage money,
no rate of interest having been stipulated. Two years
was agreed to be the period of redemption of mortgage.
The title deeds were to be kept with Bholanath by way of
further security. The agreement which is referred to by
Atul Chandra Das as an agreement for sale in his favour
dated 15.8.1960 is described as a collusive and
fraudulent agreement and it was entered into before the
expiry of period of redemption. The plaint schedule
property comprised of a three storied building standing
upon an area of 1 cottah and 8 chittackas of land and
the value at the relevant time would not have been less
than Rs.30,000/-, the annual municipal value being
Rs.1469/- declared at that point of time. Bholanath was
a mere mortgagee in a mortgage by conditional sale. The
specific performance suit was described as a collusive
suit. Bhattacharyas claimed to be the owners being
5
legatees under the will. The relief sought by the
plaintiffs in O.S. No.1271 of 1980 is relevant. The
relevant portion reads as below:-
“20. For the purpose of jurisdiction the suit
is valued for declaration with consequential
relief of perpetual injunction at Rs.51/-
there being no objective standard of
valuation and objectively for Rs.8500/- and
Court fee stamp of Rs.4.15 is paid on the sum
of Rs.51/- being the value for declaration
with injunction and court fee stamp Rs.525.00
is paid on the sum of Rs.6500/- being balance
of the principal due the total court fee paid
being Rs.529.15p.
The plaintiffs therefore pray-
(a) That the suit be decreed for:-
(i) Declaration that the sale dated 28.11.59
for the consideration of Rs.8000/- of the
property described in the schedule “A” below
by Sm. Annapurna Devi since
deceased, Ashutosh Bhattacharyya, since
deceased and the plaintiff nos.1 and 2 to
Bhola Nath Duddya, since deceased followed by
the condition of re-transfer as per agreement
for sale dt. 7.12.59 by Bholanath Auddya
since deceased in favour of Sm. Abhoya Devi,
since deceased Sm. Karuna and Sm. Rama Devi
since deceased, on payment of Rs.10,000/-
within 2 years was on ostensible sale
amounting to a mortgage by conditional sale
and the sallers in the said deed of sale were
mortgagors and the buyer therein was the
mortgagee and the period of redemption was 2
years as provided in the said agreement for
sale dt. 7.12.59.
(ii) declaration that either the defendant
Nos. 2 to 7 are the present mortgagee being
the heirs and legal representatives of the
said Bholanath Auddya, deceased or in
alternative the defendant no. 1 is the
6
present mortgages, by subrogation having
stepped in the shoes of the said Bholanath
Auddya by purchase.
(iii) declaration that the right of
redemption of the said mortgage by
conditional sale is still subsisting and the
plaintiffs are entitled to redeem the said
mortgage on deposit of the mortgage money
amounting to Rs.8500/- in court or such
amount as may be determined by the Court or
payment of the same to who ever may be
declared to be the mortgages or mortgagees.
(iv) Declaration that the agreement dated
15.08.60 between the said Bholanath Auddya
since deceased and the defendant No. 1 for
sale of the property described in the
schedule “A” below is a collusive and
fraudulent agreement and not enforceable in
law.
(v) Declaration that the decree dated
30.11.77 of the Hon’ble High Court at
Calcutta in Suit No. 171 of 62 for specific
performance of contract for the sale of the
property described on the schedule “A” below
was obtained by practising fraud upon the
court by the defendant No. 1 and the said
Bhola Nath Auddya since deceased collusively.
(vi) declaration that the said decree of the
Hon’ble High Court at Calcutta and the
conveyance executed thereunder on 26.3.79 by
the Registrar Original Side of the said
Hon’ble High Court for sale of the property
described in the schedule “A” below in favour
of the defendant No. 1 are not enforceable in
law and the defendant No. 1 cannot take any
advantage under the said decree and/ or the
said conveyance in enforcement of the same.
(vii) declaration that the defendant No.
1 has no right title and interest in the
property described in the schedule “A” below
either as owner or as landlord nor has any
right to file the Ej. Suit no. 782 of 1979 in
the city civil court, Calcutta now pending
before the Ld. Registrars’ Bench and/ or
proceeding with the same.
7
That the suit be decreed for perpetual
injunction restraining the defendant No. 1.
i. From enforcing the said decree dt.
20.11.77 in suit no. 171 of 62 of the Hon’ble
High Court at Calcutta and/ or enforcing the
conveyance dt. 26.3.79 executed by the
Registrar Original side, High Court at
Calcutta in favour of the defendant No. 1
under the said decree and/ or taking any
advantage under the said decree and/ or
taking any and/ or the said conveyance and
interfering with the possession of the
plaintiffs in the property described in the
schedule “A” below in any way including
recording his name in Calcutta Corporation
and/ or in the Calcutta Collectorate.
ii. From preceding with the Ej. Suit No. 782
of 79 now pending before the ld. Registrar’s
Bench City Civil Court, Calcutta.
iii. For temporary Injunction to the effect
as prayed for in prayer Nos. b(i) and (ii)
above till the disposal of this suit.
iv. That the suit be decreed for Rs.8500/-
or such other sum as may be determined by the
court as the present balance of the mortgage
money payable by the plaintiffs for
redemption of the mortgage.
c. That the property described in schedule
“A” below be freed from the mortgage on
deposit in court or payment to whoever will
be declared to be the mortgagee or mortgagees
by the plaintiffs of the mortgage money to be
decreed by the court.
d. That the suit be decreed for Costs.
e. That the suit be decreed for any other
relief or reliefs to which the plaintiffs may
be entitled under law and equity. “
3. The trial Court proceeded to consider the
evidence and on the basis of same came to the conclusion
8
that there is no merit in the case set up by Atul Chandra
Das. It was found to be a case of mortgage by conditional
sale and suit filed by Atul Chandra Das was dismissed and
the suit filed by the Bhattacharyas came to be decreed.
As already noticed, the High Court has confirmed the said
decree.
4. We heard the learned counsel for the appellant
and learned counsel for the Bhattacharyas.
5. The learned counsel for the appellant would
submit before us that the courts below have proceeded to
find that the sale dated 28.11.1959 executed by the
previous owners, namely the defendants in favour of
Bholanath was a mortgage without noticing that such a
finding will be in the teeth of the proviso to Section
58(c) of the Transfer of Property Act. In other words,
in order to constitute a mortgage by way of conditional
sale, the proviso to Section 58(c) of the Transfer of
Property Act mandates that the condition of agreement to
sell which is what is relied upon by the Bhattacharyas to
make Bholanath a mortgagee must have been incorporated in
9
one document. In this case on the other hand, there is
no dispute that the Bhattacharyas relied upon a separate
and distinct document namely an agreement to sell
executed by Bholanath in favour of the Bhattacharyas
dated 7.12.1959. There is no condition for reconveying
the property contained in the sale deed dated 28.11.1959.
