whether a Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (herein after referred to as “the 1986 Act”) is maintainable before the National Commission Dispute Redressal Commission (herein after referred to as “National Commission”) against an Order passed by the State Commission in an execution proceeding. = The National Commission erroneously allowed the Revision Petition u/S. 21(b) which was not maintainable. Furthermore, the National Commission modified the decree passed by this Court vide Order dated 19.11.2012 wherein this Court had directed the Board to pay Interest @ 18% p.a. on the principal amount of Rs. 2,67,750/­ (which included an amount of Rs. 3,937 which had been initially deducted by the Board). The National Commission has awarded Interest on the amount of Rs. 3,937/­ twice, by first including it in the principal amount of Rs. 2,67,750/­; and thereafter awarding Interest @ 18% on the same amount of Rs. 3,937/­, which would amount to a double payment.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4631 OF 2019
(Arising out of SLP (Civil) No. 6276 of 2019)
Karnataka Housing Board                    …Appellant
versus
K. A. Nagamani                …Respondent
J U D G M E N T
INDU MALHOTRA, J.
Leave granted.
1. The present Civil Appeal arises out of execution proceedings
initiated   by   the   Respondent   –   Complainant   from   an   Order
passed by the State Commission in a consumer dispute. The
issue which has arisen for consideration is whether a Revision
Petition under Section 21(b) of the Consumer Protection Act,
1986   (herein   after   referred   to   as   “the   1986   Act”)   is
maintainable   before   the   National   Commission   Dispute
Redressal Commission (herein after referred to as “National
1
Commission”)   against   an   Order   passed   by   the   State
Commission in an execution proceeding.
2. The factual matrix in which the present jurisdictional issue
has been raised, is as follows:
2.1. The Respondent – Complainant applied for allotment of a
HIG­B Flat under the Self­Financing Housing Scheme at
Kengeri, Bangalore. The Appellant – Karnataka Housing
Board (hereinafter referred to as “the Board”)  vide  letter
dated 25.03.1992 allotted Flat No. 116, Type B on the First
Floor to the Respondent – Complainant. The Board issued
a Provisional Allotment letter dated 23.04.1992 informing
the Respondent – Complainant that the cost of the flat was
Rs. 3,15,000 which was to be paid in the instalments as
specified.
It   is   an   admitted   position   that   the   Respondent   –
Complainant deposited a total amount of Rs. 2,67,750 in
four instalments.
2.2. The   Board   issued   letter   dated   24.06.1995   whereby   the
Respondent – Complainant was allotted another flat,  in
lieu  of the earlier flat for which the provisional allotment
had   been   made.   The   Respondent   –   Complainant   was
informed that the cost of the flat was Rs. 5,90,000. Since
the Respondent – Complainant was not willing to pay the
2
final cost demanded by the Board, she sought a refund of
the amount deposited by her.
2.3. The   Board   refunded   the   amount   of   Rs.   2,63,813   after
deducting   Rs.   3,937   deposited   by   the   Respondent   –
Complainant.
2.4. The Respondent – Complainant made a representation to
the Board demanding refund of the amount deducted, and
also Interest @ 27% p.a. on the entire amount deposited
from the date of payment of each instalment, till the date
of refund.
The Board however refused to accept the demand of
the Respondent – Complainant.
2.5. The   Respondent   –   Complainant   filed   a   Consumer
Complaint alleging deficiency of service under Section 2(1)
(c)(iii)   of   the   1986   Act   before   the   District   Consumer
Disputes   Redressal   Forum,   Bangalore,   and   prayed   for
compensation.
The   District   Forum  vide  Order   dated   21.12.2006
allowed the Complaint, and directed payment of Interest @
12% p.a. on the amount deposited being Rs. 2,67,750 from
the date of deposit of the respective instalments, till the
date of realization. The Board was also directed to refund
the amount of Rs. 3,937 to the Respondent – Complainant.
3
It was directed that the amounts be paid within 45 days
from the date of the Order.
2.6. Being dissatisfied with the compensation awarded by the
District   Forum  vide  Order   dated   21.12.2006,   the
Respondent – Complainant preferred Appeal No. 166 of
2007   before   the   Karnataka   State   Consumer   Disputes
Redressal Commission, Bangalore.
The State Commission  vide  Order dated 06.02.2007
dismissed the Appeal of the Respondent – Complainant.
2.7. The Respondent – Complainant filed Revision Petition No.
1839 of 2007 before the National Commission.
The National Commission vide Order dated 04.08.2011
dismissed  the  Revision  Petition   and  affirmed the   Order
passed by the District Forum.
2.8. The Respondent – Complainant filed SLP (Civil) No. 35226
– 35227 of 2011 before this Court, which was allowed, and
the  Order passed by  the National  Commission  was set
aside. This   Court  vide  Judgment   and   Order   dated
19.09.2012 directed the Appellant – Board to pay Interest
@ 18% p.a. on the amount deposited being Rs. 2,67,750
from the date of deposit till the date of realization; refund
the amount of Rs. 3,937 which had been deducted by the
4
Board;   pay   Rs.   50,000   towards   compensation   for
deficiency   in   service,   and   Rs.   20,000   towards   Costs   of
litigation to the Respondent – Complainant. The operative
part   of   the   Order   is   set­out   herein   below   for   ready
reference :
“For the reasons aforesaid, we allow the appeals
and pass the following order:­
(i) The respondent is directed to pay the appellantcomplainant interest at the rate of 18% per annum
on Rs.2,67,750/­ from date of its respective deposit
till the date of realization with further direction to
refund the amount of Rs. 3,937/­ to her, as directed
by the Consumer Forum.
(ii) The respondent is directed to pay the appellantcomplainant   further   sum   of   Rs.50,000/­   as
compensation for deficiency in service on their part.
(iii)   The   respondent   is   also   directed   to   pay   the
appellant­complainant   a   sum   of   Rs.20,000/­
towards cost of the litigation incurred by her.”
The ‘consumer dispute’ stood finally adjudicated by this
Court  vide  Judgment and Order dated 19.09.2012 which
conclusively determined the rights and obligations of the
parties.
2.9. The Respondent – Complainant filed Execution Application
No. 2 of 2014 before the District Forum. The Respondent –
Complainant   claimed   payment   of   an   amount   of   Rs.
3,58,749 towards execution of the Order dated 19.09.2012
passed by this Court. Both parties submitted their Memo
of   calculation   before   the   District   Forum.   The   District
5
Forum vide Order dated 16.08.2014 held that the Memo of
calculation filed by the Respondent – Complainant was
partly correct, and directed the Appellant – Board to make
an additional payment of Rs. 1,07,057.
The Board satisfied the Decree by payment of the sum
of Rs. 1,07,057 vide Demand Draft dated 09.09.2014.
2.10. On   22.09.2014,   the   Respondent   –   Complainant   filed
Execution Appeal No. 1238 of 2014 under Section 15 of
the   1986   Act,   challenging   the   Order   dated   16.08.2014
before the State Commission.
The State Commission  vide  Order dated 01.03.2016
allowed the Appeal filed by the Respondent – Complainant,
and set aside the Order dated 16.08.2014 passed by the
District Forum in E.P. No. 2 of 2014. It was directed that
the amount of Rs. 2,67,750 already paid by the Board,
would   be   appropriated   first   towards   the   Interest
component and then towards the principal amount. The
State   Commission   remitted   the   matter   to   the   District
Forum   for   fresh   computation   in   compliance   with   the
Order.
2.11.   Aggrieved   by   the   Order   of   the   State   Commission,   the
Appellant – Board preferred a Revision Petition u/S. 21(b)
6
of the 1986 Act before the National Commission being R.P.
No. 1362 of 2016.
The Respondent – Complainant filed I.A. No. 299 of
2017   to   challenge   the   maintainability   of   the   Revision
Petition filed by the Appellant – Board.
The Revision Petition filed by the Board was allowed
vide  Order   dated   10.02.2017.   The   stand   taken   by   the
Respondent – Complainant was rejected as being devoid of
merit.
2.12. The Respondent – Complainant thereafter preferred M.A.
No. 281 of 2017 for referring I.A. No. 299 of 2017 to a
larger bench; and filed M.A. No. 282 of 2017 for declaring
the Order dated 10.02.2017 to be a nullity.
The National Commission vide Order dated 02.02.2018
rejected   the   applications   filed   by   the   Respondent   –
Complainant. 
2.13.   Being   aggrieved   by   the   Orders   dated   10.02.2017   and
02.02.2018   passed   by   the   National   Commission,   the
Respondent – Complainant filed W.P. (Civil) No. 1746 of
2018 before the Delhi High Court.
The Delhi High Court  vide  the Impugned Judgment
dated   13.11.2018,   set   aside   the   Orders   passed   by   the
National   Commission,   and   held   that   the   National
Commission had no jurisdiction to entertain a Revision
7
Petition against the Order passed in Execution Proceedings
by the State Commission. It was held that the nature of
enforcement proceedings is materially different from the
proceedings for adjudication of the consumer dispute. The
Order passed in an Execution Petition was not amenable
to a challenge before the National Commission in exercise
of its Revisional Jurisdiction.
2.14. Aggrieved by the Order dated 13.11.2018 passed by the
Delhi High Court, the Appellant filed the present Appeal.
3. The learned Counsel for the Appellant submitted that:
3.1. A   Revision   Petition   is   maintainable   before   the   National
Commission   under   Section   21(b)   of   the   1986   Act.   The
revisional   jurisdiction   exercised   by   the   National
Commission   is   wide,   and   intended   to   encompass   all
proceedings before the State Commissions.
3.2. The intent of Section 21(b) is clearly to provide revisional
jurisdiction to the National Commission, over the State
Commission.   The   reference   under   Section   21(b)   is
specifically   to   orders   passed   in   any   consumer   dispute
which is pending before, or has been decided by any State
Commission.
8
3.3. The phrase “consumer dispute” under Section 21(b) of the
1986 Act must be understood to mean any dispute which
arises under the 1986 Act.
3.4. Execution proceedings are a continuation of the original
proceedings i.e. the Consumer Complaint.
Reliance in this regard was placed on the judgment of
this   Court   in  Dokku   Bhushayya  v.  Katragadda
Ramakrishnayya & Ors.1
4. On the other hand, the Respondent who appeared in person,
inter alia contended that :
4.1. A Revision Petition is not maintainable under Section 21(b)
of the 1986 Act, against an order of the State Commission
passed in execution proceedings.
4.2. The impugned judgment does not merit interference.
4.3. Section 3 of the Consumer Protection Act, 1986 provides
that the provisions of the Act shall be in addition to, and
not in derogation of the provisions of any other law for the
time being in force. Therefore, the National Commission
cannot go beyond the limitation placed by the CPC. Order
45, Rule 16 of CPC bars revision in execution appeals.
4.4. An execution petition cannot be termed as a continuation
of the ‘consumer dispute’. The definition of a ‘complaint’
and a ‘consumer dispute’ u/S. 2(1)(c) and (e) respectively,
1 (1963) 2 SCR 499.
9
cannot   be   given   a   wide   interpretation   to   encompass
execution proceedings.
4.5. An Order in execution proceedings is not an Order in a
“consumer dispute” pending before the State Commission.
The   “consumer   dispute”   filed   by   the   Respondent   –
Complainant was finally adjudicated by this Court  vide
Judgment and Order dated 19.09.2012.
4.6. In an execution proceeding, the executing forum only has
the jurisdiction ‘to execute’ the order in accordance with
Order XXI CPC.
5. We have heard both the parties and perused the pleadings and
written submissions filed.
6. The issue which arises for our consideration in the present
Appeal is whether a Revision Petition is maintainable before
the National Commission u/S. 21(b) of the 1986 Act against an
Order passed by the State Commission in an appeal arising
out of execution proceedings.
6.1. The right to file a Revision Petition, like an appeal, is a
right conferred by statute.2
  In the absence of a statutory
conferment, there is no inherent right to file a revision.
Section 21 sets out the jurisdiction of the National
Commission which is reproduced hereunder:
“21. Jurisdiction   of   the   National
Commission. — Subject to the other provisions of
2 P.S. Sathappan (Dead) by Lrs. v. Andhra Bank Ltd. and Ors. (2004) 11 SCC 672.
10
this   Act,   the   National   Commission   shall   have
jurisdiction—
(a) to entertain—
(i)  complaints where   the   value   of   the   goods   or
services   and   compensation,   if   any,   claimed
    exceeds rupees     one crore; and
(ii)   appeals against   the   orders   of   any   State
Commission; and
(b)   to   call   for   the   records   and   pass   appropriate
    orders in any consumer dispute which is pending
before   or   has   been   decided   by   any   State
Commission   where   it   appears   to   the   National
Commission   that   such   State   Commission   has
exercised a jurisdiction not vested in it by law, or
has failed to exercise a jurisdiction so vested, or
has   acted   in   the   exercise   of   its   jurisdiction
    illegally or with material irregularity.”
(emphasis supplied)
The National Commission has :
(i) original   jurisdiction   to   entertain   complaints
where the value of goods or services exceeds
rupees one crore;
(ii) jurisdiction to entertain appeals against Orders
of any State Commission; and
(iii) supervisory   jurisdiction   over   any   State
Commission in any “consumer dispute” pending
or   decided   by   a   State   Commission,   which   is
challenged on the ground of lack or excess of
jurisdiction.
6.2. The exercise of revisional jurisdiction u/S. 21(b) by the
National   Commission   is   limited   to   a   consumer   dispute
11
which has been filed before the State Commission3
. The
jurisdiction u/S. 21(b) of the 1986 Act can be exercised by
the   National   Commission   only   in   case   of   a   “consumer
dispute” filed before the State Commission. The National
Commission in exercise of its supervisory jurisdiction u/S.
21(b) is concerned about the correctness or otherwise of
the orders passed by the State Commission in a “consumer
dispute”.
6.3. A Revision Petition has a narrower scope than an ‘appeal’.
In  Dattonpant   Gopalvarao   Devakate  v.  Vithalrao
Maruthirao   Janagaval,
4
  this   Court   discussed   the
distinction between “appellate jurisdiction” and “revisional
jurisdiction” as follows:
“2.   ‘Appeal’   and   ‘revision’   are   expressions   of
common usage in Indian statute and the distinction
between   ‘appellate   jurisdiction’   and   ‘revisional
jurisdiction’ is well known though not well defined.
Ordinarily,   appellate   jurisdiction   involves   a
rehearing, as it were, on law as well as fact and is
invoked by an aggrieved person. Such jurisdiction
may,   however,   be   limited   in   some   way   as,   for
instance has been done in the case of second appeal
under the Code of Civil Procedure, and under some
Rent   Acts   in   some   States.   Ordinarily,   again,
revisional   jurisdiction   is   analogous   to   a   power   of
superintendence and may sometimes be exercised
even   without   its   being   invoked   by   a   party.  The
extent   of   revisional   jurisdiction   is   defined   by   the
statute conferring such jurisdiction. The conferment
of revisional jurisdiction is generally for the purpose
3 Galada Power and Telecommunication Ltd. v. United India Insurance Co. Ltd. & Ors.
(2016) 14 SCC 161.
4 (1975) 2 SCC 246.
12
of   keeping   tribunals   subordinate   to   the   revising
Tribunal   within   the   bounds   of   their   authority   to
make them act according to law, according to the
procedure established by law and according to well
defined principles of justice.”
(emphasis supplied)
6.4. Reference must also be made to the judgment of this Court
in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh,
5
wherein it was held that :
“…Conceptually,  revisional jurisdiction is a part of
appellate jurisdiction but it is not vice­versa.  Both,
appellate jurisdiction and revisional jurisdiction are
creatures of statutes. No party to the proceeding has
an inherent right of appeal or revision. An appeal is
continuation of suit or original  proceeding, as  the
case may be. The power of the appellate court is coextensive   with   that   of   the   trial   court.   Ordinarily,
appellate   jurisdiction   involves   re­hearing   on   facts
and law but such jurisdiction may be limited by the
statute itself that provides for appellate jurisdiction.
On the other hand, revisional jurisdiction, though, is
a   part   of   appellate   jurisdiction   but   ordinarily   it
cannot be equated with that of a full­fledged appeal.
In other words, revision is not continuation of suit or
of original  proceeding. When the  aid  of  revisional
court   is   invoked   on   the   revisional   side,   it   can
interfere within the permissible parameters provided
in the statute.”
(emphasis supplied)
6.5. Ordinarily, the power of revision can be exercised only
when illegality, irrationality, or impropriety is found in the
decision making process of the fora below.
7. The   revisional   jurisdiction   conferred   on   the   National
Commission   u/S.   21(b)   is   with   respect   to   a   pending   or
disposed of ‘consumer dispute’ before the State Commission.
5 (2014) 9 SCC 78
13
7.1. The consumer dispute, in the present case, had already
been finally adjudicated by this Court vide Judgment and
Order dated 19.09.2012. The second round of litigation
emanated from the execution of the final order passed by
this Court.
7.2. Section 25 of the 1986 Act, provides for the enforcement of
Orders passed by the District Forum, State Commission or
National Commission.
Section 25(3) states :
25.   Enforcement   of   orders   of   the   District
Forum,   the   State   Commission  or  the  National
Commission.
(3) Where any amount is due from any person under
an   order   made   by   a   District   Forum,   State
Commission or the National Commission, as the case
may be, the person entitled to the amount may make
an   application   to   the   District   Forum,   the   State
Commission or the National Commission, as the case
may   be,   and   such   District   Forum   or   the   State
Commission or the National Commission may issue
a certificate for the said amount to the Collector of
the   district   (by   whatever   name   called)   and   the
Collector shall proceed to recover the amount in the
same manner as arrears of land revenue.
An Order passed for enforcement, would not be an
order   in   the   ‘consumer   dispute’   since   it   stands   finally
decided by the appellate forum, which has conclusively
determined the rights and obligations of the parties.
7.3. The nature of execution proceedings is materially different
from   the   nature   of   proceedings   for   adjudication   of   a
14
consumer   complaint.   Execution   proceedings   are
independent proceedings. Orders passed for enforcement
of  the   final  order  in  the  Consumer  dispute,  cannot  be
construed to be orders passed in the ‘consumer dispute’.
7.4. During the course of the hearing, learned Counsel for the
Appellant raised a contention that execution proceedings
are a continuation of the ‘appeal’, and must therefore be
considered to be a continuation of the ‘consumer dispute’.
Reliance in this regard was placed on the decision of
the Bombay High Court in  Satguru Construction Co. Pvt.
Ltd. & Ors. v. Greater Bombay Co­operative Bank Ltd.,
6 and
Raghunath R. Shingate v. Jayant Gajanan Pathak & Ors.,
7
as   well   as   the   Patna   High   Court   in  M/s.   Parshava
Properties   Ltd.  v.  A.K.   Bose,
8 wherein   it   was   held   that
execution proceedings are a continuation of the Suit.
7.5. On the other hand, the Respondent – Complainant has
placed reliance on a Full Bench of the Andhra Pradesh
High Court in  Guntupalli Rama Subbayya  v.  Guntupalli
Rajamma,
9 wherein it was held that :
“Execution   Proceedings,   in   our   view,   cannot   be
regarded as continuation of the suit in the sense in
which the proceedings in appeal are treated.”
(emphasis supplied)
6 2007 (3) MhLJ 843.
7 2011 (6) MhLJ 799.
8 AIR 1979 Pat 308.
9 AIR 1988 AP 226.
15
7.6. A   Full   Bench   of   the   Patna   High   Court   in  Masomat
Narmada   Devi   &   Anr.  v.  Nandan   Singh   &   Ors.,
10 has
similarly   held   that   execution   proceedings   cannot   be
regarded as a continuation of the Suit.
7.7. We affirm the view taken by the Full Bench of the Andhra
Pradesh   High   Court   and   Patna   High   Court.   Execution
proceedings even though they are proceedings in a suit,
cannot be considered to be a continuation of the original
suit. Execution proceedings are separate and independent
proceedings for execution of the decree. The merits of the
claim or dispute, cannot be considered during execution
proceedings. They are independent proceedings initiated
by the decree holder to enforce the decree passed in the
substantive dispute.
7.8. There is no remedy provided under Section 21 to file a
Revision Petition against an Order passed in appeal by the
State Commission in execution proceedings.
Section 21(b) does not provide for filing of a Revision
Petition before the National Commission against an Order
passed by the State Commission in execution proceedings.
7.9. In the present case, the National Commission committed a
jurisdictional error by entertaining the Revision Petition
10 AIR 1987 Pat 33.
16
u/S. 21(b) filed by the Appellant – Board against an appeal
filed   before   the   State   Commission,   in   Execution
proceedings.
8. The   National   Commission   erroneously   allowed   the   Revision
Petition u/S. 21(b) which was not maintainable. Furthermore,
the National Commission modified the decree passed by this
Court  vide  Order dated 19.11.2012 wherein this Court had
directed the Board to pay Interest @ 18% p.a. on the principal
amount of Rs. 2,67,750/­ (which included an amount of Rs.
3,937 which had been initially deducted by the Board). The
National Commission has awarded Interest on the amount of
Rs. 3,937/­ twice, by first including it in the principal amount
of Rs. 2,67,750/­; and thereafter awarding Interest @ 18% on
the same amount of Rs. 3,937/­, which would amount to a
double payment. 
9. In view of the aforesaid discussion, we affirm the judgment of
the Delhi High Court, which has rightly set aside the Order
passed  by   the   National   Commission   on   the   ground   that   a
Revision   Petition   was   not   maintainable   against   the   Order
passed by the State Commission in an appeal arising out of
execution proceedings. 
17
The Appeal is accordingly disposed of.
…….........................J.
(UDAY UMESH LALIT)
…...……………………J.
(INDU MALHOTRA)
New Delhi,
May 6, 2019
18

