Merely because diffirent opinion can be formed - it can not distrub the findings of trial court = whether the finding of the Court Martial is “legally not sustainable”. Therefore, to exercise such power, there has to be error of law by the Court Martial which would confer jurisdiction on the Tribunal to interfere against the conviction recorded by the Court Martial. The second ground is “wrong application on a question of law”. However, the Tribunal, in the present case, has committed grave error in interfering with the 30 finding of the Court Martial by misreading an Army Order. There is no material irregularity pointed out by the Tribunal inasmuch as the irregularity pointed out is with regard to confessional statements by Military Officer which is not a bar either under the Evidence Act or under the Army Order issued under the Act. The Tribunal could re-appreciate evidence to find out if any findings of the Court Martial is legally not sustainable due to any reason; or that the finding involves wrong decision on a question of law or there was a material irregularity in the course of the trial resulting in miscarriage of justice. But such wide powers do not confer jurisdiction to the Tribunal to reverse the findings merely because it finds that different view is possible. In view thereof, we find that the Tribunal exceeded its jurisdiction while setting aside the order of conviction passed by the DCM.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1388-1389 OF 2019
(DIARY NO. 9218 OF 2016)
UNION OF INDIA & ORS. .....APPELLANT(S)
VERSUS
 SANDEEP KUMAR ETC. .....RESPONDENT(S)
W I T H
CRIMINAL APPEAL NO(S). 1390 OF 2019
(DIARY NO. 7204 OF 2016)
A N D
CRIMINAL APPEAL NO(S). 1391 OF 2019
(DIARY NO. 7205 OF 2016)
J U D G M E N T
HEMANT GUPTA, J.
1) Delay condoned. Appeals admitted.
2) Criminal appeals arising out of Diary No. 9218 of 2016 are filed by
the Union of India whereas; criminal appeals arising out of Diary
Nos. 7204 of 2016 and 7205 of 2016 are filed by accused - Neeraj
Kumar Dhaka and Sandeep Kumar respectively.
3) The challenge in the appeals filed by the Union of India under
Section 30 of the Armed Forces Tribunal Act, 20071
 is to an order
passed on December 12, 2013 by the Armed Forces Tribunal2
setting aside the order of conviction & sentence and of dismissal
1 Act
2 Tribunal
1
consequent to District Court Martial3
 proceedings conducted
against the respondents4
. The Tribunal passed an order for
reinstatement of both the accused but it was also ordered that the
accused shall not be entitled to any back wages for the period they
were out of service. The other two appeals are against the order
passed by the Tribunal declining back wages to the accused in
those appeals.
4) The Tribunal found that the findings recorded by the DCM that the
charge against the accused was the theft of two pistols [(i) Pistol
Browning 9mm, Butt No.1 – Reg. No. T-5251; and (ii) Pistol
Browning 9mm, Butt No. 22 – Reg. No. B-3927] on April 6, 2006 but
no physical inspection appears to have been done till the loss was
found on May 12, 2006. The Tribunal also found that the written
confession (Ex.8 and Ex.9) given by the accused is in the presence
of entire Squadron, thus, such oral confessions are made to
persons in Army cannot be relied upon referring to Army Order
No.256 of 1972. It was also held that it is not clear as to whether
the accused were in custody as no date is mentioned on the
written confessional statements and that there is nothing on record
as to how and on whose instance the accused volunteered to
reduce in writing the said confessions. The Tribunal found that no
recoveries were affected in pursuance of the confessional
statements of either of the accused as the pistols had already been
recovered. The Tribunal also found that the two slips (Ex.12 and
3 DCM
4 hereinafter referred to as the ‘accused’
2
Ex.15) relied upon by the prosecution were allowed to be proved by
the secondary evidence but no evidence was led in regard to
existence of any such slip or loss of the said slip. Therefore, no
secondary evidence can be allowed. The Tribunal also held that
the prosecution case was not put to accused - Sandeep Kumar as
required by Army Rule 58 which is akin to statement under Section
313 of the Code of Criminal Procedure, 19735
. The Tribunal
concluded as under:
“43. From above detailed discussion it is very much
clear that the case solely rests upon the alleged
confessional statements made by both the petitioners
which have not been proved to have been made
voluntarily and these did not lead to any recovery and,
therefore, cannot be linked with the accused and thus
do not satisfy the requirement of Army Order 256 of
1972 referred to above also. There is no other evidence
led by the prosecution as against the petitioners and
the statements of other witnesses are not very
material.”
5) The facts leading to the said order need to be stated:
A report was submitted by 71 Armoured Regiment6
 to the
General Staff Branch of the Army Headquarters regarding loss of
two pistols which later led to DCM. The said Regiment was deputed
for T-90 Tanks conversion training at Pokhran Firing Range from
March 15, 2006 to April 4, 2006. The convoy moved from Patiala to
Pokhran whereas weapons were carried in locked boxes. The
training and conversion exercise were conducted in general area
5 Code
6 Regiment
3
Lunkaransar from April 1, 2006 to May 11, 2006. The physical
check of weapons was carried out on April 27, 2006 and Officer
Commandant of the Squadron Lt. Col. J.G. Gopalan confirmed that
there were 50 pistols in ‘A’ Squadron at the Camp in Biniwarli. The
Regiment underwent another exercise from April 30, 2006 to May
2, 2006 in general area Binjarwali. All tanks had to be topped up
and prepared for T-90 conversion exercise which commenced on
May 3, 2006.
From May 3, 2006 onwards, the Regiment commenced its
movement from Binjarwali to general area Bikamsar. The marching
out reflected 50 pistols signed by Squadron Commander. Dafedar
Vijaypal, member of tank crew handed over his keys to the Senior
JCO Risaldar Katar Singh. It is also mentioned in the report that an
order was received on May 9, 2006 at 1500 hrs. that all
participating crews were to carry weapons. Dafedar Raibir Singh
counted 48 pistols. Senior JCO Risaldar Katar Singh did not register
the difference nor informed anyone. At the end of conversion
exercise, the loss of weapons was reported at 1030 hours on May
13, 2006. It was also reported that Court of Inquiry has been called
for on May 18, 2006 to assemble on May 26, 2006. The report is
that the loss has occurred between April 27, 2006 at Binjarwali and
May 9, 2006 at Mittasar. The report is also to the effect that an FIR
No. 644 was lodged with PS Sardarshahar about the loss of
weapons. It was also reported that T-90 tank has a three-member
crew but the loss of two pistols have minimum impact on the
4
operational efficiency. The prima facie opinion in the report is as
under:
“6. Tentative Views of Oc Unit. The loss of wpns, at
first look, appears to be due to the negligence of the
Kote NKCO, Sr JCO and Sqn Cdr of A Sqn. Theft or some
other malafide intention cannot be ruled out at this
point of time and all leads are being investigated.”
6) On May 22, 2006 (Ex.26), the Directorate General of Military
Intelligence was informed by Commandant of Regiment that the
two lost pistols have been found in the exercise area at
approximately 1600 hours on May 22, 2006 on the track from
Mittasar to Bikamsar. Thus, two different versions have come on
record as to how and where the recovery was made. One version is
that the pistols were found in general area during ground search
whereas, another version is that Dafedar Vijaypal Singh found a
cardboard shoebox containing the pistols around the Dhobi
(Washerman) area. The stand of the prosecution is that Pankaj
Dhaka, brother of accused Neeraj Kumar came to visit his brother
at Hisar Military Station on June 18, 2006 who reported the theft of
pistols by Neeraj Kumar in association with Sandeep Kumar.
7) The accused were charged on September 26, 2007 under Section
52(a) of the Army Act, 19507
 read with Section 34 of the Indian
Penal Code, 18608
 having committed theft of the two pistols on
April 6, 2006. The stand of the prosecution was that the two pistols
were stolen on April 6, 2006 when accused were posted at
7 Army Act
8 IPC
5
Pokharan Field Firing Ranges and were recovered on May 22, 2006
in the area known as Lunkaransar. The Court of Inquiry submitted
its report dated May 18, 2006 (Ex.25). Thereafter, both the
accused were tried by DCM who held the accused guilty and were
convicted and sentenced to undergo rigorous imprisonment for one
year and six months and also punishment of dismissal from service.
8) Initially, Sandeep Kumar was represented by Mr. C.S. Dalal,
Advocate and Neeraj Kumar Dhaka was represented by Mr. Om
Prakash, Advocate in proceedings before the DCM. However,
subsequently, Shri C.S. Dalal, Advocate represented both the
accused before the DCM.
9) The prime witness of the prosecution is Lt. Col. J.G. Gopalan,
Squadron Commander, who appeared as PW-1. He deposed that
he informed by Risaldar Katar Singh (PW-7) about the loss of two
pistols on May 12, 2006. He stated that during search conducted
on May 18, 2006 and May 19, 2006, the handwritten slip (Ex.15)
was recovered which is to the effect that the pistols will be located
if the Squadron be given pass out for 24 hours and that one officer
is also involved. Thereafter, the entire Squadron was sent to outpass, other than 16 selected personnel who were sent to search
pistols. However, it was on May 22, 2006, Dafedar Vijaypal Singh
(PW-4) found a shoe box with two pistols. He further deposed that
Pankaj Dhaka disclosed before him that his brother Neeraj Kumar
has brought two pistols to him and that Neeraj begged before him
6
to forgive him. The other accused Sandeep who was playing
hockey was also called. He stated that the last physical weapon
check was done on March 31, 2006 but the report on April 27, 2006
was prepared without physical check. He also deposed that the
original handwritten slips (Ex.15) and the photograph of the label
pasted on the gift-wrapping paper on the shoebox (Ex.12) were lost
in transit and were untraceable but the scanned copies were
produced by way of secondary evidence, which was allowed by the
DCM. It is in the confessional statements of the accused that the
two pistols were stolen on April 6, 2006, that is basis of the charge
sheet against the accused.
10) The witness further stated that on June 18, 2006, both the accused
were called by Lt. Col. Arvinder Singh, Second-in-Command. Both
the accused confessed that they have committed theft of two
pistols. The entire ‘A’ Squadron was called and both the accused
confessed before them that they have committed theft of two
pistols. The witness has produced handwritten confessional
statement of Neeraj Kumar Dhaka (Ex.8) in two pages and also
handwritten confessional statement of Sandeep Kumar in four
pages (Ex.9) along with statement of Pankaj Dhaka (Ex. 10) in one
page. Such confessions were video recorded as well. The transcript
of video recording is marked as Ex.39.
11) We have to examine firstly, the finding in respect of secondary
evidence. The prosecutor has filed an application to lead secondary
7
evidence. The defence counsel has submitted that he has no
objection to lead secondary evidence in the proceedings recorded.
Such proceedings are recorded when the statement of PW 1 was
being recorded. The relevant part from the statement of the
witness is as under:
“At this stage of the proceedings, the prosecutor
submits that the handwritten slip and the label slip
affixed to the gift wrapper in which the cardboard shoe
box containing two stolen pistols was found, to be
produced as evidence in the Court is untraceable.
The Prosecutor submits an application under Section 65
of Indian Evidence Act 1872 for allowing the prosecutor
to lead secondary evidence for proving the documents
handwritten slip and the label slip affixed to the gift
wrapper in which the cardboard shoe box containing
two stolen pistols was found. The same is received,
read, marked Exhibit ‘13’.”
“The defence counsel, in reply, submits that the
handwritten slip and the label slip affixed to the gift
wrapper in which the cardboard shoe box containing
two stolen pistols was found, in original, should have
been available with the prosecution in the copy No. 1 of
the Court of Inquiry along with exhibits as produced by
the witnesses. Further, the Defence counsel also
submits that he has no objection to lead the secondary
evidence.
The prosecution, in answer, submits that the Copy
No. 1 of the Court of Inquiry does not contain the
original documents as exhibits. The same have been
handed over to the prosecution. The documents have
been lost in transit and are untraceable.”
12) The DCM passed the following order after considering the
respective arguments of the parties before it:
“Gentlemen, now you may consider the submission of
the prosecution to lead secondary evidence for proving
the documents, hand written slip and the label slip
affixed to the gift wrapper in which the cardboard shoe
8
box containing two stolen pistols were found, in the
light of the above provisions read before you.
xxx xxx xxx
The Court decides to allow the submission of
prosecution to lead secondary evidence and to proceed
with the trial.”