6. The second submission is that the courts have
gone wrong in relying on Section 37A of the Bengal MoneyLenders Act, 1940 (hereinafter referred to as ‘the State
Act’). It is her contention that the suit filed by the
Bhattacharhyas was not filed under the State Act. There
was no account demanded within the meaning of the Act.
Support was sought to be drawn from the judgment of the
Single Bench reported in Swarnalata Tat v. Chandni Charan
Dey and Ors. AIR 1984 Calcutta page 130.
7. The last submission is as follows:-
Section 37(A) contained under the State Act is repugnant
to Central Law namely Section 58(c) of the Transfer of
Property Act.
10
8. Per contra, the learned counsel for the
respondent supported the judgment. He submitted that
Bholanath had not obtained any title under the purported
sale deed dated 27.11.1959. He could not have conveyed
any title to the Atul Chandra Das. The suit for specific
performance was a collusive suit.
9. Section 58(c) of the Transfer of Property Act
reads as follows:-
“58(c). Mortgage by conditional sale – Where,
the mortgagor ostensibly sells the mortgaged
propertyon condition that on default of payment of the
mortgage-money on a certain date the sale shall
become absolute, or
on condition that on such payment being made
the sale shall become void, or
on condition that on such payment being made
the buyer shall transfer the property to the
seller,
the transaction is called mortgage by
conditional sale and the mortgagee a mortgagee
by conditional sale,
[Provided that no such transaction shall be
deemed to be a mortgage, unless the condition
is embodied in the document which effects or
purports to effect the sale]”
It is undoubtedly true that under Section 58(c), the
proviso makes it indispensable to constitute a
transaction a mortgage that one of the conditions
11
mentioned in Section 58(c) be incorporated in the
document by which the conditional sale is effected.
However, it is now time to refer to Section 37(a) of the
State Act. It reads as under:-
“37(a) Saving as to mortgage by conditional
sale. – In the case where any loan is secured
by a mortgage and the mortgagor ostensible
sells the mortgaged property on any of the
conditions specified in sub-section (c) of
section 58 of the Transfer of Property Act,
1882 (4 of 1882) then, notwithstanding anything
to the contrary contained in the proviso to the
said sub-section, the transaction shall always
be deemed to be a mortgage by a conditional
sale and the mortgagee a mortgagee by
conditional sale for the purpose of the said
sub-section.”
10. Keeping Section 58(c) side by side with Section
37(a) of the State Act, the conclusion is inevitable that
the State legislature has intended to override the effect
of proviso to Section 58(c) of the Transfer of Property
Act by enacting Section 37(a) in the State Act. Section
37(a) was incorporated by way of an amendment in the
State Act. Reading of Section 37(a) brings out the
Legislative intent with unambiguous clarity and therefore
the High court was right in relying upon Section 37(a) of
the State Act to find that though it was by agreement
dated 07.12.1959 which is a separate document that
12
condition to make it a mortgage was incorporated it would
not make any difference. We may also notice that despite
the sale deed dated 27.11.1959, the Bhattacharyas
continued to be in possession of the plaint scheduled
property and it has been found that they paid the taxes.
It is further found that the market value of the property
would not have been less than Rs.30 thousand as on the
date of the alleged sale namely 27.11.1959.
11. The next contention is that suit filed by
Bhattacharya was not under the State Act. Support was
sought to be drawn from the judgment of the Single Judge
reported in Swarnalata Tat case (Supra). Para 12 of the
judgment relied upon by the appellants reads as follows:-
“12. The first question which calls for
determination is whether the present suit is
a suit under the Bengal Money Lenders Act,
1940 (hereinafter referred to as the said
Act). Section 36(1) of the said Act empowers
the Court to re-open a decree in any suit to
which the Act applies or in any suit brought
by a borrower for relief under the Section,
to re-open the transaction whether the suit
has been heard ex parte or otherwise. Nowhere
in Section 36, it is provided that a fixed
court fee of Re. 1 is to be paid for
initiating proceeding under Section 36 of the
said Act. Section 38 provides that any
borrower may make any application at any time
to a Court which would have jurisdiction to
entertain suit by the lender for the recovery
of the principal and interest of a loan
13
before or after the commencement of the said
Act for taking accounts and for declaring
amount due to the lender. Such application
shall be in the prescribed form and shall be
accompanied by a fee of one rupee and on
receipt of such application the Court shall
cause a notice thereon to be served on the
lender. The Court shall thereafter take an
account of the transaction between the
parties and declare the amount, if any due
and payable but not due by the borrower to
the lender, whether as principal or interest
or both. A proceeding under Section 38 shall
be deemed to be a suit for the purpose of
Section 11 of the Civil P.C. 1908.
Admittedly, the plaintiff has not filed any
application under Section 38 of the Act far
less in the prescribed form. As such the
question of payment of a fixed court fee of
one rupee would not arise. Section 38 does
not contemplate any suit. It enables a
borrower to make an application in the
prescribed form asking the Court to take an
account and to declare the amount due to the
lender. Merely because a fixed court fee of
one rupee has been paid, the suit cannot be
corrected into an application under Section
38 of the said Act. Assuming that the Court
should have treated the suit as an
application under Section 38 of the said Act,
even then the plaintiff cannot succeed in her
contention. The requirements of Section 38
have not been complied with. There is no
prayer for taking account and for declaring
the amount due to the lender. No borrower can
call in and the procedure prescribed under
Section 38 unless he asks for account and
determination of the amount due to the
lender. Even if the loan is secured, the
borrower need not ask for redemption. He will
be at liberty to file an application for
determination only of the amount due from
him. This was not done by the plaintiff, who
claims to be the successor-in-interest of the
borrower. On the contrary, the plaintiff has
asked, inter alia, for the following reliefs
in the plaint:—
(a) For a decree declaring the aforesaid
transaction is a loan transaction and
14
declaring that the aforesaid deed of sale is
an ostensible deed of sale as a security to
repayment of the said loan is repaid.
(b) For a decree of permanent injunction
restraining the defendant No. 1 from claiming
any right of ownership in the property in
suit by virtue of the aforesaid deed of sale.
Having regard to the provisions of Ss. 36 and
38 of the said Act and the averments made in
the plaint and the reliefs claimed in the
suit, I am unable to accept the contention of
Mr. Mullick that the present suit is suit
under the Bengal Money Lenders Act, 1940.”
12. It is at once necessary to notice Section 2(12)
of the State Act which defines the word “loan”.
