Penal Code, 1860 – Criminal Conspiracy – Two or more person agrees to, cause to be done i) an Illegal act ii) an act which is not illegal by illegal means – No agreement except an agreement to commit an offence shall amount to Criminal conspiracy – Cheating – An act to cheat and thereby dishonestly induce the person so deceived to deliver any property and fraudulent or dishonest intention at the time of making the representation or promise.

* Author

[2024] 4 S.C.R. 308 : 2024 INSC 284

Vipin Sahni and Another

v.

Central Bureau of Investigation

(Criminal Appeal No. 1980 of 2024)

08 April 2024

[Aniruddha Bose and Sanjay Kumar*, JJ]

Issue for Consideration

Whether it is open for High Court to convert or treat a petition

filed under section 482 Cr.P.C., as one filed under section 397

Cr.P.C.

Headnotes

Code of Criminal Procedure, 1973 – ss.482 and 397 –

Special Judicial Magistrate while exercising the power given

under section 239 Cr.P.C. discharged the appellants – CBI

approached the High Court under section 482 Cr.P.C. –

High Court set aside the discharge order and directed the

learned Special Judicial Magistrate to proceed with the case

– Appellants preferred appeal against the said impugned

order – Order of the High court is set aside.

Held: When the specific remedy of revision under section 397

Cr.P.C. is available, it could not have been ignored – A petition

under section 482 Cr.P.C. cannot be filed as an alternative of

revision. [Para. 25]

Penal Code, 1860 – Criminal Conspiracy – Two or more person

agrees to, cause to be done i) an Illegal act ii) an act which is not

illegal by illegal means – No agreement except an agreement

to commit an offence shall amount to Criminal conspiracy –

Cheating – An act to cheat and thereby dishonestly induce the

person so deceived to deliver any property and fraudulent or

dishonest intention at the time of making the representation

or promise.

Held: The sine qua non to make out an offence under section

420 IPC is an act on part act to cheat and thereby dishonestly

induce the person so deceived to deliver any property and

fraudulent or dishonest intention at the time of making the

representation or promise and such culpable intention should 

[2024] 4 S.C.R. 309

Vipin Sahni and Another v. Central Bureau of Investigation

be there at the time of entering into the agreement – Ingredients

required to constitute an offence of cheating are (i) there

should be fraudulent or dishonest inducement of a person by

deceiving him; (ii) (a) the person so deceived should be induced

to deliver any property to any person, or to consent that any

person shall retain any property; or (b) the person so deceived

should be intentionally induced to do or omit to do anything

which he would not do or omit if he were not so deceived; and

(iii) in cases covered by (ii) (b), the act or omission should be

one which causes or is likely to cause damage or harm to the

person induced in body, mind, reputation or property. [Paras

9, 10, 19, 20 and 26]

Inherent power of the court – Can be exercised when there

is no remedy provided in the Code of Criminal Procedure for

redressal of the grievance.

Held: As per the Article 131 in the Schedule to the Limitation

Act, 1963, the limitation period for filing a criminal revision under

Section 397 Cr.P.C. is 90 days – However, there is no limitation

prescribed for invocation of the inherent powers of the High Court

under Section 482 Cr.P.C – It is well settled that the inherent

power of the Court can ordinarily be exercised when there is no

express provision in the Code under which order impugned can

be challenged – When a revision is lawfully instituted before the

High Court but the same is thereafter found to be not maintainable

on some other ground, it would be open to the High Court to

treat the same as a petition filed under Section 482 Cr.P.C in

order to do justice in that case – However, the reverse analogy

may not apply in all cases and it would not be open to the High

Court to blindly convert or treat a petition filed under Section 482

Cr.P.C as one filed under Section 397 Cr.P.C., without reference

to other issues, including limitation. [Paras 23 and 25]

Case Law Cited

Ram Jas v. State of U.P. [1971] 2 SCR 178 : (1970) 2

SCC 740; V.P. Shrivastava v. Indian Explosives Limited

and others [2010] 11 SCR 788 : (2010) 10 SCC 361

– Followed.

Mohit alias Sonu and another v. State of U.P. and another

[2013] 7 SCR 86 : (2013) 7 SCC 789 – Relied on.

310 [2024] 4 S.C.R.

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List of Acts

Code of Criminal Procedure, 1973; Penal Code, 1860; AICTE

Approval Process 2006.

List of Keywords

Inherent Power of the Court, Revision, Criminal Conspiracy,

Cheating, Discharge.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1980

of 2024

From the Judgment and Order dated 20.01.2023 of the High Court

of Judicature at Allahabad in A482 No. 11426 of 2021

Appearances for Parties

Mukul Rohatgi, Jaideep Gupta, Sr. Adv., Samir Rohtagi, Ajay Singh,

Ms. Alka Sinha, Anuvrat Sharma, Advs. for the Appellants.

Vikramjeet Banerjee, A.S.G., Mukesh Kumar Maroria, Padmesh

Mishra, Arkaj Kumar, Anukalp Jain, Ms. Bani Dikshit, Merusagar

Samantaray, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Sanjay Kumar, J.

1. Leave granted.

2. Exercising power under Section 239 Cr.P.C, the learned Special

Judicial Magistrate, CBI Court, Ghaziabad, discharged the appellants

herein of a charge under Sections 420 and 120B IPC, vide order

dated 31.08.2019 in Case No. 456 of 2012 arising out of RC-219

2011 (E) 0016 registered on the file of Police Station CBI, EO-1, New

Delhi. Aggrieved thereby, the Central Bureau of Investigation (for

short, ‘CBI’) approached the High Court of Judicature at Allahabad,

under Section 482 Cr.P.C, by way of Application U/S 482 No. 11426

of 2021. By order dated 20.01.2023 passed therein, the High Court

set aside the discharge order and directed the learned Magistrate

to proceed with the case against the appellants. Assailing the said

order, they are before this Court.

[2024] 4 S.C.R. 311

Vipin Sahni and Another v. Central Bureau of Investigation

3. The appellants had established Sunshine Educational and

Development Society, NOIDA, Uttar Pradesh, and registered it

under the Societies Registration Act in the year 2004. The aims and

objectives of this Society, inter alia, included propagation of technical

education. Appellant No. 1 was the Chairman of the said Society

while his wife, viz., appellant No. 2, was its Secretary. In September,

2006, the Society acquired 4.90 acres of land in Greater NOIDA,

Uttar Pradesh, on a 90-year lease from Greater Noida Industrial

Development Authority, Gautambudh Nagar, Uttar Pradesh, for

setting up educational institutions. The Society filed application dated

22.01.2007 seeking approval of the All India Council for Technical

Education (AICTE) to establish ‘Business School of Delhi’, offering a

Post-Graduate Diploma Course in Business Management (PGDM),

in an extent of one acre out of the leased land. In the application,

the Society disclosed that a loan of ₹5.75 Crore had been availed

by it from Corporation Bank and that the outstanding loan stood at

above ₹3 Crore. It also disclosed, in response to clause 6(v), that a

loan/mortgage had been raised against the land, by ticking the ‘Yes’

box. However, in the tabular form in the first page, against the query

– ‘Mortgaged with Bank - Yes/No’, the answer was stated as ‘No’.

There was, thus, an apparent contradiction in the application itself.

In any event, approval was accorded by the AICTE on 17.08.2007

to start the ‘Business School of Delhi’.

4. Thereafter, the Society submitted another application to the AICTE

on 27.10.2007 seeking to establish ‘Business School for Women’,

offering PGDM course. A day later, on 28.10.2007, the Society filed

yet another application seeking approval from the AICTE to start a

third institute, named ‘International Business School of Delhi’. The

first and third applications were moved on behalf of the Society by

appellant No. 1, being its Chairman, while the second application was

filed by appellant No. 2, as its Secretary. In the two later applications,

the Society failed to mention that the leased land was mortgaged

but it disclosed the fact that it had already been granted approval in

the year 2007 to operate another institute from the same premises.

By proceedings dated 29.05.2008, the AICTE granted approval for

starting the ‘Business School for Women’ in an extent of 0.8 acres

out of the said land. On 19.06.2008, the AICTE accorded approval

to commence the ‘International Business School of Delhi’ in the

leased land.

312 [2024] 4 S.C.R.

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5. While so, it appears that an anonymous complaint was made to the

Chief Vigilance Commissioner alleging that officials of the AICTE

had shown undue favour to the Society. On the strength thereof,

the Chief Vigilance Commissioner referred the matter to the CBI for

investigation. In the first instance, the Regional Officer of the CBI at

Kanpur addressed letter dated 24.07.2011 to the Station-in-charge,

Police Station Greater NOIDA, to register a case for investigation but

the District Police of Gautambudh Nagar, Uttar Pradesh, opined that

the complaint did not justify registering of a FIR and/or proceeding

with investigation as no cognizable offence was made out.

6. However, on 30.11.2011, Case Crime No. 219 2011 (E) 0016 was

registered on the file of PS CBI, EO-1, New Delhi, under Sections

420 and 120B IPC along with Section 13(2) read with Section 13(1)

(d) of the Prevention of Corruption Act, 1988. This FIR was registered

against the appellants and unnamed officials of the AICTE, alleging

that the appellants had obtained approval by deceitful means from

the AICTE, in violation of Section 4.2(iii) of the AICTE Approval

Process 2006. As per this provision, the land approved for starting an

educational institution ought not to be encumbered. After completion

of the investigation, Charge Sheet No. 11 of 2012 was filed by the

CBI for offences under Sections 420 and 120B IPC, naming only

the appellants as the accused. No official of the AICTE was charged

with criminality in granting approval to the Society’s institutions.

7. Aggrieved by their arraignment, the appellants approached the High

Court at Allahabad under Section 482 Cr.P.C, vide Application U/S

482 No. 37398 of 2012, seeking quashing of the criminal proceedings

against them. By order dated 14.02.2013, the High Court accepted

their plea and quashed the said proceedings. However, upon the

CBI approaching this Court in Criminal Appeal No. 239 of 2015, by

order dated 05.02.2018 passed therein, this Court set aside the

order dated 14.02.2013 but made it clear that the Trial Court would

be at liberty to go into the merits of the issue raised at the stage

of framing of charges. Thereafter, on 02.07.2018, the Trial Court

granted bail to the appellants.

8. On 25.09.2018, the appellants moved an application for discharge

before the learned Special Judicial Magistrate, CBI Court, Ghaziabad,

but the learned Magistrate rejected their plea by order dated

15.02.2019 and directed the matter to be listed for framing of charges. 

[2024] 4 S.C.R. 313

Vipin Sahni and Another v. Central Bureau of Investigation

The appellants, thereupon, preferred Criminal Revision No. 101 of

2019 before the learned Additional Sessions Judge, Ghaziabad,

under Section 397 Cr.P.C. The revision was allowed by the learned

Additional Sessions Judge, vide order dated 29.05.2019, whereby the

order passed by the learned Magistrate was set aside and the matter

was remanded for hearing afresh, in the light of the observations

made in the revisional order. In consequence, the learned Magistrate

reheard the case and passed order dated 31.08.2019, discharging

the appellants from the alleged offence under Sections 420 and 120B

IPC. Nearly one and a half years after the passing of this discharge

order, i.e., on 21.02.2021, the CBI filed a petition under Section 482

Cr.P.C assailing it before the High Court at Allahabad. The petition

was taken on file as Application U/S 482 No. 11426 of 2021 and the

High Court allowed the same by way of the impugned order, leading

to the present appeal.

9. Before we proceed to examine the case on merits, we may first take

note of relevant legal provisions. Section 415 IPC defines ‘Cheating’

and it reads thus: -

‘415. Cheating.-

Whoever, by deceiving any person, fraudulently or

dishonestly induces the person so deceived to deliver any

property to any person, or to consent that any person shall

retain any property, or intentionally induces the person so

deceived to do or omit to do anything which he would not

do or omit if he were not so deceived, and which act or

omission causes or is likely to cause damage or harm to

that person in body, mind, reputation or property, is said

to “cheat”.

Explanation.- A dishonest concealment of facts is a

deception within the meaning of this section.’

Section 420 IPC, the provision we are concerned with presently,

reads as under: -

‘420. Cheating and dishonestly inducing delivery of

property.-

Whoever cheats and thereby dishonestly induces the

person deceived to deliver any property to any person, 

314 [2024] 4 S.C.R.

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or to make, alter or destroy the whole or any part of a

valuable security, or anything which is signed or sealed,

and which is capable of being converted into a valuable

security, shall be punished with imprisonment of either

description for a term which may extend to seven years,

and shall also be liable to fine.’

Sections 120A IPC and 120B IPC read thus: -

‘120A. Definition of criminal conspiracy.-

When two or more persons agree to do, or cause to be

done,

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such

an agreement

is designated a criminal conspiracy:

Provided that no agreement except an agreement to

commit an offence shall amount to a criminal conspiracy

unless some act besides the agreement is done by one

or more parties to such agreement in pursuance thereof.’