13) In the cross-examination thereafter, the witness denied the
suggestion that Sowar Rakesh Phogat had found two pistols on
May 22, 2006 at about 1500 hours. He denied that the pistols
were found in general area as the pistols were found at Dhobi
table of ‘A’ Squadron. The witness deposed that the handwritten
slip was with him but it was submitted in the Court of Inquiry as an
Exhibit to Col. S. Bhardwaj, Commandant, 88 Armoured Regiment.
He deposed that original handwritten slip was seen by him and
the scanned copy (Ex.15) is the same. The witness deposed that
two pistols were wrapped in newspaper sheets. The newspaper
cuttings included cutting from newspaper corresponding to
Muzzafarnagar area from where accused Sowar Neeraj Kumar
Dhaka hails. The witness deposed that the confessional
statements Ex. 8, 9 and 10 are exactly the same as produced
before the Court of Inquiry. The confessional statements were
handwritten by the accused persons voluntarily after having
confessed in front of the entire Squadron. There was no force
applied on them.
14) The witness denied that the accused persons were kept in the
Quarter Guard or they were detained. He admitted that the
9
procedural lapse has taken place and that the daily, weekly and
monthly checks of the weapons have not been done in the
prescribed manner. He deposed that they were undergoing
conversion training. Hence, the commitment was very heavy.
Dafedar Vijay Pal Singh (No 1079855X) was performing various
duties at one time, such as that of Kote Non-Commissioned Officer
and Tank Commander. The training commitments took a high
priority. It was stated that basic faith was that nothing like this can
happen. Procedural lapses did take place. To that effect, he and
Dafedar Vijay Pal Singh have already been awarded punishments.
15) PW-2 is Risaldar Rai Singh. He is a witness of confession of the
accused before the entire Squadron on June 18, 2006. He deposed
that cursory weapons check was done on April 27, 2006 as it was
believed that all weapons were kept at their respective places.
16) PW-3 is Acting Lance Dafedar Rajender Singh. He stated that he
was informed by Risaldar Katar Singh on May 11, 2006 at about
1830 hours that two pistols were deficient. He also deposed that
he and Dafedar Baljit Singh found a black polythene bag containing
the shoe box on May 22, 2006 containing two stolen pistols. He
deposed that accused Neeraj Kumar was granted leave from
Pokharan Field Firing Ranges and sent to Hisar whereas Sandeep
Kumar made an excuse of stomach ache on April 7, 2006 and later
he was shifted to Military Hospital, Jodhpur. He deposed that he
has been awarded punishment because of two stolen pistols by
both the accused persons. In cross-examination, he admitted that
10
weapon cleaning was done on April 1, 2006 and not thereafter and
that only paper work was done. He further deposed that Risaldar
Katar Singh was on leave from April 4, 2006 to April 24, 2006 and
he was performing the duties of officiating Senior JCO and Kote JCO.
Risaldar Katar Singh was sent on leave in spite of shortage of
manpower as he had to vacate family accommodation at Sri
Ganganagar to shift his family to new accommodation at Hisar. He
deposed that on June 18, 2006, his brother Ranbir Singh came to
meet him at Hisar Military Station. The CMP sentry told him that
Pankaj Dhaka, brother of accused Neeraj Kumar had come to meet
him. He has produced the Guest Register of Regiment where
Neeraj Kumar had made an entry writing the details of visit of his
brother Pankaj Dhaka (Ex.22). Though, the DCM has given a note
that there are cuttings in the Guest Register but perusal of the
record shows that there is no cutting in the Guest Register in
respect of time and name of the visitor though there seems to be
some cuttings in the column of signatures of Risaldar Major as
noticed by the Court. He deposed that Neeraj Kumar went to the
residence of PW-1 and confessed that he had stolen two pistols
along with accused No. 2 and that he confessed the wrongful act to
the Squadron Commander. He deposed that both the accused had
interacted with each other while on leave. Accused No. 1 Neeraj
Kumar was back from leave on May 12, 2006 while the accused No.
2 reported back on May 14, 2006 at Hisar Military Station and later
both went to Lunkaransar on May 15, 2006 where ‘A’ Squadron was
11
located. It was on May 18, 2006 Lt. Col. Arvinder Singh, Second-inCommand ordered a fall-in and announced that rest be given to all
persons of ‘A’ Squadron. He also said that if any person who has
committed mistake can come and personally confess to him or
write a slip. It is thereafter on May 19, 2006, Neeraj Kumar kept a
handwritten slip on Dhobi table. The accused were keeping a
watch if someone picked up the slip but later Neeraj Kumar picked
up the slip and gave it to Senior Dafedar Major Sarwan Kumar. He
deposed that Pankaj Dhaka has voluntarily given his statement in
his presence and in presence of Risaldar Rai Singh. In the crossexamination, he denied having said to mother of Sandeep Kumar
that she should forget his son as he has been beaten up.
17) PW-4 is Dafedar Vijaypal Singh has recovered the pistols in a
cardboard shoe box. He deposed that he along with Dafedar Baljit
Singh found a black polythene bag containing two pistols. He has
identified the photograph of the label (Ex.12) pasted on the giftwrapping paper. He and Dafedar Baljit Singh took the shoe box to
Risaldar Katar Singh (PW-7) and Risaldar Rai Singh (PW-2) after
waking him up. On opening the shoe box, he found the newspaper
cuttings as well as two pistols wrapped separately in newspapers.
He informed Lt. Col. J.G. Gopalan, Squadron Commander (PW-1).
18) Risaldar Sarwan Kumar is examined as PW-5. He deposed that
deficiency of weapons was told to him by Risaldar Katar Singh. He
recognised the handwritten slip marked as Ex.15 and the
12
signatures and stamp of Capt. Vineet Kumar. He was given this
handwriting by accused No.1- Neeraj Kumar on May 19, 2006 as
having found the slip on Dhobi table.
19) PW-6 is Lt. Col. Arvinder Singh, Second in Command of the
Regiment. He deposed about the handwritten slip (Ex.15) as the
one having the same content as the original. He has seen the
original as well. He deposed that he sent all persons for two days
on out pass. They were to report back on May 21, 2006. He
deposed that confessional statements were given by the accused
in front of him and the entire Squadron. He deposed that both the
accused and Pankaj Dhaka made written confessional statements
which were read out to them and video-recorded. He deposed as
under:
“I am now shown Exhibit ‘8’, ‘9’ and ‘10’, the written
confessional statements of accused No 1, accused No 2
and Master Pankaj Dhaka, brother of accused No 1
respectively, in original. I identify with the Exhibit ‘8’,
‘9’ and ‘10’, and have seen these confessional
statements in original, earlier.
The accused persons have made statements at
various stages starting from the first verbal
confessional statements on 18 Jun 2006 and written
confessional statements on 19 Jun 2006. Then, at the
Court of Inquiry conducted by the then Commandant,
88 Armoured Regiment and statements made in detail
to Commanding Officer, 10 Merchandised Infantry and
also at the Summaries of Evidence. Both the accused
persons had requested me to save them from civil jail
whenever they had interacted with me.”
20) In cross-examination, he deposed that the video-recording of
accused persons making their written confessions was made on the
13
orders of the Commandant of Regiment. The transcription of video
was given to the defence counsel duly attested by Lt. Amit Sudan.
He deposed that confessional statements (Ex.8 and Ex.9) were not
written in his presence whereas verbal confessions of the accused
were given in his presence and in presence of the entire ‘A’
Squadron and the Commandant of the Regiment.
21) He deposed that the accused have made statements at various
stages from first verbal confessional statements on June 18, 2006;
written confessional statement on June 19, 2006 and then at the
Court of Inquiry conducted by the then Commandant, 88 Armoured
Regiment and the statements made in detail to the Commanding
Officer, 10 Mechanised Infantry and also at the stage of Summary
of Evidence.
22) PW-7 is Risaldar Katar Singh. He deposed that weapons were never
physically checked between March 31, 2006 and May 9, 2006. He
came to know about the loss of two pistols on May 9, 2006 as they
were to be issued to crew of the tank. He is a witness to the
confessional statement written by both the accused and that the
accused confessed about stealing the two pistols in the presence of
entire Squadron. The verbal and written confessions were
voluntary in nature. He deposed that he believed the two pistols
were lost while in transit in the exercise as no pistols were issued to
anyone. He recognized the contents of slip, the scanned copy and
handwritten slip found at the Dhobi table. He deposed that he
14
lodged a Daily Diary Report on May 13, 2006 at P.S. Lunkaransar for
loss of two pistols as also the cancellation of the report (Ex.37).
The Daily Diary Report lodged at P.S. Sardarshahar was cancelled
vide Ex.21. He deposed that on June 18, 2006, he was at his
residence when the entire ‘A’ Squadron was made to assemble at
the Regiment and he reached the Regiment at 1800 hours. Both
the accused were standing in front of entire Squadron. Colonel H.S.
Chehal, Commandant; Lt. Col. Arvinder Singh, Second-in-Command
and Lt. Col. J.G. Gopalan, Squadron Commander were also present
there. Both the accused confessed about stealing of two pistols.
They also wrote confessional statement. He is a witness to the
confessional statement written by accused Neeraj Kumar. Sowar
Krishan Kumar was also present. He and Sowar Atender Dahiya are
witnesses of confessional statement of accused Sandeep Kumar.
23) PW-8 is Dafedar Parkash Chand who has video recorded the written
confessions of the accused and Pankaj Dhaka on June 19, 2006. He
has produced the transcription of the video recording. In crossexamination, he stated that there are no cuts in the video recording
and is exactly the same tape that he had recorded on June 19,
2006 and that there is no tampering of the video tape.
24) PW-9 is Colonel S. Bhardwaj, Deputy Project Manager, who was
earlier appointed as the Presiding Officer of the Court of Inquiry for
the loss of two pistols. He stated that the accused persons
deposed before the Court of Inquiry as witnesses and later gave
15
additional statements in which they confessed their wrongful deed
voluntarily. He also stated that the original handwritten slip was
shown at the Court of Inquiry and only one scanned copy was taken
which was duly attested by Captain Vineet Kumar. He identified
that the contents on such slip are the same as in the original
document.
25) Pankaj Dhaka, brother of accused Neeraj Kumar has been examined
as PW-10. He admitted that he came to meet his brother Neeraj
Kumar on June 18, 2006. Acting Lance Dafedar Rajender Singh
took him to his brother at Hisar Military Station for 3-4 days. He
stated that he did not meet his brother in 3-4 days and did not do
anything. The prosecution declared the witness hostile. He stated
that he did not make statement at the Court of Inquiry but was
physically assaulted and made to sign on every page. He denied
having made statement (Ex.42) in English stating that he cannot
read English though he had studied English up to Class XII. He
deposed that he has given statement as was told to him and such
statements were tutored. He admitted his handwriting and
signatures (Ex.10) written in Hindi which he admits that he
understands. He admits that he had been stated in the statement
that there are no cuttings or amendments in the statement. He
admits that he was sitting on a chair when video was being
recorded. He deposed that he stayed in Regiment for two more
days after his statement was video-recorded. He further states
that his brother was beaten up in front of him and he was
16
threatened to give false statement so as to save life of his brother.

26) Last prosecution witness is PW-11 Sowar Atender Dahiya. He is the
witness to the confessional statement of Sandeep Kumar (Ex.9).
The only question asked in the cross-examination was in respect of
presence of Lt. Col. J.G. Gopalan (PW-1) when accused No. 2 had
written confessional statement.
27) The Army Rule 58 is to provide an opportunity to an accused to
explain the incriminating circumstances appearing against an
accused. It does not contemplate that such statement can be of an
evidence, which has not been led by the prosecution and that
accused has not confronted the prosecution witnesses with such
aspect in the cross examination of a witness examined by the
prosecution. Rule 58 of the Army Rule reads thus:
“58. Examination of the accused and defence
witnesses. (1) (a) In every trial, for the purpose of
enabling the accused personally to explain any
circumstances appearing in evidence against him, the
court or the Judge Advocate –
(i) may at any state, without previously warning the
accused, put such questions to him as considers
necessary;
(ii) shall, after the close of the case for the prosecution
and before he is called on for his defence, question him
generally on the case.”
