Maharashtra Legislative Assembly elections jointly. On 24.10.2019, G. Parmeshwara v. Union of India, (2018) 16 SCC 46, wherein identical directions were issued in respect of formation of Government in the State of Karnataka to test whether the Chief Minister so appointed enjoyed the majority support of the House. Noticing the fact that the elected members of the Legislative Assembly, as in the present case, were yet to take oath and the Speaker was also not elected, the following procedure was directed to be followed for conducting the floor test: “8… (A) Pro­tem Speaker shall be appointed for the aforesaid purpose immediately. (B) All the elected members shall take oath tomorrow (19­5­2018) and this exercise shall be completed before 4.00 p.m. (C) The Pro­tem Speaker shall conduct the floor test on 19­5­2018 at 4.00 p.m. in order to ascertain the majority and it shall not be by secret ballot and these proceedings shall be conducted in accordance with law. (D) Adequate and sufficient security arrangements shall be made and Director General of Police, State of Karnataka will himself supervise the said arrangements so that there is no lapse on this count whatsoever.” It was directed that the floor test would be conducted immediately the next date, i.e., the date following the order. 27. We may note that in the present case, oath has not been administered to the elected members even though a month has elapsed since the declaration of election results. In such emergent facts and circumstances, to curtail unlawful practices such as horse trading, to avoid uncertainty and to effectuate smooth running of democracy by ensuring a stable Government, we are of the considered opinion that it is necessary to pass certain interim directions in this case. In this context, it is necessary and expedient to conduct the floor test as soon as possible to determine whether the Chief Minister, who was administered the oath of office, has the support of the majority or not. Since the elected members of the Legislative Assembly are yet to take oath as specified in the III Schedule of the Constitution, and the Speaker is also yet to be elected, we request the Governor of the State of Maharashtra to ensure that a floor test be held on 27.11.2019. The following procedure is to be followed for conducting the floor test: a. Pro­tem Speaker shall be solely appointed for the aforesaid agenda immediately. b. All the elected members shall take oath on 27.11.2019, which exercise should be completed before 5:00 p.m. c. Immediately thereafter, the Pro­tem Speaker shall conduct the floor test in order to 18 ascertain whether the Respondent No. 3 has the majority, and these proceedings shall be conducted in accordance with law. The floor test will not be conducted by secret ballot. d. The proceedings have to be live telecast, and appropriate arrangements are to be made to ensure the same.

 Maharashtra   Legislative   Assembly elections   jointly.   On   24.10.2019,
G.  Parmeshwara  v.  Union  of   India, (2018)  16  SCC  46,  
wherein identical directions were issued in respect of formation of Government in the State of Karnataka to test whether the Chief Minister so appointed enjoyed the majority support of the House. Noticing the fact that the elected members of the Legislative Assembly, as in the present case, were yet to take oath and the Speaker was also not elected, the following procedure was directed to be followed for conducting the floor test:
“8…
(A)   Pro­tem   Speaker   shall   be   appointed   for   the
aforesaid purpose immediately.
(B) All the elected members shall take oath tomorrow
(19­5­2018)   and   this   exercise   shall   be   completed
before 4.00 p.m.
(C) The Pro­tem Speaker shall conduct the floor test
on 19­5­2018 at 4.00 p.m. in order to ascertain the
majority and it shall not be by secret ballot and these
proceedings shall be conducted in accordance with
law.
(D)   Adequate   and   sufficient   security   arrangements
shall be made and Director General of Police, State of
Karnataka   will   himself   supervise   the   said
arrangements so that there is no lapse on this count
whatsoever.”
It was directed that the floor test would be conducted immediately the next date, i.e., the date following the order.

27. We   may   note   that   in   the   present   case,   oath   has   not   been administered to the elected members even though a month has elapsed since the declaration of election results. In such emergent
facts and circumstances, to curtail unlawful practices such as horse   trading,   to   avoid   uncertainty   and   to   effectuate   smooth running of democracy by ensuring a stable Government, we are of the considered opinion that it is necessary to pass certain interim directions   in   this   case.   In   this   context,   it   is   necessary   and expedient   to   conduct   the   floor   test   as   soon   as   possible   to determine whether the Chief Minister, who was administered the oath of office, has the support of the majority or not. Since the elected members of the Legislative Assembly are yet to take oath as   specified   in   the   III   Schedule   of   the   Constitution,   and   the Speaker is also yet to be elected, we request the Governor of the State   of   Maharashtra   to   ensure   that   a   floor   test   be   held   on 27.11.2019.   
The   following   procedure   is   to   be   followed   for conducting the floor test:
a. Pro­tem Speaker shall be solely appointed for 
the aforesaid agenda immediately. 
b. All the elected members shall take oath on 
27.11.2019, which exercise should be 
completed before 5:00 p.m.
c. Immediately thereafter, the Pro­tem Speaker 
shall conduct the floor test in order to 
18
ascertain whether the Respondent No. 3 has 
the majority, and these proceedings shall be 
conducted in accordance with law. The floor 
test will not be conducted by secret ballot.
d. The proceedings have to be live telecast, and 
appropriate arrangements are to be made to 
ensure the same.

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 1393 OF 2019
SHIV SENA AND ORS. …PETITIONERS
VERSUS
UNION OF INDIA AND ORS.                   …RESPONDENTS
    ORDER
1. There   is   no   gainsaying   that   the   boundaries   between   the
jurisdiction of Courts and Parliamentary independence have been
contested   for   a   long   time.1
  However,   there   is   a   need   and
requirement for recognizing institutional comity and separation of
powers   so   as   to   tailor   judicial   interference   in   the   democratic
processes only as a last resort. This case pertains to one such
situation, wherein this Court is called upon to adjudicate and
maintain   democratic   values   and   facilitate   the   fostering   of   the
citizens’ right of good governance.
2. Before we pass any orders, we need to make a brief reference to
the factual aspects giving rise to the petition herein. It was well
known   that   there   existed   a   pre­poll   alliance   between   the
1 Erskine May, Parliamentary Practice, 25th edition, 321 (2019).
1
REPORTABLE
Bharatiya Janata Party [for short ‘BJP’] and the Shiv Sena, who
contested   the   Fourteenth   Maharashtra   Legislative   Assembly
elections   jointly.   On   24.10.2019,   the   results   for   the   aforesaid
elections  were  declared and  no  single party  had the  requisite
majority in the House. On 09.11.2019, the Governor called upon
the BJP to indicate its willingness to form the Government, being
the single largest party with 105 seats. However, the BJP declined
to form the Government on 10.11.2019, as the alliance with the
Shiv Sena allegedly broke down.
3. Subsequently, the Governor invited the Shiv Sena to form the
Government. In this regard, the Shiv Sena is said to have shown
its willingness to stake a claim to form the Government, claiming
to have support of the majority. However, the aforesaid endeavor
was not fruitful either. Thereafter, the Governor’s effort to seek
the Nationalist Congress Party’s [for short ‘NCP’] willingness to
stake a claim to form the Government was also not successful.
Ultimately,   the   Governor   recommended   President’s   Rule   on
12.11.2019, which was imposed by a Presidential Proclamation on
the same day.
4. It is brought to our attention that the Petitioners, i.e., Shiv Sena,
NCP and the Indian National Congress [for short ‘INC’] were in
2
discussion to form a coalition government during this period, and
accordingly, a press conference is supposed to have been held on
22.11.2019 regarding the same.
5. It has been canvassed before us that at 5:47 a.m., on 23.11.2019,
the President’s Rule was revoked in exercise of powers conferred
by clause (2) of Article 356 of the Constitution. Thereafter, the
Governor, by letter dated 23.11.2019 invited Respondent No. 3 to
form   the   Government.   The   oath   of   office   and   secrecy   was
administered accordingly to Respondent Nos. 3 and 4 at around
8.00 a.m. on 23.11.2019 at Raj Bhavan, Mumbai.
6. Aggrieved by the Governor’s action in calling upon Respondent
No. 3 to form the Government, the Petitioners have approached
this Court under Article 32 of the Constitution on 23.11.2019
with the following prayers:
“a.   Pass   an   appropriate   writ/order/direction
declaring   that   action/order   of   the   Hon’ble
Governor   dated   23.11.2019   inviting   Shri
Devendra Fadnavis to form the Government
on 23.11.2019 as unconstitutional, arbitrary,
illegal, void­ab­initio, and violative of Article
14 of Constitution of India; and accordingly
quash the same;
b. Pass an appropriate writ/order/direction to
the Hon’ble Governor to invite the alliance of
Maha Vikas Aghadi comprising of the Shiv
Sena,   Indian   National   Congress   and   the
Nationalist   Congress   Party   which   has   the
support of more than 144 MLAs to form the
3
Government   under   the   leadership   of   Shri.
Uddhav Thackeray;
…”
7. At this juncture, it is necessary to extract some of the prayers for
interim   directions   sought   by   the   Petitioners   in   the   present
petition:
“a.   Issue   appropriate   directions   in   terms   of
summoning   a   special   session   of   the
Fourteenth   Maharashtra   Legislative
Assembly   with   the   only   agenda   of
administering oath to the MLAs, immediately
followed   by   the   holding   of   a   floor   test   on
24.11.2019;
…
d. Issue appropriate directions in terms of the
order   dated   24.02.1998   passed   by   this
Hon’ble Court in Jagadambika Pal  (supra)
as well as  Harish  Chandra  Singh  Rawat
(supra) directing that the proceedings of the
House be video recorded and a copy of the
video recording be placed on record of this
Hon’ble Court;
e. Issue appropriate directions appointing a protem Speaker to preside over the conduct of
the floor test;”
8. Further,   the   Petitioners   have   filed   an   affidavit   indicating   the
urgency and requirement for hearing the matter on 23.11.2019
itself. Accordingly, the Hon’ble Chief Justice was pleased to place
the   matter   before   this   Bench   and   the   matter   was   heard   on
24.11.2019 (Sunday) at 11:30 a.m. After hearing the parties, this
Court passed the following order:
“Issue notice.