“2(12). “loan” means an advance, whether or
money or in kind, made on condition or
repayment with interest and includes any
transaction which is in substance a loan but
does not include-
(a) * * * *
(b) * * * *
(c) A loan taken or advanced by, by the Central
Government or any State Government or by any
local authority in West Bengal;
(d) A loan advanced before or after the
commencement of this Act –
(i) by a bank; or
(ii) by a co-operative life insurance society, cooperative society, insurance company, life
assurance company, Life Insurance Corporation
of India, mutual insurance company, provident
insurance society or from a provident fund;
(e) an advance made on the basis of a negotiable
instrument as defined in the Negotiable
Instruments Act, 1881, (26 of 1881) other
than a promissory note;
(f) Omitted by W.B. Money Lender Amendment Act,
(Act IV of 1931)
(g) * * * *
(h) a loan made to or by the Administrator General
and Official Trustee of West Bengal or the
Commissioner of Wakfs or the Official
Assignee or the Official Receiver of the High
15
Court in Calcutta;
(i) a loan or debenture in respect of which
dealings are listed on any Stock Exchange;”
13. Commercial loan is defined in Section 2(4) of
the State Act. Section 2(22) defines suit to which this
Act applies. It reads as follows:-
“2(22) “suit to which this Act applies” means any
suit or proceeding instituted or filed on or after
the 1st day of January, 1939 or pending on that
date and includes a proceeding in execution-
(a) for the recovery of a loan advanced before or
after the commencement of this Act;
(b) for the enforcement of any agreement entered
into before or after the commencement of this
Act, whether by way of settlement of account
or otherwise, or of any security so taken, in
respect of any loan advanced whether before or
after the commencement of this Act; or
(c) for the redemption of any security given
before or after the commencement of this Act
in respect of any loan advanced whether before
or after the commencement of this Act.”
14. Section 36 comes under the heading ‘Reopening of
transactions’. It deals with the power of the Court to
exercise all or any of the various powers which are
mentioned therein. Sub Section 4 of Section 36 reads as
follows:-
“36(4). This Section shall apply to any Suit,
whatever it forms may be, if such suit is
substantially one for the recovery of a loan or
for the enforcement of any agreement of
security in respect of a loan or for the
redemption of money such security.”
16
15. It will be noticed that a Suit for redemption is
mentioned as suit to which Section 36 applies. Section 38
undoubtedly enables the borrowers to seek a direction for
taking accounts.
16. We have noticed the relief which was sought in
the suit which was considered by the learned Single Judge
in Swarnalata Tat AIR 1984 Calcutta 130. In fact, Court
in the said case could not find a mortgage proved also.
The reliefs on the other hand in the suit filed by
Bhattacharya include reliefs relating to redemption in
the form it is asked for. In fact, no issue in this
regard was taken before the Trial Court. We see no
reason to non-suit, the Bhattacharyas on this ground
which is taken for the reasons which we have given.
17. The last contention taken is that Section 37(a)
of the State Act is repugnant to Section 58(c) of the
Central Act namely, the Transfer of Property Act. The
contention runs as follows:-
Money lending falls as entry (30) in the State List.
17
Transfer of Property other than agricultural land falls
in Entry 6 in the concurrent list. The State legislature
in enacting Section 37(a) of the State Act, a law
relating to money lending has made a law which is
inconsistent and therefore, repugnant to the law made by
the Parliament in Section 58(c) of the Transfer of
Property Act.
This contention is taken for the first time in this
Court. We also see no merit in the same at any rate.
Section 37(A) is traceable to the Entry ‘Transfer of
Property’ which is found in the concurrent list. Article
254 of the Constitution of India reads as follows:-
“254. Inconsistency between laws made by
Parliament and laws made by the Legislatures
of States
(1) If any provision of a law made by the
Legislature of a State is repugnant to any
provision of a law made by Parliament which
Parliament is competent to enact, or to any
provision of an existing law with respect to
one of the matters enumerated in the
Concurrent List, then, subject to the
provisions of clause ( 2 ), the law made by
Parliament, whether passed before or after
the law made by the Legislature of such
State, or, as the case may be, the existing
law, shall prevail and the law made by the
Legislature of the State shall, to the extent
of the repugnancy, be void.
(2) Where a law made by the Legislature of a
State with respect to one of the matters
enumerated in the concurrent List contains
any provision repugnant to the provisions of
an earlier law made by Parliament or an
18
existing law with respect to that matter,
then, the law so made by the Legislature of
such State shall, if it has been reserved for
the consideration of the President and has
received his assent, prevail in that State:
Provided that nothing in this clause shall
prevent Parliament from enacting at any time
any law with respect to the same matter
including a law adding to, amending, varying
or repealing the law so made by the
Legislature of the State.”
18. In this case proceeding on the basis that there
is an inconsistency between Section 58(c) of the Transfer
of Property Act and Section 37(A) of the State Act, in
view of the assent given by the President, the matter
falls under Article 254(2). Therefore, despite the
inconsistency, Section 37(A) of the State Act will
prevail in the State.
19. The argument that being part of State Act which
is the Money Lending Act and Money lending is in the
state list and therefore, it is a case of legislative,
incompetence, does not appeal to us. We have found that
the provisions of 37(A) is traceable to the Entry
‘Transfer of Property’ in the Concurrent List and that
Article 254(2) saves the provision.
19
20. We see no merit in the appeals and the appeals
stand dismissed.
…....................J.
[ASHOK BHUSHAN]
…....................J.
[K.M. JOSEPH]
NEW DELHI;
APRIL 04, 2019.
whether the High Court was justified in rejecting the application filed by the appellants under Section 482 of the Cr.P.C. - No
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 602 OF 2019
(Arising out of S.L.P.(Crl.) No.8074 of 2018)
Tabrez Khan @ Guddu & Ors. ….Appellant(s)
VERSUS
The State of Uttar Pradesh & Anr. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment
and order dated 06.02.2018 passed by the High
Court of Judicature at Allahabad in Application
No.3514 of 2018 whereby the High Court declined
to quash Complaint Case No.3065 of 2016 as well
1
as the summoning order dated 10.03.2017 passed
by the ACJM, Court No.8, Varanasi in the aforesaid
case.
3. A few facts need mention for the disposal of
this appeal, which involves a short point.
4. Respondent No.2 was married to one
Mohammad Pervez in the year 2000. Appellant
No.3 is the mother of Mohammad Pervez and
motherinlaw of respondent No.2. Appellant Nos.1
and 2 are the brothers of Mohammad Pervez and
brothersinlaw of respondent No. 2.
5. Respondent No.2 has filed a complaint case
against the appellants and also against her
husbandMohammad Pervez in the Court of ACJM
Court No.8, Varanasi complaining therein for the
commission of the offences alleged to have been
committed by the appellants qua respondent No.2
under Sections 498A, 323, 504, 506 of the Indian
2
Penal Code, 1860 (hereinafter referred to as “IPC”)
read with Section 3/4 of the DP Act. This case is
still pending.
6. On receipt of the summons of the said
complaint, the appellants felt aggrieved and they
filed an application under Section 482 of the Code
of Criminal Procedure, 1973 (for short “Cr.P.C.) in
the High Court and sought quashing of complaint
and the order issuing summons of the complaint to
them.
7. By impugned order, the High Court declined to
quash Complaint Case No.3065 of 2016 and also
declined to quash the summoning order dated
10.03.2017 passed by the ACJM, Court No.8,
Varanasi in the aforesaid case which has given rise
to filing of this appeal by way of special leave in this
Court by the appellants.
3
8. So, the short question, which arises for
consideration in this appeal, is whether the High
Court was justified in rejecting the application filed
by the appellants under Section 482 of the Cr.P.C.