28) In a statement recorded under Rule 58 of the Army Rules, accused
No.1 Sowar Neeraj Kumar Dhaka was put handwritten confessional
statement (Ex.8) recorded on June 19, 2006 with Risaldar Katar
17
Singh and Sowar Krishan Kumar as independent witnesses. The
accused has stated that the statements made by the prosecution
witnesses are false. He denied the incident but admitted that he
was doubted because he handed over handwritten slip found on
the Dhobi table to Squadron Major Sarwan Kumar. Thereafter,
accused No. 1 in his statement stated that he was performing
sentry duty from April 4, 2006 to April 11, 2006. He came back to
Hisar Military Station on April 11, 2006 and proceeded on leave in
the evening of April 14, 2006 and reported back on May 14, 2006.
On May 15, 2006, he went back to exercise area at Lunkaransar.
He stated that he found a handwritten slip on May 19, 2006 on the
Dhobi table in the exercise area at about 0730 hours which he
handed over to Squadron Dafedar Major Sarwan Kumar. He was
called by Lt. Col. Arvinder Singh (PW-6) who asked him about
handwritten slip. Risaldar Katar Singh (PW-7) passed an order of
fall-in and all personnel of ‘A’ Squadron were asked to write the
same contents as written on the handwritten slip. Such
handwritten samples were handed over to Risaldar Katar Singh
(PW-7). It was on June 11, 2006, Lt. Col. Arvinder Singh (PW-6)
called him to his office to ask about handwritten slip once again.
He accused him of writing of a handwritten slip and stealing of two
pistols. He stated that he was confined in the Quarter Guard on
June 11, 2006 and was called by Lt. Col. Arvinder Singh (PW-6) to
his office at about 1700 hours on June 18, 2006 when he saw
Sowar Sandeep Kumar was being beaten up. He was taken to the
18
office of Lt. Col. J.G. Gopalan (PW-1). There, he was beaten up by
Acting Lance Dafedar Rajender Singh (PW-3), Risaldar Katar Singh
(PW-7) and also Lt. Col. Arvinder Singh (PW-6). Lt. Col. Arvinder
Singh (PW-6) forced him to write a suicide note and also a
confessional statement stating that he had stolen two pistols 9mm
Browning which he improved later on to say that Lt. Col. Arvinder
Singh (PW-6) had given him a performa of the suicide note and
confessional statement. He was forced to note down the entire
contents on a fresh page and sign it. They also threatened him
and told that his brother would be killed if he does not write or
state what they told him. He was shown his brother who was
sitting in the Clerks Office along with Sowar Atender Dahiya (PW11).
29) In a statement recorded under Rule 58 of the Army Rule, accused
No. 2 Sowar Sandeep Kumar resiled from his earlier statement. He
stated that on 18 June 2006, at about 1600 hours, he had come to
practice hockey in the Hockey Field. Lieutenant Colonel JG
Gopalan, Squadron Commander, came to him and informed him
that Lieutenant Colonel Arvinder Singh, Second-in-Command had
called him to his office. He was beaten by Lieutenant Colonel
Arvinder Singh, Second-in-Command along with about five more
persons when he reached office. He was forced to write one suicide
note in the office of the Second-in-Command, 71 Armoured
Regiment. There were four to five persons who continuously
assaulted him. After half an hour, Lieutenant Colonel Arvinder
19
Singh, Second-in-Command came back and handed him a
handwritten performa to be copied verbatim in his handwriting and
to be signed by him. He said, later, he was confined to the Quarter
Guard. He further stated that on 19 June 2006, he was called in the
office of Squadron Commander. He was beaten up, one after the
other, by Lieutenant Colonel Arvinder Singh, Second-in-Command,
Major Zorawar Singh Gill, Squadron Commander ‘B’ Squadron,
Risaldar Katar Singh, Senior JCO ‘A’ Squadron, Acting Lance
Dafedar Rajender Singh, No.15468978N Lance Dafedar Om Prakash
and No.15474706K Sowar Ravinder. They had video recorded his
statements which he was forced to give. He was also forced to write
two or three pages and sign on them. Later he was confined to the
Quarter Guard. Somewhat similar statement is of the Neeraj Kumar,
accused No.1.
30) In these facts, the order of Tribunal and the finding of DCM are
required to be examined. Firstly, none of the prosecution witnesses
were cross-examined in respect of threats or beatings inflicted on
any of the two accused. Such statements made under Army Rule
58 are not evidence which can be believed to doubt the findings
recorded by DCM in the absence of any such defence put to the
witness. The witness, when in witness box, could respond to such
plea of the accused. Such statement of the accused under Rule 58
is to explain the circumstances appearing in evidence against him.
The accused could not set up a defence with which none of the
prosecution witness was confronted with. These statements are not
20
on oath though he has an option to appear as a witness on oath.
Therefore, self-serving statements made when opportunity was
given to accused under Army Rule 58 will not create any suspicion
on the prosecution witnesses when there is not even a remote
suggestion to any of the prosecution witnesses who alone could
depose the facts so stated by the accused.
31) The three Judge Bench of this Court in Ajay Kumar Singh & Ors.
v. The Flag Officer Commanding-in-Chief & Ors.
9
 while hearing
an appeal under Section 30 of the Act held that this Court normally
does not re-appreciate evidence and is slow to interfere with the
findings of the Tribunal unless there is substantial question of
public importance, but when the appreciation of evidence is
vitiated by serious error, this Court can re-appreciate the evidence
and interfere with the findings recorded by the Tribunal. The Court
held as under:
“20. …The evidence adduced by the prosecution
must be scrutinised independently of such lapses
either in the investigation or by the prosecution or
otherwise, the result of the criminal trial would
depend upon the level of investigation or the
conduct of the prosecution. Criminal trials should
not be made casualty for such lapses in the
investigation or prosecution. Criminal trials should
not be made casualty for such lapses in the
investigation or prosecution.
21. The evidence of PW 14 (Manager) and PW 18
(Cashier) identifying the appellants and their evidence
as to the identity of the appellants in the test
identification parade ought not to have been
disbelieved by the Tribunal. In exercise of power under
Section 30 of the Armed Forces Tribunal Act, this Court
9 AIR 2016 SC 3528
21
normally does not reappreciate the evidence and is
slow to interfere with the findings of the Tribunal unless
there is substantial question of public importance. But
when it is found that appreciation of evidence in a given
case is vitiated by serious error, this Court can
reappreciate the evidence and interfere with the
findings...”
32) The question required to be examined is as to whether the Tribunal
was within its jurisdiction under Section 15 of the Act to set aside
the order of the DCM and to order reinstatement of the accused
with further direction of no payment for the intervening period.
33) The Tribunal has set aside the secondary evidence in respect of the
written slips (Ex.12 and Ex.15). The learned Tribunal was of the
opinion that the prosecution is categorical that the theft of the
pistols has taken place on April 6, 2006 but thereafter physical
verification was conducted on April 27, 2006 where no loss was
reported. Subsequently, an FIR was lodged on May 13, 2006 but
suddenly the story of recovery of the pistols wrapped in a card
board shoe box has been introduced on May 18, 2006. There is
also a version that the pistols were recovered while checking in the
general area.
34) We find that the findings of the Tribunal are not correct in this
respect. It is categorical stand of Lt. Col. J.G. Gopalan, Squadron
Commander (PW-1) that the report dated April 27, 2006 was
prepared without any physical verification and for such report, he
has been punished as well. He has also deposed that there was
procedural lapse inasmuch as the report was given on April 27,
2006 without physical verification of the weapons and that there
22
was no daily, weekly or monthly checking. Risaldar Katar Singh
(PW-7) has deposed that report was given that the weapons would
be in place as no weapon has been issued to anyone. The
suggestions put to the witnesses that physical verification was
done on April 27, 2006 or the pistols were recovered in general
area have been denied by all the witnesses. The stand of the
prosecution that the pistols were stolen on April 6, 2006 is based
upon written and oral confession made by the accused. The
primary evidence of the prosecution is the confessional statements
made by the accused along with the supporting confessional
statement made by Pankaj Dhaka, brother of accused Neeraj
Kumar.
35) The statement of Pankaj Dhaka that he stayed in the Unit for 3-4
days is not made out as none of the prosecution witnesses have
been given such suggestion. The Guest Register (Ex.22) shows the
entry of Pankaj Dhaka on June 18, 2006 in the Unit area at Hisar. In
the absence of any evidence that he stayed in the Unit for 3-4 days
or that he has seen that his brother being given beating is wholly
unbelievable. In fact, the witness has deposed that he has not met
his brother when he went to the Unit at Hisar. Therefore, the story
that he has seen his brother being given beating is made up story
when none of the prosecution witnesses have been suggested
anything even remotely in this respect.
36) The prosecution case is based upon written confessional
23
statements made by accused Neeraj Kumar (Ex.8) and Sandeep
Kumar (Ex.9). In addition to the confessional statements, oral
confessions were made before Lt. Col. J.G. Gopalan, Squadron
Commander (PW-1) and Colonel Arvinder Singh, Commandant (PW6). PW-6 has not been cross-examined in respect of any
involuntary nature of the confession or that he is the person who
has given beatings to the accused as averred by them in their
statements under Rule 58. The accused without asking any
question to any of the prosecution witness that they have given
beatings as alleged by them in their statements, cannot doubt the
consistent evidence of the prosecution witnesses. Therefore, the
retraction of the confessional statements made in their statement
under Rule 58 is of no consequence when the prosecution
witnesses have not been cross-examined in respect of involuntary
nature of the confessions. The statement of witnesses of different
ranks, could not be doubted by the Tribunal. The findings of the
Tribunal are in fact based on ipse dixit of the Tribunal.
37) The Tribunal has reproduced Army Order No. 256 of 1972 in its
judgment. However, the Tribunal has completely misread such
Army Order to hold that the confessional statements are
inadmissible having been made to the Army. The relevant extract
of the order is reproduced for ready reference:
“1. The Indian Evidence Act, 1872 subject to the
provisions of the Army Act, applies to all proceedings
before a Court-Martial. Section 25 of the Indian
Evidence Act provides that no confession made to a
police officer shall be proved as against a person
24
accused of any offence. Section 26 of the same Act
provides that no confession made by any person, whilst
he is in the custody of a police officer, unless it be made
in the immediate presence of a magistrate, shall be
proved as against such person. However, facts
discovered in consequence of a confession which is
itself inadmissible having been made to a police officer,
or whilst in the custody of a police officer and not in the
immediate presence of a magistrate and so much of the
confession as distinctly relates to the facts thereby
discovered, may be proved. (Indian Evidence Act
Section 27).
xx xx xx
4. When a person, subject to the Army Act, makes or it
appears he is about to make a confession whilst in the
custody of a military police officer, he should first be
removed from military police custody and placed in
ordinary military custody. He may then be taken before
a military officer with a view to having his confession
recorded in the manner described in para 3 above.
Alternatively, he may be taken by the military police
officer before a magistrate, for his confession to be
recorded in accordance with Section 164 of the Code of
Criminal Procedure.”
38) In terms of Section 1 of the Evidence Act, the provisions of the
Evidence Act are not applicable to the Court Martial convened
under the Army Act, the Naval Discipline Act, the Indian Navy
(Discipline) Act, 1934 or the Air Force Act. But in terms of Section
133 of the Act, the Evidence Act apply to all proceedings before a
Court Martial subject to the provisions of the said Act. In terms of
Section 133 of the Act read with Section 25 of the Evidence Act, the
statement made before a Police Officer such as Military Police
Officer alone is inadmissible in evidence and not the statement
made before the other persons.
25
39) In the present case, Lt. Col. J.G. Gopalan (PW-1) is the Squadron
Commander before whom the accused has made oral confession.