4
It was brought to our notice by the learned
Senior counsels appearing for the petitioners
that   they   have   served   the   respondents
through   e.mail.   However,   there   is   no
representation for Respondent Nos.2, 3 and
4.
Mr. Tushar Mehta, learned Solicitor General
appearing for the Union of India is willing to
produce   the   relevant   record,   if   necessary,
from the Governor also.
Mr. Mukul Rohatgi, learned Senior counsel
who is appearing for some BJP MLAs and
two independent MLAs, who are not parties
to   this   Writ   Petition,   opposed   the
entertaining of the Writ Petition as well as
passing of any order.
We have taken note of all the arguments,
particularly   the   argument   that   the
Governor’s   decision   dated   23­11­2019
inviting   the   Respondent   No.3   to   form   a
Government   on   23­11­2019   is
unconstitutional. With regard to the second
prayer as at `b’, we are not going to consider
the same at present. As adjudication of the
issues and also the interim prayers sought
by the petitioners to conduct floor test within
24 hours has to be considered after perusing
the   order   of   the   Governor   as   well   as   the
letters submitted by Mr. Devendra Fadnavis
–   Respondent   No.3,   even   though   none
appeared   for   the   State   Government,   we
request Mr. Tushar Mehta to produce those
two letters by tomorrow  morning  at  10.30
a.m. when the matter will be taken up, so
that appropriate order will be passed.”
9. When the matter was taken up for hearing on 25.11.2019, the
Solicitor General of India, produced the letters in compliance of
the order of this Court dated 24.11.2019.
5
10. Heard the learned counsel appearing for both sides.
11. The learned Senior Counsel for Petitioner No. 1, Mr. Kapil Sibal
submitted that  prima facie,  the action of the Governor revoking
President’s Rule at 5:47 a.m. and administering the oath of office
at   around   8:00   a.m.   reeks   of  mala   fide.  The   learned   Senior
Counsel   further   submitted   that   Respondent   No.   4   was   never
authorized to form the alliance with Respondent No. 3. Therefore,
Respondent No. 3 must prove his majority on the floor of the
House. For this purpose, as per established norms, the senior
most member must be called for assuming the role of  pro­tem
Speaker, after which there must be an open ballot and the same
should   be   captured   in   a   video   recording   so   as   to   ensure
transparency.
12. Agreeing  with   the  aforementioned  submissions,  learned  Senior
Counsel Dr. A.M Singhvi appearing for Petitioner Nos. 2 and 3
submitted that the Governor turned a blind eye by accepting the
proposal of formation of the Government put forth by Respondent
No. 3. The letter presented to the Governor, although allegedly
signed by 54 elected members of the NCP, was unaddressed and
did not have a covering letter or any other statement promising
their   alliance   to   the   BJP.   In   the   aforesaid   context,   the   sole
6
reliance on the aforesaid letter to prove majority was not prudent.
Moreover, when both sides are agreeable to the conduction of a
floor test, and an order directing the conduction of the same is not
prejudicial to anyone, then there is no reason to defer the same.
13. On the other hand, learned Solicitor General submitted that the
satisfaction of the Governor was based on the material placed
before   him,   wherein   it   was   indicated   that   Respondent   No.   3
enjoyed   the   support   of   105   elected   members   of   the   BJP,   54
elected members of the NCP and 11 independent elected members
(170 in total). The Governor had, in his own wisdom, relied upon
the letters of the Respondent Nos. 3 and 4 and he had no reason
to disbelieve the same. The Governor is not obligated to conduct a
roving enquiry into the same. The learned Solicitor General also
contended that this Court cannot monitor the proceedings of the
House as per the provision of Article 212 of the Constitution.
14. Adding to the aforesaid submissions, learned Senior Counsel Mr.
Mukul Rohatgi appearing for Respondent No. 3 submitted that
although a floor test is imperative, this Court cannot sit in appeal
over the Governor’s order to set the dates for the floor test. It must
be kept in mind that conducting a floor test is the discretion of
7
the Speaker. In light of the above, no interim order can be passed
in the aforesaid matter.
15. Lastly, learned Senior Counsel Mr. Maninder Singh appearing for
Respondent   No.   4   vehemently   contended   that   the   jurisdiction
under Article 32 of the Constitution cannot be invoked in the
present   matter   and   the   Governor’s   independence   should   be
respected.
16. We may note that, while the learned Solicitor General and learned
Senior Counsel Mr. Mukul Rohatgi sought additional time to file
affidavits in response, however we are of the opinion that the
same might not be necessary at this stage. 
17. Having   heard   the   submissions   of   the   learned   counsel   on   the
issues of maintainability, extent of judicial review and validity of
the Governor’s satisfaction, we are of the opinion that they can be
adjudicated at an appropriate time. There is no doubt that the
contentions have to be answered, as the petitioners have raised
questions   concerning   important   constitutional   issues   touching
upon  the  democratic  bulwark  of  our  nation.  However,  at  this
interim stage, we may note that it is imperative for this Court to
be cognizant of the need to take into consideration the competing
claims of the parties, uphold the democratic values and foster
constitutional morality.
8
18. At the outset, we need to emphasize that recently, in the case of
Shrimanth  Balasaheb  Patil  v.  Hon’ble  Speaker,  Karnataka
Legislative Assembly,  Writ Petition (C) No. 992 of 2019, this
Court had emphasized the requirement of imbibing constitutional
morality by the constitutional functionaries. Undemocratic and
illegal practices within the political arena should be curtailed.
19. In this context, this Court in  Union   of   India   v.   Shri  Harish
Chandra  Singh  Rawat,   (2016)  SCC  OnLine  SC  618,  held as
follows:
“8. … This Court, being the sentinel on the
qui   vive of   the   Constitution   is   under   the
obligation to see that the democracy prevails
and   not  gets  hollowed   by  individuals.   The
directions which have been given on the last
occasion, was singularly for the purpose of
strengthening the democratic values and the
constitutional norms. The collective trust in
the legislature is founded on the bedrock of
the constitutional trust…”
20. In a situation wherein, if the floor test is delayed, there is a
possibility of horse trading, it becomes incumbent upon the Court
to act to protect democratic values. An immediate floor test, in
such a case, might be the most effective mechanism to do so.  A
similar view was expounded by B.P. Jeevan Reddy, J., in the
celebrated   nine­Judge   Bench   decision   of   this   Court   in  S.R.
9
Bommai v. Union of India, (1994) 3 SCC 1, wherein he held as
follows:
“395. The High Court, in our opinion, erred
in   holding   that   the   floor   test   is   not
obligatory. If only one keeps in mind the
democratic   principle   underlying   the
Constitution   and   the   fact   that   it   is   the
Legislative  Assembly  that  represents  the
will of the people — and not the Governor
— the position would be clear beyond any
doubt….There could be no question of the
Governor making an assessment of his own.
The loss of confidence of the House was an
objective   fact,   which   could   have   been
demonstrated, one way or the other, on the
floor   of   the   House.  In   our   opinion,
wherever   a   doubt   arises   whether   the
Council   of   Ministers   has   lost   the
confidence of the House, the only way of
testing   it   is   on   the   floor   of   the   House
except in an extraordinary situation where
because   of   all­pervasive   violence,   the
Governor comes to the conclusion — and
records the same in his report — that for the
reasons mentioned by him, a free vote is not
possible in the House.”
(emphasis supplied)
21. This was also the opinion expressed by the Sarkaria Commission,
Rajmannar Committee  and the unanimous opinion expressed by
the  Committee of five Governors  constituted by the President of
India. In the aforementioned judgment, B.P. Jeevan Reddy, J.,
quoted the observations of the Committee of Five Governors with
approval, as below:
10
“393.…The   five   Governors   unanimously
recommended that “the test of confidence in
the Ministry should normally be left to a vote
in the assembly … Where the Governor is
satisfied, by whatever process or means, that
the   Ministry   no   longer   enjoys   majority
support, he should ask the Chief Minister to
face   the   Assembly   and   prove   his   majority
within the shortest possible time… A Chief
Minister’s refusal to test his strength on the
floor of the Assembly can well be interpreted
as prima facie proof of his no longer enjoying
confidence of the legislature….”
22. Ex   facie,   Article   212   of   the   Constitution,   relied   on   by   the
Respondents, would have no application as it relates to validity of
proceedings in the Legislature of a State that cannot be called in
question in any court on the ground of any alleged irregularity of
procedure. Clause (2) states that no officer or member of the
legislature of a State, in whom powers are vested by or under the
Constitution for regulating the procedure, conduct of business or
for maintaining order, in the Legislature shall be subject to the
jurisdiction of any court in respect of exercise of those powers by
him. Sub­Article (2) has no application because no act of any
officer or member of the Legislature of the State has been made
the subject matter of the present Petition before this Court. This
Court, nearly two decades back, in Jagdambika Pal v. Union of
India, (1999)   9   SCC   95,  had passed an order, after hearing
11
counsel   for   the   petitioner   and   the   caveators,   directing   that   a
special session of the Uttar Pradesh Assembly will be summoned/
convened   after   two   days   on   26.02.1998   with   the   following
directions:
“1. …
(ii) The only agenda in the Assembly would be
to have a composite floor test between the
contending parties in order to see which out
of   the   two   contesting   claimants   of   Chief
Ministership has a majority in the House.
(iii)   It   is   pertinently   emphasised   that   the
proceedings in the Assembly shall be totally
peaceful   and   disturbance,   if   any,   caused
therein would be viewed seriously.
(iv)   The   result   of   the   composite   floor   test
would be announced by the Speaker faithfully
and truthfully.
