CIVIL PROCEDURE CODE, 1908 — ORDER 23 RULE 1A, ORDER 22, and SECTION 151 — TRANSPOSITION OF DEFENDANT AS PLAINTIFF — DEATH OF SOLE PLAINTIFF — WILL DISPUTE. Transposition upon Death of Sole Plaintiff: Where the sole plaintiff dies, and the legal representatives (LRs) are already on record as defendants, an application for transposition of one of the LRs as plaintiff is not governed by Order 23 Rule 1A CPC (which applies to voluntary withdrawal or abandonment of the suit), nor is substitution under Order 22 CPC required. Inherent Power (Section 151 CPC): The Court's inherent power under Section 151 CPC can be invoked to allow the transposition of an existing defendant/LR as plaintiff to ensure the continuation of the suit and meet the ends of justice, as this situation is not expressly covered by other provisions. Proof of Will for Transposition: A legal representative (son) seeking transposition based on a Will executed by the deceased plaintiff can be transposed without immediate proof of the Will. The validity and proof of the Will, including objections raised by the contesting defendant, are matters to be determined during the trial of the suit and are not a prerequisite for transposition at the interlocutory stage.

CIVIL PROCEDURE CODE, 1908 — ORDER 23 RULE 1A, ORDER 22, and SECTION 151 — TRANSPOSITION OF DEFENDANT AS PLAINTIFF — DEATH OF SOLE PLAINTIFF — WILL DISPUTE.

Transposition upon Death of Sole Plaintiff: Where the sole plaintiff dies, and the legal representatives (LRs) are already on record as defendants, an application for transposition of one of the LRs as plaintiff is not governed by Order 23 Rule 1A CPC (which applies to voluntary withdrawal or abandonment of the suit), nor is substitution under Order 22 CPC required.

Inherent Power (Section 151 CPC): The Court's inherent power under Section 151 CPC can be invoked to allow the transposition of an existing defendant/LR as plaintiff to ensure the continuation of the suit and meet the ends of justice, as this situation is not expressly covered by other provisions.

Proof of Will for Transposition: A legal representative (son) seeking transposition based on a Will executed by the deceased plaintiff can be transposed without immediate proof of the Will. The validity and proof of the Will, including objections raised by the contesting defendant, are matters to be determined during the trial of the suit and are not a prerequisite for transposition at the interlocutory stage.

 HIGH COURT OF ANDHRA PRADESH

* * * *

CIVIL REVISION PETITION No.314 of 2025

Between:

Daggubati Yeeswara Krishna Mohan

..... PETITIONER

AND

M. V. Satyanarayana Rao and 5 others

.....RESPONDENTS

DATE OF JUDGMENT PRONOUNCED: 09.05.2025

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

1. Whether Reporters of Local newspapers

may be allowed to see the Judgments?

Yes/No

2. Whether the copies of judgment may be

marked to Law Reporters/Journals

Yes/No

3. Whether Your Lordships wish to see the

fair copy of the Judgment?

Yes/No

_______________________

RAVI NATH TILHARI, J

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CRP No.314 of 2025 2

* THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

+ CIVIL REVISION PETITION No.314 of 2025

% 09.05.2025

# Daggubati Yeeswara Krishna Mohan

….Petitioner

Versus

$ M. V. Satyanarayana Rao and 5 others

....Respondents

! Counsel for the Petitioner: Sri M. R. S. Srinivas

^ Counsel for respondents : Sri Ch. Markondaiah

< Gist :

> Head Note:

? Cases Referred:

1. (2010) 8 SCC 1

2. 1993 (2) APLJ 435 (HC)

3. AIR 1965 SC 871

4. 1988 SCC OnLine Ker 335

5. (2011) 2 SCC 705

6. (2022) 19 SCC 806

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CRP No.314 of 2025 3

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

CIVIL REVISION PETITION No. 314 of 2025

JUDGMENT:

Heard Sri M. R. S. Srinivas, learned counsel for the petitioner and Sri Ch.

Markondaiah, learned counsel for the respondents, and perused the material

on record.

2. This civil revision petition under Article 227 of the Constitution of India

has been filed by the 1st defendant in O.S.No.104 of 1995 (in short ‘suit’)

pending in the Court of the V Additional Senior Civil Judge (Senior Division),

Vijayawada (in short ‘learned Court’). Muggula Ganga Ratnam, the mother of

the present respondents No.1 to 6, filed O.S.No.104 of 1995 against

Dhaggupati Yeeswara Krishna Mohan, 1st defendant in the suit/present

petitioner for possession of the plaint schedule property and for future profits

from the date of the suit till the date of delivery of possession after ejecting the

1

st defendant and his tenants, with other consequential reliefs.