He has taken the accused to PW-6 Col. Arvinder Singh, Second-inCommand. Under the orders of Lt. Col. J.G. Gopalan (PW-1) and
Col. Arvinder Singh (PW-6), the accused confessed before the entire
Squadron on June 18, 2006. It was on June 19, 2006, the accused
have given a written confession in their handwriting. Recording of
such written confession is video-recorded as well. Therefore, such
confession is not hit by Section 25 of the Evidence Act read with
Section 133 of the Act and Army Order No. 265 of 1972.
40) Thus, the office order distinguishing a Military Police Officer is
separate and distinct from an Officer of the Army. Such distinction
has been conveniently overruled by the Tribunal. The confessional
statement made by the accused before Military Police Officer alone
is not admissible but the statement made before an Army Officer is
not hit by the provisions of Section 25 of the Indian Evidence Act,
187210. In fact, such statement is made before the entire Squadron
apart before different officers coupled with written confession
which was video recorded as well.
41) The accused have tried to create doubt on the prosecution story on
the basis of the fact that the originals of handwritten slip have not
been produced. Lt. Col. J.G. Gopalan (PW-1) has deposed that
original of such slip has been lost during transit whereas the
10 Evidence Act
26
scanned copy is the true copy of the original which the witness has
seen. Such statement is supported by statements of Risaldar
Sarwan Kumar (PW-5) who has found the slip and Dafedar Vijaypal
Singh (PW-4) who has recovered the cardboard shoebox. Still
further, before the DCM, the learned counsel for the accused have
not disputed the production of the slips by way of secondary
evidence. Therefore, we find no reason not to take into
consideration such slips in evidence as Lt. Col. J.G. Gopalan (PW-1)
and Col. Arvinder Singh (PW-6) are the persons who have seen the
originals and have also deposed that the scanned copies are the
same as of originals. Therefore, we find that the Tribunal erred in
law in reversing the findings recorded by the DCM while exercising
appellate jurisdiction under Section 15 of the Act.
42) The argument of Mr. Malik that since the prosecution has not put
the incriminating circumstances appearing in the evidence to the
accused under Rule 58 of the Army Rules, therefore, the conviction
was rightly set aside by the Tribunal. It may be stated that
incriminating circumstance of written confessional statement was
put to accused Neeraj Kumar and thereafter, he has given a
detailed unsworn statement running into more than five pages as
reproduced above. Similarly, accused Sandeep Kumar has also
given his unsworn statement in more than six pages, the summary
of which is reproduced above. Though, the incriminating
circumstance should have been put to the accused in terms of Rule
58 of the Army Rules which is akin to Section 313 of the Code but,
27
the detailed explanation given by the accused rules out any
prejudice caused to them on account of absence of specific
incriminating circumstances put to the accused.
43) This Court in Keya Mukherjee v. Magma Leasing Limited &
Anr.
11
 while referring to earlier three Judge Bench judgment in Jai
Dev & Anr. v. State of Punjab
12
, as to whether the accused has
been given an opportunity to say what he wanted to say in respect
of prosecution against him, held as under:
“17. The above approach shows that some dilution of
the rigour of the provision can be made even in the
light of a contention raised by the accused that nonquestioning him on a vital circumstance by the trial
court has caused prejudice to him. The explanation
offered by the counsel of the accused at the appellate
stage was held to be a sufficient substitute for the
answers given by the accused himself.
18. What is the object of examination of an accused
under Section 313 of the Code? The section itself
declares the object in explicit language that it is ‘for the
purpose of enabling the accused personally to explain
any circumstances appearing in the evidence against
him’. In Jai Dev v. State of Punjab [AIR 1963 SC 612]
Gajendragadkar, J. (as he then was) speaking for a
three-Judge Bench has focused on the ultimate test in
determining whether the provision has been fairly
complied with. He observed thus: (AIR p. 620, para 21)
‘21. … The ultimate test in determining whether
or not the accused has been fairly examined
under Section 342 would be to enquire whether,
having regard to all the questions put to him, he
did get an opportunity to say what he wanted to
say in respect of prosecution case against him.
If it appears that the examination of the
accused person was defective and thereby a
prejudice has been caused to him, that would no
doubt be a serious infirmity.’
11 (2008) 8 SCC 447
12 AIR 1963 SC 612
28
19. Thus it is well settled that the provision is mainly
intended to benefit the accused and as its corollary to
benefit the court in reaching the final conclusion.
20. At the same time it should be borne in mind that the
provision is not intended to nail him to any position, but
to comply with the most salutary principle of natural
justice enshrined in the maxim audi alteram partem.
The word ‘may’ in clause (a) of sub-section (1) in
Section 313 of the Code indicates, without any doubt,
that even if the court does not put any question under
that clause the accused cannot raise any grievance for
it. But if the court fails to put the needed question
under clause (b) of the sub-section it would result in a
handicap to the accused and he can legitimately claim
that no evidence, without affording him the opportunity
to explain, can be used against him. It is now well
settled that a circumstance about which the accused
was not asked to explain cannot be used against him.”
44) In a later judgment in Nar Singh v. State of Haryana
13
, this Court
referred earlier judgments of this Court in Wasim Khan v. State
of U.P.
14
, Bhoor Singh v. State of Punjab
15 and Santosh
Kumar Singh v. State
16
 to hold as under:
“20. The question whether a trial is vitiated or not
depends upon the degree of the error and the accused
must show that non-compliance with Section 313 CrPC
has materially prejudiced him or is likely to cause
prejudice to him. Merely because of defective
questioning under Section 313 CrPC, it cannot be
inferred that any prejudice had been caused to the
accused, even assuming that some incriminating
circumstances in the prosecution case had been left
out. When prejudice to the accused is alleged, it has to
be shown that the accused has suffered some disability
or detriment in relation to the safeguard given to him
under Section 313 CrPC. Such prejudice should also
demonstrate that it has occasioned failure of justice to
the accused. The burden is upon the accused to prove
13 (2015) 1 SCC 496
14 AIR 1956 SC 400
15 AIR 1974 SC 1256
16 (2010) 9 SCC 747
29
that prejudice has been caused to him or in the facts
and circumstances of the case, such prejudice may be
implicit and the Court may draw an inference of such
prejudice. The facts of each case have to be examined
to determine whether actually any prejudice has been
caused to the appellant due to omission of some
incriminating circumstances being put to the accused.”
45) Since the accused have given detailed statements touching the
incriminating circumstances appearing in prosecution evidence and
also retracted confessional statements made by them, it cannot be
said that putting of incriminating circumstances to the accused
have caused any prejudice to the accused.
46) Section 15 of the Act confers wide power on the Tribunal so as to
allow an appeal against conviction by a Court Martial where the
finding of the Court Martial is legally not sustainable due to any
reason; the finding involves wrong decision on a question of law or
there was a material irregularity in the course of the trial resulting
in miscarriage of justice. Even though the power of the Tribunal is
wide but it is not merely a different opinion on the appreciation of
the evidence to interfere with the findings recorded by the Court
Martial. The first ground of interference is whether the finding of
the Court Martial is “legally not sustainable”. Therefore, to exercise
such power, there has to be error of law by the Court Martial which
would confer jurisdiction on the Tribunal to interfere against the
conviction recorded by the Court Martial. The second ground is
“wrong application on a question of law”. However, the Tribunal, in
the present case, has committed grave error in interfering with the
30
finding of the Court Martial by misreading an Army Order. There is
no material irregularity pointed out by the Tribunal inasmuch as the
irregularity pointed out is with regard to confessional statements
by Military Officer which is not a bar either under the Evidence Act
or under the Army Order issued under the Act. The Tribunal could
re-appreciate evidence to find out if any findings of the Court
Martial is legally not sustainable due to any reason; or that the
finding involves wrong decision on a question of law or there was a
material irregularity in the course of the trial resulting in
miscarriage of justice. But such wide powers do not confer
jurisdiction to the Tribunal to reverse the findings merely because it
finds that different view is possible.
47) In view thereof, we find that the Tribunal exceeded its jurisdiction
while setting aside the order of conviction passed by the DCM.
48) Consequently, criminal appeals arising out of Diary No.9218 of 2016
filed by the Union of India are allowed, whereas, the criminal
appeals arising out of Diary Nos.7204 of 2016 and 7205 of 2016
filed by Neeraj Kumar Dhaka and Sandeep Kumar respectively are
dismissed. However, the sentence imposed upon the accused is
reduced to the extent they had already undergone.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
SEPTEMBER 13, 2019.
31

an executing court cannot travel beyond the order or decree under execution (see Rameshwar Dass Gupta v. State of U.P. and Another, (1996) 5 SCC 728). = In the present case, the Trial Court had already considered the evidence on record and given a finding that the Appellant and his uncle were the trustees of the temple. Notably, Umapathymurthy was a party to this suit and had contested it by filing a written statement, claiming to be the eldest son of Sadhasivamurthy. However, at that time, he did not put forth any objections to the heir certificate of Sadhasivamurthy, which was considered by the Trial Court while arriving at its finding. This judgment was confirmed by the First Appellate Court and no further appeal was preferred by the Respondents against it. In light of this, the findings of the Trial Court have become final, and Umapathymurthy as well as the other Respondents are bound by them. By allowing them to re-open the question of trusteeship by way of an application in an execution petition, the High Court has gone beyond the decree to be executed and exceeded its revisional jurisdiction under Section 115 of the CPC. Since the findings of the Trial Court had attained finality, the decision of the executing court dated 31.01.2007 by which E.A. No. 5750/2003 was dismissed, should have been affirmed. Thus, the impugned judgment is not only illegal, but also without jurisdiction.

 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7800 OF 2014
S. Bhaskaran …Appellant(s)
Versus
Sebastian (Dead) By Lrs. & Ors. …Respondent(s)
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
1. The instant appeal arises out of the order of the High
Court of Judicature at Madras dated 10.12.2007 in Civil Revision
Petition No. 1007 of 2007, setting aside the order of the City
Civil Court, Chennai dated 31.01.2007 in E.A. No. 5750/2003 in
Execution Petition No. 1910/1992 in O.S. No. 8664/1988.
2. The brief facts from which this appeal arises are as
follows:
The suit temple properties were originally administered by
three brothers– Sadhasivamurthy, Balasundaram, and
Sundararajan (‘original owners’). Vide settlement deed dated
19.09.1947, these original owners endowed the property to the
1
NON-REPORTABLE
temple. The deed also included a provision that the eldest son
of the deceased trustee would become his successor. The
genealogy of the family of the original owners is as follows:
Sadhasivamurthy Balasundaram Sundararajan
(issueless) K.S.Jaganathan
Sabapathy Umapathy Ram Gnanambal
S. Bhaskaran
(Appellant)
3. From 1987-88, three suits relating to the temple
properties were filed. Among these, O.S. No. 8664/1988 is
relevant to the instant appeal. This suit was filed on behalf of
the temple by one K.S. Jaganathan and S. Bhaskaran (Appellant
herein) in their capacity as trustees, seeking permanent
injunction against Gnanambal and her husband, who were
tenants in the suit properties (Respondents 1-7 herein) at that
time. One Umapathymurthy (represented by Respondents 8-14
herein) was impleaded in this suit as a defendant. In his written
statement, he claimed that he was the eldest son of
Sadhasivamurthy and that he had been dispossessed from the
trusteeship of the temple by his younger brother, K.S.
Sabapathy.
2
4. By a common judgment dated 09.09.1991, the Trial Court
disposed of all the three suits. With respect to the relevant suit
(O.S. No. 8664/1988), it gave a finding that the Appellant
herein and his uncle, K.S. Jaganathan were the trustees of the
temple. To arrive at this finding, the Court relied on documents
indicating that the Appellant’s father, K.S. Sabapathy was the
eldest son of Sadhasivamurthy and the heir to the suit land in
terms of the settlement deed dated 19.09.1947. These included
the license issued by the Police Commissioner in 1983 showing
K.S. Sabapathy as the heir (Ex. B21), electricity card of K.S.
Sabapathy (Ex. B22), wedding invitation of Sadhasivamurthy
(Ex. B24), license issued by police department for temple
celebration (Ex. B25), and the legal heir certificate dated
31.08.1987 issued to Sadhasivamurthy by the Tahsildar (Ex.
B26). In holding that the Appellant was a trustee and passing a
decree in his favour, the Court rejected the claim of
Umapathymurthy that he was the eldest son of
Sadhasivamurthy, and consequently the trustee of the temple.