service matter = In the absence of any material to show that the appellants were appointed only against temporary posts created only for a period of two years, it cannot be held that they were appointed only against temporary posts for a period of only two years.- Of course, it is well-settled that the employee who has been sent on deputation, has no right to claim absorption. But in the case in hand, as we have discussed earlier, appointment was not on deputation; but by transfer of service much prior to coming into force of the Service Rules 2001.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4642 OF 2019
(Arising out of SLP (C) NO. 8725 OF 2014)
RAJA SINGH & ANR. ...Appellants
VERSUS
STATE OF U.P. & ANR. ...Respondents
WITH
CIVIL APPEAL NO.4643 OF 2019
(Arising out of SLP(C) NO. 8885 OF 2014)
CIVIL APPEAL NO.4644 OF 2019
(Arising out of SLP(C) NO. 9817 OF 2014)
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. These appeals arise out of the judgment and order dated
07.03.2014 passed by the High Court of Judicature at Allahabad
in CMWP No. 13148 of 2002 and batch in and by which the High
Court held that the appointment to the post of District Minority
Welfare Officer is to be governed by UP Minority Welfare
1
Department Gazetted Officers Service Rules 2001 and that the
appellants have no legal right to claim their absorption in the
Minority Welfare Department and the same has been rightly
rejected by the State Government.
3. In all these appeals, the point falling for consideration is one
and the same and all the appeals shall stand disposed of by this
common judgment. For easy reference, the facts in appeal
arising out of SLP(C) No.8725 of 2014 are referred to.
4. Brief facts which led to filing of these appeals are:
That the State Government of Uttar Pradesh vide its
Notification No. 4056/XX-E-95-539(2)/95 dated 12.08.1995
created four Departments known as:- (a) Minority Welfare
Department; (b) Backward Class Welfare Department; (c)
Handicapped Welfare Department; and (d) Ambedkar Village
Development Department. The Secretary, Minority Welfare and
Muslim Waqf Department, Government of U.P. vide its letter No.
2160/52/1-96-1(85)/95 dated 22.11.1996 addressed to all
Principal Secretaries/Secretaries of Government of U.P. stated
that the posts of District Minority Welfare Officer is to be filled
through U.P. Public Service Commission and due to non2
availability of adequate officers, it had been decided to fill such
posts by way of deputation/transfer of service of the officers
having at least twelve years of experience and working in the pay
scale of immediately below Rs.2000-3500. The Secretary
requested heads of various departments that the names of
interested applicants be forwarded for appointment for the post of
District Minority Welfare Officer on deputation/transfer of services
basis.
5. The appellants applied for the newly created post of District
Minority Welfare Officer through proper channel and they were
directed to appear for interview and selection process. After
facing the interview, the appellants were selected for appointment
for the post of the District Minority Welfare Officer vide
Government Order dated 30.12.1997. In the said appointment
orders, it was stated that their deputation/service transfer was for
a period of two years or till further orders whichever is earlier. The
appellants continued in the post even after two years. The
Government framed UP Minority Welfare Department Gazetted
Officers Service Rules 2001. The said Rules provided that 75%
post of District Minority Welfare Officer will be filled up through
Public Service Commission by direct recruitment and 25% by
3
promotion through Public Service Commission from amongst
substantively appointed Chief Waqf Inspectors and Senior Waqf
Inspectors who have completed ten years’ service as Chief Waqf
Inspector or Senior Waqf Inspector or both, on the first date of the
year of recruitment.
6. The appellants made representations before respondent
No.1 on 14.02.2002 and 16.02.2002 seeking absorption in the
cadre of District Minority Welfare Officer in the Department of
Minority Welfare and Waqf. When their representation was
pending for consideration, the appellants filed writ petition being
WP(C) No.13148/2002 seeking issuance of writ of certiorari for
quashing the UP Minority Welfare Department Gazetted Officers
Service Rules 2001 insofar as it excludes the clause of
merger/absorption on the post of District Minority Welfare Officer
and for issuance of Mandamus directing respondents to
regularize the services of the appellants on the post of District
Minority Welfare Officer. By an interim order, the High Court
protected the service of the appellants till the disposal of the writ
petition. The Government vide its order No.2188A/52-1-2002-
Writ/2002 dated 02.08.2002 rejected the appellant’s
representation seeking absorption in the cadre of District Minority
4
Welfare Officer in the Department of Minority Welfare and Waqf.
While rejecting the representation, the Government observed that
there is no provision in the Service Rules 2001 to fill the posts in
the cadre of District Minority Welfare Officers from any other
source except either by way of direct recruitment or by way of
promotion.
7. In WP(C) No.13148/2002 then pending, the appellants
moved an amendment application with a prayer for quashing the
aforesaid order dated 02.08.2002. The respondents filed their
counter opposing the writ petition as well as amendment. The
respondents averred that the appellants do not belong to the
Minority Welfare Department and that they were borrowed on
deputation basis and their lien in the Parent department still
exists. It was averred that the appellants were retained in the
Minority Welfare Department only on account of interim order
passed by the High Court and that the appellants have no right to
continue in the Department of Minority Welfare and Waqf and
claim absorption.
8. The High Court dismissed the writ petition by the impugned
order dated 07.03.2014 by stating that the issue involved in the
5
writ petition is similar to the issue involved in WP No. 44112 of
2011 and that the writ petition has no merits. In the relied upon
judgment in WP No. 44112 of 2011 titled Saeed Ahmad Khan &
Ors. v. State of U.P. Through Secretary Ministry of Welfare
Department and Others, the High Court held that the appellants
who were on deputation/transfer of service in the Department of
Minority Welfare have no legal right to claim absorption of their
services in the Minority Welfare Department.
9. We have heard the learned senior counsel appearing for the
parties and carefully considered the submissions and perused the
impugned judgment and also the relied upon judgment in WP(C)
No.44112 of 2011 and WP(C) No.44100 of 2013 and the other
materials placed on record.
10. The point falling for consideration is that the appellants
having been selected and appointed as District Minority Welfare
Officer prior to coming into force of UP Minority Welfare
Department Gazetted Officers Rules 2001, can it be said that the
appellants were only on deputation and that they have no legal
right to claim absorption as District Minority Welfare Officer.
6
11. After the separation of the Social Welfare Department, a
new department i.e. Minority Welfare Department was carved out
in the year 1995. The Government Order dated 22.11.1996 was
issued to the various departments of Uttar Pradesh inviting
applications from the eligible candidates of various departments
for the post of District Minority Welfare Officer on service
transfer/deputation basis. In the said Government order, it was
specifically pointed out that the candidates may apply for the
aforesaid post or in the pay scale of Rs.2000-3500 or just below
the pay scale of Rs.2000-3500 and he is eligible for promotion in
pay scale of Rs.2000-3500 or above.
12. Appellant Raja Singh was District Employment Officer.
Appellant Makrand Prasad was Assistant Employment Officer in
Employment Department. Appellant Dharam Deo Tripathi was
the Senior Auditor in the Office of District Audit Officer (Finance
Department) at Deoria. Appellant Hem Raj Singh was working as
Superintendent in Social Welfare Department. All the appellants
applied for the post of District Minority Welfare Officer through
proper channel and after facing interview before the Selection
Committee and undergoing the selection process, they were duly
selected for the post of the District Minority Welfare Officer. The
7
appointment letters were issued on 03.10.1997. As per the office
order dated 30.12.1997, the appellants were appointed “to the
temporary post of newly created Minority Welfare Officers under
the Minority Welfare and Waqf Department on deputation/service
transfer for the period of two years or till further orders whichever
is earlier”. In the letter of Secretary, Minority Welfare Department
dated 15.11.1997 communicated to other departments, the
employees of their departments viz. Makrand Prasad, Raja Singh,
Dharam Deo Tripathi and Hem Raj Singh were selected for
appointment ‘on the post of the District Minority Welfare Officer’
by service transfer. Even though the said letter states that the
appellants were appointed by deputation/service transfer,
considering the surrounding circumstances that the appellants
have undergone the selection process by appearing for interview
before the Committee and that they were selected for
appointment shows that it was ‘selection and appointment’ in the
Department of Minority Welfare and not ‘deputation’. As pointed
out earlier, even though, the appellants were appointed for the
period of two years, after two years, no order was passed
repatriating them to their Parent department. Of course, in the
meanwhile, writ petitions came to be filed by the appellants.
8
However, there was no communication from the Department of
Minority Welfare and Waqf to the other departments proposing for
repatriation of the appellants to their Parent department.
13. In Managing Director, UP Rajkiya Nirman Nigam v. P.K.
Bhatnagar and others (2007) 14 SCC 498, it was held that the
mere fact the employee has spent several years in service in the
Department where he has been sent on deputation, will not alter
the position from that of a deputationist to a regular employee. Of
course, it is well-settled that the employee who has been sent on
deputation, has no right to claim absorption. But in the case in
hand, as we have discussed earlier, appointment was not on
deputation; but by transfer of service much prior to coming into
force of the Service Rules 2001.
14. UP Minority Welfare Department Gazetted Officers Service
Rules 2001 came into force w.e.f 02.07.2001. Rule 3(h) of the
said Rules defines ‘Member of the Service’ as under:-
3(h) ‘Member of the service’ means a person substantively
appointed under these rules or the rules or orders in force prior to the
commencement of these rules to a post in the cadre of the service.
Rule 3(k) defines ‘Substantive appointment’ as under:-
3(k) ‘Substantive appointment’ means an appointment not being an
ad hoc appointment, on a post in the cadre of the service, made after
9
selection in accordance with the rules and, if there were no rules, in
accordance with the procedure prescribed for the time being by
executive instructions issued by the Government.
Be it noted that at the time of appointment of the appellants, there
were no Service Rules. The appellants having been appointed
prior to coming into force of UP Minority Welfare Department
Gazetted Officers Rules 2001, their appointment cannot be said
to be on deputation. Though it is stated that their appointment
was only temporary, there is nothing on record to show that the
posts were only temporary posts for a fixed time. In the absence
of any material to show that the appellants were appointed only
against temporary posts created only for a period of two years, it
cannot be held that they were appointed only against temporary
posts for a period of only two years.
15. Rule 5 of the UP Minority Welfare Department Gazetted
Officers Service Rules 2001 contemplated that 75% post of
District Minority Welfare Officer will be filled up through Public
Service Commission by direct recruitment and 25% by promotion
through Public Service Commission from amongst substantively
appointed Chief Waqf Inspectors and Senior Waqf Inspectors who
have completed ten years’ service as Chief Waqf Inspector or
10
Senior Waqf Inspector or both. Though UP Minority Welfare
Department Gazetted Officers Service Rules 2001 is silent about
the appointment of the appellants prior to coming into force of
2001 Rules, the appellants having been appointed on the post of
District Minority Welfare Officer prior to coming into force of
Service Rules 2001, cannot be deprived of their rights of
absorption in the Minority Welfare Department.
16. In the impugned order, the High Court relied upon WA No.
44112 of 2001 which is a subject matter of challenge in SLP(C)
No.8885/2014 which in turn relied upon CMWP No. 44100 of
2013 titled Chandrabhan Srivastava and Another vs. State of
U.P. and Others. In WP No. 44100 of 2013, the petitioners
thereon were selected and joined in the cadre of District Minority
Welfare Officer on 27.09.2009, long after the service Rules 2001
came into force. In that context, the High Court held that the
persons who were appointed to the Minority Welfare Department,
are governed by the Uttar Pradesh Minority Welfare Department
Gazetted Officers Service Rules 2001. The petitioners thereon
having been appointed by the Office Memorandum dated
27.07.2009, cannot claim to be a ‘Member of the Service’ as they
do not fulfill the requirement under Rule 3(h) of the Rules. The
11
said case in WP No. 44100 of 2013 is clearly distinguishable on
facts. In the present case, the appellants having been appointed
in 1997 much prior coming into force of UP Minority Welfare
Department Gazetted Officers Service Rules 2001 clearly
covered under Rule 3(h) of the Rules and stand on different
footing. The High Court, in our view, was not right in placing
reliance on Saeed Ahmad Khand and Chandrabhan
Srivastava to dismiss the writ petition filed by the appellants.
17. It is stated that Raja Singh and Hem Raj Singh retired on
30.06.2018. Claiming their ACP (Assured Career Progression)
and other benefits, WP No.23563(S/B) of 2018 was filed by Raja
Singh which was disposed of by the High Court vide order dated
31.08.2018 directing the Parent department namely Department
of Training and Employment to process the pension papers
relating to payment of post-retirement dues. It is stated that
pursuant to the said direction of the High Court, Director of
Training and Employment vide its order dated 30.10.2018
sanctioned payment of all retiral benefits and other dues payable
to appellant Raja Singh. It is stated that the Parent department of
Raja Singh has paid all the retiral dues and pension is being paid
at the admissible rate in the Department of Training and
12
Employment. Since appellant Raja Singh and three other
appellants namely Hem Raj Singh, Dharam Deo Tripathi and
Makrand Prasad are held to be the employees of Department of
Minority Welfare and Waqf in the cadre of District Minority Welfare
Officer, they are entitled to the retiral benefits and pension as
admissible to the District Minority Welfare Officer. Department of
Minority Welfare and Waqf shall process the pension papers and
pay all the retiral benefits after adjusting retiral benefits paid to the
appellants Raja Singh and Hem Raj Singh by their respective
departments. The pension shall be paid to the appellants as
admissible to the District Minority Welfare Officer after adjusting
the pension paid to appellants Raja Singh and Hem Raj Singh.
18. In the result, the impugned order of the High Court is set
aside and these appeals are allowed. The appellants shall be
absorbed in post of District Minority Welfare Officer in the
Department of Minority Welfare and Waqf from the date of their
appointment. Insofar as the retired employees Raja Singh and
Hem Raj Singh, the Minority Welfare Department shall comply
with the directions in para(17) above expeditiously. We make it
clear that this judgment shall not be quoted as a precedent as it is
passed in the peculiar facts and circumstances of the case that
13
these officers were appointed in the post prior to coming into
force of Service Rules 2001 and continued as such.
……………………….J.
[R. BANUMATHI]
………………………….J.
[R. SUBHASH REDDY]
New Delhi;
May 06, 2019
14