9. Heard Mr. Amit Pawan, learned counsel for the
appellants and Mr. Vinod Diwakar, learned AAG for
respondent No.1State. None appeared for
respondent No.2 despite service on her.
10. Having heard the learned counsel for the
appellants and respondent No.1 and on perusal of
the record of the case, we are inclined to allow this
appeal, set aside the impugned order, allow the
application filed by the appellants under Section
482 of the Cr.P.C. and quash the aforementioned
complaint filed by respondent No.2 insofar as it
relates to the appellants.
4
11. We have gone through the averments made in
the complaint and on its perusal, we do not find any
justification to proceed against the appellants.
12. In other words, in our view, there does not
appear to be any justification or/and prima facie
case to proceed against the appellants either jointly
or severally for commission of the offences alleged
against them in the complaint. Indeed, the facts
stated against the appellants in the complaint do
not constitute any case as alleged against any of
them.
13. In view of the foregoing discussion, the appeal
succeeds and is accordingly allowed. The impugned
order is set aside. As a consequence, the complaint
filed by respondent No.2 against the appellants is
hereby quashed.
14. We, however, make it clear that the complaint
qua Mohammad Pervez Khanhusband of
5
respondent No.2 will be decided on its merit by the
concerned Magistrate in accordance with law
uninfluenced by any observations made by this
Court because we have not examined the case of
respondent No.2 qua her husband, who is neither a
party to these proceedings and nor he has filed any
petition to challenge the complaint filed against
him.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[DINESH MAHESHWARI]
New Delhi;
April 05, 2019
6
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 602 OF 2019
(Arising out of S.L.P.(Crl.) No.8074 of 2018)
Tabrez Khan @ Guddu & Ors. ….Appellant(s)
VERSUS
The State of Uttar Pradesh & Anr. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment
and order dated 06.02.2018 passed by the High
Court of Judicature at Allahabad in Application
No.3514 of 2018 whereby the High Court declined
to quash Complaint Case No.3065 of 2016 as well
1
as the summoning order dated 10.03.2017 passed
by the ACJM, Court No.8, Varanasi in the aforesaid
case.
3. A few facts need mention for the disposal of
this appeal, which involves a short point.
4. Respondent No.2 was married to one
Mohammad Pervez in the year 2000. Appellant
No.3 is the mother of Mohammad Pervez and
motherinlaw of respondent No.2. Appellant Nos.1
and 2 are the brothers of Mohammad Pervez and
brothersinlaw of respondent No. 2.
5. Respondent No.2 has filed a complaint case
against the appellants and also against her
husbandMohammad Pervez in the Court of ACJM
Court No.8, Varanasi complaining therein for the
commission of the offences alleged to have been
committed by the appellants qua respondent No.2
under Sections 498A, 323, 504, 506 of the Indian
2
Penal Code, 1860 (hereinafter referred to as “IPC”)
read with Section 3/4 of the DP Act. This case is
still pending.
6. On receipt of the summons of the said
complaint, the appellants felt aggrieved and they
filed an application under Section 482 of the Code
of Criminal Procedure, 1973 (for short “Cr.P.C.) in
the High Court and sought quashing of complaint
and the order issuing summons of the complaint to
them.
7. By impugned order, the High Court declined to
quash Complaint Case No.3065 of 2016 and also
declined to quash the summoning order dated
10.03.2017 passed by the ACJM, Court No.8,
Varanasi in the aforesaid case which has given rise
to filing of this appeal by way of special leave in this
Court by the appellants.
3
8. So, the short question, which arises for
consideration in this appeal, is whether the High
Court was justified in rejecting the application filed
by the appellants under Section 482 of the Cr.P.C.
9. Heard Mr. Amit Pawan, learned counsel for the
appellants and Mr. Vinod Diwakar, learned AAG for
respondent No.1State. None appeared for
respondent No.2 despite service on her.
10. Having heard the learned counsel for the
appellants and respondent No.1 and on perusal of
the record of the case, we are inclined to allow this
appeal, set aside the impugned order, allow the
application filed by the appellants under Section
482 of the Cr.P.C. and quash the aforementioned
complaint filed by respondent No.2 insofar as it
relates to the appellants.
4
11. We have gone through the averments made in
the complaint and on its perusal, we do not find any
justification to proceed against the appellants.
12. In other words, in our view, there does not
appear to be any justification or/and prima facie
case to proceed against the appellants either jointly
or severally for commission of the offences alleged
against them in the complaint. Indeed, the facts
stated against the appellants in the complaint do
not constitute any case as alleged against any of
them.
13. In view of the foregoing discussion, the appeal
succeeds and is accordingly allowed. The impugned
order is set aside. As a consequence, the complaint
filed by respondent No.2 against the appellants is
hereby quashed.
14. We, however, make it clear that the complaint
qua Mohammad Pervez Khanhusband of
5
respondent No.2 will be decided on its merit by the
concerned Magistrate in accordance with law
uninfluenced by any observations made by this
Court because we have not examined the case of
respondent No.2 qua her husband, who is neither a
party to these proceedings and nor he has filed any
petition to challenge the complaint filed against
him.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[DINESH MAHESHWARI]
New Delhi;
April 05, 2019
6
injuries found on the face of the accused. It is pertinent to note that the accused failed to provide any explanation as to how he had incurred the aforesaid injuries. Further, the injuries on the body of the deceased also indicate signs of struggle. Furthermore, the postmortem suggests that the death of deceased was not suicidal but rather she was hanged after she had lost consciousness. All the aforesaid circumstances further substantiate the voluntary extrajudicial confession of the accused made before P.W4. Moreover, the fact of the commission of death by hanging corroborated by the Exhibit P12, (Panchayatnama) which notes that the deceased was hanging from the roof with the help of a bed sheet. It is noted that the Exhibit P12, (Panchayatnama) stands proved by the SubInspector (P.W.8). The extrajudicial confession of the accused, therefore, finds independent reliable corroboration from the aforesaid circumstances
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 2122 OF 2010
MANOJ KUMAR … APPELLANT
Versus
THE STATE OF UTTARAKHAND … RESPONDENT
J U D G M E N T
1. The present matter is placed before us by virtue of referral
order dated 22.05.2014 wherein the following question was placed
for reference before us that, “whether the 2nd FIR and the
investigation in pursuance of further information thereof should be
straightway quashed or should it require a scrutiny during trial of
the permissible matter of prejudice, and truthfulness of the evidence
collected on the basis of second FIR.”
2. But it is to be noted that, during the course of arguments
counsels from both the sides admitted that, no second FIR was
1
NONREPORTABLE
registered in the present case. Although the reference was made to
us, to adjudicate the above question of law, basing on the
submissions we can conclude that the issue of second FIR does not
arise in the present matter. Therefore, we are proceeding to
adjudicate the matter on merits.