2. The result is expected to be laid before us
on 27­2­1998 at 10.30 a.m. when this Bench
assembles again.
3.   Ancillary   directions   are   that   this   order
shall be treated to be a notice to all the MLAs,
leaving   apart   the   notices   the
Governor/Secretariat is supposed to issue. In
the interregnum, no major decisions would be
made by the functioning Government except
attending to routine matters, not much of any
consequence.”
12
23. Six years later, in Anil Kumar Jha v. Union of India, (2005) 3
SCC   150,   similar   directions   were   passed   by   this   Court   after
recording and taking notice of events that had taken place and
few developments which were in the offing, as reported in the
media, to observe and direct as follows:
“5. Though many a relief has been sought for
in the writ petition, as also in the application
for grant of ex parte stay, for the present, we
are satisfied that a strong prima facie case on
the   averments   made   in   the   petition   duly
supported by affidavit, has been made out to
issue the following interim directions and we
order accordingly:
(1)   The   session   of   the   Jharkhand   State
Assembly has already been convened
for 10­3­2005 on which day the newly
elected   Members   of   the   Legislative
Assembly shall be administered oath.
We direct the session to continue and
on 11­3­2005 i.e. the next day and on
that day the vote of confidence to be
put to test.
(2) The only agenda in the Assembly on
11­3­2005  would  be  to  have  a  floor
test between the contending political
alliances in order to see which of the
political   parties   or   alliance   has   a
majority   in   the   House   and   hence   a
claim for Chief Ministership.
13
(3) It is emphasised that the proceedings
in   the   Assembly   shall   be   totally
peaceful,   and   disturbance,   if   any,
caused   therein   shall   be   viewed
seriously.
(4) The result of the floor test would be
announced   by   the   pro   tem   Speaker
faithfully and truthfully.
(5) This order by the Court shall constitute
notice of the meeting of the Assembly
for 11­3­2005 and no separate notice
would be required.
(6)   Till   11­3­2005   there   shall   be   no
nomination in view of Article 333 of
the   Constitution   and   the   floor   test
shall remain confined to the 81 elected
members only.
(7) We direct the Chief Secretary and the
Director   General   of   Police,   State   of
Jharkhand to see that all the elected
Members of the Legislative Assembly
freely, safely and securely attend the
Assembly   and   no   interference   or
hindrance   is   caused   by   anyone
therein.   Dr.   A.M.   Singhvi,   learned
Senior Counsel appearing for the State
of   Jharkhand   through   the   Chief
Secretary and the Director General of
Police   has   very   fairly   assured   the
Court   that   even   otherwise   it   is   the
duty of the State and its high officials
to take care to do so and the direction
made by the Court shall be complied
with in letter and spirit.”
14
The aforesaid directions were interim in nature and were passed
on the basis of averments made in the petition duly supported by
an affidavit. Writ petitions were directed to be listed on the date of
hearing fixed.
24. Ten years later, in Union of India v. Sh. Harish Chandra Singh
Rawat, (2016) SCC Online SC 442, again an interim order was
passed after the special leave petitions were taken up for hearing,
though after concession which was made by Mr. Mukul Rohatgi,
the then Attorney General for India, that the Union of India has
no objection, which the Court had appreciated, to observe that the
floor   test   should   be   conducted   on   a   special   session   of
Uttarakhand Legislative Assembly to be summoned/convened in
which the only agenda would be the vote of confidence sought by
the first respondent and apart from the said agenda nothing will
be discussed. Directions were issued to the Chief Secretary and
the Director General of Police, State of Uttarakhand, to see that
all qualified Members of the Legislative Assembly, freely, safely
and securely attend the Assembly and no hindrance is caused to
them. The floor test was to commence at 11:00 a.m. and was
directed to be completed by 1:00 p.m. There was another direction
15
that the Confidence Motion having been put, a division of the
House shall take place and members inclined to vote in favour of
the Motion shall sit on one side/wing and those voting against the
Motion shall sit on the other side/wing. The entire proceedings
were to be video­graphed and video recording was directed to be
placed   before   the   Court   for   being   perused.   The   special   leave
petitions were directed to be listed thereafter.
25. In  Chandrakant   Kavlekar   v.   Union   of   India,   (2017)  3  SCC
758, the challenge raised was to a press note and communication
from a leader of a party to the Governor of the State on the issue
relating to whether a particular party had misrepresented the
facts. Observing that the sensitive and contentious issue could be
resolved by a simple direction requiring holding of the floor test at
the earliest. This would remove all possible ambiguities and would
result in giving the democratic process, the required credibility.
By order dated 14.03.2017, the Governor of the State of Goa was
requested   to   ensure   that   a   floor   test   is   held   on   16.03.2017.
Further,   it   would   be   the   only   agenda   for   the   day   so   as   to
determine whether the Chief Minister administered the oath of
office   enjoys   the   support   of   the   majority.   The   order   further
highlights that the floor test should be held as early as possible.
16
26. Lastly, we would refer to  G.  Parmeshwara  v.  Union  of   India,
(2018)  16  SCC  46,  wherein identical directions were issued in
respect of formation of Government in the State of Karnataka to
test whether the Chief Minister so appointed enjoyed the majority
support of the House. Noticing the fact that the elected members
of the Legislative Assembly, as in the present case, were yet to
take oath and the Speaker was also not elected, the following
procedure was directed to be followed for conducting the floor
test:
“8…
(A)   Pro­tem   Speaker   shall   be   appointed   for   the
aforesaid purpose immediately.
(B) All the elected members shall take oath tomorrow
(19­5­2018)   and   this   exercise   shall   be   completed
before 4.00 p.m.
(C) The Pro­tem Speaker shall conduct the floor test
on 19­5­2018 at 4.00 p.m. in order to ascertain the
majority and it shall not be by secret ballot and these
proceedings shall be conducted in accordance with
law.
(D)   Adequate   and   sufficient   security   arrangements
shall be made and Director General of Police, State of
Karnataka   will   himself   supervise   the   said
arrangements so that there is no lapse on this count
whatsoever.”
It was directed that the floor test would be conducted immediately
the next date, i.e., the date following the order.
17
27. We   may   note   that   in   the   present   case,   oath   has   not   been
administered to the elected members even though a month has
elapsed since the declaration of election results. In such emergent
facts and circumstances, to curtail unlawful practices such as
horse   trading,   to   avoid   uncertainty   and   to   effectuate   smooth
running of democracy by ensuring a stable Government, we are of
the considered opinion that it is necessary to pass certain interim
directions   in   this   case.   In   this   context,   it   is   necessary   and
expedient   to   conduct   the   floor   test   as   soon   as   possible   to
determine whether the Chief Minister, who was administered the
oath of office, has the support of the majority or not. Since the
elected members of the Legislative Assembly are yet to take oath
as   specified   in   the   III   Schedule   of   the   Constitution,   and   the
Speaker is also yet to be elected, we request the Governor of the
State   of   Maharashtra   to   ensure   that   a   floor   test   be   held   on
27.11.2019.   The   following   procedure   is   to   be   followed   for
conducting the floor test:
a. Pro­tem Speaker shall be solely appointed for 
the aforesaid agenda immediately. 
b. All the elected members shall take oath on 
27.11.2019, which exercise should be 
completed before 5:00 p.m.
c. Immediately thereafter, the Pro­tem Speaker 
shall conduct the floor test in order to 
18
ascertain whether the Respondent No. 3 has 
the majority, and these proceedings shall be 
conducted in accordance with law. The floor 
test will not be conducted by secret ballot.
d. The proceedings have to be live telecast, and 
appropriate arrangements are to be made to 
ensure the same.
28. Eight  weeks  time  is   granted   to   the   learned   counsel   for   the
respondents to file their respective counter affidavits.  Rejoinder
affidavit, if any, is to be filed within four weeks thereafter. The
matter to be listed after twelve weeks.
..............................................J.
(N.V. Ramana)
 ..............................................J.
(Ashok Bhushan)
..............................................J.
(Sanjiv Khanna)
NEW DELHI;
November 26, 2019.
19

whether the High Court without properly appreciating the evidence erred in setting aside the conviction of the respondents-accused Nos.1, 2 and 4. The duty of the appellate court is to consider and appreciate the evidence adduced by the prosecution and arrive at an independent conclusion. Medical Evidence: As per the deposition of PWs 1 and 3, accused Bhupendra Yadav fired at the deceased on his chest; Lallu @ Lal Diwan fired on the jaw and Raju Teli fired on the leg of the deceased. As per post-mortem report dated 17.11.1992, there were four firearm lacerated wounds. Apart from the injuries on the chest, jaw and the leg, there was firm arm injury on the right thigh 2 cm above the knee. PWs 1 and 3 have not explained the fourth firearm injury; nor they have made any mention of the accused firing multiple shots. This discrepancy between the medical evidence and the oral evidence assumes significance in view of the elaborated depositions made by the witnesses and the FIR which explains minute detail of the entire incident. Non recovery of empty shells of cartridges It is well-settled that any omission on the part of the Investigating Officer cannot go against the prosecution case. If the Investigating Officer has deliberately omitted to do what he ought to have done in the interest of justice, it means that such acts or omissions of Investigating Officer should not be taken in favour of the accused. But In his cross-examination, PW-5-Investigating Officer has stated that the broken pieces of cartridges, bursts and empty shells of the cartridges were not found on the site of the incident. PW-4-SubInspector of Police has also not made reference about the “empty shells of cartridges” in the scene of occurrence. The prosecution case of course, cannot be doubted merely on the ground of nonrecovery of weapons and other piece of evidence. But in the present case, an elaborately written FIR was registered immediately after the occurrence i.e. at 09.30 am. The Sub-Inspector of Police (PW-5) had promptly taken up the investigation and on the direction of PW-5, SI-R.N. Singh took sample earth and the blood-stained earth from the scene of occurrence and recovered a pair of footwear of the deceased and packet of kissan gutkha and prepared recovery memo of the same which are marked as Ex.-Ka.10 and Ex.-Ka.11 respectively. When the Investigating Officer had taken care even to recover packet of kissan gutkha from the scene of occurrence, curiously, the “empties” of the fired cartridges were not recovered. The material pieces of evidence like “empties” were lost; but this vital omission has not been explained. This factum assumes importance particularly, in view of the fact that the FIR is alleged to have been registered promptly at 09:30 a.m. of the occurrence which occurred at 09:00 am. The inquest was also conducted at 10:00 a.m. and the investigation also promptly started.