Custody of a child = writ is maintainable ? = whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.= In the present case, the appellants are the sisters and brother of the mother Zelam who do not have any authority of law to have the custody of the minor child. Whereas as per Section 6 of the Hindu Minority and Guardianship Act, the first respondentfather is a natural guardian of the minor child and is having the legal right to claim the custody of the child. = Under Section 6 of the Act, the father is the natural guardian and he is entitled to the custody of the child and the appellants have no legal right to the custody of the child.=The child is only 1½ years old and the child was with the father for about four months after her birth. If no custody is granted to the first respondent, the court would be depriving both the child and the father of each other’s love and affection to which they are entitled. As the child is in tender age i.e. 1½ years, her choice cannot be ascertained at this stage. With the passage of time, she might develop more bonding with the appellants and after some time, she may be reluctant to go to her father in which case, the first respondent might be completely deprived of her child’s love and affection. Keeping in view the welfare of the child and the right of the father to have her custody and after consideration of all the facts and circumstances of the case, we find that the High Court was right in holding that the welfare of the child will be best served by handing over the custody of the child to the first respondent.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 838 OF 2019
(Arising out of SLP (Crl.) No. 1675 of 2019)
TEJASWINI GAUD AND ORS. ...Appellants
VERSUS
SHEKHAR JAGDISH PRASAD TEWARI
AND OTHERS ...Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the judgment dated 06.02.2019
passed by the High Court of Bombay in Crl.W.P. No. 5214 of 2018
in and by which the High Court held that the first respondentfather of the child being the surviving parent and in the interest of
welfare of the child, the custody of the child must be handed over
to the first respondent-father and issued writ of habeas corpus
directing the appellants to handover the custody of the minor child
to respondent No.1-father of the child.
1
3. Brief facts of the case are that marriage of respondent No.1
was solemnized with Zelam on 28-05-2006. During the fifth month
of her pregnancy i.e. in May 2017, Zelam was detected with breast
cancer. Respondent No.1 and Zelam were blessed with a girl child
named Shikha on 14-08-2017. While Zelam was undergoing
treatment, child Shikha was with her father respondent No.1 till
November, 2017. Unfortunately, on 29-11-2017, respondent No. 1
was suddenly hospitalised and he was diagnosed with
Tuberculosis Meningitis and Pulmonary Tuberculosis. While he
was undergoing treatment, appellant No.1-Tejaswini Gaud – one of
the two sisters of Zelam and appellant No.4-Dr. Pradeep Gaud who
is the husband of Tejaswini, took Zelam along with Shikha to their
residence at Mahim, Mumbai for continuation of the treatment.
Later, in June 2018, Zelam was shifted to her paternal home along
with Shikha in Pune i.e. residence of appellant No.3-Samir
Pardeshi, brother of Zelam. In July 2018, they were again shifted to
the house of appellant No.1 in Mumbai. On 17-10-2018, Zelam
succumbed to her illness. Child Shikha continued to be in the
custody of the appellants in Pune at the residence of appellant
No.3 till 17-11-2018. Respondent No.1-father was denied the
custody of child and on 17-11-2018, he gave a complaint to
2
Dattawadi Police Station, Pune. Thereafter, respondent No.1-father
approached the High Court by filing a writ petition seeking custody
of minor child Shikha. Respondent No.1-father is a post-graduate
in Management and is working as a Principal Consultant with
Wipro Limited.
4. The High Court held that respondent No.1-father, the only
surviving parent of the child is entitled to the custody of the child
and the child needs love, care and affection of the father. The
High Court took into account that respondent No.1 was
hospitalised for a serious ailment and in those circumstances, the
appellants have looked after the child and in the interest and
welfare of the child, it is just and proper that the custody of the
child is handed over back to the first respondent. However, the
High Court observed that the efforts put in by the appellants in
taking care of the child has to be recognized and so the High
Court granted appellants No.2 and 3 access to the child.
5. The appellants contend that the writ of habeas corpus cannot
be issued when efficacious alternative remedy is available to
respondent No. 1 under Hindu Minority and Guardianship Act,
1956. It was submitted that the child was handed over to the
appellants by the ailing mother of the child who has expressed her
3
wish that they should take care of the child and therefore, it is not a
fit case for issuance of writ of habeas corpus which is issued only
in cases of illegal detention. It is also their contention that the
question of custody of the minor child is to be decided not on
consideration of the legal rights of the parties; but on the sole and
predominant criterion of what would best serve the interest and
welfare of the minor and, as such, the appellants who are taking
care of the child since more than a year, they alone would be
entitled to have the custody of the child in preference to
respondent No.1-father of the child.
6. Learned counsel appearing for the appellants submitted that
though the first respondent-father is a natural guardian of the
minor child Shikha and has a preferential right to claim the
custody of the minor child, but in matters concerning the custody
of a minor child, the paramount consideration is the welfare of the
minor and not the legal right of a particular party, in this case, the
father. It was further submitted that Section 6 of the Hindu
Minority and Guardianship Act, 1956 cannot supersede the
dominant consideration as to what is conducive to the welfare of
the minor child and the welfare of the minor child has to be the
4
sole consideration. In support of his contention, the learned
counsel for the appellants has placed reliance upon:-
(i) Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3
SCC 92;
Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14;
G. Eva Mary Elezabath v. Jayaraj and Others 2005 SCC Online
Mad 472 : AIR 2005 Mad 452;
L. Chandran v. Mrs. Venkatalakshmi & Another 1980 SCC Online
AP 80 : AIR 1981 AP 1;
Ravi Kant Keshri & Another v. Krishna Kumar Gupta and Others
1992 SCC Online All 548 : AIR 1993 All 230;
Suriez v. M. Abdul Khader and Others 2017 SCC Online Kar 4935;
Murari Lal Sharma and Another v. State of West Bengal and
Others 2013 SCC Online 23045 : AIR 2013 Cal 213;
R. Suresh Kumar v. K.A. Kavathi and Others
MANU/TN/8529/2006;
Athar Hussain v. Syed Siraj Ahmed and Others (2010) 2 SCC
654;
Nil Ratan Kundu and Another v. Abhijit Kundu (2008) 9 SCC 413;
Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker
Joshi (1992) 3 SCC 573;
Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42;
Baby Sarojam v. S. Vijayakrishnan Nair AIR 1992 Ker 277;
Abhimanyu Poria v. Rajbir Singh and Others 2018 SCC Online
Del 6661 : AIR 2018 Del 127;
A.V. Venkatakrishnaiah and Another v. S.A. Sathyakumar 1978
SCC Online Kar 241 : AIR 1978 Kar 220.
5
7. Per contra, the learned counsel appearing for the first
respondent has submitted that in view of Section 6 of the Hindu
Minority and Guardianship Act, 1956, father has the paramount
right to the custody of the children and he cannot be deprived of
the custody of the minor child unless it is shown that he is unfit to
be her guardian. The learned counsel submitted that in view of
his illness and the illness of the mother Zelam, mother and child
happened to be in Mumbai and Pune and considering the welfare
of the child, she had to be handed over to the first respondent. It
was further submitted that father being a natural guardian as per
the provisions of Section 6 of the Hindu Minority and
Guardianship Act, 1956, the appellants have no legal right for the
custody of the infant and the High Court rightly ordered the
custody of the child to respondent No.1. In support of his
contention, learned counsel for the respondents inter alia placed
reliance upon number of judgments:-
(i) Gohar Begam v. Suggi @ Nazma Begam and Others
AIR 1960 SC 93;
(ii) Smt. Manju Malini Sheshachalam D/o Mr. R.
Sheshachalam v. Vijay Thirugnanam S/o
Thivugnanam & Others 2018 SCC Online Kar 621;
(iii) Amol Ramesh Pawar v. State of Maharashtra &
Others 2014 SCC Online Bom 280;
6
(iv) Marggarate Maria Pulparampil Nee Feldman v. Dr.
Chacko Pulparampil and Others AIR 1970 Ker 1
(FB);
(v) Thirumalai Kumaran v. Union Territory of Dadra and
Nagar Haveli 2003 (2) Mh.L.J.;
(vi) Capt. Dushyant Somal v. Smt. Sushma Somal &
Others (1981) 2 SCC 277;
(vii) Syed Saleemuddin v. Dr. Rukhsana and Others
(2001) 5 SCC 247;
(viii) Nirmaljit Kaur (2) v. State of Punjab and Otherrs
(2006) 9 SCC 364;
(ix) Surya Vadanan v. State of Tamil Nadu and Others
(2015) 5 SCC 450;
(x) Ruchika Abbi & Anr. v. State (National Capital
Territory of Delhi) and Another (2016) 16 SCC 764;
(xi) Kanika Goel v. State of Delhi through Station House
Officer and Another (2018) 9 SCC 578.
8. We have carefully considered the rival contentions and
perused the impugned judgment and various judgments relied
upon by the parties.
9. The question falling for consideration is whether in the writ
of habeas corpus filed by respondent No.1 seeking custody of the
minor child from the appellants, the High Court was right in
ordering that the custody of minor child be handed over to
respondent No.1-father. Further question falling for consideration
7
is whether handing over of the custody of the child to respondent
No.1-father is not conducive to the interest and welfare of the
minor child.
10. Section 6 of the Hindu Minority and Guardianship Act, 1956
enacts as to who can be said to be a natural guardian. As per
Section 6 of the Act, natural guardian of a Hindu Minor in respect
of the minor's person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family property) is
the father, in the case of a boy or an unmarried girl and after him,
the mother. Father continues to be a natural guardian, unless he
has ceased to be a Hindu or renounced the world. Section 13 of
the Act deals with the welfare of a minor. Section 13 stipulates
that in the appointment or declaration of any person as guardian
of a Hindu minor by a court, the welfare of the minor shall be the
paramount consideration. Section 13(2) stipulates that no
person shall be entitled to the guardianship by virtue of the
provisions of the Act if the court is of opinion that his or her
guardianship will not be for the welfare of the minor.
11. Maintainability of the writ of habeas corpus:- The
learned counsel for the appellants submitted that the law is wellsettled that in deciding the question of custody of minor, the
8
welfare of the minor is of paramount importance and that the
custody of the minor child by the appellants cannot be said to be
illegal or improper detention so as to entertain the habeas corpus
which is an extraordinary remedy and the High Court erred in
ordering the custody of the minor child be handed over to the first
respondent-father. Placing reliance on Veena Kapoor1 and
Sarita Sharma2 and few other cases, the learned counsel for the
appellants contended that the welfare of children requires a full
and thorough inquiry and therefore, the High Court should instead
of allowing the habeas corpus petition, should have directed the
respondent to initiate appropriate proceedings in the civil court.
The learned counsel further contended that though the father
being a natural guardian has a preferential right to the custody of
the minor child, keeping in view the welfare of the child and the
facts and circumstances of the case, custody of the child by the
appellants cannot be said to be illegal or improper detention so as
to justify invoking extra-ordinary remedy by filing of the habeas
corpus petition.
12. Countering this contention, the learned counsel for
respondent No.1 submitted that in the given facts of the case, the
1 Dr. Veena Kapoor v. Varinder Kumar Kapoor (1981) 3 SCC 92
2 Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14
9
High Court has the extraordinary power to exercise the
jurisdiction under Article 226 of the Constitution of India and the
High Court was right in allowing the habeas corpus petition. The
learned counsel has placed reliance on Gohar Begum3 and.
Manju Malini Sheshachalam4
. Contention of respondent No.1 is
that as per Section 6 of the Hindu Minority and Guardianship Act,
respondent No.1, being the father, is the natural guardian and the
appellants have no authority to retain the custody of the child and
the refusal to hand over the custody amounts to illegal detention
of the child and therefore, the writ of habeas corpus was the
proper remedy available to him to seek redressal.
13. Writ of habeas corpus is a prerogative process for securing
the liberty of the subject by affording an effective means of
immediate release from an illegal or improper detention. The writ
also extends its influence to restore the custody of a minor to his
guardian when wrongfully deprived of it. The detention of a minor
by a person who is not entitled to his legal custody is treated as
equivalent to illegal detention for the purpose of granting writ,
directing custody of the minor child. For restoration of the
custody of a minor from a person who according to the personal
3 Gohar Begum v. Suggi @ Nazma Begam and others AIR 1960 SC 93
4 Smt. Manju Malini Sheshachalam D/o Mr. R. Sheshachalam v. Vijay Thirugnanam S/o
Thivugnanam & Others 2018 SCC Online Kar 621
10
law, is not his legal or natural guardian, in appropriate cases, the
writ court has jurisdiction.
14. In Gohar Begum3 where the mother had, under the
personal law, the legal right to the custody of her illegitimate