5. In first appeal, the Appellate Court confirmed the
judgment and decree of the Trial Court passed in
O.S.No.8664/1988. No further appeal was preferred. It is crucial
3
to note that Umapathymurthy was an appellant in the first
appeal and had contested it.
6. The decree holders filed Execution Petition No. 1910/1992,
for executing the decree obtained by them in O.S.
No.8664/1988. In this petition, the judgment debtors
(Respondents herein) filed an execution application (E.A. No.
5750/2003) under Section 47 of the Code of Civil Procedure,
1908 (‘CPC’) against the Appellant and his uncle, seeking
dismissal of the execution petition on the basis that the original
decree was vitiated by fraud. They alleged that the heir
certificate of Sadhasivamurthy furnished by the Appellant (Ex.
B26 in the Trial Court record) was falsely prepared and
suppressed the name of Umapathymurthy as the eldest son of
Sadhasivamurthy.
7. While examining this application, the executing court
observed that the judgment debtors had not objected to the
heir certificate when it was adduced before the Trial Court. In
any case, the Trial Court had not adjudicated the issue of
trusteeship solely on the basis of the heir certificate, and other
documents had been considered as well. Thus, by order dated
31.01.2007, the executing court dismissed E.A. No. 5750/2003
4
filed under Section 47 of the CPC as non-maintainable on the
ground that the judgment of the Trial Court had been confirmed
by the First Appellate Court after considering all relevant
evidence, and had therefore become final.
8. When a revision petition was filed against the above order,
the High Court allowed E.A. No. 5750/2003 vide the impugned
judgment. Relying on sale deeds dated 11.08.1948 and
22.06.1950 showing Umapathymurthy as the eldest son and
K.S. Sabapathy as the second minor son of Sadhasivamurthy,
the High Court concluded that Umapathymurthy qualified as
the trustee of the temple in view of the settlement deed dated
19.09.1947. Thus, K.S. Sabapathy could not have become the
trustee of the temple. In view of this finding, the High Court
went on to observe that the decree passed in the original suit
was a nullity and could not be enforced.
9. Having perused the records and the findings of the Trial
Court, we find ourselves unable to agree with the decision of
the High Court in the impugned judgment. It is well-settled that
an executing court cannot travel beyond the order or decree
under execution (see Rameshwar Dass Gupta v. State of
U.P. and Another, (1996) 5 SCC 728).
5
In the present case, the Trial Court had already considered
the evidence on record and given a finding that the Appellant
and his uncle were the trustees of the temple. Notably,
Umapathymurthy was a party to this suit and had contested it
by filing a written statement, claiming to be the eldest son of
Sadhasivamurthy. However, at that time, he did not put forth
any objections to the heir certificate of Sadhasivamurthy, which
was considered by the Trial Court while arriving at its finding.
This judgment was confirmed by the First Appellate Court and
no further appeal was preferred by the Respondents against it.
In light of this, the findings of the Trial Court have become final,
and Umapathymurthy as well as the other Respondents are
bound by them.
By allowing them to re-open the question of trusteeship by
way of an application in an execution petition, the High Court
has gone beyond the decree to be executed and exceeded its
revisional jurisdiction under Section 115 of the CPC. Since the
findings of the Trial Court had attained finality, the decision of
the executing court dated 31.01.2007 by which E.A. No.
5750/2003 was dismissed, should have been affirmed. Thus,
6
the impugned judgment is not only illegal, but also without
jurisdiction.
10. For the aforementioned reasons, we set aside the
impugned order dated 10.12.2007 in Civil Revision Petition No.
1007 of 2007 passed by the High Court. The order of the City
Civil Court, Chennai dated 31.01.2007 in E.A. No. 5750/2003 is
restored. The appeal is allowed accordingly.
………..….…………………………..J.
(N.V. RAMANA)
….…………………………………….J.
(MOHAN M. SHANTANAGOUDAR)
……….……………………………….J.
(AJAY RASTOGI)
NEW DELHI;
SEPTEMBER 13, 2019
7

The action of the respondent to dispute the allotment price after accepting the price is neither fair nor reasonable and cannot be accepted.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7243 OF 2019
(ARISING OUT OF SLP (CIVIL) NO. 4990 OF 2018)
THE BIHAR STATE HOUSING BOARD & ORS. .....APPELLANT(S)
VERSUS
RADHA BALLABH HEALTH CARE AND
RESEARCH INSTITUTE (P) LTD. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1) Leave granted.
2) The challenge in the present appeal is to an order passed by the
Division Bench of the High Court of Judicature at Patna on
November 21, 2017, whereby, the Letters Patent Appeal against an
order passed by the learned Single Bench on September 19, 2016
was dismissed.
3) The appellant published an advertisement on May 10, 2008 inviting
applications for allotment of plot for health center in Lohia Nagar
Housing Colony, Patna measuring 43000 sq. feet at the price of
Rs.1,71,89,057/-. Rs.1,00,000/- was the earnest money. The
1
respondent applied for such plot along with the amount of earnest
money. It was mentioned in the advertisement that upon receipt of
more than one application, allotment shall be made by draw of lots
and that the Chairman-cum-Managing Director of the appellant has
the power to cancel allotment without assigning any reason. The
respondent herein was the sole applicant for seeking allotment of
plot advertised for health center but no such plot was allotted to
the respondent, may be for the reason that the respondent being
the sole applicant.
4) The respondent filed writ petition before the High Court in the year
2009 challenging the action of the appellant in not accepting the
application of the respondent for the reason that it had not
submitted the documents of recognition from the State
Government. In view of the stand taken, the High Court directed
the appellant to take a decision on the application of the
respondent within a period of one month. Subsequently, contempt
petition was filed wherein; the Court was informed that the request
of the respondent for allotment of plot was not accepted. The
respondent was given liberty to challenge the decision of the
appellant by way of a fresh writ petition.
5) The respondent again filed writ petition before the High Court
contending that the respondent approached the Managing Director
of the appellant, who agreed to the proposal of allotment of
alternative plots for construction of hospital in lieu of original plot
2
offered, though with much less area than the plot advertised
earlier. The respondent submitted the technical and financial
proposal also stating that the plot, which was advertised, was of an
area of 43000 sq. feet for a consideration of Rs. 1,71,89,057/-,
thus, there should be proportionate reduction of price on account
of lesser area being offered. The respondent sought allotment on
the terms and conditions of the advertisement itself. The two plots
offered as alternative to the earlier plot, were plot nos. G-5 and G6 measuring an area of 10,000 sq. feet and 14000 sq. feet
respectively situated near Rajendra Nagar Over Bridge in Patna.
However, the Board took a decision to allot the aforesaid plots on
the basis of Swiss Challenge Method. The said decision was
communicated to the respondent on December 14, 2011.
6) The said writ petition was decided on May 10, 2013 holding that
the advertisement cannot be given a go by adopting a method of
allotment other than what was described in the advertisement. As
such, Swiss Challenge Method cannot be applied in the case of the
respondent. However, change of plot was not interfered with in
view of the fact that the respondent agreed for the offered plots.
The appellant was directed to consider issuing an allotment letter
in favour of the respondent in terms of the advertisement but with
respect to plot Nos. G-5 and G-6 in place of the original plot, as
mentioned in the advertisement, on the same terms and conditions
with proportionate cost reduction on account of the area of the
plots having been reduced. The High Court passed the following
3
order:
“In view of the reasons and discussions made above,
the decision of the board to allot the Plot Nos. G-5 and
G-6 in favour of the petitioner vide office order no. 160
of 2009 as contained in Memo No. 10792 dated
09.12.2011 (Annexure-16) as also the Letter No. 10871
dated 14.12.2011 (Annexure-17) on the basis of Swiss
Challenge Method is hereby quashed. The respondent –
Board is directed to consider the letter dated 3rd of
January, 2012, written by the petitioner to the
respondent-Board and on considering the same, issue
allotment letter in terms of the advertisement, as
contained in Patna High Court CWJC No.9744 of 2012
(5) 10 Annexure – 1 with respect to the plot nos. G-5
and 6 in lieu of the original plot as mentioned in the
advertisement on the same terms and conditions with
proportionate cost on account of the area of the plots
being reduced.”
7) Such order was modified at the instance of the appellant on
January 9, 2014 that in view of the condition in the advertisement
that if the allotment letter is issued after May 31, 2008, the price of
the allotted plot will be on the updated rates as on the date of
allotment. The Court held as under:
“It is submitted that advertisement states that if the
allotment letter is issued after 31st May, 2008 the price
of the allotted plot would be on updated rate as on the
date of allotment as per the terms of advertisement
contained in Annexure-1 to the writ application. The
order dated 10.05.2013 passed in CWJC No. 9947 of
2012 is clarified to the above extent. After such
clarification it goes without saying that the Board upon
considering the letter dated 3rd January 2012 written by
the petitioner is to issue the allotment letter, and as
such, the same be issued within a period of two months
from today.”
8) It is thereafter on February 14, 2014, the respondent was called
upon to deposit up to date price of Rs.13,09,95,041/-. The said
4
price was not deposited by the respondent, instead respondent
replied vide letter dated February 19, 2014 that the said demand is
contrary to the direction issued by the High Court and requested
the Board to calculate the updated price as per the terms and
conditions.
9) On March 13, 2014, the appellant revised price to
Rs.10,58,91,736/- and raised demand for payment of such amount
to be deposited by March 31, 2014. In response to such
communication, the respondent on March 21, 2014 communicated
its acceptance. The said communication reads as under:
“With reference to your letter No. 1902 dated 13/3/2014
directing us to deposit Rs.10,58,91,736.00 for plot no.
GC 5, GC 6, Kankarbagh Patna allotted to Radha Ballabh
Health Care & Research Institute Pvt. Ltd.
We need to inform you that the Board may measure
the exact Area of the Land to be delivered before the
Representatives of both sides and thereafter handover
the vacant possession of the land erecting boundary
wall, the cost of which shall be borne by us.
The amount (money), directed to be deposited for
the said plot is against the directions of the Hon’ble
High Court Patna. We have raised this issue of price in
our letter dt. 19/02/2014 however subject to our right
and without prejudice, we are ready to take the land (Plt
no. GC 5 & GC 6) Under protest.
We propose the following payment plan.
We will deposit a token advance of Rs. 40 lakhs at
the outset. Once we get vacant possession of the land,
with boundary wall erected (the cost of which will borne
by us) we will deposit up to 20% of the total cost
(subject to final measurement of the Land).
The remaining amount will be paid in Four Quarterly
5
Installments per annum in three years. Once again we
would emphasize that if we do not get the vacant
possession of the land within two (2) months of token
advance deposit, the Housing Board shall be held
responsible and will have to bearing bank interest
levied on us by the bank/borrower.
Kindly approve our proposal at the earliest and let us
know your bank with account number, so that we can
proceed with the payment process.”
10) Again, the appellant sought the consent of the respondent on
April 1, 2014 seeking advance payment of Rs.40,00,000/- and that
the balance payment of Rs.8,47,93,330/- was payable in 12
quarterly installments in three years. The communication of the
appellant reads as under:
“Reference:- Yours letter no.-zero dated 21.03.2014.
Sir,
Review is made of your letter regarding aforesaid
subject. In course of review for the payment, following
payment list is prepared.
(a) Total price on the date 31.03.2014 – Rs. Illegible.
(b) Advance payment – Rs.40,00,000/-
(c) Earlier deposited earnest amount-Rs.1,00,000/-
(d) 20 percent of total amount-Rs.2,11,98,400/-
(e) Deducted advance payment and earnest amountRs.41,00,000/-
(f) Rest preliminary amount to be deposited prior to
deed of agreement – Rs.1,70,98,400/-
(g) Rest amount of the Price-Rs.8,47,93,330/-
(h) Amount of instalment payable in 12 quarterly
instalments in three years-
(i) Normal with interest @14% Rs.87,74,750/-
(ii) By delay with interest @18% Rs.92,98,962/-
So if you are willing for the allotment in question,
please give your consent on aforementioned schedule,
otherwise it shall be deemed that you are not willing for
the allotment.”