whether the High Court without properly appreciating the evidence erred in setting aside the conviction of the respondents-accused Nos.1, 2 and 4.

The duty of the appellate court is to consider and appreciate the evidence adduced by the prosecution and arrive at an independent conclusion. 
Medical Evidence: 
As per the deposition of PWs 1 and 3, accused Bhupendra Yadav fired at the deceased on his chest; Lallu @ Lal Diwan fired on the jaw and Raju Teli fired on the leg of the deceased. 
As per post-mortem report dated 17.11.1992, there were four firearm lacerated wounds. Apart from the injuries on the chest, jaw and the leg, there was firm arm injury on the right thigh 2 cm
above the knee. 
PWs 1 and 3 have not explained the fourth firearm injury; nor they have made any mention of the accused firing multiple shots. 
This discrepancy between the medical evidence and the oral evidence assumes significance in view of the elaborated depositions made by the witnesses and the FIR which explains minute detail of the entire incident.
Non recovery of empty shells of cartridges 
It is well-settled that any omission on the part of the Investigating Officer cannot go against the prosecution case. If the Investigating Officer has deliberately omitted to do what he ought to have done in the interest of justice, it means that such acts or omissions of Investigating Officer should not be taken in favour of the accused. 
But
In his cross-examination, PW-5-Investigating Officer has stated that the broken pieces of cartridges, bursts and empty shells of the cartridges were not found on the site of the incident. PW-4-SubInspector of Police has also not made reference about the “empty shells of cartridges” in the scene of occurrence. The prosecution case of course, cannot be doubted merely on the ground of nonrecovery of weapons and other piece of evidence. But in the present case, an elaborately written FIR was registered immediately after the occurrence i.e. at 09.30 am. The Sub-Inspector of Police
(PW-5) had promptly taken up the investigation and on the direction of PW-5, SI-R.N. Singh took sample earth and the blood-stained earth from the scene of occurrence and recovered a pair of footwear of the deceased and packet of kissan gutkha and prepared recovery memo of the same which are marked as Ex.-Ka.10 and Ex.-Ka.11 respectively. When the Investigating Officer had taken care even to recover packet of kissan gutkha from the scene of occurrence, curiously, the “empties” of the fired cartridges were not recovered. The material pieces of evidence like “empties” were lost; but this vital omission has not been explained. This factum assumes importance particularly, in view of the fact that the FIR is alleged to have been registered promptly at 09:30 a.m. of the occurrence which occurred at 09:00 am. The inquest was also conducted at 10:00 a.m. and the investigation also promptly started.


REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1790-1791 OF 2019
[Arising out of SLP(Crl.) Nos.269-70 of 2019]
JAI PRAKASH ...Appellant
VERSUS
STATE OF UTTAR PRADESH
AND OTHERS …Respondents
WITH
CRIMINAL APPEAL NOS.1792-93 OF 2019
[Arising out of SLP(Crl.) Nos.288-89 of 2019]
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. These appeals arise out of the impugned judgment dated
16.11.2018 passed by the High Court of Judicature at Allahabad in
Criminal Appeal Nos.2403 and 5829 of 2005 whereby the High
Court allowed the appeals thereby setting aside the conviction of
respondents-accused Nos.1, 2 and 4 passed by the trial court under
Sections 302 IPC and 120B IPC and acquitted them of the charges
under Sections 302 IPC and 120-B IPC.
3. Being aggrieved by the acquittal, the appellant-complainant
has preferred Criminal Appeals arising out of SLP(Crl.) Nos.269-70
1
of 2019. The State of Uttar Pradesh has filed the other Criminal
Appeals arising out of SLP(Crl.) Nos.288-89 of 2019.
4. Briefly stated case of the prosecution is as under:-
Complainant-Jai Prakash and deceased Ravi Prakash are
real brothers. On 17.11.1992 shortly prior to 09.00 am, the
appellant-complainant came back home after relieving himself near
the Urai bus stand. At that time, he noticed the accused persons
sitting with arms in their possession in the flour mill of Shankar Teliaccused No.3 (since acquitted by the trial court). Complainant
came to his house. At that time, Sanjay Mishra and Ajay Kumar
(PW-3) came to the house of deceased for discussion regarding the
work of electric decoration in connection with the marriage of
daughter of one Maiku Soni. The appellant sent Ravi Prakash to
bring gutkha for Ajay Kumar (PW-3) and Sanjay Mishra. After
purchasing gutkha when the deceased was returning from the shop
and reached in front of accused No.3-Shankar Teli’s flour mill,
accused Bhupendra Yadav (A2) armed with double barrelled gun,
accused Raju Teli (A4) armed with single barrelled gun and accused
Lallu @ Lal Diwan (A1) armed with country made pistol, caught hold
of the deceased Ravi Prakash. Ravi Prakash tried to free himself by
raising alarm. Accused Bhupendra Yadav fired bullet in the chest of
2
the deceased Ravi Prakash, accused Raju Teli fired in the leg and
accused Lallu @ Lal Diwan fired in the jaw of the deceased. Ravi
Prakash fell down on the spot. Appellant-Jai Prakash, Ajay Kumar
(PW-3) and Sanjay Mishra who saw the occurrence rushed to the
spot to save the deceased Ravi Prakash. On seeing them coming,
accused persons came out of the flour mill and fled away from the
scene of occurrence.
5. As per the complainant, motive for the commission of the
offence was the previous enmity harboured by accused Bhupendra
Yadav with the family of the appellant due to newspaper publishing
regarding the activities of accused Bhupendra Yadav by another
brother of the appellant namely Om Prakash, in the weekly journal
August Nama. Due to which, accused Bhupendra Yadav had
beaten up Om Prakash and Om Prakash lodged complaint against
accused Bhupendra Yadav. Sometimes prior to the occurrence,
accused Bhupendra Yadav had beaten up the appellant also and on
the basis of the complaint, a case was registered against accused
Bhupendra Yadav. According to the appellant, as a consequence of
the said enmity, Ravi Prakash was fired at by the accused and
murdered.
3
6. Regarding the occurrence, PW-1-Jai Prakash got the
complaint written by one Munni Lal and on the same day at 09.30
am, the appellant lodged the same before the Police Station Rath,
District-Hamirpur. Based on the complaint, FIR in Crime No.474 of
1992 (Ex.-Ka.3) was registered against the accused under Sections
302 IPC and 120B IPC. Investigation of the case was taken up by
the Investigating Officer-PW-5-SI-Shobha Mani Tripathi. The
Investigating Officer went to the place of occurrence and under his
instructions, SI-R.N. Singh held inquest on the body of deceased
Ravi Prakash. The dead body of Ravi Prakash was sent to hospital
for post-mortem examination. SI-R.N. Singh took sample of simple
and blood-stained earth from the scene of occurrence and
recovered a pair of chappal of the deceased (Ex.-Ka.10) and packet
of kisaan gutkha (Ex.-Ka.11) and prepared recovery memo.
7. On the same day i.e. 17.11.1992 at about 04.15 pm, dead
body of Ravi Prakash was sent to Rajkiya Purush Chikitsalaya, Rath
where post-mortem was conducted on the dead body by Dr. B.K.
Gupta (PW-2) who noted the following injuries:-
(i) A firearm lacerated wound of entry on left side of chest, 4 cm
below the medial left clavicle and 3 cm left to midline of chest.
(ii) Multiple firearm lacerated wound of exit on left side of scapular
region, 3 cm left to midline of back.
4
(iii) A firearm lacerated wound of entry on right side lower jaw, 5 cm
right to the tip of chin.
(iv) A firearm lacerated wound of entry on back of right thigh, 7.5 cm
above the knee joint.
(v) A firearm lacerated wound of entry on right thigh, 20 cm above the
knee joint.
(vi) A firearm lacerated wound of exit on antero right thigh, 10 cm
above knee joint.
(vii) Multiple abrasion on medial aspect of right leg above the medial
malleolus.
PW-2-Doctor opined that the death of the deceased was due to
haemorrhagic shock as a result of ante-mortem injuries and issued
Ex.-Ka.2-Post-Mortem Certificate. After completion of investigation,
charge sheet was filed against all the four accused under Sections
302 IPC and 120B IPC.
8. When questioned, all the accused denied the charges and
pleaded not guilty. To bring home the guilt of the accused, the
prosecution examined total six witnesses - eye witnesses PWs 1
and 3 and Doctor-PW-2 and IO (PW-5) and other witnesses. Upon
consideration of the evidence, the trial court convicted accused
Nos.1, 2 and 4 under Sections 302 IPC and 120B IPC and
sentenced them to undergo life imprisonment. The trial court held
that the evidence of eye witness-PW-1-Jai Prakash, brother of
deceased and PW-3-Ajay Kumar are natural and acceptable. The
5
trial court held that PW-3-Ajay Kumar has given satisfying reasons
for his presence at the house of PW-1 and the presence of PW-3
outside the house of PW-1 is natural and cannot be doubted.