minor child, the writ was issued. In Gohar Begum3
, the Supreme
Court dealt with a petition for habeas corpus for recovery of an
illegitimate female child. Gohar alleged that Kaniz Begum,
Gohar’s mother’s sister was allegedly detaining Gohar’s infant
female child illegally. The Supreme Court took note of the position
under the Mohammedan Law that the mother of an illegitimate
female child is entitled to its custody and refusal to restore the
custody of the child to the mother would result in illegal custody of
the child. The Supreme Court held that Kaniz having no legal
right to the custody of the child and her refusal to make over the
child to the mother resulted in an illegal detention of the child
within the meaning of Section 491 Cr.P.C. of the old Code. The
Supreme Court held that the fact that Gohar had a right under the
Guardians and Wards Act is no justification for denying her right
under Section 491 Cr.P.C. The Supreme Court observed that
Gohar Begum, being the natural guardian, is entitled to maintain
the writ petition and held as under:-
11
“7. On these undisputed facts the position in law is perfectly clear. Under
the Mohammedan law which applies to this case, the appellant is entitled to
the custody of Anjum who is her illegitimate daughter, no matter who the
father of Anjum is. The respondent has no legal right whatsoever to the
custody of the child. Her refusal to make over the child to the appellant
therefore resulted in an illegal detention of the child within the meaning of
Section 491. This position is clearly recognised in the English cases
concerning writs of habeas corpus for the production of infants.
In Queen v. Clarke (1857) 7 EL & BL 186: 119, ER 1217 Lord
Campbell, C.J., said at p. 193:
“But with respect to a child under guardianship for nurture, the child is
supposed to be unlawfully imprisoned when unlawfully detained from
the custody of the guardian; and when delivered to him, the child is
supposed to be set at liberty.”
The courts in our country have consistently taken the same view. For
this purpose the Indian cases hereinafter cited may be referred to. The
terms of Section 491 would clearly be applicable to the case and the
appellant entitled to the order she asked.
8. We therefore think that the learned Judges of the High Court were clearly
wrong in their view that the child Anjum was not being illegally or improperly
detained. The learned Judges have not given any reason in support of their
view and we are clear in our mind that view is unsustainable in law.
……..
10. We further see no reason why the appellant should have been asked to
proceed under the Guardian and Wards Act for recovering the custody of
the child. She had of course the right to do so. But she had also a clear right
to an order for the custody of the child under Section 491 of the Code. The
fact that she had a right under the Guardians and Wards Act is no
justification for denying her the right under Section 491. That is well
established as will appear from the cases hereinafter cited.” (Underlining
added)
15. In Veena Kapoor1
, the issue of custody of child was
between the natural guardians who were not living together.
12
Veena, the mother of the child, filed the habeas corpus petition
seeking custody of the child from her husband alleging that her
husband was having illegal custody of the one and a half year old
child. The Supreme Court directed the District Judge concerned
to take down evidence, adduced by the parties, and send a report
to the Supreme Court on the question whether considering the
interest of the minor child, its mother should be given its custody.
16. In Rajiv Bhatia5
, the habeas corpus petition was filed by
Priyanka, mother of the girl, alleging that her daughter was in
illegal custody of Rajiv, her husband’s elder brother. Rajiv relied
on an adoption deed. Priyanka took the plea that it was a
fraudulent document. The Supreme Court held that the High
Court was not entitled to examine the legality of the deed of
adoption and then come to the conclusion one way or the other
with regard to the custody of the child.
17. In Manju Malini4 where the mother filed a habeas corpus
petition seeking custody of her minor child Tanishka from her
sister and brother-in-law who refused to hand over the child to the
mother, the Karnataka High Court held as under:-
“24. The moment respondents 1 and 2 refused to handover the custody of
minor Tanishka to the petitioner the natural and legal guardian, the
5 Rajiv Bhatia v. Govt. of NCT of Delhi and others (1999) 8 SCC 525
13
continuation of her custody with them becomes illegal detention. Such
intentional act on the part of respondent Nos.1 and 2 even amounts to the
offence of kidnapping punishable under S.361 of IPC. Therefore there is no
merit in the contention that the writ petition is not maintainable and
respondent Nos.1 and 2 are in legal custody of baby Tanishka.”
18. Habeas corpus proceedings is not to justify or examine the
legality of the custody. Habeas corpus proceedings is a medium
through which the custody of the child is addressed to the
discretion of the court. Habeas corpus is a prerogative writ which
is an extraordinary remedy and the writ is issued where in the
circumstances of the particular case, ordinary remedy provided
by the law is either not available or is ineffective; otherwise a writ
will not be issued. In child custody matters, the power of the High
Court in granting the writ is qualified only in cases where the
detention of a minor by a person who is not entitled to his legal
custody. In view of the pronouncement on the issue in question
by the Supreme Court and the High Courts, in our view, in child
custody matters, the writ of habeas corpus is maintainable where
it is proved that the detention of a minor child by a parent or
others was illegal and without any authority of law.
19. In child custody matters, the ordinary remedy lies only under
the Hindu Minority and Guardianship Act or the Guardians and
14
Wards Act as the case may be. In cases arising out of the
proceedings under the Guardians and Wards Act, the jurisdiction
of the court is determined by whether the minor ordinarily resides
within the area on which the court exercises such jurisdiction.
There are significant differences between the enquiry under the
Guardians and Wards Act and the exercise of powers by a writ
court which is of summary in nature. What is important is the
welfare of the child. In the writ court, rights are determined only
on the basis of affidavits. Where the court is of the view that a
detailed enquiry is required, the court may decline to exercise the
extraordinary jurisdiction and direct the parties to approach the
civil court. It is only in exceptional cases, the rights of the parties
to the custody of the minor will be determined in exercise of
extraordinary jurisdiction on a petition for habeas corpus.
20. In the present case, the appellants are the sisters and
brother of the mother Zelam who do not have any authority of law
to have the custody of the minor child. Whereas as per Section 6
of the Hindu Minority and Guardianship Act, the first respondentfather is a natural guardian of the minor child and is having the
legal right to claim the custody of the child. The entitlement of
father to the custody of child is not disputed and the child being a
15
minor aged 1½ years cannot express its intelligent preferences.
Hence, in our considered view, in the facts and circumstances of
this case, the father, being the natural guardian, was justified in
invoking the extraordinary remedy seeking custody of the child
under Article 226 of the Constitution of India.
21. Custody of the child – removed from foreign countries
and brought to India:- In a number of judgments, the Supreme
Court considered the conduct of a summary or elaborate enquiry
on the question of custody by the court in the country to which the
child has been removed. In number of decisions, the Supreme
Court dealt with habeas corpus petition filed either before it under
Article 32 of the Constitution of India or the correctness of the
order passed by the High Court in exercise of jurisdiction under
Article 226 of the Constitution of India on the question of custody
of the child who had been removed from the foreign countries and
brought to India and the question of repatriation of the minor
children to the country from where he/she may have been
removed by a parent or other person. In number of cases, the
Supreme Court has taken the view that the High Court may
invoke the extraordinary jurisdiction to determine the validity of
the detention. However, the Court has taken view that the order of
16
the foreign court must yield to the welfare of the child. After
referring to various judgments, in Ruchi Majoo6
, it was held as
under:-
“58. Proceedings in the nature of habeas corpus are summary in nature,
where the legality of the detention of the alleged detenu is examined on the
basis of affidavits placed by the parties. Even so, nothing prevents the High
Court from embarking upon a detailed enquiry in cases where the welfare of
a minor is in question, which is the paramount consideration for the Court
while exercising its parens patriae jurisdiction. A High Court may, therefore,
invoke its extraordinary jurisdiction to determine the validity of the detention,
in cases that fall within its jurisdiction and may also issue orders as to
custody of the minor depending upon how the Court views the rival claims,
if any, to such custody.
59. The Court may also direct repatriation of the minor child to the country
from where he/she may have been removed by a parent or other person; as
was directed by this Court in Ravi Chandran (2010) 1 SCC 174 and Shilpa
Aggarwal (2010) 1 SCC 591 cases or refuse to do so as was the position in
Sarita Sharma case (2000) 3 SCC 14. What is important is that so long as
the alleged detenu is within the jurisdiction of the High Court no question of
its competence to pass appropriate orders arises. The writ court’s
jurisdiction to make appropriate orders regarding custody arises no sooner
it is found that the alleged detenu is within its territorial jurisdiction.”
22. After referring to various judgments and considering the
principles for issuance of writ of habeas corpus concerning the
minor child brought to India in violation of the order of the foreign
court, in Nithya Anand7
, it was held as under:-
6 Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479
7 Nithya Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454
17
“46. The High Court while dealing with the petition for issuance of a writ of
habeas corpus concerning a minor child, in a given case, may direct return
of the child or decline to change the custody of the child keeping in mind all
the attending facts and circumstances including the settled legal position
referred to above. Once again, we may hasten to add that the decision of
the court, in each case, must depend on the totality of the facts and
circumstances of the case brought before it whilst considering the welfare of
the child which is of paramount consideration. The order of the foreign court
must yield to the welfare of the child. Further, the remedy of writ of habeas
corpus cannot be used for mere enforcement of the directions given by the
foreign court against a person within its jurisdiction and convert that
jurisdiction into that of an executing court. Indubitably, the writ petitioner can
take recourse to such other remedy as may be permissible in law for
enforcement of the order passed by the foreign court or to resort to any
other proceedings as may be permissible in law before the Indian Court for
the custody of the child, if so advised.”
23. In Sarita Sharma2
, the tussle over the custody of two minor
children was between their separated mother and father. The
Family Court of USA while passing the decree of divorce gave
custody rights to the father. When the mother flew to India with
the children, the father approached the High Court by filing a
habeas corpus petition. The High Court directed the mother to
handover the custody to the father. The Supreme Court in appeal
observed that the High Court should instead of allowing the
habeas corpus petition should have directed the parties to initiate
appropriate proceedings wherein a thorough enquiry into the
interest of children could be made.
18
24. In the recent decision in Lahari Sakhamuri8
, this court
referred to all the judgments regarding the custody of the minor
children when the parents are non-residents (NRI). We have
referred to the above judgments relating to custody of the child
removed from foreign country and brought to India for the sake of
completion and to point out that there is a significant difference in
so far the children removed from foreign countries and brought
into India.
25. Welfare of the minor child is the paramount
consideration:- The court while deciding the child custody cases
is not bound by the mere legal right of the parent or guardian.
Though the provisions of the special statutes govern the rights of
the parents or guardians, but the welfare of the minor is the
supreme consideration in cases concerning custody of the minor
child. The paramount consideration for the court ought to be child
interest and welfare of the child.
26. After referring to number of judgments and observing that
while dealing with child custody cases, the paramount
consideration should be the welfare of the child and due weight
should be given to child’s ordinary comfort, contentment, health,
8 Lahari Sakhamuri v. Sobhan Kodali 2019 (5) SCALE 97
19
education, intellectual development and favourable surroundings,
in Nil Ratan Kundu9
, it was held as under:-
“49. In Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148 the High Court
observed that it is true that the father is a natural guardian of a minor child
and therefore has a preferential right to claim the custody of his son, but in
matters concerning the custody of a minor child, the paramount
consideration is the welfare of the minor and not the legal right of a