3. The plaintiff Muggula Ganga Ratnam died. The case of the 1st

defendant in the suit/present petitioner was that the husband of the plaintiff

Muggula Ganga Ratnam had entered into an agreement of sale with him.

4. Learned counsel for the petitioner submitted that the 2nd defendant in

the suit/1st respondent herein filed I.A.No.539 of 2011 under Order 22 Rule 3

CPC to substitute the legal representatives in the place of the deceased plaintiff,

I.A.No.540 of 2011 to set aside the abatement of the suit and I.A.No.541 of

2011 to transpose the 2nd defendant/1st respondent herein as plaintiff No.2 in

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CRP No.314 of 2025 4

the suit. On the aforesaid I.As, notices were issued to the 1st defendant. He

inter alia filed a memo in I.A.No.541 of 2011 and requested the Court for

examination of the 2nd defendant/1st respondent herein, inter alia, on the point

of the Will based on which the case of the 2nd defendant was for transposition

as plaintiff No.2, that the plaintiff, the mother had executed a Will in favour of

the 2nd defendant. The alleged Will in favour of the 2nd defendant was also

disputed by some of the other defendants, the sisters. That memo was rejected

by the learned Court.

5. Being aggrieved from the rejection of such memo, as also the notices

issued in I.A.Nos.539 and 540 of 2011, the 1st defendant in the suit/the present

petitioner filed three civil revision petitions, viz., CRP Nos.3697, 3893 and 4049

of 2012. Those three civil revision petitions were disposed of by the common

Order dated 28.12.2017 by this Court, observing that since the legal

representatives of the deceased plaintiff Muggula Ganga Ratnam were already

on record as defendants No.2 to 7, there was no question of filing application

under the Limitation Act or for substitution under Order 22 or for setting aside

the abatement under Order 22 Rule 9 CPC and therefore, there was nothing to

adjudicate upon those applications by the learned Court.

6. However, with respect to the application for transposition of the 2nd

defendant as 2nd plaintiff is concerned, it was observed that, that was a dispute

between the 2nd defendant and the other legal representatives. In fact, the suit

for possession was practically between the 1st defendant and the late plaintiff’s

legal heirs so all were to be transposed, unless the 2nd defendant proved the

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CRP No.314 of 2025 5

Will as contemplated by Section 63 of the Indian Succession Act; wherein, the

1

st defendant had got a stake to oppose the Will, if at all, but for that there was

nothing to entertain those revision petitions. Consequently, all those civil

revision petitions were closed to pursue their remedies before the trial Court. It

was observed that the revision petitions were closed for the trial Court only to

adjudicate the lis covered by I.A.No.539 of 2012 while for transposing 2nd

defendant or all the other defendants, the legal representatives of deceased

plaintiff, as plaintiffs.

7. Learned counsel for the petitioner submitted that in fact I.A.No.539 of

2012 was a clerical mistake, it should have been I.A.No.541 of 2012, which was

for transposition of the 2nd defendant as 2nd plaintiff.

8. The 1st defendant had also taken a plea that based on the agreement

of sale, alleged to have been executed by the deceased husband of the plaintiff

Muggula Ganga Ratnam, a suit for specific performance of contract being

O.S.No.260 of 1994 was also filed. This Court in the aforesaid 3 revisions’

order, observed that if the suit for specific performance was also in the same

Court, the learned trial Judge shall conduct joint trial, as the whole contest of

the 1st defendant in opposing the suit for possession was depending upon his

entitlement to the relief for specific performance or not to record the evidence

in the suit for specific performance. The trial Court was also directed to make

every endeavor for early disposal of the application of transposition.

9. By the impugned Order dated 20.01.2025, now under challenge the

I.A.No.541 of 2011 i.e., for transposition of the 2nd defendant as the 2nd

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CRP No.314 of 2025 6

plaintiff, has been allowed, permitting to transpose the 2nd defendant as 2nd

plaintiff and to carry out the necessary consequential amendments.

10. The learned trial Court has observed that so far as the dispute with

respect to the Will is concerned, amongst the legal heirs, as also the petitioner,

the 1st defendant in the suit that could be during the course of trial,

considering the Order passed by this Court in previous 3 revision petitions.