‘120B. Punishment of criminal conspiracy.-

(1) Whoever is a party to a criminal conspiracy to commit

an offence punishable with death, [imprisonment

for life] or rigorous imprisonment for a term of two

years or upwards, shall, where no express provision

is made in this Code for the punishment of such a

conspiracy, be punished in the same manner as if

he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than

a criminal conspiracy to commit an offence punishable

as aforesaid shall be punished with imprisonment of

either description for a term not exceeding six months,

or with fine or with both.]’

10. The sine qua non to make out an offence under Section 420 IPC,

insofar as the present case is concerned, is an act on the part of

the appellants to ‘cheat and thereby dishonestly induce the person

so deceived, viz., the AICTE, to deliver any property’. Therefore, the 

[2024] 4 S.C.R. 315

Vipin Sahni and Another v. Central Bureau of Investigation

appellants, while applying for and on behalf of the Society, should

have either suppressed material information or projected incorrect

information so as to induce the AICTE, by such dishonest means, to

grant approval for its educational institutions. Further, as no official

of the AICTE has been implicated in the offence, as per the charge

sheet, the alleged ‘criminal conspiracy’ under Section 120B IPC

would also be attributable to the appellants only.

11. Viewed in this light, we may note that the first application dated

22.01.2007 submitted by appellant No. 1 for starting ‘Business

School of Delhi’ clearly mentioned the fact that a part of the leased

land admeasuring about 5 acres was to be used for setting up this

institution and that a term loan of ₹5.75 crore had been raised from

the Corporation Bank. The repayable outstanding loan was also

shown as above ₹3 crore. Clause 6 of the application dealt with

‘Land’ and it was stated thereunder that the government’s leased

land of about 5 acres was intended to be used for establishing the

college. Clause 6(v) of the application and the Society’s response

thereto are extracted hereunder.

'(v) Any loans/mortgage raised against the titles of the

land

Yes  No’

12. Further, as already noted, the AICTE deemed it fit to grant approval

on 17.08.2007 to start this institution. This was despite the AICTE’s

‘Approval Process 2006’ providing that the land should have been

registered in the name of the applicant’s society/trust on or before

the date of submission of the proposal, free from any encumbrances.

However, no official of the AICTE has been implicated in any

wrongdoing.

13. Coming to the Society’s second application for the ‘Business School

for Women’, the same extent of 5 acres was shown against clause 6

but there was non-disclosure of the mortgage of the land to secure

the outstanding bank loan. Under clause 6(v), the society failed to

state that a loan/mortgage had been raised against the title of the

land and tick-marked ‘No’ instead of ‘Yes’. Similarly, the application

for starting the ‘International Business School of Delhi’ also mentioned

the same extent of 5 acres of land but again, clause 6(v) contained

incorrect information as against the question whether any loan/

316 [2024] 4 S.C.R.

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mortgage had been raised against the title of the land. The word

‘No’ was tick-marked instead of ‘Yes’.

14. These are the actions which formed the foundation for the CBI’s case

against the appellants. As already stated hereinbefore, it was not the

AICTE that claimed that it was deceived and dishonestly induced to

grant approval owing to suppression of material information by the

appellants acting on behalf of the Society. It was a third party who

chose to remain anonymous that initiated the investigation. Further,

by not implicating any official of the AICTE in the charge sheet and

by dropping the provisions of the Prevention of Corruption Act, 1988,

the CBI found that the AICTE’s officials were not complicit at all and

they were given a clean chit.

15. At this stage we may note that, though the appellants were initially

successful in getting the proceedings quashed by the High Court,

this Court reversed the said order but left it open to the Trial Court

to examine the issue raised, on merits, at the time of framing of

charges. It is pursuant to the liberty granted by this Court that the

learned Special Judicial Magistrate, CBI Court, chose to exercise

power under Section 239 Cr.P.C and discharged the appellants. The

validity of that exercise was called in question before the High Court,

which ultimately held against the appellants.

16. Significantly, the High Court was not inclined to accept the preliminary

objection raised by the appellants to the effect that the CBI ought to

have filed a revision under Section 397 Cr.P.C against the discharge

order and could not maintain a petition under Section 482 Cr.P.C.

In this regard, the High Court observed that it could always treat a

petition filed under Section 482 Cr.P.C as a revision under Section

397 Cr.P.C and, therefore, the appellants’ objection had no substance.

On merits, the High Court opined that the appellants had deliberately

withheld relevant information knowing fully well that if the land was

encumbered in any manner, approval for setting up the educational

institutions there would be declined. Holding so, the High Court set

aside the discharge order.

17. We are, however, of the considered opinion that the finding of the High

Court as to deliberate withholding of information by the appellants

cannot be accepted on the given facts. It is a matter of record that

the first application dated 22.01.2007 filed by appellant No. 1 on

behalf of the Society disclosed that a bank loan was still outstanding 

[2024] 4 S.C.R. 317

Vipin Sahni and Another v. Central Bureau of Investigation

and that the subject land of nearly 5 acres had been mortgaged to

secure the loan. This was followed by scrutiny and verification by the

officials of the AICTE, including a spot inspection, following which,

approval for starting the ‘Business School of Delhi’ was accorded

on 17.08.2007. No wrongdoing has been attributed to the officials

of the AICTE in that regard. It was only the later application dated

27.10.2007 for the ‘Business School for Women’ and the application

dated 28.10.2007 for the ‘International Business School of Delhi’ that

did not state correct information with regard to the outstanding bank

loan and the mortgage of the land in connection therewith. However,

all three applications mentioned the extent of nearly 5 acres and the

AICTE could not be said to be in ignorance of the fact that the said

land was under an encumbrance at the time the applications were

made. Notably, both the later applications mentioned the fact that

an institution was already granted approval in 2007 to operate from

the same premises. This was obviously in reference to the ‘Business

School of Delhi’ and the application for the same did disclose the

subsistence of the loan and the encumbrance on the land.

18. That apart, it was not even the case of the AICTE that it was under

any illusions, whereby it was dishonestly induced to grant approval

for establishment of the colleges in question. The only party who

can speak of being ‘dishonestly induced to do or not do something’

is that party itself and when the AICTE made no such complaint,

it was not for others to insinuate that the AICTE was dishonestly

induced to do something.

19. In Ram Jas v. State of U.P.1

, the ingredients required to constitute

an offence of cheating were succinctly summed up thus: -

"(i) there should be fraudulent or dishonest inducement

of a person by deceiving him;

(ii) (a) the person so deceived should be induced to

deliver any property to any person, or to consent that

any person shall retain any property; or

(b) the person so deceived should be intentionally

induced to do or omit to do anything which he would

not do or omit if he were not so deceived; and

1 [1971] 2 SCR 178 : (1970) 2 SCC 740

318 [2024] 4 S.C.R.

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(iii) in cases covered by (ii) (b), the act or omission should

be one which causes or is likely to cause damage or

harm to the person induced in body, mind, reputation

or property.’

20. In V.P.Shrivastava vs. Indian Explosives Limited and others2

, this

Court observed that in order to constitute an offence of cheating,

it must be shown that the accused had a fraudulent or dishonest

intention at the time of making the representation or promise and

such a culpable intention should be there at the time of entering into

the agreement. On facts, it was found that the party alleged to have

been cheated was fully conscious of the situation at the time it decided

to enter into the contract and there was no dishonest inducement.

21. In the case on hand, there was disclosure of the fact that the subject

land was mortgaged to secure the bank loan but despite the same,

the AICTE granted approval for the ‘Business School of Delhi’ and it

never complained that it was under any misinformation in that regard.

Thus, the essential requisite to make out an offence of cheating is

lacking. Mere carelessness on the part of the appellants in filling up

the second and third applications and a part of the first application

also cannot be taken to be motivated by deliberate deception, on

the admitted factual position, so as to invite criminal charges.

22. Further, there is no evidence of the appellants consciously agreeing

or conspiring to deliberately furnish false information to the AICTE so

as to garner its approval for their colleges. As already noted, appellant

No.1 filed the first application, divulging the relevant details of the bank

loan and the mortgage over the leased land, but he failed to do so

in the third application filed by him. Appellant No.2 filed the second

application with the same non-disclosure but there is no evidence

whatsoever of the appellants resorting to deception in that regard

willfully and in connivance with each other. Therefore, the charge

under Section 120B IPC also does not withstand judicial scrutiny.

23. As regards the objection raised by the appellants as to the maintainability

of the CBI’s petition filed before the High Court under Section 482

Cr.P.C., we may note that, as per Article 131 in the Schedule to the

Limitation Act, 1963, the limitation period for filing a criminal revision

2 [2010] 11 SCR 788 : (2010) 10 SCC 361

[2024] 4 S.C.R. 319

Vipin Sahni and Another v. Central Bureau of Investigation

under Section 397 Cr.P.C, be it before the High Court or the Sessions

Court, is 90 days. However, there is no limitation prescribed for

invocation of the inherent powers of the High Court under Section 482

Cr.P.C. and it can be at any time. It is a matter of record that when

the learned Special Magistrate, CBI Court, dismissed the appellants’

discharge petition in the first instance, they had filed a revision before

the Sessions Court under Section 397 Cr.P.C. and the matter was

remanded for hearing afresh. However, the CBI did not choose to adopt

this course when the appellants’ discharge petition was allowed by the

learned Special Magistrate in the second round. Long after the expiry

of the limitation period of 90 days, the CBI filed a petition before the

High Court at Allahabad under Section 482 Cr.P.C. This was obviously

to get over the hurdle of the limitation for filing of a revision under

Section 397 Cr.P.C. In this regard, useful reference may be made to

the decision of this Court in Mohit alias Sonu and another vs. State

of U.P. and another3

, wherein it was observed thus:

‘28. So far as the inherent power of the High Court as

contained in Section 482 CrPC is concerned, the law

in this regard is set at rest by this Court in a catena of

decisions. However, we would like to reiterate that when

an order, not interlocutory in nature, can be assailed in

the High Court in revisional jurisdiction, then there should

be a bar in invoking the inherent jurisdiction of the High

Court. In other words, inherent power of the Court can be

exercised when there is no remedy provided in the Code of

Criminal Procedure for redressal of the grievance. It is well

settled that the inherent power of the Court can ordinarily

be exercised when there is no express provision in the

Code under which order impugned can be challenged.

29. Courts possess inherent power in other statute also like

the Code of Civil Procedure (CPC), Section 151 whereof

deals with such power. Section 151 CPC reads:

“151. Saving of inherent powers of court.—Nothing in

this Code shall be deemed to limit or otherwise affect the

inherent power of the court to make such orders as may

be necessary for the ends of justice or to prevent abuse

of the process of the court.”

3 [2013] 7 SCR. 86 : (2013) 7 SCC 789

320 [2024] 4 S.C.R.

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30. This Court in Padam Sen v. State of U.P. [AIR 1961

SC 218 : (1961) 1 Cri LJ 322] regarding inherent power

of the Court under Section 151 CPC observed: (AIR p.

219, para 8)

“8. … The inherent powers of the court are in addition to

the powers specifically conferred on the court by the Code.

They are complementary to those powers and therefore it

must be held that the Court is free to exercise them for the

purposes mentioned in Section 151 of the Code when the

exercise of those powers is not in any way in conflict with

what has been expressly provided in the Code or against

the intentions of the legislature. It is also well recognised

that the inherent power is not to be exercised in a manner

which will be contrary to or different from the procedure

expressly provided in the Code.”

31. In a Constitution Bench decision rendered in Manohar

Lal Chopra v. Seth Hiralal [AIR 1962 SC 527] , this Court

held that: (AIR p. 537, para 43)

“43. … The inherent jurisdiction of the court to make orders

ex debito justitiae is undoubtedly affirmed by Section 151 of

the Code, but [inherent] jurisdiction cannot be exercised so

as to nullify the provisions of the Code of Civil Procedure.

Where the Code of Civil Procedure deals expressly with a

particular matter, the provision should normally be regarded

as exhaustive.”

32. The intention of the legislature enacting the Code of

Criminal Procedure and the Code of Civil Procedure vis-à-vis

the law laid down by this Court it can safely be concluded that

when there is a specific remedy provided by way of appeal

or revision the inherent power under Section 482 CrPC or

Section 151 CPC cannot and should not be resorted to.’

24. In the light of the above edict, it was not open to the CBI to blithely

ignore the statutory remedy available to it under Section 397 Cr.P.C

and thereafter resort to filing of an application under Section 482

Cr.P.C.

25. We may also note that in the event a revision is lawfully instituted

before the High Court but the same is thereafter found to be not 

[2024] 4 S.C.R. 321

Vipin Sahni and Another v. Central Bureau of Investigation

maintainable on some other ground, it would be open to the High

Court to treat the same as a petition filed under Section 482 Cr.P.C

in order to do justice in that case. However, the reverse analogy may

not apply in all cases and it would not be open to the High Court

to blindly convert or treat a petition filed under Section 482 Cr.P.C

as one filed under Section 397 Cr.P.C., without reference to other

issues, including limitation. When the specific remedy of revision was

available to the CBI, it could not have ignored the same and filed a

petition under Section 482 Cr.P.C. We, therefore, find in favour of

the appellants even on this count.