particular party. Section 6 of the 1956 Act cannot supersede the dominant
consideration as to what is conducive to the welfare of the minor child. It
was also observed that keeping in mind the welfare of the child as the sole
consideration, it would be proper to find out the wishes of the child as to
with whom he or she wants to live.
50. Again, in M.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Mad 315 the
Court held that custody cases cannot be decided on documents, oral
evidence or precedents without reference to “human touch”. The human
touch is the primary one for the welfare of the minor since the other
materials may be created either by the parties themselves or on the advice
of counsel to suit their convenience.
51. In Kamla Devi v. State of H.P. AIR 1987 HP 34 the Court observed:
“13. … the Court while deciding child custody cases in its inherent and
general jurisdiction is not bound by the mere legal right of the parent or
guardian. Though the provisions of the special statutes which govern
the rights of the parents or guardians may be taken into consideration,
there is nothing which can stand in the way of the Court exercising its
parens patriae jurisdiction arising in such cases giving due weight to
the circumstances such as a child’s ordinary comfort, contentment,
intellectual, moral and physical development, his health, education and
general maintenance and the favourable surroundings. These cases
have to be decided ultimately on the Court’s view of the best interests
of the child whose welfare requires that he be in custody of one parent
or the other.”
9 Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413
20
52. In our judgment, the law relating to custody of a child is fairly well settled
and it is this: in deciding a difficult and complex question as to the custody
of a minor, a court of law should keep in mind the relevant statutes and the
rights flowing therefrom. But such cases cannot be decided solely by
interpreting legal provisions. It is a human problem and is required to be
solved with human touch. A court while dealing with custody cases, is
neither bound by statutes nor by strict rules of evidence or procedure nor by
precedents. In selecting proper guardian of a minor, the paramount
consideration should be the welfare and well-being of the child. In selecting
a guardian, the court is exercising parens patriae jurisdiction and is
expected, nay bound, to give due weight to a child’s ordinary comfort,
contentment, health, education, intellectual development and favourable
surroundings. But over and above physical comforts, moral and ethical
values cannot be ignored. They are equally, or we may say, even more
important, essential and indispensable considerations. If the minor is old
enough to form an intelligent preference or judgment, the court must
consider such preference as well, though the final decision should rest with
the court as to what is conducive to the welfare of the minor.”
27. Reliance was placed upon Gaurav Nagpal10, where the
Supreme Court held as under:-
“32. In McGrath, (1893) 1 Ch 143, Lindley, L.J. observed: (Ch p. 148)
The dominant matter for the consideration of the court is the welfare of
the child. But the welfare of the child is not to be measured by money
only nor merely physical comfort. The word ‘welfare’ must be taken in
its widest sense. The moral or religious welfare of the child must be
considered as well as its physical well-being. Nor can the tie of
affection be disregarded.” (emphasis supplied)
………
50. When the court is confronted with conflicting demands made by the
parents, each time it has to justify the demands. The court has not only to
look at the issue on legalistic basis, in such matters human angles are
relevant for deciding those issues. The court then does not give emphasis
10 Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42
21
on what the parties say, it has to exercise a jurisdiction which is aimed at
the welfare of the minor. As observed recently in Mausami Moitra Ganguli
case (2008) 7 SCC 673, the court has to give due weightage to the child’s
ordinary contentment, health, education, intellectual development and
favourable surroundings but over and above physical comforts, the moral
and ethical values have also to be noted. They are equal if not more
important than the others.
51. The word “welfare” used in Section 13 of the Act has to be construed
literally and must be taken in its widest sense. The moral and ethical
welfare of the child must also weigh with the court as well as its physical
well-being. Though the provisions of the special statutes which govern the
rights of the parents or guardians may be taken into consideration, there is
nothing which can stand in the way of the court exercising its parens patriae
jurisdiction arising in such cases.
28. Contending that however legitimate the claims of the parties
are, they are subject to the interest and welfare of the child, in
Rosy Jacob11
, this Court has observed that:-
 “7. .… the principle on which the court should decide the fitness of the
guardian mainly depends on two factors: (i) the father’s fitness or otherwise
to be the guardian, and (ii) the interests of the minors.”
……..
“15. .... The children are not mere chattels : nor are they mere play-things
for their parents. Absolute right of parents over the destinies and the lives of
their children has, in the modern changed social conditions, yielded to the
considerations of their welfare as human beings so that they may grow up
in a normal balanced manner to be useful members of the society and the
guardian court in case of a dispute between the mother and the father, is
expected to strike a just and proper balance between the requirements of
welfare of the minor children and the rights of their respective parents over
them. The approach of the learned Single Judge, in our view, was correct
and we agree with him. The Letters Patent Bench on appeal seems to us to
11 Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840
22
have erred in reversing him on grounds which we are unable to appreciate.”
29. The learned counsel for the appellants has placed reliance
upon G. Eva Mary Elezabath12 where the custody of the minor
child aged one month who had been abandoned by father in
church premises immediately on death of his wife was in
question. The custody of the child was accordingly handed over
to the petitioner thereon who took care of the child for two and
half years by the Pastor of the Church. The father snatched the
child after two and a half years from the custody of the petitioner.
The father of the child who has abandoned the child though a
natural guardian therefore was declined the custody.
30. In Kirtikumar Maheshankar Joshi13, the father of the
children was facing charge under Section 498-A IPC and the
children expressed their willingness to remain with their maternal
uncle who was looking after them very well and the children
expressed their desire not to go with their father. The Supreme
Court found the children intelligent enough to understand their
well-being and in the circumstances of the case, handed over the
custody to the maternal uncle instead of their father.
31. In the case at hand, the father is the only natural guardian
12 G. Eva Mary Elezabath v. Jayaraj and Others 2005 SCC Online Mad 472
13 Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi (1992) 3 SCC 573
23
alive and has neither abandoned nor neglected the child. Only
due to the peculiar circumstances of the case, the child was taken
care of by the appellants. Therefore, the cases cited by the
appellants are distinguishable on facts and cannot be applied to
deny the custody of the child to the father.
32. The child Shikha went into the custody of the appellants in
strange and unfortunate situation. Appellants No.1 and 2 are the
sisters of deceased Zelam. Appellant No.4 is the husband of
appellant No.1. All three of them reside at Mahim, Mumbai.
Appellant No.3 is the married brother of Zelam who resides in
Pune. During the fifth month of her pregnancy, Zelam was
diagnosed with stage 3/4 breast cancer. Zelam gave birth to child
Shikha on 14-08-2017. On 29-11-2017, respondent No.1
collapsed with convulsions due to illness. Upon his collapse, he
was rushed to hospital where he was diagnosed with
Tuberculosis Meningitis and Pulmonary Tuberculosis. He was
kept on ventilator for nearly eight days, during which period,
appellants took care of Zelam and the child. The first respondent
had to undergo treatment in different hospitals for a prolonged
period. From 29-11-2017 to June 2018, Zelam and Shikha stayed
at the residence of appellant’s in Mumbai. During this period,
24
Zelam underwent masectomy surgery. Zelam later relapsed into
cancer and decided to get treatment from a doctor in Pune and
therefore, shifted to appellant No.3’s house at Pune with Shikha
and Zelam passed away on 17-10-2018. After recovering from his
illness, the respondent visited Pune to seek custody of the child.
But when they refused to hand over the custody, the father was
constrained to file the writ petition seeking custody of the child.
The child Shikha thus went to the custody of the appellants in
unavoidable conditions. Only the circumstances involving his
health prevented the father from taking care of the child. Under
Section 6 of the Act, the father is the natural guardian and he is
entitled to the custody of the child and the appellants have no
legal right to the custody of the child. In determining the question
as to who should be given custody of a minor child, the
paramount consideration is the `welfare of the child' and not rights
of the parents under a statute for the time being in force.
33. As observed in Rosy Jacob11 earlier, the father's fitness has
to be considered, determined and weighed predominantly in
terms of the welfare of his minor children in the context of all the
relevant circumstances. The welfare of the child shall include
various factors like ethical upbringing, economic well-being of the
25
guardian, child's ordinary comfort, contentment, health, education
etc. The child Shikha lost her mother when she was just fourteen
months and is now being deprived from the love of her father for
no valid reason. As pointed out by the High Court, the father is a
highly educated person and is working in a reputed position. His
economic condition is stable.
34. The welfare of the child has to be determined owing to the
facts and circumstances of each case and the court cannot take a
pedantic approach. In the present case, the first respondent has
neither abandoned the child nor has deprived the child of a right
to his love and affection. The circumstances were such that due
to illness of the parents, the appellants had to take care of the
child for some time. Merely because, the appellants being the
relatives took care of the child for some time, they cannot retain
the custody of the child. It is not the case of the appellants that
the first respondent is unfit to take care of the child except
contending that he has no female support to take care of the
child. The first respondent is fully recovered from his illness and
is now healthy and having the support of his mother and is able to
take care of the child.
35. The appellants submit that handing over of the child to the
26
first respondent would adversely affect her and that the custody
can be handed over after a few years. The child is only 1½ years
old and the child was with the father for about four months after
her birth. If no custody is granted to the first respondent, the
court would be depriving both the child and the father of each
other’s love and affection to which they are entitled. As the child
is in tender age i.e. 1½ years, her choice cannot be ascertained
at this stage. With the passage of time, she might develop more
bonding with the appellants and after some time, she may be
reluctant to go to her father in which case, the first respondent
might be completely deprived of her child’s love and affection.
Keeping in view the welfare of the child and the right of the father
to have her custody and after consideration of all the facts and
circumstances of the case, we find that the High Court was right
in holding that the welfare of the child will be best served by
handing over the custody of the child to the first respondent.
36. Taking away the child from the custody of the appellants and
handing over the custody of the child to the first respondent might
cause some problem initially; but, in our view, that will be
neutralized with the passage of time. However, till the child is
settled down in the atmosphere of the first respondent-father’s
27
house, the appellants No.2 and 3 shall have access to the child
initially for a period of three months for the entire day i.e. 08.00
AM to 06.00 PM at the residence of the first respondent. The first
respondent shall ensure the comfort of appellants No.2 and 3
during such time of their stay in his house. After three months, the
appellants No.2 and 3 shall visit the child at the first respondent’s
house from 10.00 AM to 04.00 PM on Saturdays and Sundays.
After the child completes four years, the appellants No.2 and 3
are permitted to take the child on every Saturday and Sunday
from the residence of the father from 11.00 AM to 05.00 PM and
shall hand over the custody of the child back to the first
respondent-father before 05.00 PM. For any further modification
of the visitation rights, either parties are at liberty to approach the
High Court.
37. The impugned judgment of the High Court dated 06.02.2019
in Crl.W.P. No. 5214 of 2018 is affirmed subject to the above
directions and observations. The appellants shall hand over the
custody of the child to the first respondent-father on 10.05.2019
at 10.00 AM at the residence of the first respondent. Keeping in
view the interest of the child, both parties shall co-operate with
28
each other in complying with the directions of the Court. This
appeal is accordingly disposed of.
……………………….J.
[R. BANUMATHI]
………………………….J.
[R. SUBHASH REDDY]
New Delhi;
May 06, 2019
29