3. The brief facts of the case necessary for adjudication are as
follows: the accusedappellant used to stay in the same block under
the complainant (PW1) and he used to frequently visit the house of
complainant (PW1). Further he also owned a betel shop in the
vicinity. On the day of incident, i.e. 24.08.1993, both the
complainant and his wife left for their duties, and their daughter
(hereinafter referred as ‘the deceased’) aged around 17 years, was
alone at the house. Thereafter, on finding an opportunity at around
10.45 A.M., the accusedappellant entered the house and tried to
establish forceful physical relations with the deceased and the same
was strongly resisted by her. Thus, a physical altercation broke out
between the two, wherein the accusedappellant strangulated the
deceased by putting the weight of his right hand on the throat of the
deceased. The accusedappellant thereafter orchestrated the entire
incident into a suicide, by hanging the deceased from the roof with
2
the help of a white bedsheet. However, during this incident, two key
witnesses namely Kushalpal and Vinod Kumar (PW2), visited the
house of the complainant (PW1) for some personal work. On their
call at the maindoor, they were addressed by the accusedappellant
who informed them that nobody was present at home and therefore,
considering the accusedpetitioner to be a neighbour, both the
persons left the house without doubting the accusedpetitioner or
suspecting that anything was wrong.
4. Later that day, after returning from duty at around 12:00 noon,
the complainant (P.W1) found the dead body of his daughter
hanging from the roof and informed the police about the same. But
subsequently, on 26.08.1993, Vinod Kumar (PW2), visited the
house of complainant and informed him that on the day of the
incident, at around 11:00 A.M., the accusedappellant came out of
their house on their call and informed them that nobody was at
home. Therefore, the complainant (P.W1) approached the police on
26.08.1993 to inform them about the presence of the accused at the
scene of offence. On the basis of the aforesaid information the First
Information Report No. 221 was registered under Section 302 of
Indian Penal Code against the accusedappellant and the search for
3
the accused was initiated. Simultaneously, on 26.08.1993, the
accused appellant had made an extrajudicial confession before
Sanjay Sharma (PW4); who in turn narrated the entire incident
before the Investigating Officer. Thereafter, investigation was
conducted and after completion of the same, charge sheet was filed
against the accusedappellant.
5. The trial court vide its judgment dated 14.05.1997, convicted
the accused for offence under Section 302 of the IPC and sentenced
him to undergo life imprisonment and pay a fine of Rs. 20,000/, in
default rigorous imprisonment of 5 years. Aggrieved, the appellant
approached the High Court in Criminal Appeal No.1192 of 2001,
wherein the High Court upheld the order of conviction passed by the
trial court and dismissed the appeal preferred by the appellant.
Aggrieved, the appellant preferred the present appeal.
6. Learned counsel for the accusedappellant contended that the
High Court gravely erred in convicting the accused for the aforesaid
offence without any incriminating evidence against him. The counsel
emphasized that the conviction was solely based on the extrajudicial confession which is not corroborated by any material
evidence. Moreover, it was also contended that, it is a simple case of
4
suicide but PW1 with the help of the testimonies of PW2 and PW4
has falsely implicated the appellant as an accused and these
testimonies cannot be relied on as they were created as an
afterthought after a delay of 2 days. Lastly, this being a case of
circumstantial evidence, the chain of circumstances does not prove
the guilt of the accused.
7. Learned counsel for the respondent contended that prosecution
has successfully discharged its burden by placing reliance on last
seen, extrajudicial confession made by the accused, injuries on the
accused, absence of accused from his house at the time of
occurrence and lack of an alibi to prove his presence elsewhere and
the medical evidence. The counsel therefore contends that the High
Court has rightly upheld the conviction of the accused keeping in
view the aforesaid chain of circumstances which proves the guilt of
the accused. Therefore, the counsel pleaded that the appeal of
appellant being devoid of merits should be dismissed without any
indulgence.
8. Heard the learned counsels on merits. Admittedly, since there
is no direct evidence, the present case is based on circumstantial
evidence. Therefore, it is pertinent to focus on facts leading to the
5
completion of the chain of circumstances which proves the guilt of
the accused.
9. The trial court began its analysis of the facts by laying
emphasis on the proximity of the house of the deceased and the
accused so as to prove that access was highly probable considering
the fact that, the accused used to live in the floor beneath that of the
deceased. Admittedly, on the date of incident, the deceased was
alone in the house as her parents and siblings had left for their jobs
and school at around 6:30 a.m. respectively. It is in this scenario
that the evidence of Vinod Kumar (P.W.2) plays a vital role, as it
proves that the accused was present at the scene of the offence.
Vinod Kumar (P.W.2) clearly stated that he had visited the house of
the complainant (P.W.1) and called out his name, although there was
no response for the first time, the accused answered the second call
and informed P.W.2 that there was no one available at home. Owing
to the proximity of both the families, P.W.2 left for his hometown
without any suspicion. It is in this context that the evidence of
complainant (P.W.1) becomes relevant so as to analyse the conduct
of the accused just after the incident. P.W.1 has stated that the
accused and his father were missing from their residence since the
6
time of the offence itself and that they had not even participated in
the cremation ceremony of the deceased. It was only on 27.08.1993
that the accused was apprehended by the police with the help of the
secret informer.
10. Further, both the trial Court and the High Court placed
reliance on the injuries found on the face of the accused. It is
pertinent to note that the accused failed to provide any explanation
as to how he had incurred the aforesaid injuries. Further, the
injuries on the body of the deceased also indicate signs of struggle.
Furthermore, the postmortem suggests that the death of deceased
was not suicidal but rather she was hanged after she had lost
consciousness. All the aforesaid circumstances further substantiate
the voluntary extrajudicial confession of the accused made before
P.W4. Moreover, the fact of the commission of death by hanging
corroborated by the Exhibit P12, (Panchayatnama) which notes that
the deceased was hanging from the roof with the help of a bed sheet.
It is noted that the Exhibit P12, (Panchayatnama) stands proved by
the SubInspector (P.W.8). The extrajudicial confession of the
accused, therefore, finds independent reliable corroboration from the
aforesaid circumstances. (See Ram Singh v. State of U.P., 1967
7
Cri LJ 9) In light of the aforementioned chain of events, there exists
sufficient evidence on record to connect the appellant with the death
of the deceased, the motive of which is apparent.
11. In the absence of any existing enmity between the accused and
the witnesses there exists no ground to question the veracity of the
witnesses or to raise a ground of false implication. Therefore,
considering the totality of the facts and circumstances, we conclude
that the chain of events has been rightly analysed by both the courts
below and the same leads towards proving the culpability of the
accused. (See Prakash v. State of Rajasthan, (2013) 4 SCC 668)
12. Therefore, after perusal of the material on record we conclude
that, the appeal preferred by the accused, being devoid of any merit
is liable to be dismissed. In light of the same, we uphold the order of
conviction passed by the High Court.
.........................J.
(N.V.RAMANA)
.........................J.
(MOHAN M.SHANTANAGOUDAR)
.........................J.
(INDIRA BANERJEE)
New Delhi,
April 05, 2019.