Insofar as the question of non-examination of Sanjay Mishra and
other persons in the mohalla, the trial court held that in the present
social conditions and circumstances, independent witnesses are
apprehensive that if they appear as witnesses in the criminal cases,
their future will not be safe and therefore, non-examination of the
independent witnesses will not affect the prosecution case. After
referring to the post-mortem report and the evidence of PW-2-
Doctor, the trial court held that the medical evidence corroborates
the evidence of PWs 1 and 3. The trial court also held that nonrecovery of the guns and the contradictions pointed by the accused
in the evidence of PWs 1 and 3, would not affect the case of the
prosecution. With those findings, the trial court convicted accused
Nos.1, 2 and 4. However, the trial court gave benefit of doubt to
accused No.3-Shankar Teli and acquitted him.
9. Being aggrieved, the respondents-accused Nos.1, 2 and 4
have preferred appeals before the High Court. By referring to the
contents of the FIR (Ex.-Ka.3), the High Court held that within short
time, it is least possible for an illiterate person like PW-1 to lodge a
6
complaint with such details and the possibility cannot be ruled out
that the First Information Report has been lodged after discussion
and on the advice of Om Prakash. After referring to the deposition
of PW-1 and PW-3, the High Court held that the presence of the
witnesses at the place and at the time of occurrence appears to be
doubtful. After referring to Post-Mortem Report, the High Court
further held that in the Post-Mortem Report, it is mentioned that the
large intestine of deceased was full and therefore, death might have
taken place before Ravi Prakash attended nature call as generally,
people attend the call of nature in the morning and it is least
possible that the deceased has not attended the call of nature
before 09.00 am. Doubting the presence of PW-3 at the place and
time of occurrence, the High Court held that PW-3 could not
properly explain the reason as to why he went to the house of PW-1
and his version appears unnatural. Pointing out that there was
motive for Om Prakash to instigate his brother PW-1 to make false
allegations against the accused on the murder of his brother Ravi
Prakash, the High Court held that accused Nos.1, 2 and 4 deserve
to be given benefit of doubt. With those findings, the High Court
allowed the appeals filed by the accused and set aside their
conviction and sentence passed by the trial court and acquitted
them.
7
10. Taking us through the evidence and the judgment of the trial
court as well as the High Court, Mr. R. Basant, learned Senior
counsel for the appellant has submitted that PW-1 has clearly stated
each and every detail of the incident which is amply corroborated by
the evidence of PW-3 and the evidence of PWs 1 and 3 are natural
and their evidence is consistent with the medical evidence as well
as the case of the prosecution. It was further submitted that
considering the well-settled position, the trial court recorded the
finding that the general public are reluctant to come forward to
depose before the court and it is not proper to reject the case of the
prosecution for non-examination of the independent witnesses. It
was submitted that the High Court erred in holding that nonexamination of the independent witnesses and Munni Lal-scribe of
the complaint is fatal to the prosecution case. Learned Senior
counsel further submitted that the lapses in the investigation like
non-sending of the blood-stained earth and sample earth taken from
the scene of occurrence and non-recovery of “empties” from the
scene of occurrence and other lapses would not affect the
prosecution case and the High Court erred in reversing the
conviction and acquitting the accused.
8
11. Mr. Basava Prabhu S. Patil, learned Senior counsel appearing
for accused No.2-Bhupendra Yadav submitted that the motive is
attributed to Om Prakash-brother of PW-1 and when the accused
were having such enmity with Om Prakash, it is not known as to
why the accused should attack Ravi Prakash and no injury was
caused to PW-1 who was easily available to the accused even
before Ravi Prakash passed through the flour mill of Shankar Teli
(PW-3). The learned Senior counsel further submitted the PW-3 is
a chance witness and as such, his presence in the house of PW-1 is
not natural and PW-3 could not have witnessed the incident. It was
further submitted that the High Court rightly pointed out the
improbability of the occurrence that the accused who were waiting
in Shankar Teli’s flour mill, would not have anticipated that Ravi
Prakash would pass through the flour mill and considering the
improbability of the prosecution case, the High Court rightly
reversed the conviction and the impugned judgment warrants no
interference.
12. Mr. P.K. Sharma, learned counsel appearing for accused
No.4-Raju Teli submitted that the conduct of PW-1, brother of
deceased was unnatural as he made no attempt to save his
younger brother rather he was interested only in preparing the
9
complaint (Ex.-Ka.3) and going to the police station. Learned
counsel further submitted that the Post-Mortem Report shows four
gun-shot injuries which are not in consonance with the oral
evidence and the discrepancies between the oral and medical
evidence has not been properly explained. The learned counsel
submitted that PW-3 is a chance witness and the High Court rightly
held that his presence in the house of PW-1 at the time of incident is
unnatural. It was submitted that the prosecution case is highly
doubtful since during the investigation, neither the fire arms were
recovered nor the “empties” of the cartridges have been recovered
from the place of occurrence and no ballistic opinion had been
obtained by the prosecution to prove that the injury on the person of
the deceased were caused by the alleged fire arms used by the
accused.
13. Mr. Kartikeya Bhargava, learned counsel appearing for
accused No.1-Lallu @ Lal Diwan submitted that there were
contradictions between the evidence of PWs 1 and 3 as to whether
there was scuffle prior to the incident and this has not been properly
appreciated by the trial court. The learned counsel further submitted
that the multiple bruises found on the body of deceased has not
been properly explained by the prosecution and the High Court
10
rightly reversed the conviction of the accused and the impugned
judgment warrants no interference.
14. We have carefully considered the contentions and perused
the impugned judgment and materials on record. The point falling
for consideration is as contended by the appellants, whether the
High Court without properly appreciating the evidence erred in
setting aside the conviction of the respondents-accused Nos.1, 2
and 4.
15. Case of the prosecution is that at about 09.00 am on
17.11.1992, while returning from the shop after purchasing gutkha,
deceased Ravi Prakash reached the front of flour mill of Shankar
Teli, accused Bhupendra Yadav (A2) having double barrelled gun,
accused Raju Teli (A4) armed with single barrelled gun and accused
Lallu @ Lal Diwan (A1) armed with country made pistol (tamancha),
caught hold of Ravi Prakash and Ravi Prakash raised alarm and
tried to free himself from the grip of the accused. At that time,
accused Bhupendra Yadav, Raju Teli and Lallu @ Lal Diwan fired
from their respective weapons and fired shot on the chest, leg and
jaw of Ravi Prakash respectively due to which Ravi Prakash fell
down on the spot. Appellant Jai Prakash (PW-1), Ajay Kumar (PW3) and Sanjay Mishra rushed to the spot to save Ravi Prakash and
on seeing them, all the three accused escaped from the place of
11
occurrence. As per the complaint/FIR (Ex.-Ka.3) and also the
statement of PW-1, after his morning walk and after relieving
himself at the Urai bus stand, while coming back home, he saw the
respondents-accused Nos.1, 2 and 4 sitting in the flour mill of
Shankar Teli with arms in their possession. Case of the prosecution
is that there was previous enmity between the family of appellant
and accused Bhupendra Yadav which is the cause of murder of
Ravi Prakash. When that being the motive and if the accused were
so found armed with weapons in the flour mill of Shankar Teli, the
question arises as to why the appellant sent his brother-Ravi
Prakash to purchase gutkha from the shop of one Choco Kori. This
has not been explained by the appellant.
16. The respondents-accused Nos.1, 2 and 4 armed with
weapons were sitting in the flour mill of Shankar Teli and were
talking to each other. The motive alleged by the prosecution is that
about two years prior to the occurrence, Om Prakash-brother of the
appellant-Jai Prakash had written about the illegal activities of
accused Bhupendra Yadav and brought out news in the newspaper
due to which accused Bhupendra Yadav had assaulted Om
Prakash. In this regard, Om Prakash had lodged a criminal case in
the police station and FIR has been registered and due to this
12
enmity, the accused are alleged to have committed murder of Ravi
Prakash. Both the appellant-Jai Prakash and Ravi Prakash are
brothers of Om Prakash. If the accused were looking for vengeance
of Om Prakash-brother of Ravi Prakash, why the respondentsaccused allowed Jai Prakash (PW-1) to let go unharmed; more so,
when PW-1 was normally in the habit of going for morning walk. If
the motive for the crime is accepted, then all brothers of Om
Prakash would be targets; but here attack was on only the
deceased brother and PW-1 was spared although attackers were
fully armed and near the place of occurrence. As pointed out by the
High Court, case of the prosecution does not appear to be natural
that the respondents-accused Nos.1, 2 and 4 have attacked Ravi
Prakash who happened to pass through the flour mill by chance
after purchase of gutkha.
17. PW-3-Ajay Kumar stated that on the date of occurrence i.e.
17.11.1992, he along with Sanjay Mishra had gone to the house of
Jai Prakash (PW-1) to discuss about the electric decoration work for
the marriage ceremony of daughter of one Maiku Soni in their
mohalla. Admittedly, Ravi Prakash was the electrician by profession
who was to attend to the electric work and the decoration. It is not
explained as to why deceased Ravi Prakash who was to attend to
13
the electric work and the decoration work, instead of discussing the
need of the prospective clients i.e. PW-3, would go out to purchase
gutkha. Curiously, Maiku did not accompany Ajay Kumar (PW-3)
and Sanjay Mishra to the house of Ravi Prakash for discussion. As
pointed out by the High Court, neither Maiku nor any member of the
family had gone with PW-3 to talk about the decoration for the
marriage ceremony of daughter of Maiku. This raises serious
doubts about the presence of PW-3 in the scene of occurrence and
the case of the prosecution.
18. Next, as per the deposition of PW-1, there is a goomty placed
on the square platform of Munna Musalman from which gutka can
be taken out. This goomti is at a distance of just fifteen steps from
the house of the appellant and the shop of Choco Kori where Ravi
Prakash had gone to buy the gutkha is at a distance of about 150-
200 steps, again said 100-125 steps from the house of the
appellant. It has nowhere been stated when the deceased could not
have gotten gutkha right near his house and why should he go to a
shop at some distance away from the house. Of course, PW-1
firstly stated that he gave money to Ravi Prakash to purchase
gutkha, however subsequently, he stated that in the shop of Choco
Kori, credit account was maintained. The reason stated that Ravi
14
Prakash had gone to the shop of Choco Kori at a little bit far away
place to purchase gutkha leaving his prospective clients for
decoration of electric work is not quite convincing.