No Stay be granted against the execution of specific perfromance decree as the third party -subsequent purchaser - pending the first suit- under an agreement of sale- on the plea of third party had filed a suit = Execution petition for executing specific performance decree - The executing court has halted and stayed the execution proceedings on the ground that one Meena Rani Gupta and Nalini Gupta had claimed to have entered into an agreement of sale in respect of the same property in the year 1990 and had instituted Civil Suit - The impugned order stalls and halts execution of the decree for specific performance passed in the year 1998, which decree has attained finality.- Meena Rani Gupta and Nalini Gupta rely on an agreement to sale purportedly executed by a power of attorney of the original owner (the third respondent before us), dated 27 th November, 1990. This agreement by the third respondent was in contravention of the injunction order dated 14 th March, 1988 passed in Civil Suit (OS) No. 553 of 1988 filed by the appellant. Admittedly, Meena Rani Gupta and Nalini Gupta have not acquired ownership and title in the suit property. - we do not see how execution of the decree for specific performance in favour of the appellant can be injuncted and stayed in view of the subsequent suit filed by Meena Rani Gupta and Nalini Gupta, which suit is still pending and has not yet been decided. Mere filing of the civil suit cannot come in the way of the execution of the lawful decree in favour of the appellant which is final. For the aforesaid reasons, we set aside the orders passed by the Division Bench and the Single Judge in the execution proceedings and allow the present appeal.