8
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 2122 OF 2010
MANOJ KUMAR … APPELLANT
Versus
THE STATE OF UTTARAKHAND … RESPONDENT
J U D G M E N T
1. The present matter is placed before us by virtue of referral
order dated 22.05.2014 wherein the following question was placed
for reference before us that, “whether the 2nd FIR and the
investigation in pursuance of further information thereof should be
straightway quashed or should it require a scrutiny during trial of
the permissible matter of prejudice, and truthfulness of the evidence
collected on the basis of second FIR.”
2. But it is to be noted that, during the course of arguments
counsels from both the sides admitted that, no second FIR was
1
NONREPORTABLE
registered in the present case. Although the reference was made to
us, to adjudicate the above question of law, basing on the
submissions we can conclude that the issue of second FIR does not
arise in the present matter. Therefore, we are proceeding to
adjudicate the matter on merits.
3. The brief facts of the case necessary for adjudication are as
follows: the accusedappellant used to stay in the same block under
the complainant (PW1) and he used to frequently visit the house of
complainant (PW1). Further he also owned a betel shop in the
vicinity. On the day of incident, i.e. 24.08.1993, both the
complainant and his wife left for their duties, and their daughter
(hereinafter referred as ‘the deceased’) aged around 17 years, was
alone at the house. Thereafter, on finding an opportunity at around
10.45 A.M., the accusedappellant entered the house and tried to
establish forceful physical relations with the deceased and the same
was strongly resisted by her. Thus, a physical altercation broke out
between the two, wherein the accusedappellant strangulated the
deceased by putting the weight of his right hand on the throat of the
deceased. The accusedappellant thereafter orchestrated the entire
incident into a suicide, by hanging the deceased from the roof with
2
the help of a white bedsheet. However, during this incident, two key
witnesses namely Kushalpal and Vinod Kumar (PW2), visited the
house of the complainant (PW1) for some personal work. On their
call at the maindoor, they were addressed by the accusedappellant
who informed them that nobody was present at home and therefore,
considering the accusedpetitioner to be a neighbour, both the
persons left the house without doubting the accusedpetitioner or
suspecting that anything was wrong.
4. Later that day, after returning from duty at around 12:00 noon,
the complainant (P.W1) found the dead body of his daughter
hanging from the roof and informed the police about the same. But
subsequently, on 26.08.1993, Vinod Kumar (PW2), visited the
house of complainant and informed him that on the day of the
incident, at around 11:00 A.M., the accusedappellant came out of
their house on their call and informed them that nobody was at
home. Therefore, the complainant (P.W1) approached the police on
26.08.1993 to inform them about the presence of the accused at the
scene of offence. On the basis of the aforesaid information the First
Information Report No. 221 was registered under Section 302 of
Indian Penal Code against the accusedappellant and the search for
3
the accused was initiated. Simultaneously, on 26.08.1993, the
accused appellant had made an extrajudicial confession before
Sanjay Sharma (PW4); who in turn narrated the entire incident
before the Investigating Officer. Thereafter, investigation was
conducted and after completion of the same, charge sheet was filed
against the accusedappellant.
5. The trial court vide its judgment dated 14.05.1997, convicted
the accused for offence under Section 302 of the IPC and sentenced
him to undergo life imprisonment and pay a fine of Rs. 20,000/, in
default rigorous imprisonment of 5 years. Aggrieved, the appellant
approached the High Court in Criminal Appeal No.1192 of 2001,
wherein the High Court upheld the order of conviction passed by the
trial court and dismissed the appeal preferred by the appellant.
Aggrieved, the appellant preferred the present appeal.
6. Learned counsel for the accusedappellant contended that the
High Court gravely erred in convicting the accused for the aforesaid
offence without any incriminating evidence against him. The counsel
emphasized that the conviction was solely based on the extrajudicial confession which is not corroborated by any material
evidence. Moreover, it was also contended that, it is a simple case of
4
suicide but PW1 with the help of the testimonies of PW2 and PW4
has falsely implicated the appellant as an accused and these
testimonies cannot be relied on as they were created as an
afterthought after a delay of 2 days. Lastly, this being a case of
circumstantial evidence, the chain of circumstances does not prove
the guilt of the accused.
7. Learned counsel for the respondent contended that prosecution
has successfully discharged its burden by placing reliance on last
seen, extrajudicial confession made by the accused, injuries on the
accused, absence of accused from his house at the time of
occurrence and lack of an alibi to prove his presence elsewhere and
the medical evidence. The counsel therefore contends that the High
Court has rightly upheld the conviction of the accused keeping in
view the aforesaid chain of circumstances which proves the guilt of
the accused. Therefore, the counsel pleaded that the appeal of
appellant being devoid of merits should be dismissed without any
indulgence.
8. Heard the learned counsels on merits. Admittedly, since there
is no direct evidence, the present case is based on circumstantial
evidence. Therefore, it is pertinent to focus on facts leading to the
5
completion of the chain of circumstances which proves the guilt of
the accused.
9. The trial court began its analysis of the facts by laying
emphasis on the proximity of the house of the deceased and the
accused so as to prove that access was highly probable considering
the fact that, the accused used to live in the floor beneath that of the
deceased. Admittedly, on the date of incident, the deceased was
alone in the house as her parents and siblings had left for their jobs
and school at around 6:30 a.m. respectively. It is in this scenario
that the evidence of Vinod Kumar (P.W.2) plays a vital role, as it
proves that the accused was present at the scene of the offence.
Vinod Kumar (P.W.2) clearly stated that he had visited the house of
the complainant (P.W.1) and called out his name, although there was
no response for the first time, the accused answered the second call
and informed P.W.2 that there was no one available at home. Owing
to the proximity of both the families, P.W.2 left for his hometown
without any suspicion. It is in this context that the evidence of
complainant (P.W.1) becomes relevant so as to analyse the conduct
of the accused just after the incident. P.W.1 has stated that the
accused and his father were missing from their residence since the
6
time of the offence itself and that they had not even participated in
the cremation ceremony of the deceased. It was only on 27.08.1993
that the accused was apprehended by the police with the help of the
secret informer.
10. Further, both the trial Court and the High Court placed
reliance on the injuries found on the face of the accused. It is
pertinent to note that the accused failed to provide any explanation
as to how he had incurred the aforesaid injuries. Further, the
injuries on the body of the deceased also indicate signs of struggle.
Furthermore, the postmortem suggests that the death of deceased
was not suicidal but rather she was hanged after she had lost
consciousness. All the aforesaid circumstances further substantiate
the voluntary extrajudicial confession of the accused made before
P.W4. Moreover, the fact of the commission of death by hanging
corroborated by the Exhibit P12, (Panchayatnama) which notes that
the deceased was hanging from the roof with the help of a bed sheet.
It is noted that the Exhibit P12, (Panchayatnama) stands proved by
the SubInspector (P.W.8). The extrajudicial confession of the
accused, therefore, finds independent reliable corroboration from the
aforesaid circumstances. (See Ram Singh v. State of U.P., 1967
7
Cri LJ 9) In light of the aforementioned chain of events, there exists
sufficient evidence on record to connect the appellant with the death
of the deceased, the motive of which is apparent.