19. PW-3-Ajay Kumar is a resident of mohalla Mughalpura, town
and PS Rath, District-Hamirpur. In his evidence, PW-3 stated that
he along with Sanjay Mishra had gone to the house of PW-1. PW-3
further stated that he called PW-1 outside and when he was talking
to PW-1, PW-1 asked Ravi Prakash to bring gutkha from the shop
for Ajay Kumar and Sanjay Mishra. As discussed earlier, when PW3 had gone to the house of PW-1 to discuss about the electric
decoration work for the marriage ceremony of daughter of Maiku,
neither Maiku nor any member of his family accompanied PW-3 to
discuss about the electric work in the marriage ceremony of
daughter of Maiku. In his cross-examination, PW-3 could not explain
the reason as to why he went to the house of PW-1. The High
Court observed that PW-3 is a chance witness and expressed
doubts about the presence of PW-3 in the scene of occurrence on
17.11.1992 and we do not find any good reason to take a different
view.
20. There are several material discrepancies between the
evidence of PW-1 and PW-3 as to the occurrence. PW-3 has stated
15
that when Ravi Prakash passed through the way, the respondentsaccused came out of the flour mill and there was a scuffle for
sometime with Ravi Prakash and the accused fired the bullet shots
from their guns and the pistol. On the other hand, PW-1 has only
stated that the respondents-accused have fired at Ravi Prakash and
has not stated anything about the scuffle. The witnesses who have
deposed in the court after considerable lapse of time of course,
cannot be expected to have photographic memory of the case. We
are conscious of the well settled position that the minor
discrepancies not touching upon the core of the prosecution case,
would not affect the credibility of the witnesses or the prosecution
case. Of course, PWs 1 and 3 have given their evidence in the
court in 2003-04 near after a decade; but they are said to have
witnessed the occurrence from a close distance. Whether there
was scuffle between Ravi Prakash and the respondents-accused is
an integral part of the main incident and the witnesses are expected
to be consistent in their version. The inconsistencies in the version
of PWs 1 and 3 as to whether there was a scuffle or not is not
explained by the prosecution which again raises serious doubts
about the prosecution case.
16
21. Medical Evidence: As per the deposition of PWs 1 and 3,
accused Bhupendra Yadav fired at the deceased on his chest; Lallu
@ Lal Diwan fired on the jaw and Raju Teli fired on the leg of the
deceased. As per post-mortem report dated 17.11.1992, there were
four firearm lacerated wounds. Apart from the injuries on the chest,
jaw and the leg, there was firm arm injury on the right thigh 2 cm
above the knee. PWs 1 and 3 have not explained the fourth firearm
injury; nor they have made any mention of the accused firing
multiple shots. This discrepancy between the medical evidence and
the oral evidence assumes significance in view of the elaborated
depositions made by the witnesses and the FIR which explains
minute detail of the entire incident.
22. There are also several lapses in the investigation of the case
like non-recovery of “empties” fired from the guns on the deceased,
non-recovery of fire arms used by the respondents-accused etc. It
is well-settled that any omission on the part of the Investigating
Officer cannot go against the prosecution case. If the Investigating
Officer has deliberately omitted to do what he ought to have done in
the interest of justice, it means that such acts or omissions of
Investigating Officer should not be taken in favour of the accused.
In his cross-examination, PW-5-Investigating Officer has stated that
the broken pieces of cartridges, bursts and empty shells of the
17
cartridges were not found on the site of the incident. PW-4-SubInspector of Police has also not made reference about the “empty
shells of cartridges” in the scene of occurrence. The prosecution
case of course, cannot be doubted merely on the ground of nonrecovery of weapons and other piece of evidence. But in the
present case, an elaborately written FIR was registered immediately
after the occurrence i.e. at 09.30 am. The Sub-Inspector of Police
(PW-5) had promptly taken up the investigation and on the direction
of PW-5, SI-R.N. Singh took sample earth and the blood-stained
earth from the scene of occurrence and recovered a pair of footwear
of the deceased and packet of kissan gutkha and prepared recovery
memo of the same which are marked as Ex.-Ka.10 and Ex.-Ka.11
respectively. When the Investigating Officer had taken care even to
recover packet of kissan gutkha from the scene of occurrence,
curiously, the “empties” of the fired cartridges were not recovered.
The material pieces of evidence like “empties” were lost; but this
vital omission has not been explained. This factum assumes
importance particularly, in view of the fact that the FIR is alleged to
have been registered promptly at 09:30 a.m. of the occurrence
which occurred at 09:00 am. The inquest was also conducted at
10:00 a.m. and the investigation also promptly started. The
accused-respondents allegedly ran away from the scene of
18
occurrence immediately after shooting at the deceased thus, they
could not have possibly removed the cartridges, pieces, etc.
themselves. This is not the case of the prosecution. It is also not the
case of the prosecution that the area was cleaned and somebody
has removed the “empties”. In such view of the matter, the nonrecovery of “bursts and empty shells of cartridges” and “broken
pieces of cartridges” from the scene of occurrence raises serious
doubt about the actual place of occurrence. As pointed out earlier,
any act of commission/omission of the Investigating Officer cannot
go to the advantage of the accused. But in a case of this nature
where FIR is said to have been registered within half an hour of the
occurrence and the investigation also commenced then and there,
we find no reason as to why the “empties” and “bursts” from the
scene of occurrence were not recovered.
23. Furthermore, as per the evidence of Investigating Officer
Shobha Mani Tripathi (PW-5), the accused were arrested on the
very next day of occurrence i.e. 18.11.1992. Even though the
accused were arrested on the very next day, the weapons used by
them were not recovered. Of course, the case of the prosecution
has to be examined de hors such omissions of the Investigating
Officer like non-recovery of weapons etc. But material
19
discrepancies in the evidence of PWs 1 and 3 coupled with the
unnaturalness of the prosecution case, non-recovery of weapons
and empties raise serious doubts about the prosecution case.
24. The duty of the appellate court is to consider and appreciate
the evidence adduced by the prosecution and arrive at an
independent conclusion. Like the trial court, the appellate court also
must be satisfied of its conclusion. In exercise of power under
Article 136 of the Constitution of India, in State of Uttar Pradesh v.
Punni and others (2008) 11 SCS 153, while dealing with the order
of acquittal passed by the High Court, the Supreme Court held that
it would not ordinarily interfere with the findings of the High Court
unless it is satisfied that such a finding is vitiated by some glaring
infirmity in the appraisement of evidence or such finding is perverse
or arbitrary. In the present case, the High Court has analysed entire
evidence and recorded its finding as to how the trial court has gone
wrong in not appreciating the material inconsistencies in the
prosecution case. The findings recorded by the High Court in
acquitting the respondents-accused Nos.1, 2 and 4 does not suffer
from any infirmity warranting interference with the impugned
judgment. The appeals filed by the complainant and the State of
Uttar Pradesh are liable to be dismissed.
20
25. In the result, the impugned judgment dated 16.11.2018
passed by the High Court of Judicature at Allahabad in Criminal
Appeal Nos.2403 and 5829 of 2005 is affirmed and the criminal
appeals arising out of SLP(Crl.) Nos.269-70 of 2019 filed by the
appellant-Jai Prakash and criminal appeals arising out of SLP(Crl.)
Nos.288-89 of 2019 filed by the State of Uttar Pradesh stand
dismissed.
………………………..J.
 [R. BANUMATHI]
………………………..J.
 [A.S. BOPANNA]
.………………………..J.
 [HRISHIKESH ROY]
New Delhi;
November 28, 2019
21

Assam Public Service Commission (for short “APSC”)

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9100 OF 2019
(Arising out of SLP(C) No. 23677 OF 2019)
THE ASSAM PUBLIC SERVICE
COMMISSION & ORS. APPELLANT(S)
VERSUS
PRANJAL KUMAR SARMA & ORS. RESPONDENT(S)
J U D G M E N T
Hrishikesh Roy, J.
Leave granted.
2. This appeal arises out of the Special Leave Petition
(Civil) No. 23677 of 2019. The Assam Public Service
Commission (for short “APSC”) has approached this Court
to challenge the judgment and order dated 8th August, 2019
in W.P. (C) No. 4600 of 2019 whereby the Gauhati High
Court struck down a portion of Clause 12.2 of the Assam
Public Service Commission (Conduct of Business)
Procedure, 2019 (hereinafter referred to as “the 2019
Page 1 of 13
Procedure”). The following portion of Clause 12.2,
incorporated with effect from 1st April, 2019, under the
2019 Procedure, was struck down by the High Court.
“…………and any proceeding in relation to
interviews, selections or competitive
examination pending on the date of
commencement of these Procedures may be
continued and completed in accordance with
the provisions of the Rules in force prior
to such commencement.”
3. The result of the above is that the norms of
selection for an ongoing process gets changed mid-stream
in course of recruitment, for the 65 vacancies of
Assistant Engineer (Civil) under the Water Resources
Department for which, the APSC had issued an
advertisement on 21st December, 2018 (“Annexure P-I”). On
the date of the advertisement, the previous norms i.e.
the Assam Public Service Commission (Procedure and
Conduct of Business) Rules, 2010 (hereinafter referred to
as “the 2010 Rules”), were in operation. The 2010 Rules
provided for assessment of academic merit, special
knowledge, additional relevant qualification, relevant
service experience etc. under Rule 29 and 30, in the
following manner: -
Page 2 of 13
“29. The Commission may determine the
qualifying standard by giving weightage
on academic merit, subject knowledge,
additional relevant qualification,
service experience relevant to the post
etc. for preparing the final order of
select list.