CA 3412/2019
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3412 OF 2019
(Arising out of S.L.P.(C) No.32846 of 2016)
Veena Mahajan   Appellant(s)
                  Versus
V.N. Verma and Others      Respondent(s)
O R D E R 
Leave granted.
The   appellant,   Veena   Mahajan,   plaintiff   in   Civil   Suit
(OS)   No.   553   of   1988,   sought   specific   performance   of   an
agreement   dated   14 th
  February,   1986,   which   suit   was   decreed   in
the year 1998.  The decree has attained finality upon dismissal
of   appeals   including   the   special   leave   petition   arising
therefrom in the year 2012.
Thereafter,   the   appellant   filed   Execution   Petition   No.
282   of   2012   for   execution   of   decree   for   specific   performance.
The   executing   court   has   halted   and   stayed   the   execution
proceedings on the ground that one Meena Rani Gupta and Nalini
Gupta had claimed to have entered into an agreement of sale in
respect   of   the   same   property   in   the   year   1990   and   had
instituted   Civil   Suit   (OS)   No.   779   of   2001   for   specific

CA 3412/2019
2
performance   of   the   agreement   dated   27 th
  November,   1990.
Aggrieved, the appellant is before this Court.
We   have   heard   learned   counsel   for   the   appellant.     There
is   none   to   represent   the   respondents.     We   have   considered   the
matter.
The   impugned   order   stalls   and   halts   execution   of   the
decree for  specific performance  passed in  the year  1998, which
decree has attained finality.  The appellant had filed the said
suit   in   1988   and   has   been   in   litigation   for   the   last   thirty
years.   For the last eighteen years she has been denied fruits
of the decree and judgment in her favour.  Meena Rani Gupta and
Nalini Gupta  rely on  an agreement  to sale  purportedly executed
by   a   power   of   attorney   of   the   original   owner   (the   third
respondent before us), dated 27 th
 November, 1990. This agreement
by the  third respondent  was in  contravention of  the injunction
order   dated   14 th
  March,   1988   passed   in   Civil   Suit   (OS)   No.   553
of   1988   filed   by   the   appellant.     Admittedly,   Meena   Rani   Gupta
and   Nalini   Gupta   have   not   acquired   ownership   and   title   in   the
suit property.
In   these   circumstances,   we   do   not   see   how   execution
of   the   decree   for   specific   performance   in   favour   of   the
appellant can be injuncted and stayed in view of the subsequent
suit filed by Meena Rani Gupta and Nalini Gupta, which suit is
still pending and has not yet been decided.  Mere filing of the
civil   suit   cannot   come   in   the   way   of   the   execution   of   the