11. In the absence of any existing enmity between the accused and
the witnesses there exists no ground to question the veracity of the
witnesses or to raise a ground of false implication. Therefore,
considering the totality of the facts and circumstances, we conclude
that the chain of events has been rightly analysed by both the courts
below and the same leads towards proving the culpability of the
accused. (See Prakash v. State of Rajasthan, (2013) 4 SCC 668)
12. Therefore, after perusal of the material on record we conclude
that, the appeal preferred by the accused, being devoid of any merit
is liable to be dismissed. In light of the same, we uphold the order of
conviction passed by the High Court.
.........................J.
(N.V.RAMANA)
.........................J.
(MOHAN M.SHANTANAGOUDAR)
.........................J.
(INDIRA BANERJEE)
New Delhi,
April 05, 2019.
8
the claim of the appellants is that they have been in lawful possession of the land for doing their business and, therefore, the respondentsthe State Authorities and 3 the Temple Management cannot dispossess any of them from their individual shops without following the due process of law. 7. Since the appellants were threatened by the respondents of their dispossession from their shops by issuance of notices dated 14/16.02.2018, they felt aggrieved and filed the writ petitions in the High Court, out of which these appeals arise, against the respondents claiming inter alia the relief of issuance of writ of certiorari for quashing the notice and also for issuance of prohibitory writ restraining the respondents from taking any action of dispossessing them from their respective shops. - High court wrongly dismissed as the respondents have not taken action as per Endowments Act
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.34613505 OF 2019
(Arising out of S.L.P.(C) Nos.30073051 of 2019)
S. Kumar ….Appellant(s)
VERSUS
The Commissioner & Ors. ….Respondent(s)
WITH
CIVIL APPEAL Nos.35063515 OF 2019
(Arising out of SLP (C) Nos.27182727/2019)
CIVIL APPEAL No.3516 OF 2019
(Arising out of SLP (C) No. 2984/2019)
CIVIL APPEAL Nos.35173538 OF 2019
(Arising out of SLP (C) Nos. 32163237/2019)
CIVIL APPEAL Nos.35393544 OF 2019
(Arising out of SLP (C) Nos.33573362/2019)
CIVIL APPEAL Nos.35453564 OF 2019
(Arising out of SLP (C) Nos.36643683/2019)
CIVIL APPEAL No.3565 OF 2019
(Arising out of SLP (C) No. 5144/2019)
CIVIL APPEAL No.3570 OF 2019
(Arising out of SLP (C) No.6067/2019)
CIVIL APPEAL No.3566 OF 2019
(Arising out of SLP (C) No.5146/2019)
CIVIL APPEAL No. 3567 OF 2019
(Arising out of SLP (C) No.6065/2019)
1
AND
CIVIL APPEAL No.3569 OF 2019
(Arising out of SLP (C) No.9167/2019)
(D.No.8470/2019)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. These appeals are filed against the final
judgment and order dated 01.11.2019 in WAMD
No.11661209,1269,690692, 686689, 696698,
1068, 10301051, 13341336, 13321333, 1340,
11191126, 11281135, 1160, 1164, 1165, 1426,
1166, 1212, 1112 & 1421 of 2018 passed by the
High Court of judicature at Madras at Madurai
whereby the Division Bench of the High Court
dismissed the said writ appeals filed by the
appellants herein.
2
3. A few facts need mention hereinbelow for the
disposal of these appeals, which involve a short
point.
4. The appellants herein are the writ petitioners
and the respondents herein are the respondents of
the writ petitions, out of which these appeals arise.
5. The appellants individually claim to be
carrying on their small business of selling items by
setting up their shops in the premises of several
temples situated in various places in the districts of
the State of Tamil Nadu.
6. These appellants individually claim that they
have been doing their business either as licensee
or/and with the permission of the Temple
Authorities. In substance, the claim of the
appellants is that they have been in lawful
possession of the land for doing their business and,
therefore, the respondentsthe State Authorities and
3
the Temple Management cannot dispossess any of
them from their individual shops without following
the due process of law.
7. Since the appellants were threatened by the
respondents of their dispossession from their shops
by issuance of notices dated 14/16.02.2018, they
felt aggrieved and filed the writ petitions in the High
Court, out of which these appeals arise, against the
respondents claiming inter alia the relief of issuance
of writ of certiorari for quashing the notice and also
for issuance of prohibitory writ restraining the
respondents from taking any action of dispossessing
them from their respective shops.
8. The respondents contested the writ petitions.
By a common order dated 04.06.2018, the Single
Judge dismissed the writ petitions giving rise to
filing of the writ appeals by the writ petitioners
before the Division Bench of the High Court of
4
Madras. By impugned order, the Division Bench
dismissed the appeals and upheld the order of the
Single Judge, which has given rise to filing of the
present appeals by way of special leave by the
unsuccessful writ petitioners in this Court.
9. So, the short question, which arises for
consideration in this bunch of appeals, is whether
the High Court (Single Judge Writ Court and the
Division Bench) was justified in dismissing the
appellants’ writ petitions and intra court appeals.
10. Heard Mr. S. Nagamuthu, learned senior
counsel for the appellants and Mr. K.M. Nataraj,
learned ASG and Mr. Mohan Parasaran, learned
senior counsel for the respondents.
11. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow these appeals and set aside the
impugned order.
5
12. In our considered opinion, the issue raised in
these appeals is governed by the provisions of the
Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959 (for short “the Act, 1959).
Chapter VII of the Act, 1959 deals with the cases of
encroachment on the land belonging to religious
institutions. This chapter consists of Sections 77 to
85.
13. Section 77 of the Act, 1959 deals with transfer
of lands appurtenant to or adjoining religious
institutions prohibited except in special cases.
Section 78 deals with encroachment by persons on
land or building belonging to charitable or religious
institution or endowment and the eviction of
encroachers. Section 79 deals with mode of eviction
on failure of removal of the encroachment as
directed by the Joint Commissioner. Section 79A
deals with encroachment by groups of persons on
6
land belonging to charitable religious institutions
and their eviction. Section 79B deals with penalty
for offences in connection with encroachment.
Section 79C deals with recovery of moneys due to
religious institution, as arrears of land revenue.
Section 80 deals with eviction of lessees, licensees
or mortgagees with possession in certain cases.
Section 81 provides for an appeal against Joint
Commissioner or the orders of Deputy
Commissioner passed under Section 80. Section 82
provides for payment of Compensation. Section 83
deals with constitution of Tribunal. Section 84 deals
with suits against the award. Section 85 provides
for protection of action taken under Chapter VII of
the Act, 1959.
14. As mentioned above, the controversy, which is
the subject matter of these appeals, is governed by
the provisions of the Act, 1959. It is not in dispute
7
that the respondents did not resort to the remedies
provided to them under the Act against any of the
appellants. In other words, it is not in dispute that
the action taken by the respondents, which was
impugned by the appellants in the writ petitions
before the High Court, was not taken under the Act,
1959.