26. On the above analysis we are of the opinion that the learned

Magistrate was fully justified in exercising power under Section 239

Cr.P.C. and discharging the appellants from criminal proceedings in

relation to Case No. 456 of 2012. The High Court adopted a rather

technical approach and practically concluded that the appellants

were guilty of deliberately withholding relevant information so as

to secure the approvals by deceitful means. This finding of the

High Court is not supported by the admitted facts, which indicate

disclosure of the mortgage at the outset when the first application

was made and, therefore, there is no possibility of inferring that the

appellants conspired in terms of Section 120A IPC to commit an

illegal act of suppression so as to secure the approvals. Further, the

AICTE itself never claimed that it was dishonestly induced to grant

such approvals and that essential link is altogether missing, whereby

any such criminal charge of cheating can be sustained against the

appellants. The impugned order dated 20.01.2023 passed by the

Allahabad High Court in Application U/S 482 Cr.P.C No. 11426 of

2021 is, therefore, set aside and the order of discharge passed by

the learned Special Judicial Magistrate, CBI Court, Ghaziabad, in

Case No. 456 of 2012 is restored. In consequence, the appellants

shall stand discharged of the alleged offence under Sections 420

and 120B IPC in Case Crime No. 219 of 2011 (E) 0016.

The criminal appeal is allowed accordingly.

Pending applications shall stand closed.

Headnotes prepared by: Result of the case:

Himanshu Rai, Hony. Associate Editor Appeal allowed.

(Verified by: Abhinav Mukerji, Sr. Adv.)

Easements Act, 1882 – ss.4, 13, 15 – “Easementary right” – Easementary right by prescription or necessity – When not proved:

* Author

[2024] 4 S.C.R. 357 : 2024 INSC 293

Manisha Mahendra Gala & Ors.

v.

Shalini Bhagwan Avatramani & Ors.

(Civil Appeal No. 9642 of 2010)

10 April 2024

[Pankaj Mithal* and Prashant Kumar Mishra, JJ.]

Issue for Consideration

Appellants if had easementary right of the way over the land owned

by the respondents i.e. the disputed rasta. Appellants’ reliance

upon the evidence of their Power of Attorney holder/Manager of

the property (PW-1) to prove their easementary right of way over

the disputed rasta, if proper.

Headnotes

Easements Act, 1882 – ss.4, 13, 15 – “Easementary right” –

Easementary right by prescription or necessity – When not

proved:

Held: ‘Easement’ u/s.4 is a right which the owner or occupier of

a land possesses for the beneficial enjoyment of his land on the

other land which is not owned by him, to do and continue to do

something or to prevent and continue to prevent something being

done on the said land – In the present case, the Appellants are

admittedly the owners of Survey No. 48 Hissa No.15 whereas

the respondents are the owners of Survey No.57 Hissa No.13A/1

on which the rasta in dispute allegedly exists – Appellants

claimed that the use of the aforesaid rasta was for the beneficial

enjoyment of their land as they had no other way of access to

their land and that they had been enjoying the said easementary

right for the “last many years” – s.15 provides that for acquiring

any easementary right by prescription, the said right must have

been peaceably enjoyed in respect of the servient heritage (the

land on which the easement is claimed) without any interruption

for over 20 years – However, neither the original plaintiff nor the

Appellants specifically claimed that they or their predecessorin-interest were enjoying easementary right of use of the said

rasta for over 20 years – The term “last many years” is not

sufficient to mean that they have been enjoying the same for the 

358 [2024] 4 S.C.R.

Digital Supreme Court Reports

last 20 years – Therefore, their pleadings fall short of meeting

the legal requirement of acquiring easementary right through

prescription – No evidence to prove that the Appellants were in

use of the said land for the last over 20 years uninterruptedly

– They entered the scene only on purchasing the said land on

17.09.1994 after the suit was filed and as such, they could not

and have not deposed anything about the pre-existing right or

the easementary right attached with the Dominant Heritage (the

land which is to be enjoyed by the beneficiary) – The said right

has to be proved as existing prior to the institution of the suit –

Neither the Appellants nor their predecessor-in-interest came in

the witness box – They only relied upon the deposition of their

Power of Attorney holder/the Manager who was not having any

authority to act as their Power of Attorney at the time his statement

was recorded – He was granted Power of Attorney subsequently

– Further, in the absence of any evidence or material to show

that original plaintiff had actually acquired any easementary

right over the rasta in dispute before the institution of the suit,

he could not have transferred any such right in favour of the

Appellants – Furthermore, there is an alternative way to access

the Dominant Heritage, may be a little far away or longer which

demolishes the easement of necessity u/s.13 – Appellants not

entitled to any easementary right by necessity either upon the

disputed rasta – Thus, they have not acquired easementary right

over the disputed rasta in any manner much less by prescription,

necessity or under an agreement– Appellate courts and High

Court right in dismissing the Suit of the plaintiffs/appellants and

in decreeing the Suit of the defendants/respondents. [Paras 19,

21, 22, 27, 29, 31-33, 40]

Power of Attorney holder – Appellants relied upon the evidence

of their Power of Attorney holder/Manager of the property (PW1) to prove their easementary right of way over the disputed

rasta – Propriety:

Held: Power of Attorney holder can only depose about the facts

within his personal knowledge and not about those facts which are

not within his knowledge or are within the personal knowledge of

the person who he represents or about the facts that may have

transpired much before he entered the scene – PW-1, the Power

of Attorney holder deposed that he was giving evidence on behalf

of plaintiff Nos. 2 to 4 i.e. the Appellants – He was not having 

[2024] 4 S.C.R. 359

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.

any authority to act as the Power of Attorney of the Appellants at

the time his statement was recorded – He was granted Power of

Attorney subsequently as accepted by the parties – Therefore, his

evidence was completely meaningless to establish that Appellants

have acquired or perfected any easementary right over the disputed

rasta in 1994 when the suit was instituted. [Para 29]

Pleadings – Consideration of:

Held: Pleadings should be liberally construed and need not contain

the exact language used in the statutory provision but it does not

mean that the pleadings even if fails to plead the essential legal

requirement for establishing a right, the same be so construed

so as to impliedly include what actually has not been pleaded

more particularly when it happens to be an essential ingredient

for establishing a right – In the present case, the pleadings of the

plaintiffs/appellants fall short of meeting the legal requirement of

acquiring easementary right through prescription and cannot be

treated to be of sufficient compliance of the statutory requirement

– A fact which is not specifically pleaded cannot be proved by

evidence as evidence cannot travel beyond the pleadings. [Para

23]

Easementary right – Claimed under the Sale Deed – Propriety

– Appellants claimed that they acquired easementary right

under the Sale Deed dated 17.09.1994 (photocopy produced)

and that it would not stand extinguished even if the necessity

has ceased to exist:

Held: Property owned and possessed by the Appellants was

originally the property of one ‘RB’ which was acquired by the

government – It was purchased by ‘WF’ in public auction from the

government – Thereafter, it devolved upon his legal heir ‘JWR’

who sold it to the predecessor-in-interest of the Appellants vide

Sale Deed dated 17.09.1994 – There is no evidence on record to

establish that the government ever transferred any easementary

right over the rasta in question to ‘WF’ or that his legal heir

‘JWR’ ever acquired or perfected any easementary right over it –

Therefore, the right which was not possessed by them could not

have been transferred to the Appellants under the Sale Deed dated

17.09.1994 – Further, the said Sale Deed dated 17.09.1994 in

original was not produced in evidence – It was only the photocopy

of the same which was brought on record – Photocopy of a

document is inadmissible in evidence – Moreover, the said sale 

360 [2024] 4 S.C.R.

Digital Supreme Court Reports

deed was executed by predecessor-in-interest i.e. ‘JWR’ in favour

of predecessor-in-interest of the present appellants – The said sale

deed would not bind the third parties who are not signatories or

parties to the said sale deed – No evidence adduced to prove that

‘JWR’, predecessor-in-interest of the Appellants, had perfected

easementary rights over the disputed rasta and thus was legally

entitled to transfer the same. [Paras 35, 36]

Code of Civil Procedure, 1908 – s.107 – Powers of the appellate

court in disturbing the findings recorded by the court of first

instance:

Held: First appellate court is empowered to exercise powers

and to perform nearly the same duties as of the courts of

original jurisdiction – Therefore, the first appellate court has the

power to return findings of fact and law both and in so returning

the finding, it can impliedly overturn the findings of the court

of first instance if it is against the evidence on record or is

otherwise based upon incorrect interpretation of any document

or misconstruction of any evidence adduced before the court

of first instance. [Para 39]

Case Law Cited

Dr. S. Kumar & Ors. v. S. Ramalingam [2019] 10 SCR

531 : (2020) 16 SCC 553 – held inapplicable.

Ram Sarup Gupta (Dead) By Lrs. v. Bishun Narain Inter

College & Ors. [1987] 2 SCR 805 : (1987) 2 SCC 555;

Janki Vashdeo Bhojwani v. IndusInd Bank Ltd. [2004]

Suppl. 6 SCR 681 : (2005) 2 SCC 217; A.C Narayan

v. State of Maharashtra [2013] 11 SCR 80 : (2014) 11

SCC 790 – referred to.

List of Acts

Easements Act, 1882; Code of Civil Procedure, 1908.

List of Keywords

Easement; Easementary right; Right of the way; Power of Attorney

holder; Facts within his personal knowledge; Easementary right by

prescription or necessity; Last many years; Pleadings; Evidence

cannot travel beyond the pleadings; Dominant Heritage; Servient

heritage; Sale Deed; Photocopy of a document inadmissible in

evidence; Powers of the appellate court.

[2024] 4 S.C.R. 361

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal No.9642 of 2010

From the Judgment and Order dated 01.10.2009 of the High Court

of Judicature at Bombay in SA No. 369 of 2009

With

Civil Appeal No. 9643 of 2010

Appearances for Parties

Huzefa Ahmadi, Sr. Adv., Mahesh Agarwal, Rishi Agrawala, Ankur

Saigal, Shashwat Singh, Ms. Vidisha Swarup, Ms. Vidisha Swrup,

E. C. Agrawala, Advs. for the Appellants.

Devansh Anoop Mohta, Shishir Deshpande, Amit Yadav, Nilakanta

Nayak, Kaushal Narayan Mishra,Ms. Sujata Kurdukar, Advs. for the

Respondents.

Judgment / Order of the Supreme Court

Judgment

Pankaj Mithal, J.

1. The dispute in the above two appeals is in connection with

easementary rights over 20ft. wide road situated over land Survey

No.57 Hissa No.13A/1 which is presently owned by the respondents

herein (hereinafter the ‘Ramani’s’).

2. In Suit No.14 of 1994 instituted by Joki Woler Ruzer, the descendants

of the subsequent purchaser Mahendra Gala were added as plaintiff

Nos.2-4 (hereinafter the ‘Gala’s’). The suit was for declaration of their

easementary rights over the 20ft. wide road situate in the property

of the Ramani’s and for permanent injunction in respect thereof. The

suit was decreed by the court of first instance vide judgment and

order dated 06.02.2003. However, the aforesaid judgment and decree

was set aside in appeal by the Ad-hoc District Judge-2, Raigad, vide

judgment and order dated 12.03.2009 and the suit was dismissed.

The High Court vide impugned judgment and order dated 01.10.2009

upheld the aforesaid judgment and order of the appellate court in

Second Appeal No.305 of 2009.

3. Apart from the above suit, Suit No.7 of 1996 came to be filed by

the Ramani’s for declaring that the Gala’s or their predecessor-in-

362 [2024] 4 S.C.R.

Digital Supreme Court Reports

interest have no right, title and interest in the property and they do

not have any right of way through the above land. The aforesaid

suit was dismissed vide judgment and order dated 06.02.2003 by

the court of first instance i.e. Civil Judge, Junior Division, Murud.

On the appeal being preferred, the judgment and order passed by

the court of first instance was set aside and the suit was decreed

holding that the Gala’s have no right of way either by easement of

prescription or of necessity on the suit land/road. The Gala’s were

restrained from disturbing the possession of Ramani’s over the suit

land and from doing any overt act over it.

4. Aggrieved by the dismissal of their Suit No.14 of 1994 and the

decreeing of the Suit No.7 of 1996 of the Ramani’s, these two appeals

have been preferred by the Gala’s. Their predecessor-in-interest

Joki Woler Ruzer has not joined and has not preferred any separate

appeal. Meaning thereby, that the original plaintiff has accepted the

verdict of the High Court.

5. It would be necessary and beneficial to recapitulate certain background

before considering the submissions of the respective parties to arrive

at any conclusion with regard to their rights over the suit land, more

particularly on the road in question.