6
11) The respondent communicated on April 2, 2014 accepting the
payment schedule under protest subject to final measurements of
the plot. Such communication reads as under:
“Ref: Housing Board’s Letter No. 2445 Dated
01/04/2014
Dear Sir,
Received the Board’s aforesaid Letter regarding the
payment schedule for plot No. GC 5 & GC 6,
Kankarbagh, Patna.
As stated earlier and in the light of our letter dt.
21/03/2014, we accept the payment schedule, under
Protest subject to the final measurement of the plots.
We are enclosing herewith two Banker’s cheques of
Rs.40,00,000/- (Rs. Forty Lacs),
1. Banker’s Cheque no. 021879 for Rs.20,00,000/-
(Rs.Twenty Lacs) and
2. Banker Cheque No. 021880 of Rs.20,00,000/-
(Rs.Twenty Lacs) Drawn at Patna dated 02/04/2014
as advance payment.
Please ensure the possession of Plot/Land, with
boundary wall erected (at our cost) at its earliest.”
12) It is thereafter, a formal letter of allotment was issued on
December 11, 2014 acknowledging that Rs.41 lakh stand deposited
and that 20% of the interim price of the land amounting to
Rs.2,11,98,400/- be paid within thirty days. Such amount was paid
by the respondent. It is thereafter, an Agreement was executed on
March 12, 2015 between the appellant and the respondent. Thus,
a concluded contract came into existence with deposit of the
amount demanded by the appellant and paid by the respondent.
7
13) After accepting the allotment on the price as per the
communication referred to above, the respondent filed a writ
petition disputing the allotment price. The learned Single Bench
allowed the writ petition on the basis that proportionate price of
the plot advertised in Lohia Nagar alone can be claimed by the
appellant.
14) The High Court has sought the basis of fixation of price of the plot
during the proceedings before it. The proportionate price claimed
by the appellant was found to be arbitrary. The High Court, vide
order dated September 19, 2016, issued the following directions:
“In my considered view, only that procedure could have
been followed for updation of price of allotment. Thus,
it is held that the Board has acted in arbitrary manner
in fixing the price of the plots concerned due to which
the petitioner has been fastened with a liability to pay a
price several times higher than which could have been
charged. It has also to be kept in mind that due to the
delay caused by the Board, the allotment could not be
finalized on the date fixed. Accordingly, this writ
petition is allowed. The price fixed by the Board is
quashed and set aside. The Board is directed to recalculate the cost of the plots of the petitioner in
accordance with the procedure adopted under
Annexure H appended with the counter affidavit within
a period of three months from the date of
receipt/production of a copy of this order and return the
excess amount, if any, having been paid by the
petitioner in terms of the calculation done by the Board.
If the same is not done within the aforesaid period of
three months, the petitioner would be entitled for
interest @14% per annum on the said amount to be
calculated from the date of expiry of the aforesaid
period of three months till Patna High Court CWJC
No.17694 of 2015 dt.19-09-2016 20/20 the date of final
payment.”
8
15) In terms of the directions of the High Court, the appellant has paid
back a sum of Rs.3,31,94,435.53.
16) It is the said order of the learned Single Judge, which was affirmed
in the Letters Patent Appeal, on the ground that the Board could
only claim up to date rate and not the market rate as claimed in
the letter of allotment.
17) The respondent in the counter affidavit in the present appeal has
referred to the decision taken by the appellant in its 193rd Meeting
dated February 10, 2000 on the basis of which office order was
issued on March 2, 2001 to fix reserve price for the purpose of
auction of the Plots/Houses/Flats. The decision is as under:
“(i) The auction price of such Plots/Houses/Flats, having
taken within one last preceding year.
(ii) The updated price of the Commercial rate fixed by
the Board.
(iii) The rate prescribed by the Collector for the
purpose of Registration.
In addition to this the Managing Director of the Bihar
State Housing Board was authorized to have discretion
keeping the place, time and circumstances.”
18) It is also pointed out that on June 13, 2013, the market value was
determined for calculation of premium for the Financial Year 2013-
2014 and that on the basis of such calculation, the price of the plot
allotted has been fixed.
9
19) Mr. Ranjit Kumar, learned senior counsel for the appellant, argued
that the decision of the Appellant is based upon rational basis in
terms of the decision of the Board taken earlier. It is argued that
after accepting the offer of allotment and paying initial amount, the
respondent is estopped to dispute the allotment price.
20) The argument of Mr. Neeraj Kishan Kaul, learned senior counsel
appearing for the respondent, is that the advertisement inviting
applications for allotment of plot contemplated charging of up to
date cost/price which is not the same as market price, therefore,
the appellant cannot charge market price of the plot. It was argued
that the decision of June 13, 2013 is in respect of sale of the plot by
the allottee to third person so as to pay 50% of the market value to
the appellant. Therefore, such decision has rightly not been
accepted by the High Court. It is also argued that office order
dated March 2, 2001 deals with fixation of reserve price in the
event of decision of the Board to auction the plot. Therefore, the
High Court has rightly fixed price of the plot on the basis of
calculations given by the appellant alone. Thus, the order of the
High Court does not warrant any interference in an appeal under
Article 136 of the Constitution of India.
21) We find that the entire approach of the High Court is erroneous and
not sustainable. Plot Nos. G-5 and G-6 located in Rajinder Nagar
Over Bridge were never advertised. The allotment of the
alternative plots was made by the appellant in lieu of the plot
10
advertised in Lohia Nagar, Kankarbagh, Patna measuring 43000 sq.
feet. The location and the size of the alternative plots are different.
22) Firstly, we need to examine as to whether, the appellant could allot
plots without advertisement. This Court in a judgment in Akhil
Bhartiya Upbhokta Congress v. State of Madhya Pradesh &
Ors.
1
 deprecated the practice of allotment of plots dehors an
invitation or advertisement by the State or its instrumentalities.
The Court held as under:
“66. We may add that there cannot be any policy,
much less, a rational policy of allotting land on the basis
of applications made by individuals, bodies,
organisations or institutions dehors an invitation or
advertisement by the State or its
agency/instrumentality. By entertaining applications
made by individuals, organisations or institutions for
allotment of land or for grant of any other type of
largesse the State cannot exclude other eligible persons
from lodging competing claim. Any allotment of land or
grant of other form of largesse by the State or its
agencies/instrumentalities by treating the exercise as a
private venture is liable to be treated as arbitrary,
discriminatory and an act of favouritism and/or
nepotism violating the soul of the equality clause
embodied in Article 14 of the Constitution.
67. This, however, does not mean that the State can
never allot land to the institutions/organisations
engaged in educational, cultural, social or philanthropic
activities or are rendering service to the society except
by way of auction. Nevertheless, it is necessary to
observe that once a piece of land is earmarked or
identified for allotment to institutions/organisations
engaged in any such activity, the actual exercise of
allotment must be done in a manner consistent with the
doctrine of equality. The competent authority should, as
a matter of course, issue an advertisement
1 (2011) 5 SCC 29
11
incorporating therein the conditions of eligibility so as
to enable all similarly situated eligible persons,
institutions/organisations to participate in the process of
allotment, whether by way of auction or otherwise. In a
given case the Government may allot land at a fixed
price but in that case also allotment must be preceded
by a wholesome exercise consistent with Article 14 of
the Constitution.”
23) In another judgment in Institute of Law, Chandigarh & Ors. v.
Neeraj Sharma & Ors.
2
, this Court upheld the order of the High
Court setting aside allotment of land in favour of the appellant
institute without giving any public notice and in the absence of a
transparent policy and any objective criteria.
24) Further, in Meerut Development Authority v. Association of
Management Studies & Anr.
3
, this Court held that a tender is an
offer. It is an invitation to seek communication to convey
acceptance. This Court held as under:
“26. A tender is an offer. It is something which invites
and is communicated to notify acceptance. Broadly
stated it must be unconditional; must be in the proper
form, the person by whom tender is made must be able
to and willing to perform his obligations. The terms of
the invitation to tender cannot be open to judicial
scrutiny because the invitation to tender is in the realm
of contract. However, a limited judicial review may be
available in cases where it is established that the terms
of the invitation to tender were so tailor-made to suit
the convenience of any particular person with a view to
eliminate all others from participating in the bidding
process.
27. The bidders participating in the tender process
have no other right except the right to equality and fair
treatment in the matter of evaluation of competitive
bids offered by interested persons in response to notice
2 (2015) 1 SCC 720
3 (2009) 6 SCC 171
12
inviting tenders in a transparent manner and free from
hidden agenda. One cannot challenge the terms and
conditions of the tender except on the abovestated
ground, the reason being the terms of the invitation to
tender are in the realm of the contract. No bidder is
entitled as a matter of right to insist the authority
inviting tenders to enter into further negotiations unless
the terms and conditions of notice so provided for such
negotiations.
28. It is so well settled in law and needs no
restatement at our hands that disposal of the public
property by the State or its instrumentalities partakes
the character of a trust. The methods to be adopted for
disposal of public property must be fair and transparent
providing an opportunity to all the interested persons to
participate in the process.”
25) Therefore, the respondent does not get any right of allotment of a
plot merely because it has applied for allotment earlier. The
response to an advertisement does not lead to any obligation on
the appellant to allot any plot. Admittedly, there was no allotment
in pursuance of the offer submitted by the respondent. Mere fact
that the respondent had applied for allotment of a plot does not
confer any legal or equitable right to seek allotment of any plot.
26) The appellant was more than indulgent in allotting two plots of
24000 sq. feet without any advertisement advertising such plots
merely on the basis of the fact that the respondent had applied for
allotment at an earlier stage in respect of another plot. The public
property could not be disposed of without any advertisement and
without giving opportunity to eligible persons to apply and seek
consideration of allotment of public property in a transparent and
non-discriminatory manner.
13
27) Therefore, the very allotment of two plots, on the basis of direction
given by the High Court to consider the claim of the respondent, is
against the public interest. However, the fact remains that after
allotment, the respondent has constructed hospital which is
operational therefore; it is too late in the day to cancel the
allotment of the plot allotted to the respondent.
28) The question raised before the High Court was whether the
appellant is entitled to updated price or the market price. We find
that such discussion by the High Court is totally irrelevant
inasmuch as the respondent has accepted the price on three
occasions; firstly on March 21, 2014, then on April 2, 2014
whereby, the respondent remitted a sum of Rs.40 lakhs by two
cheques as well. The respondent has accepted the payment
schedule but subject to final measurements of plots. It is
thereafter the letter of allotment was issued on December 11,
2014. Thirdly, the respondent remitted another sum of
Rs.1,71,00,000/- vide three separate cheques in January, 2015 so
as to complete 20% of the interim price of letter of allotment dated
December 11, 2014. It is thereafter an agreement was executed
on March 12, 2015 unequivocally and categorically accepting the
offer of the appellant. It was not open to the respondent to dispute
the price of allotment offered by the appellant. The respondent is
estopped to dispute the allotment price in these circumstances.
14
29) Recently, in a judgment of this Court in Uttar Pradesh Housing
and Development Board v. Ramesh Chandra Agarwal
4
, the
appeal was allowed against an order passed by the National
Consumer Disputes Redressal Commission for allotment of a plot
for the reason that the complainant has applied for allotment of a
plot way back in 1982. It was held that there was no contractual
entitlement for allotment of a flat at a specified price. The Court
held as under:
“13. The appellant is governed by the terms and
conditions advertised in its Registration Booklet and by
the 1979 Rules. Clause 5 of the Registration Booklet
indicates that mere registration does not confer a right
for allotment. Rule 15 makes a provision to the effect
that the Board is not bound to allot a house or plot to
every registered holder. Rule 30 indicates that after the
Board advertises the availability of a scheme in the
newspaper, every registered applicant is at liberty to
submit a consent letter for participation in the draw of
lots. Mere registration does not oblige the authority to
include every registered applicant in the draw of lots.