15. It is for this reason, we are inclined to allow
these appeals, set aside the impugned order and
grant liberty to the respondents to take recourse to
the remedies provided to them against the
appellants individually in relation to the controversy
raised by them in these proceedings.
16. Needless to say, we have not gone into the
merits of the claim raised by the appellants whether
individually or/and severally. The respondents will,
therefore, be at liberty to proceed in the matter in
question against the appellants individually strictly
8
in accordance with law uninfluenced by any
observations made by this Court.
17. In view of the foregoing discussion, the appeals
succeed and are accordingly allowed. The
impugned order is set aside.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[DINESH MAHESHWARI]
New Delhi;
April 08, 2019
9
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.34613505 OF 2019
(Arising out of S.L.P.(C) Nos.30073051 of 2019)
S. Kumar ….Appellant(s)
VERSUS
The Commissioner & Ors. ….Respondent(s)
WITH
CIVIL APPEAL Nos.35063515 OF 2019
(Arising out of SLP (C) Nos.27182727/2019)
CIVIL APPEAL No.3516 OF 2019
(Arising out of SLP (C) No. 2984/2019)
CIVIL APPEAL Nos.35173538 OF 2019
(Arising out of SLP (C) Nos. 32163237/2019)
CIVIL APPEAL Nos.35393544 OF 2019
(Arising out of SLP (C) Nos.33573362/2019)
CIVIL APPEAL Nos.35453564 OF 2019
(Arising out of SLP (C) Nos.36643683/2019)
CIVIL APPEAL No.3565 OF 2019
(Arising out of SLP (C) No. 5144/2019)
CIVIL APPEAL No.3570 OF 2019
(Arising out of SLP (C) No.6067/2019)
CIVIL APPEAL No.3566 OF 2019
(Arising out of SLP (C) No.5146/2019)
CIVIL APPEAL No. 3567 OF 2019
(Arising out of SLP (C) No.6065/2019)
1
AND
CIVIL APPEAL No.3569 OF 2019
(Arising out of SLP (C) No.9167/2019)
(D.No.8470/2019)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. These appeals are filed against the final
judgment and order dated 01.11.2019 in WAMD
No.11661209,1269,690692, 686689, 696698,
1068, 10301051, 13341336, 13321333, 1340,
11191126, 11281135, 1160, 1164, 1165, 1426,
1166, 1212, 1112 & 1421 of 2018 passed by the
High Court of judicature at Madras at Madurai
whereby the Division Bench of the High Court
dismissed the said writ appeals filed by the
appellants herein.
2
3. A few facts need mention hereinbelow for the
disposal of these appeals, which involve a short
point.
4. The appellants herein are the writ petitioners
and the respondents herein are the respondents of
the writ petitions, out of which these appeals arise.
5. The appellants individually claim to be
carrying on their small business of selling items by
setting up their shops in the premises of several
temples situated in various places in the districts of
the State of Tamil Nadu.
6. These appellants individually claim that they
have been doing their business either as licensee
or/and with the permission of the Temple
Authorities. In substance, the claim of the
appellants is that they have been in lawful
possession of the land for doing their business and,
therefore, the respondentsthe State Authorities and
3
the Temple Management cannot dispossess any of
them from their individual shops without following
the due process of law.
7. Since the appellants were threatened by the
respondents of their dispossession from their shops
by issuance of notices dated 14/16.02.2018, they
felt aggrieved and filed the writ petitions in the High
Court, out of which these appeals arise, against the
respondents claiming inter alia the relief of issuance
of writ of certiorari for quashing the notice and also
for issuance of prohibitory writ restraining the
respondents from taking any action of dispossessing
them from their respective shops.
8. The respondents contested the writ petitions.
By a common order dated 04.06.2018, the Single
Judge dismissed the writ petitions giving rise to
filing of the writ appeals by the writ petitioners
before the Division Bench of the High Court of
4
Madras. By impugned order, the Division Bench
dismissed the appeals and upheld the order of the
Single Judge, which has given rise to filing of the
present appeals by way of special leave by the
unsuccessful writ petitioners in this Court.
9. So, the short question, which arises for
consideration in this bunch of appeals, is whether
the High Court (Single Judge Writ Court and the
Division Bench) was justified in dismissing the
appellants’ writ petitions and intra court appeals.
10. Heard Mr. S. Nagamuthu, learned senior
counsel for the appellants and Mr. K.M. Nataraj,
learned ASG and Mr. Mohan Parasaran, learned
senior counsel for the respondents.
11. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow these appeals and set aside the
impugned order.
5
12. In our considered opinion, the issue raised in
these appeals is governed by the provisions of the
Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959 (for short “the Act, 1959).
Chapter VII of the Act, 1959 deals with the cases of
encroachment on the land belonging to religious
institutions. This chapter consists of Sections 77 to
85.
13. Section 77 of the Act, 1959 deals with transfer
of lands appurtenant to or adjoining religious
institutions prohibited except in special cases.
Section 78 deals with encroachment by persons on
land or building belonging to charitable or religious
institution or endowment and the eviction of
encroachers. Section 79 deals with mode of eviction
on failure of removal of the encroachment as
directed by the Joint Commissioner. Section 79A
deals with encroachment by groups of persons on
6
land belonging to charitable religious institutions
and their eviction. Section 79B deals with penalty
for offences in connection with encroachment.
Section 79C deals with recovery of moneys due to
religious institution, as arrears of land revenue.
Section 80 deals with eviction of lessees, licensees
or mortgagees with possession in certain cases.
Section 81 provides for an appeal against Joint
Commissioner or the orders of Deputy
Commissioner passed under Section 80. Section 82
provides for payment of Compensation. Section 83
deals with constitution of Tribunal. Section 84 deals
with suits against the award. Section 85 provides
for protection of action taken under Chapter VII of
the Act, 1959.
14. As mentioned above, the controversy, which is
the subject matter of these appeals, is governed by
the provisions of the Act, 1959. It is not in dispute
7
that the respondents did not resort to the remedies
provided to them under the Act against any of the
appellants. In other words, it is not in dispute that
the action taken by the respondents, which was
impugned by the appellants in the writ petitions
before the High Court, was not taken under the Act,
1959.
15. It is for this reason, we are inclined to allow
these appeals, set aside the impugned order and
grant liberty to the respondents to take recourse to
the remedies provided to them against the
appellants individually in relation to the controversy
raised by them in these proceedings.
16. Needless to say, we have not gone into the
merits of the claim raised by the appellants whether
individually or/and severally. The respondents will,
therefore, be at liberty to proceed in the matter in
question against the appellants individually strictly
8
in accordance with law uninfluenced by any
observations made by this Court.
17. In view of the foregoing discussion, the appeals
succeed and are accordingly allowed. The
impugned order is set aside.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[DINESH MAHESHWARI]
New Delhi;
April 08, 2019
9
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