6. There is no dispute that one Ramchandra Borkar was the owner of

the vast land situate in Mouje Korlai, Taluka Murud, District Raigad,

Maharashtra i.e. Survey No.48 Hissa No.15 and Survey No.57

Hissa No.13. The aforesaid Ramchandra Borkar fell into arrears

of government dues recoverable as arrears of land revenue and,

therefore, his aforesaid properties were acquired by the government.

Subsequently, a part of the aforesaid property i.e. land Survey No.48

Hissa No.15 was sold out by the government on 25.04.1969 through

public auction in favour of one Woler Francis who was also put in

possession thereof on 08.07.1969. Thus, Woler Francis became the

exclusive owner in possession of land Survey No.48 Hissa No.15

admeasuring 1 hectare and 76 acres situated at Mouje Korlai Taluka,

Murud, District Raigad.

7. The remaining land which was initially possessed by Ramchandra

Borkar and which was acquired by the government, was subsequently

re-acquired by one Vasant Ramchandra Borkar, of the family of original

owner Ramchandra Borkar. The said Vasant Ramchandra Borkar sold

out a piece of the said land on 09.07.1988 to one Dharmadhikari 

[2024] 4 S.C.R. 363

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.

being land Survey No.57 Hissa No.13A/2. The balance land which

was essentially a part of Survey No.57 was sold to the family of

Ramani’s by a registered Sale Deed dated 11.09.1989 and was

numbered as Survey No. 57 Hissa No. 13A/1.

8. In this way, the entire property of the Borkar family comprising of

Survey No.48 Hissa No.15 and Survey No.57 Hissa No.13 which was

acquired by the government came into the hands of Woler Francis

(Survey No.48 Hissa No.15); the family of Ramani’s (Survey No.57

Hissa No.13A/1); and the family of Dharmadhikari (Survey No.57

Hissa No.13A/2).

9. The road in dispute on which easementary rights are claimed by the

Gala’s forms part of Survey No.57 Hissa No.13A/1 which is under

the ownership of the Ramani’s.

10. Sometime in 1994, Woler Francis died and he was succeeded by

his heir and legal representative Joki Woler Ruzer. When his use of

the above 20ft. wide road was objected to by the Ramani’s, he filed

Suit No.14 of 1994 for declaration of his easementary rights over

the said land and for a decree of permanent injunction. During the

pendency of the said suit, the aforesaid Joki Woler Ruzer transferred

and assigned his rights of the entire land i.e. Survey No.48 Hissa

No.15 in favour of one Mahendra Gala, the predecessor-in-interest

of the Gala’s. The aforesaid Mahendra Gala was impleaded as

plaintiff in the aforesaid suit on 28.07.1998 and subsequently on

his death, the present Gala’s were substituted as his heir and legal

representative.

11. The suit was contested by the Ramani’s by filing a written statement.

They resisted the claim of the Gala’s regarding easementary rights

over the disputed rasta. They contended that they have purchased

the property Survey No.57 Hissa No.13A/1 and categorically denied

use of the said rasta uninterruptedly by the Gala’s.

12. In the said suit, oral and documentary evidence were adduced by

the parties. The Gala’s produced Navneet Liladhar Hariya, their

Power of Attorney holder and the Manager of the property as PW-1,

Bhalchandra Nathura Choradhekar, Sarpanch of the village as PW2, Dattatray Shankar Sawant, one of their neighbours as PW-3 and

Bhalchandra Dattaram Tandel, Surveyor as PW-4, in order to prove

their easementary right of way over the disputed rasta.

364 [2024] 4 S.C.R.

Digital Supreme Court Reports

13. The Gala’s also relied upon the sale deed by which Joki Woler Ruzer

had transferred and assigned his rights in land Survey No.48 Hissa

No.15 in favour of Mahendra Gala, the predecessor of the Gala’s.

14. The Ramani’s examined Sanjay Borkar as DW-1 and filed certified

copy of the deposition of one Arjun Ramani. Additionally, they brought

on record purshis Exh.165 and Exh.170.

15. On the basis of the pleadings of the parties and the evidence

adduced, the trial court framed several issues but the primary issue

was whether the Gala’s have any easementary right of way over the

land of the Ramani’s i.e., the disputed rasta.

16. We had heard Shri Huzefa Ahmadi, learned senior counsel for the

appellants and Shri Devansh Anoop Mohta, learned counsel for the

respondents.

17. The main thrust of the argument of Shri Huzefa Ahmadi, learned

senior counsel for the Gala’s (appellants in both the civil appeals)

is that Gala’s are undisputedly the owners in possession of the land

Survey No.48 Hissa No.15 and since they have no alternative way of

access to the said land except the rasta in dispute, the only option to

them is to have egress and ingress through the said rasta for use of

their land. They have acquired easementary right by prescription and

that of necessity over the said rasta and more particularly through

an agreement i.e. the Sale Deed dated 17.09.1994 which records

their right of way through the said rasta. He further submits that once

the suit was decreed by the court of first instance and findings were

recorded in favour of the Gala’s, the appellate court ought not to

have overturned those findings. It ought to have exercised restrain

in interfering with the aforesaid decision.

18. The above submissions were stoutly opposed on behalf of the

Ramani’s by their counsel.

19. ‘Easement’ is defined under Section 4 of the Indian Easements

Act, 18821

 to mean a right which the owner or occupier of a land

possesses for the beneficial enjoyment of his land on the other land

which is not owned by him, to do and continue to do something or to

prevent and continue to prevent something being done on the said

1 Hereinafter referred to as “The Act”, for short

[2024] 4 S.C.R. 365

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.

land. It may be pertinent to mention here that the land which is to

be enjoyed by the beneficiary is called ‘Dominant Heritage’ and the

land on which the easement is claimed is called ‘Servient Heritage’.

The easementary right, therefore, is essentially a right claimed by

the owner of a land upon another land owned by someone else so

that he may enjoy his property in the most beneficial manner.

20. Now, we first proceed to examine if the Gala’s have acquired any

easementary right over the rasta in dispute existing on the servient

heritage.

21. In the case at hand, the Gala’s are admittedly the owners of Survey

No. 48 Hissa No.15 whereas the Ramani’s are the owners of Survey

No.57 Hissa No.13A/1 on which it is alleged, exists the rasta in

dispute. The Gala’s claim that the use of the aforesaid rasta is for

the beneficial enjoyment of their land as they have no other way

of access to their land and that they have been enjoying the said

easementary right for the “last many years”.

22. Section 15 of the Act categorically provides that for acquiring any

easementary right by prescription, the said right must have been

peaceably enjoyed in respect of the servient heritage without any

interruption for over 20 years. In the plaint, neither the original plaintiff

Joki Woler Ruzer nor the Gala’s have specifically claimed that they

or their predecessor-in-interest were enjoying easementary right of

use of the said rasta for over 20 years. They simply alleged that they

have been using and managing the same since “last many years”.

The use of the term “last many years” is not sufficient to mean that

they have been enjoying the same for the last 20 years. Last many

years would indicate use of the said rasta for more than a year prior

to the suit or for some years but certainly would not mean a period

of 20 or more years. Therefore, their pleadings fall short of meeting

out the legal requirement of acquiring easementary right through

prescription.

23. In this connection Shri Ahmadi, learned counsel for the appellants,

relying upon “Ram Sarup Gupta (Dead) By Lrs. vs. Bishun Narain

Inter College & Ors”2

 submitted that the pleadings must be construed

liberally and it is not necessary that the precise language or expression

2 [1987] 2 SCR 805 : (1987) 2 SCC 555

366 [2024] 4 S.C.R.

Digital Supreme Court Reports

used in the statute should be used. The aforesaid decision lays down

that pleadings should be liberally construed and need not contain the

exact language used in the statutory provision but it does not mean

that the pleadings even if fails to plead the essential legal requirement

for establishing a right, the same be so construed so as to impliedly

include what actually has not been pleaded more particularly when

it happens to be an essential ingredient for establishing a right.

Thus, the aforesaid pleadings cannot be treated to be of sufficient

compliance of the statutory requirement. It is settled in law that a

fact which is not specifically pleaded cannot be proved by evidence

as evidence cannot travel beyond the pleadings.

24. The plaint was filed and verified by Joki Woler Ruzer who has not

entered the witness box to substantiate the pleadings as to for how

long he or his predecessor had been using the said rasta for egress

and ingress to their land before the institution of the suit or to say

that the easementary right, if any, attached to the said land, was

also transferred or purchased by his predecessor.

25. On the contrary, the deposition of Sanjay Borkar (DW-1) who is from

the family of the original owners of the land has categorically stated

that the original plaintiff Joki Woler Ruzer was not having any right

of way on his land and so also the Gala’s (plaintiff Nos.2-4), the

subsequent holders of the land, rather they possess an alternative

way to approach their land.

26. Navneet Liladhar Hariya (PW-1), the Power of Attorney holder of

the Gala’s, stated that the road of 20ft. in width exists on Survey

No.57 Hissa No.13A/1 which is being used as an approach road

to Survey No.48 Hissa No.15. The said rasta was being used by

predecessor-in-interest of the Gala’s but now the Ramani’s have

started raising objection. Since they have no other way of access

to their land, they are being denied connectivity or approach to their

land. As a result, access to the Dominant Heritage stands completely

blocked. In cross-examination, he states that Dharmadhikari has also

purchased some land from Vasant Ramchandra Borkar and that the

said Dharmadhikari is having right of way through the disputed rasta.

PW-2, the then Sarpanch simply deposes that he has knowledge of

the existence of disputed rasta since his childhood. The neighbour

(PW-3) also repeated the same thing and stated that there is a road

from Salav-Murud road which passes through the land of the Ramani’s 

[2024] 4 S.C.R. 367

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.

up to his land i.e. Survey No.43. The said road is in existence since

long and is being used by the agriculturist. Nobody has ever raised

objection to its use. The Surveyor (PW-4) is alleged to have surveyed

the land on 26.12.1998. He had shown the existence of the road in

dispute in the sketch map prepared by him.

27. The aforesaid evidence simply proves that there exists a road

on Survey No.57 Hissa No.13A/1 for long but that by itself is not

sufficient to prove that the Gala’s have acquired any easementary

right over the same. There is no evidence to prove that the Gala’s

are in use of the said land for the last over 20 years uninterruptedly.

The Gala’s have entered the scene only on purchasing the said land

on 17.09.1994 after the suit had been filed and as such, they could

not and have not deposed anything about the pre-existing right or

the easementary right attached with the Dominant Heritage. The

said right has to be proved as existing prior to the institution of the

suit. Neither the Gala’s nor their predecessor-in-interest Joki Woler

Ruzer have dared to come in the witness box. They have only relied

upon the deposition of their Power of Attorney holder/the Manager.

28. The law as understood earlier was that a General Power of Attorney

holder though can appear, plead and act on behalf of a party he

represents but he cannot become a witness on behalf of the party

represented by him as no one can delegate his power to appear in

the witness box to another party. However, subsequently in Janki

Vashdeo Bhojwani vs. IndusInd Bank Ltd.3

, this Court held that

the Power of Attorney holder can maintain a plaint on behalf of the

person he represents provided he has personal knowledge of the

transaction in question. It was opined that the Power of Attorney

holder or the legal representative should have knowledge about the

transaction in question so as to bring on record the truth in relation

to the grievance or the offence. However, to resolve the controversy

with regard to the powers of the General Power of Attorney holder

to depose on behalf of the person he represents, this Court upon

consideration of all previous relevant decisions on the aspect including

that of Janki Vashdeo Bhojwani (supra) in A.C Narayan vs. State

of Maharashtra4 concluded by upholding the principle of law laid

3 [2004] Suppl..6 SCR 681 : (2005) 2 SCC 217

4 [2013] 11 SCR 80 : (2014) 11 SCC 790 

368 [2024] 4 S.C.R.

Digital Supreme Court Reports

down in Janki Vashdeo Bhojwani (supra) and clarified that Power

of Attorney holder can depose and verify on oath before the court

but he must have witnessed the transaction as an agent and must

have due knowledge about it. The Power of Attorney holder who

has no knowledge regarding the transaction cannot be examined

as a witness. The functions of the General Power of Attorney holder

cannot be delegated to any other person without there being a specific

clause permitting such delegation in the Power of Attorney; meaning

thereby ordinarily there cannot be any sub-delegation.

29. It is, therefore, settled in law that Power of Attorney holder can only

depose about the facts within his personal knowledge and not about

those facts which are not within his knowledge or are within the

personal knowledge of the person who he represents or about the

facts that may have transpired much before he entered the scene.

The aforesaid Power of Attorney holder PW-1 had clearly deposed

that he is giving evidence on behalf of plaintiff Nos. 2 to 4 i.e. the

Gala’s. He was not having any authority to act as the Power of

Attorney of the Gala’s at the time his statement was recorded. He was

granted Power of Attorney subsequently as submitted and accepted

by the parties. Therefore, his evidence is completely meaningless to

establish that Gala’s have acquired or perfected any easementary

right over the disputed rasta in 1994 when the suit was instituted.