30. In the viva-voce test marks shall
be allocated as below:
(i) 50% on academic/professional
qualification/service experience relevant
to the post/preferential qualification.
(ii) 50% for subject knowledge and
general bearing. Out of this, 20% shall
be for subject knowledge and the
remaining 30% for general bearing.
There shall be five gradings for
Adviser/Expert’s marks viz., ‘Excellent’,
‘Very Good’, ‘Good’, ‘Fair’ and
‘Average’, the value of which shall be
determined by the Commission.”
4. The aforesaid 2010 Rules were challenged by one
Manash Pratim Baruah in the Gauhati High Court through
W.P.(C) No. 1998 of 2017. He contended that the State
Public Service Commission is not empowered to adopt any
Rule in the nature of the 2010 Rules as was done by the
APSC, by invoking the powers under proviso to Article 320
of the Constitution of India. During the pendency of the
Writ Petition, the 2010 Rules were repealed and a new set
of procedure i.e, “The Assam Public Service Commission
(Conduct of Business) Procedure, 2019” came into effect,
Page 3 of 13
from 1st April, 2019. Accordingly, the APSC through their
affidavit filed in the W.P.(C) No. 1998 of 2017 informed
the High Court about adoption of the 2019 Procedure.
5. During that period, acting on the advertisement
(dated 21.12.2018) to fill up the 65 posts of Assistant
Engineer (Civil), the APSC on 12.06.2019 had notified
that an OMR based screening test, with multiple choice
objective type questions, will be conducted on
30.06.2019. The said screening test was conducted under
the 2010 Rules and as such there was no negative marking
which was introduced for the first time by the 2019
Procedure, for the APSC conducted selections.
6. The four respondents had offered their candidature by
responding to the advertisement dated 21st December, 2018
and they appeared in the screening test conducted on
30.06.2019. Nevertheless they also filed the W.P.(C) No.
4600 of 2019 challenging Clause 12.2 of the 2019
Procedure which provided that notwithstanding the repeal
of the 2010 Rules, the action taken under the repealed
Rules including conduct of interview/selection or
competitive examination or declaration of any result
thereof by the APSC, shall be deemed to have been valid
and the pending interviews/selections or competitive
Page 4 of 13
examinations may be continued and completed, in
accordance with the 2010 Rules. The basic challenge
therefore, by the four respondents as writ petitioners,
was to the saving clause for the ongoing recruitment
process conducted under the 2010 Rules. It would be
relevant to mention at this stage that in view of the
adoption of the 2019 Procedure by repealing the 2010
Rules, the earlier W.P.(C) No. 1998 of 2017 was disposed
of as infructuous on 16th July, 2019 by the High Court
reserving the liberty to the writ petitioner to assail,
if aggrieved, the newly formulated 2019 Procedure.
7. The Gauhati High Court on 22.07.2019 issued
returnable notice in the W.P.(C) No. 4600 of 2019 and the
Division Bench after noticing that the APSC is conducting
large number of examinations made an observation that
attempt would be made to dispose of the matter on the
returnable date i.e. 08th August, 2019.
8. The case was next considered on the returnable date
and the High Court under the impugned judgment dated
08.08.2019 held that the 2010 Rules will have no
application for those interviews/selections for which,
exercise has not begun. The Court also observed that the
advertisement issued prior to 01.04.2019 (the date of
Page 5 of 13
commencement of the 2019 Procedure) has no relevance for
the applicability of the 2019 Procedure and accordingly
held that even in a situation where the written
examination was held but interview is yet to be
conducted, the newly introduced 2019 procedure has to be
applied in the interview segment of the selection. It
was finally observed that all pending
interviews/selections and competitive examinations, even
if occasioned by advertisements issued prior to
01.04.2019 shall be guided by the 2019 Procedure. The
Writ Petition of the respondents was accordingly allowed
on 08.08.2019 by the High Court.
9.1 Assailing the legality of the impugned judgment, Mr.
Parthiv K. Goswami, learned counsel submits that
currently the APSC, besides conducting the subject
recruitment/selection for the Water Resources Department,
is also undertaking selection process for the posts of,
inter alia, Computer Operator/Typist, Forest Ranger,
Agricultural Development Officer for which respective
advertisements were issued prior to incorporation of the
2019 Procedure and the process of selection through
screening test/written test were conducted under the 2010
Rules. Insofar as the recruitment for the 65 posts of
Page 6 of 13
Assistant Engineer (Civil) advertised on 21.12.2018, the
learned counsel points out that the last date for
applying for the post was stipulated as 02.02.2019 and
thereafter around 6000 applicants including the four
respondents, appeared for the screening test conducted on
30.06.2019 under the 2010 Rules. Adverting to these
relevant dates, the appellants would argue that the
process of selection in the present case had commenced
with the issuance of advertisement well before the 2019
Procedure was notified with effect from 01.04.2019 and
therefore, the selection should be in accordance with the
2010 Rules which prevailed on the date of the
advertisement.
9.2 The appellant’s counsel then argues that alteration
of the selection norms by the APSC through the 2019
Procedure which has prospective application, should have
no bearing on the ongoing process, on account of the
savings clause incorporated in the 2019 Procedure.
10.1 Per contra Ms. Rekha Pandey, learned counsel
appearing on behalf of respondent Nos. 1 to 4 (writ
petitioners) by referring to the preamble of the 2019
Procedure argues that the new Procedure was adopted to
bring in more transparency in the conducting of
Page 7 of 13
recruitment by the Commission, on account of the
deficiencies noticed in the process in the 2010 Rules.
She accordingly argues that adopting the 2019 Procedure
for the viva-voce segment of the recruitment exercise
would ensure weightage for merit and avoidance of
arbitrary selection, which was possible under the 2010
Rules.
10.2 The respondents counsel then refers to Rules 29 and
30 of the 2010 Rules to highlight that the procedure
envisaged did not provide adequate weightage to test the
merit of the candidates, on their academic/professional
qualification, service experience, etc. and therefore,
the 2019 Procedure should govern the next phase of
selection.
11. To deal with the rival submission, the relevant
clauses in the process of selection envisaged under the
2019 Procedure, will bear consideration. The concept of
negative marking is introduced for the first time under
Clause 4(B)(ii) which provides that for each wrong
answer, @ 0.25 marks are deducted against each question.
Besides the Clause 4(B)(vi) stipulates that marks for the
interview shall not exceed 12.2 per cent of the total
Page 8 of 13
marks. The screening test in which the respondents and
other candidates appeared on 30.06.2019 under the 2010
Rules as earlier noted, had no negative marking and,
therefore, the candidates could take the risk of guessing
the correct answer in the multiple choice test, without
the fear of being penalised for incorrect answer.
12. In the above backdrop, if the next segment of
selection is to be conducted under the 2019 Procedure,
the performance of the candidate in the aforenoted
screening test to the extent of 87.8 per cent of the
total marks, will determine the final selection of the
candidate. The question, therefore, is whether this
would be fair on the candidates when the performance of
few would be determined more by lucky guess and the real
merit may have no role in the aggregate score. The other
relevant question is whether the method of selection
should be permitted to be changed midway, by adopting the
2019 Procedure incorporated with effect from 01.04.2019
for the vacancies, which were advertised on 21.12.2018.
13. The law with regard to applicability of the Rules
which are brought anew during the selection process have
been crystalized by this Court. It has been held that
Page 9 of 13
the norms existing on the date when the process of
selection begins, will control the selection and the
alteration to the norms would not affect the ongoing
process unless the new Rules are to be given
retrospective effect. (See State of Bihar and Others vs.
Mithilesh Kumar1). Similarly in N.T. Devin Katti and
Others vs. Karnataka Public Service Commission and
Others2, this Court held that a candidate has a limited
right of being considered for selection in accordance
with the Rules as they existed on the date of
advertisement and he cannot be deprived of that limited
right by amendment of the Rules during the pendency of
the selection, unless the Rules are to be applied
retrospectively.
14. If we proceed with the above enunciation of the law
in Mithilesh Kumar (supra) and N.T. Devin Katti (supra),
the conclusion is inevitable that for the current
recruitment process for which advertisement was issued on
21.12.2018, the 2019 Procedure (which came into effect
from 01.04.2019) can have no application, particularly
when the first phase of the selection i.e. the screening
test was conducted under the 2010 Rules.
1
(2010) 13 SCC 467
2
(1990) 3 SCC 157
Page 10 of 13
15. One must also be conscious of the savings Clause 12.2
incorporated in the 2019 Procedure which makes it
abundantly clear that the interviews/selection or
competitive examinations pending on the date of
commencement of the Procedure should be continued and
completed, in accordance with the 2010 Rules.
16. In the present case, if the contention advanced by
the respondents is accepted and the next segment of the
process of selection is carried out under the 2019
Procedure, it will give rise to an anomalous situation
inasmuch as the screening test which was conducted
without negative marking, under the 2010 Rules, without
provisions for negative markings, will have a major
bearing in the final outcome of selection. This would
definitely prejudice the candidates who have undertaken
exams under 2010 Rules. The consistent law on the issue
also makes it clear that recruitment process pursuant to
the advertisement issued by the APSC on 21st December,
2018 must necessarily be conducted under the selection
norms as applicable on the date of the advertisement.
Moreover, having regard Rule 29 and Rule 30 of the 2010
Rules, it must also be said that merit of the candidates
would definitely be assessed in the selection exercise,
Page 11 of 13
undertaken by the APSC. The APSC is also capable of
conducting a fair selection and we believe that they will
keep in mind, the lawful expectation and the
constitutional mandate.