The applicant must show readiness and willingness to
participate in a draw of lots in respect of a specified
scheme. This is evident from Rule 30(2). A set of
priorities is provided in Rule 30(5). In view of the clear
position in the brochure and the 1979 Rules, the
respondent had no vested right to seek an allotment. As
a registered applicant, the respondent was at liberty to
seek to participate in the draw of lots by indicating his
consent to the appellant. After paying an initial sum of
Rs 500 in 1982 and a further sum of Rs 500 in 1985, the
respondent did not pursue any remedies until 1993
when he moved the District Forum. The order of the
District Forum gave liberty to the respondent to seek
allotment at the current market value under any of the
schemes of the appellant. NCDRC was manifestly in
error in issuing a direction to the appellant to make an
allotment to the respondent for a total sum of Rs
2,50,000 in any of the flats available in the Mandola
4 (2019) 6 SCC 554
15
Vihar Yojna, Ghaziabad. There is no rational basis or
justification for the amount of Rs 2,50,000 which has
been fixed by NCDRC. This direction proceeds purely on
the basis of the ipse dixit of the forum. The appellant,
as a public authority, could not have been compelled to
enter into a contract with the respondent. There was no
contractual entitlement of the respondent to the
allotment of a flat much less for an allotment at a
specified price. In its effort to render justice, NCDRC has
adopted a view which is contrary to the basic principles
of contract governing the law on the subject.”
(emphasis supplied)
30) The appellant as a State is required to act fairly in fixation of price
for allotment of a plot. The order of the High Court to direct the
appellant to charge the price proportionate to the price advertised
earlier has no legal basis. It is a commercial decision taken by the
appellant fixing the price of the plot. In the matter of fixation of
price, the Board has a right to fix such price, more so, when such
price was accepted by the respondent on three different occasions
as mentioned above.
31) The action of the respondent to dispute the allotment price after
accepting the price is neither fair nor reasonable and cannot be
accepted.
32) In terms of judgment of this Court in Style (Dress Land) v. Union
Territory, Chandigarh & Anr.
5
, the appellant is entitled to the
allotment price along with interest on the delayed payment even if
there is stay by the Court. But, keeping in view the cause of
allotment of plot i.e. hospital, we order, in exercise of our
5 (1999) 7 SCC 89
16
jurisdiction under Article 142 of the Constitution, that the interest
for the period from the date of filing of the writ petition before the
High Court till the date of order of this Court shall not be charged
from the respondent provided respondent pays the entire balance
sale consideration in terms of the condition of allotment within six
months from today.
33) In view of the above, we find that the order of the High Court is not
sustainable in law, thus, the order is set aside. The appeal is
accordingly allowed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
SEPTEMBER 13, 2019.
17

correctness of the judgment rendered in the case of HUDA vs. Sunita, (2005) 2 SCC 479. This Court therein held that the National Consumer Disputes Redressal Commission (hereinafter referred to as “NCDRC”) had no jurisdiction to adjudicate the legality behind the demand of “composition fee” and “extension fee” made by HUDA, as the same being statutory obligation, does not qualify as “deficiency in service”. = Therefore, in line with the law laid down by us, we hold that the determination of the dispute concerning the validity of the imposition of a statutory due arising out of a “deficiency in service”, can be undertaken by the consumer fora as per the provisions of the Act. The decision of this Court in the case of Sunita (supra), wherein it was held that NCDRC has no jurisdiction to adjudicate the legitimacy of the aforementioned statutory dues, was rendered without considering any of the previous judgments of this Court and the objects of the Act. Consequently, the law laid down in the aforesaid case does not hold good before the eyes of law, and is thereby overruled.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
    SLP (C)   NO. 4272 OF 2015
PUNJAB URBAN PLANNING AND                    …PETITIONER
DEVELOPMENT AUTHORITY (NOW GLADA)
VERSUS
VIDYA CHETAL                                        …RESPONDENT
WITH
    SLP (C) NO. 5237 OF 2015
PUNJAB URBAN DEVELOPMENT                 …PETITIONERS
AUTHORITY AND ANOTHER
VERSUS
RAM SINGH                      …RESPONDENT
    JUDGMENT
    N.V. RAMANA, J.
1. The reference before us arises out of the order dated 13.07.2018,
passed by a two­Judge Bench of this Court, wherein they expressed
1
doubt as to the correctness of the judgment rendered in the case of
HUDA vs. Sunita, (2005) 2 SCC 479. This Court therein held that
the   National   Consumer   Disputes   Redressal   Commission
(hereinafter   referred   to   as   “NCDRC”)   had   no   jurisdiction   to
adjudicate the legality behind the demand of “composition fee” and
“extension   fee”   made   by   HUDA,   as   the   same   being   statutory
obligation, does not qualify as “deficiency in service”.
2. It is pertinent herein to note the opinion expressed by the twoJudge Bench regarding the decision in the case of  Sunita (supra)
while passing the referral order:
“We are, prima facie, of the view that this sixparagraph   order,   which   does   not,   prima   facie,
contain   any   reason   for   the   conclusion   reached,
requires   a   relook   in   view   of   the   fact   that   the
Consumer   Protection   Act,   1986   is   a   beneficent
legislation”
3. The counsel on behalf of the petitioner submitted that the order
in  the case of  Sunita  (supra) is well reasoned, as it validly holds
that the NCDRC lacks jurisdiction to decide the legitimacy behind
the demand of “composition fee” and “extension fee”. Relying on the
aforesaid holding, the counsel further stated that “statutory dues”
cannot be claimed as “deficiency in services”. Lastly, the learned
counsel   submitted   that   although   the   Consumer   Protection   Act,
2
1986 (hereinafter referred to as “the Act”) is beneficial in nature,
demanding   a   liberal   construction,   the   same   cannot   be   used   to
extend the ambit of the Act by bringing in remedies or benefits
which were not intended by the legislature.
4. On the contrary, the learned senior counsel appointed by this
Court   as   amicus   curiae   to   assist   and   appear   on   behalf   of   the
respondent claimed that the order passed in the case of  Sunita
(supra), is an aberration in a series of long­standing judgments by
this   Court.   The   learned   amicus   curiae   thereafter   placed   strong
reliance   upon   the   judgments   of   this   Court   in  Lucknow
Development  Authority  v.  M.K.  Gupta,  (1994)  1 SCC  243,  and
Ghaziabad   Development   Authority   v.   Balbir   Singh,   (2004)   5
SCC 65, wherein it was held that the NCDRC has the jurisdiction to
protect consumers against defective services rendered even by a
statutory   body.   Further,   the   learned   amicus   curiae,   while
supporting the view that the Sunita case (supra) was per incuriam,
has   taken   us   through   various   judgments   of   this   Court   in   this
regard and submitted that the statutory authorities come under the
ambit of the Act.
3
5. Heard the learned counsel appearing on behalf of the petitioner
and the learned amicus curiae in this case. The precise question
raised before us is whether the law laid down by this Court in the
case of  Sunita  (supra)  is valid. We may note that the validity of
interpretation furthered in the case of Sunita (supra) hinges on the
interpretation of Section 2(1)(d), 2(1)(e), 2(1)(f), 2(1)(g) and 2(1)(o) of
the Act.
6. At the outset, we must remind ourselves that answer to majority
of legal questions before Courts essentially lie in the process of
interpretation.1
 This Court in Commissioner of Customs (Import),
Mumbai   v.   Dilip   Kumar   and   others,   (2018)   9   SCC   40,   had
emphasized   that   the   purpose   of   interpretation   is   to   find   the
legislative intent of an Act. It is established by umpteen number of
cases in India and abroad that beneficial or remedial legislation
needs to be given ‘fair and liberal interpretation’ [refer Om Prakash
v. Reliance General Insurance and Anr., (2017) 9 SCC 724]. In
this regard we may note that, the liberal construction, extends the
letter to include matters within the spirit or purpose.2
1  Justice Felix Frankfurter, Some Reflections on Reading of Statutes, Columbia Law
Review, VOL. 47, Issue 4, PP. 527­546
2 Sutherland, Statutes and Statutory Construction, §5505 (Callaghan, 1943).
4
7. Having observed the law on beneficial interpretation, we need to
observe the concerned statutory provisions of the Act:
Section 2 (1) (g) “deficiency”­ means any fault,
imperfection, shortcoming or inadequacy in the
quality, nature and manner of performance which
is required to be maintained by or under any law
for the time being in force or has been undertaken
to be performed by a person in pursuance of a
contract or otherwise in relation to any service.
Thus, meaning of deficiency is explained as any fault, imperfection,
shortcoming   or   inadequacy   in   quality,   nature   and   manner   of
performance   of   any   service   or   supply   of   goods,   in   terms   of
standards   set   by   the   parties   themselves   through   contract   or
otherwise, or imposed by the law in force. The basis for application
of   the   consumer   laws   hinges   on   the   relationship   between   the
service provider and consumer. The usage of ‘otherwise’ within the
provision subsumes other modes of standard setting alternative
instruments other than contracts such as laws, bye­laws, rules and
customary practices etc.
8. Service is defined under Section 2(1)(o) of the Act, which reads as
under:­
(o)  “service”  means   service   of   any   description
which   is   made   available   to   potential users   and
includes,   but   not   limited   to,   the   provision   of
5
facilities   in   connection   with   banking,   financing
insurance,   transport,   processing,   supply   of
electrical   or   other   energy,   board   or   lodging   or
both, housing   construction,   entertainment,
amusement   or   the   purveying   of   news   or   other
information, but does not include the rendering of
any service free of charge or under a contract of
personal service;
This definition is not exhaustive rather the legislature has left the
task   to   expound   the   provision   on   a   case   to   case   basis   to   the
judiciary. The purpose of leaving this provision open ended, without
providing an exhaustive list indicates the requirement for a liberal
interpretation. Broadly speaking, it is inclusive of all those services
performed   for   a   consideration,   except   gratuitous   services   and
contract of personal services. Moreover, aforesaid provision reflects
the legislative intent of providing impetus to ‘consumerism’. It may
be noted that such a phenomenon has had a benevolent effect on
the   Government   undertakings,   wherein   a   new   dynamism   of
innovation, accountability and transparency are imbibed.
9. On perusal of the impugned precedent, it may be noted that it
does not provide clear­cut reasoning for the view held by the Court,
except to the extent of pointing out that statutory obligations are
not   encompassed   under   the   Act.   Such   broad   proposition
necessarily required further elaboration, as there is a possibility of
6
over­inclusivity. Further, there is no gainsaying that all statutory
obligations   are   not   sovereign   functions.   Although   all   sovereign
functions/services   are   regulated   and   performed   under
constitutional/statutory instruments, yet there are other functions,
though   might   be   statutory,   but   cannot   be   called   as   sovereign
functions. These sovereign functions do not contain the consumerservice   provider   relationship   in   them   and   are   not   done   for   a
consideration. Moreover, we need to be mindful of the fact that
sovereign functions are undergoing a radical change in the face of
privatization   and   globalization.   India   being   a   welfare   State,   the
sovereign   functions   are   also   changing.   We   may   note   that   the
government in order to improve the quality of life and welfare of its
citizens, has undertaken many commercial adventures.
10. Sovereign functions like judicial decision making, imposition of
tax, policing etc, strictly understood, qualify for exemption from the
Act,   but   the   welfare   activities   through   economic   adventures
undertaken  by  the Government  or statutory  bodies  are  covered
under   the   jurisdiction   of   the   consumer   forums.   Even   in
departments   discharging   sovereign   functions,   if   there   are   subunits/wings   which   are   providing   services/supply   goods   for   a
consideration and they are severable, then they can be considered
7
to come within the ambit of the Act. [refer to Standard Chartered
Bank Ltd. v. Dr. B. N. Raman, (2006) 5 SCC 727]
11. Having   observed   the   provisions   and   the   interpretation   of
pertinent provisions, we need to refer to  Lucknow  Development
Authority Case (supra), wherein this Court was concerned with the
question as to the amenability of statutory authorities like Lucknow
Development Authority, for development of plots, to the Consumer
Protection Act, 1986.
12. This Court in  Lucknow  Development   Authority   Case  (supra)
elaborated the meaning of ‘Consumer’, as occurring under Section
2(1)(b), in the following manner:­
“3……The   word   ‘consumer’   is   a   comprehensive
expression. It extends from a person who buys any
commodity   to   consume   either   as   eatable   or
otherwise from a shop, business house, corporation,
store,   fair   price   shop   to   use   of   private   or   public
services.