30. The only proper and valuable evidence in this regard could have been

that of Joki Woler Ruzer who had instituted the suit but he failed to

depose before the court. His pleadings are also vague and do not

specifically state that he had been in use of the rasta in dispute for

over 20 years or that he had acquired and perfected easementary

right over the said rasta by prescription or necessity.

31. In the absence of any evidence or material to show that Joki Woler

Ruzer had actually acquired any easementary right over the rasta in

dispute before the institution of the suit, he could not have transferred

any such right in favour of the Gala’s.

32. The easementary right by necessity could be acquired only in

accordance with Section 13 of the Act which provides that such

easementary right would arise if it is necessary for enjoying the

Dominant Heritage. In the instant case, findings have been returned

not only by the appellate courts but even by the trial court that there

is an alternative way to access the Dominant Heritage, which may 

[2024] 4 S.C.R. 369

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.

be a little far away or longer which demolishes the easement of

necessity. There is no justification to go into those findings of fact

returned by the courts below.

33. In the light of the aforesaid findings, the Gala’s are not entitled to

any easementary right by necessity upon the disputed rasta.

34. The next contention is that the Gala’s have acquired easementary

right under the Sale Deed dated 17.09.1994 and that it would not

stand extinguished even if the necessity has ceased to exist. To

buttress the above submission reliance has been placed upon Dr.

S. Kumar & Ors. vs. S. Ramalingam5

. In the above case, the right

of easement claimed was expressly granted under the sale deed to

the buyer and therefore it was held that the right so granted cannot

be defeated or extinguished merely for the reason that easement

of necessity has come to an end.

35. The situation in the present case is quite different. The property

owned and possessed by the Gala’s was originally the property of

Ramchandra Borkar which was acquired by the government. It was

purchased by Woler Francis in public auction from the government

on 25.04.1969. Thereafter, it devolved upon his legal heir Joki Woler

Ruzer who sold it to the predecessor-in-interest of the Gala’s vide Sale

Deed dated 17.09.1994. There is no evidence whatsoever on record

to establish that the government ever transferred any easementary

right over the rasta in question to Francis Woler or that his legal

heir Joki Woler Rozer ever acquired or perfected any easementary

right over it. Therefore, the right which was not possessed by them

could not have been transferred to the Gala’s under the Sale Deed

dated 17.09.1994.

36. The said Sale Deed dated 17.09.1994 in original has not been

produced in evidence. It was only the photocopy of the same which

was brought on record. The photocopy of a document is inadmissible

in evidence. Moreover, the said sale deed was executed by

predecessor-in-interest i.e. Joki Woler Ruzer in favour of predecessorin-interest of the present Gala’s. The said sale deed would not bind

the third parties who are not signatories or parties to the said sale

deed. No evidence has been adduced to prove that Joki Woler Ruzer,

5 [2019] 10 SCR 531 : (2020) 16 SCC 553

370 [2024] 4 S.C.R.

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predecessor-in-interest of the Gala’s, had perfected easementary

rights over the disputed rasta and thus was legally entitled to transfer

the same. He himself has not come before the Court that he had

actually acquired any easementary right in the disputed rasta. It is

not the case of Gala’s that their predecessor-in-interest had acquired

or purchased the said property from government auction with any

easementary right over the rasta in dispute. Thus, the Gala’s have

failed to prove that they have acquired any easementary right under

the sale deed. In view of the above discussion, reliance upon Dr. S.

Kumar & Ors. (supra) is completely misplaced and the submission

in this regard has no merit.

37. Lastly, a frail submission was advanced that one Dharmadhikari,

owner of Survey No. 57 House No. 13A/2 is enjoying easementary

right over the said rasta and, therefore, Gala’s cannot be denied

the same benefit. The submission has been noted to be rejected

for the simple reason that in the Sale Deed Exh. 163, the original

owner Vasant Ramchandra Borkar while transferring land to

Dharmadhikari has specifically assigned right to use the said

rasta to Dharmadhikari and not to anyone else. The predecessorin-interest of the Gala’s i.e., Joki Woler Ruzer or Francis Woler

never acquired any such right under their sale deed so as to legally

transfer it to the Gala’s. DW-1, Sanjay Vasant Borkar, grandson

of the original owner of the entire property, clearly deposed that

the disputed rasta was only for use by Dharmadhikari as per the

sale deed but no such right was sold/assigned to the predecessorin-interest of the Gala’s. Therefore, the Gala’s cannot acquire

easementary right as is enjoyed by Dharmadhikari whose case

stand on a totally different footing.

38. It would not be fair on our part if we do not deal with yet one another

submission of Shri Ahmadi regarding the powers of the appellate

court in disturbing the findings recorded by the court of first instance.

The submission made in this context is quite elementary in nature

as Section 107 of the Code of Civil Procedure, in unequivocal terms,

lays down the powers of the appellate court vis-à-vis to determine

the case finally; to remand the case; to frame issues and refer them

for trial; and to take additional evidence or to require such evidence

to be taken and shall have the same powers to perform duties as

nearly as may be that are conferred by the code to the courts of

original jurisdiction.

[2024] 4 S.C.R. 371

Manisha Mahendra Gala & Ors. v. Shalini Bhagwan Avatramani & Ors.

39. Therefore, on the simple reading of the above provision, it is evident

that the first appellate court is empowered to exercise powers and to

perform nearly the same duties as of the courts of original jurisdiction.

Therefore, the first appellate court has the power to return findings

of fact and law both and in so returning the finding, it can impliedly

overturn the findings of the court of first instance if it is against the

evidence on record or is otherwise based upon incorrect interpretation

of any document or misconstruction of any evidence adduced before

the court of first instance.

40. In view of the facts and circumstances of the case and the above

discussions, we find that none of the contentions raised by Shri

Ahmadi, learned senior counsel for the appellants (Gala’s), are of

any substance. We do not find any basis to record that the Gala’s

have acquired easementary right over the disputed rasta in any

manner much less by prescription, necessity or under an agreement.

Therefore, the appellate courts and the High Court have not committed

any error of law in dismissing Suit No.14 of 1994 of the plaintiffs/

appellants and in decreeing Suit No.7 of 1996 of the defendants/

respondents.

41. The appeals lack merit and are accordingly dismissed.

Headnotes prepared by: Divya Pandey Result of the case:

Appeals dismissed.

If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same, specific declaration that the document is invalid would not be necessary –

* Author

[2024] 4 S.C.R. 383 : 2024 INSC 287

Kizhakke Vattakandiyil Madhavan (Dead) Thr. Lrs.

v.

Thiyyurkunnath Meethal Janaki and Ors

(Civil Appeal No. 8616 of 2017)

09 April 2024

[Aniruddha Bose* and Sudhanshu Dhulia, JJ.]

Issue for Consideration

Issue arose whether wife, on her remarriage had any title over

the property derived from her first husband, which her son from

the second husband, claimed through the series of transactions.

Headnotes

Hindu Widow’s Remarriage Act, 1856 – s. 2 – Rights of widow

in deceased husband’s property to cease on remarriage –

Wife contracted a second marriage after the death of the

first husband – Son born from the second marriage filed suit

for partition claiming the share in the suit property vested in

his mother from her first husband – Son born from the first

marriage impleaded as defendants – Trial court allowed the

claim for partition – However, the first appellate court dismissed

the suit for partition – In appeal, the High Court restored the

trial court’s judgment and decree – Correctness:

Held: On remarriage of wife, after the death of her first husband,

her title or interest over the suit property stood lapsed in terms

of s. 2 – Thus, wife’s right to deal with property derived from her

first husband stood extinguished as regards the deed of 1910 –

However, it was not wife alone who had executed that instrument,

it was her mother-in-law and her son, from first marrige who had

executed it and remained valid legal heirs of the first husband

(since deceased) – Wife could not convey any property over which

she did not have any right or title – Her right, if any, would stem

from the second deed of lease – No claim was made before any

forum for invalidating the deed of 1910 – However, in absence

of proper title over the subject property, that lease deed even if

she was its sole lessor would not have had been legally valid or

enforceable – Son from second marriage, respresented through

his successors, sought to claim his share of suit property through

the mother – But the mother had lost her right over the subject 

384 [2024] 4 S.C.R.

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property on her contracting second marriage – Her status over the

said property, post-1910 if at all was that of lessee – No indication

in any of the deeds that the said lease could travel beyond the

stipulated term of twelve years – Ownership of the suit property

could not be said to have devolved in any manner whatsoever to

the son from her second husband – Thus, the decision of the High

Court set aside and that of the first appellate court dismissing the

suit for partition is confirmed. [Paras 17-19]

Title – Title to a document – Deed of conveyance – Conveyer not

having the title over the property – Legal right of successorsin-interest on the property:

Held: If right, title or interest in certain property is sought conveyed

by a person by an instrument who herself does not possess any

such form of entitlement on the subject being conveyed, even with

a subsisting deed of conveyance on such property, the grantee on

her successors-in-interest will not have legal right to enforce the

right the latter may have derived from such an instrument – If a

document seeking to convey immovable property ex-facie reveals

that the conveyer does not have the title over the same, specific

declaration that the document is invalid would not be necessary –

Court can examine the title in the event any party to the proceeding

sets up this defence. [Para 18]

Case Law Cited

Velamuri Venkata Sivaprasad (Dead) by lrs. v. Kothuri

Venkateswarlu (dead) by lrs. And Others [1999] Suppl.

4 SCR 522 : (2000) 2 SCC 139 – referred to.

List of Acts

Hindu Widow’s Remarriage Act, 1856.

List of Keywords

Hindu Widow’s Remarriage; Partition; Title or interest over the

property; Validity of the lease deed; Valid conveyance; Legitimate

right; Deed of conveyance.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal No.8616 of 2017

From the Judgment and Order dated 18.01.2008 of the High Court

of Kerala at Ernakulam in SA No. 653 of 1996

[2024] 4 S.C.R. 385

Kizhakke Vattakandiyil Madhavan (Dead) Thr. Lrs. v.

Thiyyurkunnath Meethal Janaki and Ors

Appearances for Parties

V. Chidambaresh, Sr. Adv., A. Venayagam Balan, K. P. Rajagopal,

Jaimon Andrews, Piyo Harold Jaimon, Naresh Kumar, Advs. for the

Appellants.

C. K. Sasi, John Mathew, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Aniruddha Bose, J.

The present appeal arises out of a suit for partition instituted by one

Thiyyer Kunnath Meethal Chandu (Chandu) claiming 8/20 shares in

the suit property described in the schedule to the plaint as “Kizhake

vattakkandy enha Pattayathil perulla Asarikandy pasramba, 6 feetinu

ki-pa 37, the-va 35”. The appellants before us were the defendants

in the said suit, and are successors-in-interest of one Sankaran. The

latter and Chandu are uterine brothers, both being the sons of one

Chiruthey, who was married twice. Her first husband was Madhavan,

within whose wedlock Sankaran was born. Madhavan passed away

sometime before the year 1910, though the exact year of death has

not been specified in the pleadings nor it has appeared in evidence.

After Madhavan’s death, Chiruthey contracted second marriage with

Neelakandan, who was the father of Chandu.

2. The suit property is situated in survey no. 56/8 in the village Eravattur

in the district of Kozhikode, State of Kerala. The parties belong to

Malayakamala Sect. The succession law guiding their inheritance

applicable before Hindu Succession Act, 1956 that became

operational was the modified form of Mitakshara law applicable

to the Makkathayees. But this factor is not of much relevance for

adjudication of the present appeal. Though the suit was instituted in

the year 1985, to trace the source of claim of the plaintiff, one has

to trace the title of the property. In the last year of the 19th Century,

(i.e. 1900) as it has transpired from evidence adduced in course of

the trial, the owners of the property appear to be Madhavan and

he, along with his mother Nangeli had executed a deed of mortgage

(Ext. B1 in the suit) on 07.05.1900 in favour of one Nadumannil

Anandhan Kaimal, son of Cheriya Amma Thamburatti in relation to

the subject-property. As we find from the judgment of the High Court 

386 [2024] 4 S.C.R.

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which is assailed in this appeal, the mortgage deed itself recorded

that possession of the property was not given to the mortgagee.

The plaintiff claims his share to the suit property from his mother,

described in the plaint as owner of the property, Chiruthey. We must

point out here that the plaintiff also had passed away during the

pendency of first appeal and before us are his successors-in-interest

who are representing his claim of share as the respondents. Those

impleaded as defendants in the suit which was registered as OS

No. 157/1985 in the Court of Munsiff Magistrate, Perambra were

successors in interests of said Sankaran.