17. If the direction in the impugned judgment of the High
Court is to be followed for conducting the next segment
of the selection, for the single recruitment process the
candidates will be evaluated by two different sets of
procedure i.e. the 2010 Rules and the 2019 Procedure and
such dual norms must not in our opinion, govern the
ongoing recruitment process.
18. In view of the foregoing, we are persuaded to hold
that the recruitment process initiated by the APSC
through the advertisement dated 21.12.2018 for the 65
posts of Assistant Engineer (Civil), of the Water
Resources Department should be finalised under the 2010
Rules. Consequently, the direction issued for application
of the 2019 Procedure in the impugned judgment is found
to be not merited and the same is accordingly interfered.
The appeal stands allowed by permitting the APSC to
complete the process of selection for the advertised
posts, by following the 2010 Rules.
Page 12 of 13
………………………………………………J.
[R.BANUMATHI]
………………………………………………J.
[A.S.BOPANNA]
……………………………………………J.
 [HRISHIKESH ROY]
NEW DELHI
NOVEMBER 28, 2019
Page 13 of 13

Suit for possession of portion of the property over which that kachha structure marked as ‘ABCD’ in the site plan was situate - The matter was contested by the Respondent by filing his written statement submitting inter alia that by virtue of a Will executed by Sibo in favour of him, the Respondent had an independent interest in the property. A plea of adverse possession was also taken in the alternative. - The Trial Court dismissed said Suit by its judgment and decree dated 11.04.2011 holding inter alia that the Respondent had perfected his title by adverse possession and the Suit was barred by limitation.- The Appellate Court found that the claim of Sibo having been dismissed in the earlier round, she could not have conferred any title with respect to the property by a Will in favour of the Respondent. It was also found that the possession of the Respondent was purely permissive and that the claim on the ground of adverse possession was completely untenable. - High court reversed the finding and confirmed the trial court holding of adverse possession - Apex court held that The record clearly indicates that the possession of the Respondent of portion marked ‘ABCD’ and his occupation of the structure was purely permissive in character. At no stage the possession was hostile to the owners of the property. The element of hostility was completely missing. The finding rendered by the Appellate Court was, therefore, absolutely correct and there was no occasion for the High Court, while exercising second appellate jurisdiction, to set aside that finding.

Suit for possession of portion of the property over which that kachha structure marked as ‘ABCD’ in the site plan was situate - The matter was contested by the Respondent by filing his written statement
submitting inter alia that by virtue of a Will executed by Sibo in favour of him, the Respondent had an independent interest in the property. A plea of adverse possession was also taken in the alternative. - The Trial Court dismissed said Suit by its judgment and decree dated 11.04.2011 holding inter alia that the Respondent had perfected his title by adverse possession and the Suit was barred by limitation.- The Appellate Court found that the claim of Sibo having been dismissed in the earlier round, she could not have conferred any title with respect to the property by a Will in favour of
the Respondent. It was also found that the possession of the Respondent was purely permissive and that the claim on the ground of adverse possession was completely untenable. - High court reversed the finding and confirmed the trial court holding of adverse possession - Apex court held that The record clearly indicates that the possession of the Respondent of portion marked ‘ABCD’ and his occupation of the structure was purely permissive in character. At no stage the possession was hostile to the owners of the property. The element of hostility was completely missing. The finding rendered by the Appellate Court was, therefore, absolutely correct and there was no occasion for the High Court, while exercising second appellate jurisdiction, to set aside that finding.


Civil Appeal No.9087 of 2019 @ SLP(C)No.13835 of 2019
Jit Ram now deceased through LRs. vs. Satnam Singh
1
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9087 OF 2019
(Arising out of Special Leave Petition (Civil)No.13835 of 2019)
JIT RAM NOW DECEASED THROUGH LRS. …Appellants
VERSUS
SATNAM SINGH …Respondent
J U D G M E N T
Uday Umesh Lalit, J.
1. Leave granted.
2. This Appeal is directed against the judgment and order dated
28.03.2019 passed by the High Court of Punjab and Haryana at
Chandigarh in Regular Second Appeal No.3809 of 2013 (O&M).
3. One Banta, father of Jit Ram and Sibo, died on 02.07.1992. Sibo,
though married, was not staying with her husband, but used to reside with
her father Banta. After the death of Banta, Sibo filed Civil Suit No.143 of
1993 for declaration that she had become the owner and was in possession
of land admeasuring 5 kanals out of land admeasuring 9 kanals 14 marlas
Civil Appeal No.9087 of 2019 @ SLP(C)No.13835 of 2019
Jit Ram now deceased through LRs. vs. Satnam Singh
2
owned and possessed by Banta on the basis of Will dated 26.06.1992
executed by Banta. Sibo also sought a decree for permanent injunction to
restrain Jit Ram from interfering with her possession and from alienating
the land or any portion thereof. The Suit was dismissed by the Additional
Civil Judge (Senior Division), Garhshankar, by his judgment and decree
dated 28.04.1998. It was held that the Will, on the basis of which the claim
was raised, was highly suspicious and that Sibo had failed to prove her
case.
4. The aforesaid judgment was challenged by Satnam Singh, a
relation of Sibo and Jit Ram, by filing First Appeal in the court of the
Additional District Judge, Hoshiarpur. It was submitted that with the
consent of Banta he had erected a kachha structure in the land in question
and that he was in occupation of that structure in his own right. The
contentions were rejected and the First Appeal was dismissed by the Lower
Appellate Court by its judgment and order dated 14.01.2003. No further
challenge was raised and thus, the decree became final as against Sibo and
Satnam Singh, the Respondent herein.
5. Thereafter, Civil Suit No.293 of 2003 was filed by Jit Ram against
the Respondent for possession of portion of the property over which that
Civil Appeal No.9087 of 2019 @ SLP(C)No.13835 of 2019
Jit Ram now deceased through LRs. vs. Satnam Singh
3
kachha structure marked as ‘ABCD’ in the site plan was situate. The
matter was contested by the Respondent by filing his written statement
submitting inter alia that by virtue of a Will executed by Sibo in favour of
him, the Respondent had an independent interest in the property. A plea of
adverse possession was also taken in the alternative. The Trial Court
dismissed said Suit by its judgment and decree dated 11.04.2011 holding
inter alia that the Respondent had perfected his title by adverse possession
and the Suit was barred by limitation.
6. Jit Ram, being aggrieved, preferred Civil Appeal No. 45 of 2011 in
the Court of Additional District Judge, Hoshiarpur, which was allowed by
Judgment and Decree dated 19.07.2013. The Appellate Court found that
the claim of Sibo having been dismissed in the earlier round, she could not
have conferred any title with respect to the property by a Will in favour of
the Respondent. It was also found that the possession of the Respondent
was purely permissive and that the claim on the ground of adverse
possession was completely untenable.
7. The Respondent, being aggrieved, filed Regular Second Appeal
No.3809 of 2013 (O&M) in the High Court. Jit Ram having expired
during the pendency of said Appeal, his heirs were substituted in his place.
Civil Appeal No.9087 of 2019 @ SLP(C)No.13835 of 2019
Jit Ram now deceased through LRs. vs. Satnam Singh
4
By its Judgment and Order dated 28.03.2019 said Second Appeal was
allowed by the High Court. The High Court approved the findings of the
Appellate Court insofar as it was held that the Respondent could not have
succeeded to the suit property on the basis of any will executed by Sibo.
However, the finding as regards issue of adverse possession was reversed
and the finding of the Trial Court was restored. It was observed that the
Respondent had remained in open and hostile possession of the Suit
property which he had constructed in the year 1989.
8. In this Appeal we have heard Mr. O.P. Bhadani, learned Advocate
for the Appellant and Ms. Tina Garg, learned Advocate for the Respondent.
9. The record clearly indicates that the possession of the Respondent
of portion marked ‘ABCD’ and his occupation of the structure was purely
permissive in character. At no stage the possession was hostile to the
owners of the property. The element of hostility was completely missing.
The finding rendered by the Appellate Court was, therefore, absolutely
correct and there was no occasion for the High Court, while exercising
second appellate jurisdiction, to set aside that finding. In our view, the
High Court clearly erred in accepting the Second Appeal.
Civil Appeal No.9087 of 2019 @ SLP(C)No.13835 of 2019
Jit Ram now deceased through LRs. vs. Satnam Singh
5
10. The fact however remains that the structure was put up by the
Respondent. Pursuant to the interim direction issued by this Court the
pictures of the structure have been shown to the Court. The structure is
completely dilapidated and in our view the value of the structure may not
have been more than Rs.5,000/-. However, considering the fact that the
money was spent by the Respondent in the year 1989, in our view, ends of
justice would be met if the Appellants are directed to pay a sum of
Rs.50,000/- (Rupees Fifty Thousand Only) towards the cost of the
structure.
11. In the circumstances, we allow this appeal, set aside the Judgment
and Order under Appeal to the extent it held against the Appellants on the
issue of adverse possession and we restore the Judgment and Decree dated
19.07.2013 passed by the Appellate Court subject to the Appellants paying
Rs.50,000/- to the Respondent within four weeks from today. The amount
shall be deposited in the Trial Court and shall be released to the
Respondent if he vacates and hands over possession of the structure to the
Appellants within two weeks after the deposit, whereafter the Respondent
shall cease to have any interest in the structure. In case he refuses to
vacate and hand over such possession, the Respondent shall not be entitled
Civil Appeal No.9087 of 2019 @ SLP(C)No.13835 of 2019
Jit Ram now deceased through LRs. vs. Satnam Singh
6
to the sum so deposited and the sum could then be withdrawn by the
Appellants, who shall then be entitled to execute the decree dated
19.07.2013 passed by the Appellate Court.
12. The Appeal stands allowed accordingly. No costs.
……………..……………J.
[Uday Umesh Lalit]
………………………….J.
[Vineet Saran]
New Delhi;
November 28, 2019.