…
It is in two parts. The first deals with goods and the
other   with   services.   Both   parts   first   declare   the
meaning   of   goods   and   services   by   use   of   wide
expressions. Their ambit is further enlarged  by use
of   inclusive   clause.   For   instance,   it   is   not   only
purchaser of goods or hirer of services but even those
who use the goods or who are beneficiaries of services
with approval of the person who purchased the goods or
who hired services are included in it.”
(emphasis supplied)
8
13. Further, this Court elaborated on the meaning of the ‘service’ in
the following manner:­
“4.   What is the meaning of the word ‘service’? Does it
extend to deficiency in the building of a house or flat? Can
a   complaint   be   filed   under   the   Act   against   the
statutory authority or a builder or contractor for any
deficiency in respect of such property.
…..
It   is   in   three   parts.   The   main   part   is   followed   by
inclusive clause and ends by exclusionary clause. The
main   clause   itself   is   very   wide.   It   applies   to   any
service  made  available  to  potential  users.  The  words
‘any’ and ‘potential’ are significant. Both are of wide
amplitude. The word ‘any’ dictionarily means ‘one or
    some or all’. In     Black's Law Dictionary it is explained
thus, “word ‘any’ has a diversity of meaning and may
be   employed   to   indicate   ‘all’   or   ‘every’   as   well   as
‘some’   or   ‘one’   and   its  meaning   in   a   given   statute
depends  upon  the  context  and  the  subject­matter  of
the statute”. The use of the word ‘any’ in the context
    it   has   been   used   in   clause   (  o)   indicates   that   it   has
been used in wider sense extending from one to all.
…
The   legislative   intention   is   thus   clear   to   protect   a
consumer   against   services   rendered   even   by   statutory
bodies.   The   test,   therefore,   is   not   if   a   person   against
whom complaint is made is a statutory body but whether
the nature of the duty and function performed by it is
service or even facility.”
(emphasis supplied)
Thereafter,   this   Court   answered   the   relevant   question   in   the
following manner:­
“5. This takes us to the larger issue if the public
authorities   under   different   enactments   are
9
amenable   to   jurisdiction   under   the   Act.  It   was
vehemently   argued   that   the   local   authorities   or
government   bodies   develop   land   and   construct
houses   in   discharge   of   their   statutory   function,
therefore,   they   could   not   be   subjected   to   the
provisions of the Act. …
… Any attempt, therefore, to exclude services offered
by statutory or official bodies to the common man
would be against the provisions of the Act and the
spirit behind it. … A government or semi­government
body or a local authority is as much amenable to the
Act   as   any   other   private   body   rendering   similar
service. Truly speaking it would be a service to the
society   if   such   bodies   instead   of   claiming
exclusion   subject  themselves  to  the  Act  and   let
their acts and omissions be scrutinised as public
accountability is necessary for healthy growth of
society.
6. What   remains   to   be   examined   is   if   housing
construction   or   building   activity   carried   on   by   a
private   or   statutory   body   was   service   within   the
meaning of clause (o) of Section 2 of the Act as it
stood prior to inclusion of the expression ‘housing
construction’   in   the   definition   of   “service”   by
Ordinance No. 24 of 1993. … So any service except
when it is free of charge or under a constraint of
personal  service   is  included  in   it.  Since  housing
activity is a service it was covered in the clause
as it stood before 1993.
…
8…..Under  our  Constitution  sovereignty  vests   in
the   people.   Every   limb   of   the   constitutional
machinery   is   obliged   to   be   people   oriented.   No
functionary   in   exercise   of   statutory   power   can
claim   immunity,  except  to  the  extent  protected
by the statute itself. Public authorities acting in
violation of constitutional or statutory provisions
10
oppressively  are  accountable   for  their  behaviour
before authorities  created  under the statute like
the   commission   or   the   courts   entrusted   with
responsibility  of  maintaining   the   rule  of   law.  …
Therefore,   when   the   Commission   has   been   vested
with   the   jurisdiction   to   award   value   of   goods   or
services and compensation it has to be construed
widely   enabling   the   Commission   to   determine
compensation for any loss or damage suffered by a
consumer which in law is otherwise included in wide
meaning of compensation.
(emphasis supplied)
14. Coming back to the Sunita case (supra), this Court held that the
NCDRC had no jurisdiction to adjudicate the legality behind the
demand   of   composition   or   extension   fee   by   a   developmental
authority. This Court observed that the statutory obligations of a
developmental authority and the plot holder under the authority’s
statutory   framework   cannot   be   construed   as   acts   or   omissions
resulting in a “deficiency in service”. In view of the law laid down by
us, the interpretation provided by the Sunita case (supra) cannot
be   sustained   as   the   service   provided   by   the   petitioner   herein
squarely comes under the ambit of ‘service’.
15. We   do   understand   that   the   confusion,   which   arose   from   the
aforesaid situation, is that the authority does have the power to levy
certain  statutory fee. However,  that  itself does not  prohibit  the
Consumer forums from evaluating the legality of such exactions or
11
fulfilment of conditions by the authority before such exaction. In
broad terms, non­fulfilment of conditions or standards required,
amounts to ‘deficiency in services’ under the Act. Having said that,
out of abundant caution, we note that the legality does not extend to
the   challenge   of  vires  of   a   rule   prescribing   such   fee.   Such
contentions are best agitated before the Constitutional Courts.
16. On a different note, if the statutory authority, other than the core
sovereign duties, is providing service, which is encompassed under
the   Act,   then,   unless   any   Statute   exempts,   or   provides   for
immunity, for deficiency in service, or specifically provides for an
alternative forum, the Consumer Forums would continue to have
the jurisdiction to deal with the same.3 We need to caution against
over­inclusivity and the tribunals need to satisfy the ingredients
under Consumer Protection Laws, before exercising the jurisdiction.
17. Moreover,   we   also   need   to   note   that   the  distinction   between
statutory liability which arise generally such as a tax, and those
that may arise out of a specific relationship such as that between a
service provider and a consumer, was not considered by this Court
in  the case of  Sunita  (supra). For instance, a tax is a mandatory
imposition by a public authority for public purpose enforceable by
3 Section 3 of the Act.
12
law;   and   is   not   imposed   with   respect   to   any   special   benefit
conferred, as consideration, on the tax payer. There is no element of
quid   pro   quo  between   the   tax   payer   and   the   public   authority.
However,   the   above   is   not   the   only   form   of   due   charged   by   a
statutory   authority.   In   a   catena   of   judgments,   this   Court   has
recognized   that   certain   statutory   dues   may   arise   from   services
rendered by a statutory authority. In the case of  Commissioner,
Hindu   Religious   Endowments,   Madras   v.   Sri   Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005,  a seven
Judge­Bench of this Court held that­
“46. Coming now to fees, a “fee” is generally
defined  to  be  a  charge   for  a   special   service
rendered   to   individuals   by   some
governmental   agency.  The   amount   of   fee
levied   is   supposed   to   be   based   on   the
expenses   incurred   by   the   Government   in
rendering the service, though in many cases
the costs are arbitrarily assessed. Ordinarily,
the fees are uniform and no account is taken of
the varying abilities of different recipients to pay
[ Vide Lutz on Public Finance, p. 215]. These are
undoubtedly some of the general characteristics,
but as there may be various kinds of fees, it is
not possible to formulate a definition that would
be applicable to all cases.
47. …The distinction between a tax and a fee
lies primarily in the fact that a tax is levied
as a part of a common burden, while a fee is
a payment for a special benefit or privilege.
13
Fees   confer   a   special   capacity,   although   the
special advantage, as for example in the case of
registration   fees   for   documents   or   marriage
licences, is secondary to the primary motive of
regulation in the public interest [Vide Findlay
Shirras on Science of Public Finance, Vol. I, p.
202]. Public interest seems to be at the basis of
all impositions, but in a fee, it is some special
benefit which the individual receives.”
(emphasis supplied)
18. A five Judge Bench of this Court, in the case of Kewal Krishan
Puri and Anr. v. State of Punjab and Anr.,  (1980) 1 SCC 416,
also took note of the fact that certain statutory dues can arise from
a quid pro quo relationship between the authority and an individual
upon whom the liability falls.
“23. …(6) That the element of quid pro quo
may not be possible, or even necessary, to be
established with arithmetical exactitude but
even   broadly   and   reasonably  it   must   be
established  by  the  authorities  who  charge
the fees that the amount is being spent for
rendering  services  to  those on whom  falls
the burden of the fee.”
(emphasis supplied)
19. Therefore,   it   is   a   clearly   established   principle   that   certain
statutory dues, such as fees, can arise out of a specific relation.
Such statutory dues might be charged as a  quid pro quo  for a
privilege conferred or for a service rendered by the authority. As
14
noted above, there are exactions which are for the common burden,
like taxes, there are dues for a specific purpose, like cess, and there
are dues in lieu of a specific service rendered. Therefore, it is clear
from the above discussion that not all statutory dues/exactions are
amenable to the jurisdiction of the Consumer Forum, rather only
those exactions which are exacted for a service rendered, would be
amenable to the jurisdiction of the Consumer Forum.
20. At the cost of repetition, we may note that those exactions, like
tax, and cess, levied as a part of common burden or for a specific
purpose, generally may not be amenable to the jurisdiction of the
Consumer Forum. However, those statutory fees, levied  in lieu of
service provided, may in the usual course be subject matter of
Consumer Forum’s jurisdiction provided that there is a ‘deficiency
in service’ etc.
21. We   may   also   refer   to   the   case   of  Ghaziabad   Development
Authority  (supra)  wherein   this   Court,   relying   upon  Lucknow
Development  Authority  case  (supra), held that the power of the
Consumer forum extends to redressing any injustice rendered upon
a   consumer   as   well   as   over   any  mala   fide,   capricious   or   any
oppressive act done by a statutory body. The relevant para of the
judgment reads as under:
15
“6.   ….Thus,   the   law   is   that   the   Consumer
Protection   Act   has   a   wide   reach   and   the
Commission  has   jurisdiction  even   in  cases  of
service   rendered   by   statutory   and   public
authorities.   Such   authorities   become   liable   to
compensate for misfeasance in public office i.e. an
act which is oppressive or capricious or arbitrary
or negligent provided loss or injury is suffered by
a citizen.
…
Where there has been capricious  or arbitrary
or negligent exercise or non­exercise of power
by   an   officer   of   the   authority,   the
Commission/Forum has a statutory obligation
to   award   compensation.   If   the
Commission/Forum   is   satisfied   that   a
complainant   is   entitled   to   compensation   for
loss   or   injury   or   for   harassment   or   mental
agony   or   oppression,   then   after   recording   a
finding   it   must   direct   the   authority   to   pay
compensation   and   then   also   direct   recovery
from   those   found   responsible   for   such
unpardonable behaviour.
(emphasis supplied)
22. Therefore, in line with the law laid down by us, we hold that the
determination   of   the   dispute   concerning   the   validity   of   the
imposition of a statutory due arising out of a “deficiency in service”,
can be undertaken by the consumer fora as per the provisions of
the Act. The decision of this Court in  the case of  Sunita (supra),
wherein it was held that NCDRC has no jurisdiction to adjudicate
the legitimacy of the aforementioned statutory dues, was rendered
16
without considering any of the previous judgments of this Court
and the objects of the Act. Consequently, the law laid down in the
aforesaid case does not hold good before the eyes of law, and is
thereby overruled.
23. The reference stands answered accordingly. The instant special
leave   petitions   may   be   placed   before   an   appropriate   Bench   for
considering   the   case   on   merits   after   obtaining   orders   from   the
Hon’ble Chief Justice of India.
  .........................J.
    (N.V. RAMANA)
                                      ........................J.
                                             (MOHAN M. SHANTANAGOUDAR)
        ........................J.
         (AJAY RASTOGI)
NEW DELHI;
SEPTEMBER 16, 2019.
17

WISH YOU ALL A HAPPY VINAYAKA CHAVITHI 
LORD GANESH 
                   BLESS YOU & YOUR FAMILIES 
                  WITH GREAT HEALTH & WEALTH
                                            WITH REGARDS
                                                       

                                  ADVOCATEMMMOHAN