3. Apart from Exhibit B-1, three other deeds were considered by the

respective fora before this appeal reached us. There is a deed

marked Exhibit A-20, which is described as Kannan Kuzhikanam

deed, executed on 14th July 1910 by Chiruthey, Nangeli (mother of

Madhavan) and Sankaran (Chiruthey’s son) in favour of Cherupula

Othayoth Cheriya Amma and her son, Achuthan. On behalf of

Sankaran, who was a minor at that point of time, Chiruthey executed

the deed. This was in the nature of a deed of lease. Achuthan was

also a minor at that point of time, and the said deed records Cheriya

Amma to whom the property was being leased, for herself and her

minor son.

4. On the same day i.e. 14th July 1910, a Verumpattam Kuzhikkanam

deed marked as Exhibit A-1 was executed by Cherupoola Cheriya

Amma for herself and for and on behalf of her minor son Achuthan

in respect of the same property in favour of Chiruthey and another

individual named Kuttiperavan. These appear to be back-to-back

transactions. Both these deeds stipulated the term thereof to be

twelve years and do not contain any renewal clause.

5. In the year 1925, by another deed executed on 22nd July 1925,

described as “assignment deed” which was marked Exhibit A-2,

Kuttiperavan surrendered his rights in favour of Chiruthey and

Sankaran. In this deed, it has been inter-alia, recited that the

executor thereof, being Kuttiperavan and Chiruthey had purchased

verumpattam right over the subject-property from Cheriya Amma by

fixing a rent of Rs.5/- in addition to revenue paid for the land. This

deed further reads :-

“I hereby assigning my right over this property to you for

a consideration Rs. 50 which was fixed in the presence of 

[2024] 4 S.C.R. 387

Kizhakke Vattakandiyil Madhavan (Dead) Thr. Lrs. v.

Thiyyurkunnath Meethal Janaki and Ors

mediators and my share in the decree amount obtained

by Cherupula Othayoth Cheriyamma from Payyoli District

Munsiff Court in OS 685/ 1921 for arrears of rent together

with interest and cost. My share in the said amount was

given to you for payment. So I hereby assigned all my right

over this property and hereby hand overing the possession

of the property and also hand overing all documents with

regard to the property. Hereinafter I have no right over

this property…”

6. Sankaran passed away in the year 1956 whereas Chiruthey died

in the year 1966, as it appears from evidence led before the Trial

Court. The foundation of the claim of the partition of the subjectproperty has been explained in the Trial Court’s judgment in the

following manner:-

“The plaintiffs claim over the plaint schedule property

is as follows:- The property originally belonged to

Chirutheyi and one Kuttiperavan as per a Verumpattam

Deed No.2323/1910 from one Cheriyamma. In 1925

Kuttiperavan assigned his one half share to Chiurtheyi

and her son Sankaran. Thus Chirutheyi acquired 3/4

share and Sankaran acquired 1/4 share in the property.

Sankaran died in 1956 and his 1 /4 share was inherited by

the defendants and the mother Chirutheyi, thus Chirutheyi

acquiring 16/12 shares and the defendants acquiring 4/20

shares. Chirutheyi died in 1926 and half of her 16/20

shares would go to the plaintiff and the only remaining

son, and the remaining 8/20 shares would go to the

defendants, being the heirs of the other son Sankaran.

Thus the shares are fixed as follows: The plaintiff 8/20.

The defendants 3/20 shares each. The plaint alleges that

the property never belonged to Madhavan ad alleged by

the defendants in the notice.”

7. The Trial Court sustained the claim for partition and decreed in

favour of the plaintiff therein whose interest is now represented

before us by the respondents. The First Appellate Court by a

judgment delivered on 24th June 1996, set aside the decree and

dismissed the suit. The main issue before the Court, which is

before us as well, is as to whether Chiruthey had any title over 

388 [2024] 4 S.C.R.

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the subject-property which the plaintiff claimed through the series

of transactions, particulars of which we have narrated in the

preceding paragraphs. The plaintiff claimed title over the property

through Chiruthey who was his mother, and he was born from her

second husband. The foundation of Chiruthey’s title was claimed

to be the registered lease deed bearing No. 2329/10 (Exhibit

A-1). Kuttiperavan, who was the second lessee in “Exhibit A-1”

had later released his right in the subject-property in favour of

Chiruthey and Sankaran, the latter being the son of Chiruthey

through her first marriage. That deed was executed on 22nd July

1925. The First Appellate Court relying on the mortgage deed

dated 07th May 1900 found that it was Madhavan and his mother

Nangeli who were holders of jenm right and that they were in

possession of the subject-property even after execution of the

mortgage deed.

8. The First Appellate Court disbelieved that the deed of 22nd July 1925

was in discharge of liability under the mortgage deed. It was also

found by the First Appellate Court that Chiruthey had no authority to

create a lease and such a transaction by which she sought to lease

out the subject-property was not permissible in law.

9. As regards Chiruthey’s right or title, it was held that she would not

derive title to her deceased husband’s property when she got married

again to Neelakandan. The First Appellate Court has referred to

Section 2 of the Hindu Widow’s Remarriage Act, 1856 (“1856 Act”)

which prevailed at the material point of time, when she contracted

her second marriage. Section 2 of the 1856 Act reads:-

“2. Rights of widow in deceased husband’s property

to cease on remarriage:-

All right and interest which any widow may have in her

deceased husband’s property by way of maintenance, or by

inheritance to her husband or to his lineal successors, or

by virtue of any will or testamentary disposition conferring

upon her, without express permission to remarry, only a

limited interest in such property, with no power of alienating

the same, shall upon her remarriage cease and determine

as if she had then died: and the next heirs of her deceased

husband , or other persons entitled to the property on her

death, shall thereupon succeed to the same.”

[2024] 4 S.C.R. 389

Kizhakke Vattakandiyil Madhavan (Dead) Thr. Lrs. v.

Thiyyurkunnath Meethal Janaki and Ors

10. The First Appellate Court did not attribute much importance to Exhibit

A-20 which is the first of the two deeds, which was executed in the

year 1910 while referring to Section 2 of the 1856 Act. The First

Appellate Court has rightly come to a finding that Chiruthey had only

a reversionary right over the suit property held by her first husband

Madhavan and the plaintiff (Chandu) could not claim partition right

on the strength of his being a uterine brother of Sankaran born to

Chiruthey after she contracted her second marriage. She lost all

her rights and interests in her deceased husband’s property on

contracting second marriage with Neelakandan. There is an authority

on this position of law. Velamuri Venkata Sivaprasad (Dead) by

lrs. -vs- Kothuri Venkateswarlu (dead) by lrs. And Others [(2000)

2 SCC 139], in which it has been held:-

“17. Section 2 of the Act of 1856, therefore, has taken

away the right of the widow in the event of remarriage and

the statute is very specific to the effect that the widow on

remarriage would be deemed to be otherwise dead. The

words “as if she had then died” (emphasis supplied) are

rather significant. The legislature intended therefore that

in the event of a remarriage, one loses the rights of even

the limited interest in such property and after remarriage

the next heirs of her deceased husband shall thereupon

succeed to the same. It is thus a statutory recognition of

a well-reasoned pre-existing Shastric law.”

11. The High Court in the second appeal formulated five questions of

law as substantial ones, which are reproduced below:-

“a) Was the court below justified in holding that Exts.A1

and A20 transactions are not genuine in the absence of

any pleadings and evidence to arrive at such a finding?

b) Was the interpretation placed by the court below on

Exts.A1, A2, A20, and B1 correct and proper?

c) Was the court below justified in relying on Exts.A1 and

A20, which are not the original documents on the ground

that Section 90 of the Indian Evidence Act would apply?

d) Are the defendants entitled to question the validity of

the transactions covered by Exts.A1 and A20, without

the same being challenged in a properly constituted suit?

390 [2024] 4 S.C.R.

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e) Was the court below justified in upholding the plea of

ouster and adverse possession without any evidence on

the side of the defendants to prove the same?”

12. Thus, when Chiruthey contracted her second marriage by operation

of Section 2 of the 1856 Act, she had lost title of her share over

the property of Madhavan. The High Court in the judgment under

appeal, however, primarily relied on the deeds executed on 14th July

1910 to sustain the claim of Chandu (since deceased), represented

by his successors-in-interest.

13. The High Court proceeded on the basis of three documents, being

Exhibit B-1 dated 7th May 1900 (mortgage deed), Exhibit A-20

dated 14th July 1910 which is the deed by which Chiruthey, Nangeli

and Sankaran (through Chiruthey as he was minor at that point of

time) created lease-right in favour of Cherupula Othayoth Cheriya

Amma and her son Achuthan and on the same date Exhibit A-1, a

Verumpattam Kuzhikkanam deed was also executed in favour of

Chiruthey and Kuttiperavan. Through the fourth deed, marked as

Exhibit A-2, Kuttiperavan surrendered his rights in the property to

Chiruthey and Sankaran. Questions were raised about admissibility

of these documents before the High Court but as marking of these

documents were not objected before the Trial Court, the High Court

held that at the stage of second appeal, such objections could not

be raised. We accept the High Court’s view on this point.

14. The High Court also rejected the defendant’s contention that both

the deeds dated 14th July 1910 were strange transactions as the

aforesaid exhibits were not challenged by them at any point of time

in the course of trial. We also do not find any flaw in the High Court’s

reasoning on this point also.

15. Dealing with the appellant’s case that Chiruthey was divested of any

right to her late first husband’s property by virtue of the 1856 Act,

the High Court observed:-

“10. Learned counsel for the respondent submitted that

on Madhavan’s death, which was evidently before 1910,

his rights devolved on Sankaran. Chirutheyi would not get

any right on Madhavan’s death as per the personal law

applicable to the parties. The right of a widow to hold the

property was recognised by the Hindu Women’s Right

to Property Act, 1937. It is submitted that before 1937, 

[2024] 4 S.C.R. 391

Kizhakke Vattakandiyil Madhavan (Dead) Thr. Lrs. v.

Thiyyurkunnath Meethal Janaki and Ors

Chirutheyi had re-married Neelakantan and, therefore, her

right, if any, had lost by Section 2 of the Hindu Widows Remarriage Act, 1856. The counsel relied on the decisions in

Sivaprasad V. Venkateswaralu : 2000 (1) KLT SN 11(SC)

and Dharmarajan V. Narayanan: 2000 (2) KLT 895. I do

not think that the contention put forward by the learned

counsel for the respondents deserves acceptance. This is

not a case where the rights of parties are to be ascertained

as if no document was executed and as if the property

remained undivided. Exhibits A1 and A20 came into

existence in 1910, by which the predecessor in interest of

the defendants, Sankaran, and his mother, who admittedly

were having rights, lost possessory title. If Ext.A20 is a

valid and binding document, the question as to the rights

of a widow and the extinguishment of the rights of the

widow on re-marriage do not arise for consideration. As

stated earlier, the defendants are not entitled to challenge

the validity of Ext.A1 and A20 in defence to the suit for

partition. The question whether the plaintiff has right to

get a share is to be determined with reference to the

documents in existence, namely, Exts.A1, A2 and A20 and

not with reference to what would have been the state of

affairs had no document been executed.”

16. The High Court also rejected the contention made on behalf of the

appellants that they had become the owners of the suit property on

the basis of adverse possession but that aspect of the matter has

not been argued before us and we do not want to disturb the finding

of the High Court on that issue.

17. Turning back to the three post 1900 deeds, we are not in agreement

with the reasoning of the High Court in full. On remarriage of Chiruthey,

after the death of Madhavan, her title or interest over the suit property

stood lapsed in terms of Section 2 of the 1856 Act. Thus, Chiruthey’s

right to deal with property derived from Madhavan stood extinguished

so far as the deed of 14th July 1910 is concerned (Exhibit A-20). But

it was not Chiruthey alone who had executed that instrument, it was

Nangeli and also Sankaran, (son of Chiruthey) who had executed it

and remained valid legal heirs of Madhavan (since deceased). There

is no conflict at least on that point. We have no material before us that

Madhavan had any other legal heir. In such a situation, even if we 

392 [2024] 4 S.C.R.

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discount Chiruthey’s title over the property forming subject of lease,

it stood conveyed by its actual owners i.e., Nangeli and Sankaran.

To that extent, we accept the validity of the lease deed, that was

otherwise proved in the Trial Court. Once we find the Exhibit A-20

to be valid conveyance, we do not think the corollary transaction

which is marked as Exhibit A-1 bearing No.2329/1910, by which

the same property was leased back to Chiruthey and Kuttiperavan

to be invalid. These back-to-back transactions may be unusual, but

in absence of any evidence pointing to any illegality, we hold them

to be valid. The High Court on finding that these deeds are valid

restored the Trial Court’s judgment and decree. The underlying

reasoning of the High Court was that Chiruthey had legitimate right

over the property. We however, find a flaw in this reasoning of the

judgment of the High Court.