CA 3412/2019
3
lawful decree in favour of the appellant which is final.
For   the   aforesaid   reasons,   we   set   aside   the   orders
passed   by   the   Division   Bench   and   the   Single   Judge   in   the
execution   proceedings   and   allow   the   present   appeal.
Proceedings in Execution Petition No. 282 of 2012 will now be
commenced and proceeded with expeditiously.
     

..................CJI.
[Ranjan Gogoi]
....................J.
[Deepak Gupta]
....................J.
[Sanjiv Khanna]
New Delhi
April 05 , 2019.

CA 3412/2019
4
ITEM NO.48               COURT NO.1               SECTION XIV
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C)  No.32846/2016
(Arising out of impugned final judgment and order dated  31-03-2016
in EFA No. 5/2014 passed by the High Court of Delhi at New Delhi)
SMT. VEENA MAHAJAN                                 Petitioner(s)
                                VERSUS
SH. V.N. VERMA & ORS.                              Respondent(s)

Date : 05-04-2019 This petition was called on for hearing today.
CORAM :
          HON'BLE THE CHIEF JUSTICE
          HON'BLE MR. JUSTICE DEEPAK GUPTA
          HON'BLE MR. JUSTICE SANJIV KHANNA
For Petitioner(s) Ms. Shivani Luthra, Adv.
Ms. Anjana Ahluwalia, Adv.
Mr. Karan N., Adv.
                  Mr. Nar Hari Singh, AOR
                 
For Respondent(s)
                  Mr. Kumar Dushyant Singh, AOR (N/P)
                   
UPON hearing the counsel the Court made the following
                             O R D E R
Leave granted.
The appeal is allowed in terms of the signed order.
(Chetan Kumar) (Anand Prakash)
     A.R.-cum-P.S.        Court Master
(Signed order is placed on the file) 

Or.39, rule 1 and 2 of CPC - when there is a serious dispute in the present case in regard to the claim of ownership which is made on behalf of the respondent � plaintiffs , No interim injunction should be granted =The State has claimed title and ownership to this land. In this background, we are of the view that the High Court ought not to have allowed construction to proceed on the land. Allowing construction is liable to change the nature and character of the land Merely recording an undertaking that the construction will not create equities, will not sufficiently protect the interest of the State in a situation, as present. For the above reasons, we are of the view that the grant of an injunction by the first Appellate Court and, as affirmed by the High Court, does not meet the parameters laid down under settled principles of law. It is not possible at this stage to come to a conclusion that the respondents have established a prima facie case or that the requirements of balance of convenience and irreparable prejudice have been met by the original plaintiffs. We accordingly set aside the impugned judgment and order of the High Court. We accordingly restore the order passed by the trial judge dismissing the application for interim injunction.

1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3938 OF 2019
(@ SLP(C) No.4305/2019)
THE DISTRICT COLLECTOR & ORS.         APPELLANT(s)
                           VERSUS
SHAH ROOPRAJ & ORS. RESPONDENT(s)
O R D E R
  Leave granted.
This   appeal   arises   from   a   judgment   and   order   of   a
Single Judge of the High Court of Judicature at Hyderabad
dated 20 September 2018.  In a petition under Article 227
of the Constitution, the High Court dismissed a challenge
to   an   order   passed   by   the   X th
  Additional   Chief   Judge,   in
the   City   Civil   Court   at   Hyderabad   on   2   November   2017
granting   the   prayer   for   interim   relief   pending   the
disposal of the suit.
The   suit   scheduled   property   is   situated   at   TS   No.95,
Block   C   and   Ward   No.49   of   Nampally   Village   and   Nampally
Mandal   with   an   extent   of   2900   sq.m.     According   to   the
appellants,   it   has   been   recorded   in   Column   No.20   of   the
Survey   records,   as   land   vested   in   the   Public   Works
Department.     The   then   Collector,   Hyderabad   had   in   1989
directed   the   Revenue   Divisional   Officer   to   issue   site
pattas  to  certain  slum  dwellers  who  were  residing  in  the
land.  Accordingly, it appears that 129 house site pattas

2
were issued to eligible families.
On   19   September   2015,   the   Tehsildar   Nampally     Mandal
addressed   a   communication   to   the   Station   House   Officer,
Begum   Bazaar   P.S.,   Hyderabad   stating   that   the   residents
of Surya Mahal Slum were being threatened by unknown land
grabbers, who were attempting to displace them.
The first respondent filed a Writ Petition before the
High   Court,   being   WP   38327   of   2015,   seeking   protection
against   alleged   dispossession   from   an   area   of   1080   sq.
yards   in   Survey   No.   TS   95.     The   High   Court   passed   an
interim   direction   on   25   November   2015   restraining
dispossession.
On   29   February   2016,   the   Tehsildar   complained   to   the
Station   House   Officer,   Begum   Bazaar,   Hyderabad   about
illegal   constructions   in   progress   on   the   suit   scheduled
property.
On   8   March   2016,   FIR   84/2016   was   registered   on   the
complaint of the Tehsildar.
The   Tehsildar   filed   a   counter   affidavit   in   the   Writ
proceedings   submitting   that   in   accordance   with   the
assignment   policy   of   the   State,   the   lands   were   not
alienable.
Another   Writ   Petition,   being   Writ   Petition   8798   of
2017, was filed before the High Court in which an interim
direction   was   issued   on   14   March   2017   restraining
eviction without following due process of law.

3
The   present   dispute   arises   out   of   OS   1197   of   2017
filed in the City Civil Court at Hyderabad for the grant
of a permanent injunction restraining the appellants from
interfering   with   the   possession   and   enjoyment   of   the
respondent-plaintiffs over the suit property.
The   Trial   Court   declined   to   grant   an   interim
injunction   on   17   August   2017.     The   respondents   filed   an
appeal   against   the   order   declining   an   injunction.     On   2
November 2017, the X th
  Additional Chief Judge of the City
Civil   Court   allowed   the   appeal   and   restrained   the
appellants   from   interfering   with   the   peaceful   possession
and enjoyment of the lands and construction activities of
the   respondents.     A   Civil   Revision   filed   by   the
appellants   was   dismissed   by   the   High   Court   on   20
September   2018.     The   High   Court   recorded   that   an
undertaking   had   been   filed   before   it   stating   that
equities   will   not   be   claimed   in   respect   of   any
construction  that  may  be  carried  out  in  the  meantime,  in
the   suit.     The   High   Court   accepted   the   undertaking,
thereby allowing the construction activities to proceed.
This   Court   entertained   the   Special   Leave   Petition
filed against the order of the High Court on 15 February
2019   and,   while   issuing   notice,   stayed   the   operation   of
the judgment of the High Court dated 20 September 2018.
Mr.   K.   Radhakrishnan,   learned   senior   counsel
appearing   on   behalf   of   the   appellants   submitted   that   the
land in question vests in the State.  Pattas were granted

4
to   slum   dwellers   in   1989.     It   has   been   submitted   that
after   a   town   survey   of   Nampally   Village   was   conducted
under   the   provisions   of   the   Andhra   Pradesh   Survey   and
Boundaries   Act   1923,   the   land   has   been   recorded   as
government   land   by   issuing   a   notification   under   Section
13(1).     Moreover,   it   has   been   submitted   that   any
registration of the land in favour of a third party would
be   contrary   to   the   policy   of   the   State   as   embodied   in
GOMs   1406   of   dated   25   July   1958,   since   under   the
assignment policy, the assigned lands are only heritable,
but   not   alienable.     A   reference   has   been   made   to   the
counter   affidavit   which   has   been   filed   before   the   City
Civil   Court   on   behalf   of   the   State   by   the   Tehsildar,   in
which   it   has   been   denied   that   the   respondents   were   in
possession   of   the   suit   scheduled   property.     Moreover,   it
has been submitted that a person by the name of Mangal G
who   is   alleged   to   have   sold   the   suit   property   to   the
husband   of   one   of   the   plaintiffs   did   not   possess   any
right,   title   or   interest   and,   hence,   the   plaintiffs   have
absolutely   no   claim   of   title   or   ownership   to   the
property.
On   the   other   hand,   learned   counsel   appearing   on
behalf  of  the  respondents,  urged  that  the  High  Court  had
duly   considered   the   material   which   had   been   produced   on
record   by   the   respondents   to   establish   their   possession
to   the   land.     The   respondents   contend   that   they   had
acquired   the   land   under   registered   gift   deeds   in   April

5
2015   from   the   above   mentioned   person   by   the   name   of
Mangal   G.     Moreover,   it   was   submitted   that   under   the
terms   governing   the   original   pattas,   there   was   no
prohibition on the alienation of the lands after a period
of ten years.
Having   heard   learned   counsel   appearing   on   behalf   of
the   appellants   and   the   respondents,   we   are   of   the   view
that   the   defence   which   has   been   raised   on   behalf   of   the
appellants   raises   a   serious   triable   issue.     According   to
the State, the title of the land in question vests in it.
Pattas were granted in 1989 to the slum dwellers.  It has
been urged that an effort is being made by land grabbers
to   displace   the   slum   dwellers   and   to   erect   construction
on land, which is impermissible.  
We are of the view that there is a serious dispute in
the   present   case   in   regard   to   the   claim   of   ownership
which   is   made   on   behalf   of   the   respondent   �   plaintiffs.
As the High Court noted, in the course of its order, the
claim   of   the   respondents   is   that   their   donor   had
purchased the lands under a registered sale deed in April
2015   after   which   gift   deeds   were   executed   in   favour   of
the   respondents.     The   tenability   of   this   claim   will
require  adjudication  in  the  suit.    The  State  has  claimed
title and ownership to this land.  In this background, we
are   of   the   view   that   the   High   Court   ought   not   to   have
allowed   construction   to   proceed   on   the   land.     Allowing
construction is liable to change the nature and character

6
of   the   land.     Merely   recording   an   undertaking   that   the
construction   will   not   create   equities,   will   not
sufficiently   protect   the   interest   of   the   State   in   a
situation, as present.
For   the   above   reasons,   we   are   of   the   view   that   the
grant  of  an  injunction  by  the  first  Appellate  Court  and,
as   affirmed   by   the   High   Court,   does   not   meet   the
parameters laid down under settled principles of law.  It
is   not   possible   at   this   stage   to   come   to   a   conclusion
that   the   respondents   have   established   a   prima   facie   case
or   that   the   requirements   of   balance   of   convenience   and
irreparable   prejudice   have   been   met   by   the   original
plaintiffs.
We   accordingly   set   aside   the   impugned   judgment   and
order   of   the   High   Court.     We   accordingly   restore   the
order   passed   by   the   trial   judge   dismissing   the
application for interim injunction.
We clarify that our observations, as indicated above,
are   for   the   limited   purpose   of   deciding   the   application
for interim injunction under Order XXXIX Rules 1 and 2 of
the   Code   of   Civil   Procedure,   1908   and   shall   not   come   in
the way of disposal of the suit.
The   appeal   is   allowed   in   the   above   terms.     There

7
shall be no order as to costs.
.............................J.
 (DR DHANANJAYA Y CHANDRACHUD)
.............................J.
 (HEMANT GUPTA)
NEW DELHI
APRIL 15, 2019

8
ITEM NO.45               COURT NO.11               SECTION XII-A
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS
CIVIL APPEAL NO.3938 OF 2019
(@ SLP(C) No.4305/2019)
THE DISTRICT COLLECTOR & ORS.         APPELLANT(s)
                           VERSUS
SHAH ROOPRAJ & ORS. RESPONDENT(s)
Date : 15-04-2019 This appeal was called on for hearing today.
CORAM :
         HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
         HON'BLE MR. JUSTICE HEMANT GUPTA
For Petitioner(s) Mr. K. Radhakrishnan, Sr. Adv.
Mr. P. Venkat Reddy, Adv.
Mr. Prashant Tyagi, Adv.
                   for M/S.  Venkat Palwai Law Associates
                 
For Respondent(s) Mr. Gaurav Mitra, Adv.
Mr. Sachin Midha, Adv.
                   Mr. Anand Mishra, AOR
Mr. Amrendra Kumar Singh, Adv.
                 
UPON hearing the counsel the Court made the following
                               O R D E R
Leave granted.
The   appeal   is   allowed   in   terms   of   the   signed   order.
No costs.
Pending application, if any, stands disposed of.
  (SANJAY KUMAR-I)                 (SAROJ KUMARI GAUR)
     AR-CUM-PS                           COURT MASTER
(Signed order is placed on the file)