18. The High Court as also the Trial Court have held that since the

deeds were proved, implying that Cheruthey had the right to execute

the lease deed on 14th July 1910 so far as the deed of re-lease is

concerned, the same might entitle her to be the beneficiary as a

lessee thereof. But it would be trite to repeat that even if subsistence

of a deed is proved in evidence, the title of the executing person

(in this case Chiruthey) does not automatically stand confirmed. If

a document seeking to convey immovable property ex-facie reveals

that the conveyer does not have the title over the same, specific

declaration that the document is invalid would not be necessary. The

Court can examine the title in the event any party to the proceeding

sets up this defence. Chiruthey could not convey any property over

which she did not have any right or title. Her right, if any, would stem

from the second deed of lease (Exhibit A-1). We are conscious of

the fact that no claim was made before any forum for invalidating the

deed dated 14th July 1910 (Exhibit A-20). But in absence of proper

title over the subject property, that lease deed even if she was its

sole lessor would not have had been legally valid or enforceable.

If right, title or interest in certain property is sought conveyed by a

person by an instrument who herself does not possess any such

form of entitlement on the subject being conveyed, even with a

subsisting deed of conveyance on such property, the grantee on her

successors-in-interest will not have legal right to enforce the right

the latter may have derived from such an instrument. We, however,

have not disturbed the transaction arising from Exhibit A-20 as the 

[2024] 4 S.C.R. 393

Kizhakke Vattakandiyil Madhavan (Dead) Thr. Lrs. v.

Thiyyurkunnath Meethal Janaki and Ors

two legal heirs of Madhavan were also the lessors therein and to

that extent, the document marked as Exhibit A-20 would not have

collapsed for want of conveyable title, right or interest. What she

got back by way of the document marked as Exhibit A-1 was limited

right as that of a lessee and not as a successor of her first husband

Madhavan (since deceased). Moreover, this lease (Exhibit A-1) was

also for a period of twelve years and the re-lease deed made in the

year 1925 which is Exhibit A-2 could not operate as by that time,

the entitlement of Kuttiperavan over the subject property also stood

lapsed as the document marked as Exhibit A-1 also had a duration

of twelve years. No evidence has been shown before us as to how

Kuttiperavan, in the capacity of a lessee could exercise his right

after the term of lease granted to him was over.

19. The plaintiff (now represented by his successors as respondents)

sought to claim his share of suit property through Chiruthey. But as

we have already explained, Chiruthey had lost her right over the

subject property on her contracting second marriage. Secondly, her

status over the said property, post-1910 if at all was that of lessee.

There is no indication in any of the deeds that the said lease (Exhibit

A-1) could travel beyond the stipulated term of twelve years. The

ownership of the suit property could not be said to have devolved

in any manner whatsoever to the original plaintiff, who was born

within the wedlock of Chiruthey and Neelakandan. Hence, we set

aside the decision of the High Court and the decision of the First

Appellate Court shall stand confirmed.

20. The appeal stands allowed in the above terms and interim order, if

any, shall stand dissolved. Pending applications (if any) shall stand

disposed of in the above terms.

21. There shall be no order as to costs.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal allowed.

Constitution of India – Art 226 – Exercise of discretionary powers under – Delay or laches, effect – On facts, four years after the allotment of LPG distributorship in favour of the appellant, and on acceptance of the alternate land offered by the appellant and permitting him to construct the godown and the showroom, the unsuccessful bidder challenged the decision of the Corporation – High Court dismissed the writ petition, however, in appeal the allotment made in favour of the appellant was set aside – Correctness:

* Author

[2024] 4 S.C.R. 506 : 2024 INSC 314

Mrinmoy Maity

v.

Chhanda Koley and Others

(Civil Appeal No. 5027 of 2024)

18 April 2024

[Pamidighantam Sri Narasimha and Aravind Kumar,* JJ.]

Issue for Consideration

Writ court, if justified in entertaining the writ petition filed by the

respondent No.1 challenging the approval granted in favour of the

appellant for starting LPG distributorship.

Headnotes

Constitution of India – Art 226 – Exercise of discretionary

powers under – Delay or laches, effect – On facts, four years

after the allotment of LPG distributorship in favour of the

appellant, and on acceptance of the alternate land offered

by the appellant and permitting him to construct the godown

and the showroom, the unsuccessful bidder challenged the

decision of the Corporation – High Court dismissed the writ

petition, however, in appeal the allotment made in favour of

the appellant was set aside – Correctness:

Held: Delay defeats equity – Delay or laches is one of the factors

which should be born in mind by the High Court while exercising

discretionary powers u/Art. 226 – Applicant who approaches the

court belatedly ought not to be granted the extraordinary relief

by the writ courts – In a given case, the High Court may refuse

to invoke its extraordinary powers if laxity on the part of the

applicant to assert his right has allowed the cause of action to

drift away and attempts are made subsequently to rekindle the

lapsed cause of action – Discretion to be exercised would be

with care and caution, depending upon the facts of the case –

Though, for filing of a writ petition, no fixed period of limitation

is prescribed, however, it has to be filed within a reasonable

time – If it is found that the writ petitioner is guilty of delay and

laches, the High Court ought to dismiss the petition on that sole

ground itself, in as much as the writ courts are not to indulge

in permitting such indolent litigant to take advantage of his own 

[2024] 4 S.C.R. 507

Mrinmoy Maity v. Chhanda Koley and Others

wrong – On facts, writ petition ought to have been dismissed

on the ground of delay and laches itself – Writ petitioner was

aware of all the developments including that of the allotment of

distributorship having been made in favour of the appellant way

back in 2014, yet did not challenge and only on acceptance of

the alternate land offered by the appellant in 2017 and permitting

him to construct the godown and the showroom, the same was

challenged and thereby the writ petitioner had allowed his right

if at all if any to be drifted away or acquiesced in the acts of the

Corporation – Also, the appropriate government felt the need of

permitting the Oil Marketing Companies to be more flexible and

as such modification to the guidelines had been brought about

whereby the applicants were permitted to offer alternate land

where the land initially offered by them was found deficient or

not suitable or change of the land, subject to specifications laid

down in the advertisement being met – Thus, the order of the

Division Bench of the High Court is set aside, and that of the

Single Judge is restored. [Para 15]

Case Law Cited

Tridip Kumar Dingal and others v. State of W.B and

others. [2008] 15 SCR 194 : (2009) 1 SCC 768;

Karnataka Power Corportion Ltd. and another v. K.

Thangappan and another [2006] 3 SCR 783 : (2006)

4 SCC 322; Chennai Metropolitan Water Supply &

Sewerage Board and others v. T.T. Murali Babu [2014]

1 SCR 987 : (2014) 4 SCC 108 – referred to.

List of Acts

Constitution of India.

List of Keywords

LPG distributorship; Exercise of discretionary powers; Delay or

laches; Extraordinary relief; Cause of action; Period of limitation;

Acquiescence.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5027 of 2024

From the Judgment and Order dated 13.09.2018 of the High Court

at Calcutta in CAN No. 809 of 2018

508 [2024] 4 S.C.R.

Digital Supreme Court Reports

Appearances for Parties

Pijush K. Roy, Sr. Adv., Pritthish Roy, Ms. Kakali Roy, Asit Roy, Rajan

K. Chourasia, Advs. for the Appellant.

Shekhar Naphade, Sr. Adv., Zoheb Hossain, Ms. Asha Gopalan

Nair, Sandeep Narain, Ms. Nivedita Nair, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Aravind Kumar, J.

1. Leave granted.

2. The short point that arises for consideration in this appeal is:

“Whether the writ court was justified in entertaining the writ

petition filed by the respondent No.1 herein challenging

the approval dated 03.06.2014 granted in favour of

the appellant herein for starting LPG distributorship at

Jamalpur, District Burdwan?”

3. The facts in brief which has led to filing of the present appeal are

as under:

4. An advertisement came to be issued on 09.09.2012 calling for

application for distributors to grant LPG distributorship under

GP Category at Jamalpur, District Burdwan. From amongst the

applications so received, the application submitted by the appellant

as well as respondent No.1 were found to be in order. Since both

the appellant and the respondent No.1 were held to be eligible from

amongst the six (6) candidates, draw of lots was held on 11.05.2013

and appellant was found successful candidate and was selected

for verification of the documents. A letter of intent was issued to

the appellant on 24.02.2014 and on 03.06.2014 the approval was

granted by the BPCL in favour of the appellant for starting LPG

distributorship at the notified place.

5. After a lapse of 4 years, the respondent No.1 filed a complaint with

the BPCL alleging that land offered by the appellant was a Barga land

and same cannot be considered. Subsequently application having

been filed by the appellant offering an alternate land, the Corporation

allowed the prayer of the appellant to construct the godown and

showroom on the alternate land offered by the appellant.

[2024] 4 S.C.R. 509

Mrinmoy Maity v. Chhanda Koley and Others

6. The respondent No.1 being a rival applicant for grant of distributorship,

having participated in submitting the application and being

unsuccessful in the draw of lots held way back in the year 2013

and being aggrieved by the decision of the Corporation to permit the

appellant to commence the construction of godown and showroom

on the alternate land offered, filed a writ petition in the year 2017

i.e., on 10.04.2017. Initially, there was an order of status quo passed

by the Learned Single Judge and on receiving the report from

the Corporation the writ petition came to be dismissed vide order

dated 18.01.2018 on the ground that the writ petitioner (respondent

No.1 herein) had no locus standi since she had participated in the

selection process. Being aggrieved by the same the intra-court appeal

came to be filed and the appellate court by the impugned judgment

allowed the appeal on the ground (a) that the successful applicant

had not offered unencumbered land for construction of godown and

showroom; (b) the land offered by the appellant was in contravention

of clause 7.1(vi) and (vii) of the guidelines for selection of regular

LPG Distributors; (c) the amendment of the said guidelines brought

about subsequently, cannot be made applicable retrospectively. The

allotment made in favour of the (appellant herein) was set aside by

the impugned order and as a consequence of it, the letter of intent,

the letter of approval accepting the alternate land offered by the

(appellant herein) and all subsequent permissions, licences and no

objections issued in his favour were held to be of no effect. Hence,

this appeal.

7. We have heard Shri Pijush K. Roy, learned Senior Counsel appearing

for the appellant and Shri Zoheb Hossain, learned counsel appearing

for respondent No.1 and Shri Shekhar Naphade, learned Senior

Counsel for the Corporation. Learned counsel for the appellant

would vehemently contend that Learned Single Judge had rightly

dismissed the writ petition on the ground of lack of locus standi of

the writ petitioner and had dissolved the interim order granted earlier.

It is also contended that by the time the interim order of status quo

came to be passed by the Learned Single Judge on 20.07.2017, the

appellant herein had already submitted an application for accepting

the alternate land offered and which request came to be processed

and the applicant (appellant herein) had been allowed to construct

the godown and showroom on the alternate land so offered. These

facts though being available, the Division Bench ignoring the same 

510 [2024] 4 S.C.R.

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had proceeded on tangent in accepting the plea of the writ petitioner

without examining the aspect of delay and giving a complete go by

for laches exhibited on the part of the writ petitioner and extended

the olive branch on surmises and conjectures and as such the

impugned order is liable to be set-aside and consequently, writ

petition which came to be dismissed by the Learned Single Judge

has to be upheld. Shri Shekhar Naphade, learned Senior Counsel

appearing on behalf of the Corporation has fairly submitted that in

the light of the appellant herein being successful in the allotment

by draw of lots, had been issued with the letter of intent and the

prayer for offering the alternate land was also accepted and having

regard to the subsequent development namely the subsequent

notification dated 30.04.2015 issued by the appropriate government

directing the Oil Marketing Companies to provide flexibility in the

selection guidelines by providing an “opportunity to offer alternate

land in response to the advertisement” which clarified the position

with regard to alternative land offered had been acted upon by the

Corporation in the instant case and being satisfied with the bona

fides of the applicant/appellant, the Corporation had permitted the

construction, and accordingly the construction has been put up along

with building, the godown and the showroom and as such he has

prayed for suitable orders being passed.

8. On the contrary, Shri Zoheb Hossain, learned counsel appearing for

the respondent No.1 vehemently opposed the prayer of the appellant

herein and supported the order passed by the Division Bench. He

would contend that issue of delay in filing the Writ Petition has been

rightly ignored by the Division Bench and same has to recede to

background in the facts obtained in the present case, in as much

as the blatant violation of the guidelines would go to the root of the

matter and the inherent defect cannot be allowed to be rectified,

that too by relying upon an amendment to the guidelines which has

come into force subsequent to the advertisement in question or in

other words rules of the game could not have been changed after

the commencement of the game which was exactly the exercise

undertaken by the Learned Single Judge and rightly found to be

improper by the Division Bench. Hence, he prays for dismissal of

the appeal.

9. Having heard rival contentions raised and on perusal of the facts

obtained in the present case, we are of the considered view that 

[2024] 4 S.C.R. 511

Mrinmoy Maity v. Chhanda Koley and Others

writ petitioner ought to have been non-suited or in other words writ

petition ought to have been dismissed on the ground of delay and

laches itself. An applicant who approaches the court belatedly or

in other words sleeps over his rights for a considerable period of

time, wakes up from his deep slumber ought not to be granted the

extraordinary relief by the writ courts. This Court time and again has

held that delay defeats equity. Delay or laches is one of the factors

which should be born in mind by the High Court while exercising

discretionary powers under Article 226 of the Constitution of India. In

a given case, the High Court may refuse to invoke its extraordinary

powers if laxity on the part of the applicant to assert his right has

allowed the cause of action to drift away and attempts are made

subsequently to rekindle the lapsed cause of action.

10. The discretion to be exercised would be with care and caution. If

the delay which has occasioned in approaching the writ court is

explained which would appeal to the conscience of the court, in

such circumstances it cannot be gainsaid by the contesting party

that for all times to come the delay is not to be condoned. There

may be myriad circumstances which gives rise to the invoking of the

extraordinary jurisdiction and it all depends on facts and circumstances

of each case, same cannot be described in a straight jacket formula

with mathematical precision. The ultimate discretion to be exercised

by the writ court depends upon the facts that it has to travel or the

terrain in which the facts have travelled.

11. For filing of a writ petition, there is no doubt that no fixed period of

limitation is prescribed. However, when the extraordinary jurisdiction

of the writ court is invoked, it has to be seen as to whether within

a reasonable time same has been invoked and even submitting of

memorials would not revive the dead cause of action or resurrect the

cause of action which has had a natural death. In such circumstances

on the ground of delay and laches alone, the appeal ought to be

dismissed or the applicant ought to be non-suited. If it is found that

the writ petitioner is guilty of delay and laches, the High Court ought

to dismiss the petition on that sole ground itself, in as much as the

writ courts are not to indulge in permitting such indolent litigant to take

advantage of his own wrong. It is true that there cannot be any waiver

of fundamental right but while exercising discretionary jurisdiction

under Article 226, the High Court will have to necessarily take into

consideration the delay and laches on the part of the applicant in 

512 [2024] 4 S.C.R.

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approaching a writ court. This Court in the case of Tridip Kumar

Dingal and others v. State of W.B and others., (2009) 1 SCC 768

has held to the following effect:

“56. We are unable to uphold the contention. It is no doubt

true that there can be no waiver of fundamental right. But

while exercising discretionary jurisdiction under Articles 32,

226, 227 or 136 of the Constitution, this Court takes into

account certain factors and one of such considerations is

delay and laches on the part of the applicant in approaching

a writ court. It is well settled that power to issue a writ is

discretionary. One of the grounds for refusing reliefs under

Article 32 or 226 of the Constitution is that the petitioner

is guilty of delay and laches.

57. If the petitioner wants to invoke jurisdiction of a

writ court, he should come to the Court at the earliest

reasonably possible opportunity. Inordinate delay in making

the motion for a writ will indeed be a good ground for

refusing to exercise such discretionary jurisdiction. The

underlying object of this principle is not to encourage

agitation of stale claims and exhume matters which have

already been disposed of or settled or where the rights of

third parties have accrued in the meantime (vide State of

M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR

261], Moon Mills Ltd. v. Industrial Court [AIR 1967 SC 1450]

and Bhoop Singh v. Union of India [(1992) 3 SCC 136 :

(1992) 21 ATC 675 : (1992) 2 SCR 969] ). This principle

applies even in case of an infringement of fundamental

right (vide Tilokchand Motichand v. H.B. Munshi [(1969) 1

SCC 110] , Durga Prashad v. Chief Controller of Imports

& Exports [(1969) 1 SCC 185] and Rabindranath Bose v.

Union of India [(1970) 1 SCC 84] ).

58. There is no upper limit and there is no lower limit as to

when a person can approach a court. The question is one

of discretion and has to be decided on the basis of facts

before the court depending on and varying from case to

case. It will depend upon what the breach of fundamental

right and the remedy claimed are and when and how the

delay arose.”

[2024] 4 S.C.R. 513

Mrinmoy Maity v. Chhanda Koley and Others

12. It is apposite to take note of the dicta laid down by this Court in

Karnataka Power Corportion Ltd. and another v. K. Thangappan

and another, (2006) 4 SCC 322 whereunder it has been held that

the High Court may refuse to exercise extraordinary jurisdiction if

there is negligence or omissions on the part of the applicant to assert

his right. It has been further held thereunder:

“6. Delay or laches is one of the factors which is to be

borne in mind by the High Court when they exercise their

discretionary powers under Article 226 of the Constitution.

In an appropriate case the High Court may refuse to invoke

its extraordinary powers if there is such negligence or

omission on the part of the applicant to assert his right

as taken in conjunction with the lapse of time and other

circumstances, causes prejudice to the opposite party.

Even where fundamental right is involved the matter is

still within the discretion of the Court as pointed out in

Durga Prashad v. Chief Controller of Imports and Exports

[(1969) 1 SCC 185 : AIR 1970 SC 769] . Of course, the

discretion has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock in

Lindsay Petroleum Co. v. Prosper Armstrong Hurd [(1874)

5 PC 221 : 22 WR 492] (PC at p. 239) was approved by

this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC

1450] and Maharashtra SRTC v. Shri Balwant Regular

Motor Service [(1969) 1 SCR 808 : AIR 1969 SC 329] .

Sir Barnes had stated:

“Now, the doctrine of laches in courts of equity is not

an arbitrary or a technical doctrine. Where it would be

practically unjust to give a remedy either because the

party has, by his conduct done that which might fairly be

regarded as equivalent to a waiver of it, or where by his

conduct and neglect he has though perhaps not waiving

that remedy, yet put the other party in a situation in which

it would not be reasonable to place him if the remedy were

afterwards to be asserted, in either of these cases, lapse

of time and delay are most material. But in every case,

if an argument against relief, which otherwise would be

just, is founded upon mere delay, that delay of course not 

514 [2024] 4 S.C.R.

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amounting to a bar by any statute of limitation, the validity

of that defence must be tried upon principles substantially

equitable. Two circumstances always important in such

cases are, the length of the delay and the nature of the

acts done during the interval which might affect either party

and cause a balance of justice or injustice in taking the

one course or the other, so far as it relates to the remedy.”

8. It would be appropriate to note certain decisions of this

Court in which this aspect has been dealt with in relation to

Article 32 of the Constitution. It is apparent that what has

been stated as regards that article would apply, a fortiori,

to Article 226. It was observed in Rabindranath Bose v.

Union of India [(1970) 1 SCC 84 : AIR 1970 SC 470] that

no relief can be given to the petitioner who without any

reasonable explanation approaches this Court under Article

32 after inordinate delay. It was stated that though Article

32 is itself a guaranteed right, it does not follow from this

that it was the intention of the Constitution-makers that

this Court should disregard all principles and grant relief

in petitions filed after inordinate delay.

9. It was stated in State of M.P. v. Nandlal Jaiswal [(1986)

4 SCC 566 : AIR 1987 SC 251] that the High Court in

exercise of its discretion does not ordinarily assist the tardy

and the indolent or the acquiescent and the lethargic. If

there is inordinate delay on the part of the petitioner and

such delay is not satisfactorily explained, the High Court

may decline to intervene and grant relief in exercise of its

writ jurisdiction. It was stated that this rule is premised on

a number of factors. The High Court does not ordinarily

permit a belated resort to the extraordinary remedy because

it is likely to cause confusion and public inconvenience and

bring, in its train new injustices, and if writ jurisdiction is

exercised after unreasonable delay, it may have the effect

of inflicting not only hardship and inconvenience but also

injustice on third parties. It was pointed out that when writ

jurisdiction is invoked, unexplained delay coupled with the

creation of third-party rights in the meantime is an important

factor which also weighs with the High Court in deciding

whether or not to exercise such jurisdiction.”

[2024] 4 S.C.R. 515

Mrinmoy Maity v. Chhanda Koley and Others

13. Reiterating the aspect of delay and laches would disentitle the

discretionary relief being granted, this Court in the case of Chennai

Metropolitan Water Supply & Sewerage Board and others v. T.T.

Murali Babu, (2014) 4 SCC 108 has held:

“16. Thus, the doctrine of delay and laches should not

be lightly brushed aside. A writ court is required to weigh

the explanation offered and the acceptability of the same.

The court should bear in mind that it is exercising an

extraordinary and equitable jurisdiction. As a constitutional

court it has a duty to protect the rights of the citizens

but simultaneously it is to keep itself alive to the primary

principle that when an aggrieved person, without adequate

reason, approaches the court at his own leisure or pleasure,

the court would be under legal obligation to scrutinise

whether the lis at a belated stage should be entertained

or not. Be it noted, delay comes in the way of equity. In

certain circumstances delay and laches may not be fatal

but in most circumstances inordinate delay would only

invite disaster for the litigant who knocks at the doors

of the court. Delay reflects inactivity and inaction on the

part of a litigant — a litigant who has forgotten the basic

norms, namely, “procrastination is the greatest thief of

time” and second, law does not permit one to sleep and

rise like a phoenix. Delay does bring in hazard and causes

injury to the lis.”

14. Having regard to the afore-stated principles of law enunciated

herein above, when we turn our attention to facts on hand, it would

not detain us for too long for accepting the plea of the appellant

in affirming the order of the Learned Single Judge and dismissing

the writ petition on the ground of delay and laches. We say so for

reasons more than one, firstly, it requires to be noticed that the writ

petitioner was a rival applicant along with the appellant herein for

grant of LPG distributorship and she along with the appellant herein,

were found to be eligible and the appellant herein was held to be

successful by virtue of draw of lots. This factual aspect would reflect

that the writ petitioner was aware of all the developments including

that of the allotment of distributorship having been made in favour

of the appellant herein way back in 2014, yet did not challenge and

only on acceptance of the alternate land offered by the appellant in 

516 [2024] 4 S.C.R.

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March, 2017 and permitting him to construct the godown and the

showroom. Same was challenged in the year 2017 and thereby the

writ petitioner had allowed his right if at all if any to be drifted away or

in other words acquiesced in the acts of the Corporation and as such

on this short ground itself the appellant has to succeed. Secondly,

another fact which has swayed in our mind to accept the plea of the

appellant herein is that, undisputedly the appropriate government

had felt the need of permitting the Oil Marketing Companies to be

more flexible and as such modification to the guidelines had been

brought about on 15.04.2015 whereby the applicants were permitted

to offer alternate land where the land initially offered by them was

found deficient or not suitable or change of the land, subject to

specifications as laid down in the advertisement being met. There

being no stiff opposition or strong resistance to the alternate land

offered by the appellant herein not being as per the specifications

indicated in the advertisement, we see no reason to substitute the

court’s view to that of the experts namely, the Corporation which

has in its wisdom has exercised its discretion as is evident from the

report filed in the form of affidavit by the territory manager (LPG)/

BPCL whereunder it has been stated:

“13. On the basis of xxxxxxxxxxxxxxxxxxxxx to nonagricultural. In his application form the said Respondent

no. 9 had provided the Land for godown at Plot No 3732,

Khatian No LR 2585, 2586, 2587 JL No 34, Mouza Kolera,

Jamalpur, Distt Burdwan admeasuring 33 decimal. The

same was cleared based on Registered Lease Deed,

which was found to have been genuine in all respects as

confirmed by the ADSR Jamalpur.

16. The land offered by the successful candidate, namely

the Respondent no.9 was found to be eligible by relying

on the abovementioned clauses, which determine eligibility

of the land based on the status of ownership. The fact

that the said land was a “Barga” land is not a material

condition on the basis of which the Respondent no. 9’s

candidature could be cancelled.

24. Subsequently, FVC of the said newly offered land by

the LOI holder, Respondent no. 9 was conducted and the

same was found suitable for construction of LPG Godown. 

[2024] 4 S.C.R. 517

Mrinmoy Maity v. Chhanda Koley and Others

A letter being DGP:LPG OMP: Jamalpur dated 21.03.2017

was provided to the said LOI holder informing him that

the alternate land provided is found suitable and therefore

his request to construct LPG Godown in the said alternate

land has been approved. A copy of the said letter dated

21.03.2017 is annexed hereto and is marked as “R-5”.

25. It is therefore submitted that the steps taken by the

Respondent no. 3 in allowing the LOI holder, Respondent

no. 9, to provide alternate land for construction of godown,

have been in consonance. with the change in policies and

no favoritism or nepotism, as suggested by the petitioner

has been in play.

32. It is further clarified that the FVC conducted on the

original land offered by the Respondent no. 9 was found to

be satisfactory on all counts, and only on the basis of this,

his request for provision of alternate land wall accepted.”

15. Hence, we are of the considered view that the order of the Learned

Division Bench is liable to be set aside and accordingly, it is set

aside. The order of the Learned Single Judge stands restored for the

reasons indicated herein above and the appeal is allowed accordingly

with no order as to costs.

Headnotes prepared by: Nidhi Jain Result of the case:

Appeal allowed.