During trial, the petitioner/1st defendant shall also get chance to oppose the

said Will, although it was further observed that the dispute of Will was among

the legal heirs of the deceased plaintiff and the defendant No.1/petitioner was

in no way related. The learned trial Court further observed that it was only the

2

nd defendant who had filed application to transpose him as 2nd plaintiff though

the defendants No.2 to 7 were the legal heirs of the deceased plaintiff. Those

other legal representatives on record did not choose to file any application

seeking their transposition as plaintiffs. The 2nd defendant who filed the

application seeking his transposition as 2nd plaintiff, was basing his claim on the

Will, said to be executed by the original plaintiff, the mother. The objection of

the respondents was regarding legality and maintainability of the Will which

was only with respect to the 2nd defendant and the other legal representatives.

The learned Court further observed that since the validity or otherwise of the

Will would be decided at the appropriate stage, transposing the 2nd defendant

as 2nd plaintiff would not cause any prejudice to the other defendants.

Moreover, transposing the 2nd defendant as 2nd plaintiff would be helpful to the

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CRP No.314 of 2025 7

Court to come to a just conclusion in the suit in view of the death of the sole

plaintiff Muggula Ganga Ratnam.

11. Learned counsel for the petitioner while challenging the impugned

Order, submitted that for the transposition of the 2

nd defendant as 2nd plaintiff,

he was required to prove the Will as per the provisions of Section 63 of the

Indian Succession Act read with Section 68 of the Indian Evidence Act. He

submitted that in the previous round of litigation, by the common Order dated

28.12.2017 in CRP Nos.3697, 3893 and 4049 of 2012 also it was observed by

this Court that all the legal representatives of the deceased plaintiff were to be

transposed unless the 2nd defendant proved the Will. Consequently, he

submitted that without the proof of the Will, the 2nd defendant alone could not

be transposed as 2nd plaintiff and all the defendants, the legal representatives

of the deceased plaintiff ought to have been transposed as plaintiffs in the

place of the deceased plaintiff.

12. Learned counsel for the petitioner further submitted that the

application for transposition was filed under Section 151 CPC, whereas there

was specific provision for transposition under Order 23 Rule 1A of CPC, but the

application was not filed therein, consequently, the application was not

maintainable under Section 151 CPC and that it should have been rejected. He

has placed reliance on the cases of Vinod Seth v. Devinder Bajaj

1

 and S.

Anjaneyulu v. Soorampally Venkata Ramana Gupa

2

.

1

(2010) 8 SCC 1

2

1993 (2) APLJ 435 (HC)

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CRP No.314 of 2025 8

13. Learned counsel for the respondents contended that the impugned

Order does not suffer from any illegality. He submitted that the 2nd defendant

was entitled to be transposed not only based on the Will in his favoiur by the

plaintiff, but also being one of the legal representatives, being the son. He

supported the impugned order. So far as the proof and the validity of the Will

is concerned, he submitted that the same is subject matter of the trial, as has

been rightly observed by the learned trial Court.

14. I have considered the aforesaid submissions and perused the

material on record.

15. The point that arises for consideration is; Whether the impugned

Order of transposition suffers from any illegality and calls for any interference?

16. It is undisputed that the 2nd defendant is also one of the legal

representatives of the deceased plaintiff being her son though he is claiming his

transposition based on the Will of the plaintiff in his favour. But, even if for the

time being for the purposes of transposition to continue the suit, the Will is not

taken into consideration, as the learned trial Court has rightly observed that the

validity of the Will and its proof is to be considered during the course of trial,

this Court is of the view that the 2nd defendant in his capacity even as one of

the legal representatives being the son could be arrayed as 2nd plaintiff by

transposition, to continue the suit in the place of the deceased plaintiff mother.

The suit was filed only against the 1st defendant seeking relief and not against

the other defendants, the legal representatives of the deceased plaintiff. The

suit was not against defendants No.2 to 7. So, so far as the validity of the

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CRP No.314 of 2025 9

Order impugned is concerned, for the purpose of transposition, in the absence

of any dispute being raised by the 1st defendant, the petitioner herein, that the

2

nd defendant is the son, there cannot be any illegality in the impugned order.

It is not the case of the petitioner that the 2nd defendant is not the son of the

plaintiff and therefore not her legal representative. So, further, proof of Will for

transposition at this stage of the application for transposition was not required

at all. For the purpose of transposition, to continue the suit, on the death of

the sole plaintiff, the defendant No.2, son, one of the legal representatives,

could be transposed, independent of the proof of Will.

17. So far as the submission of the learned counsel for the petitioner,

based on Order 23 Rule 1A CPC is concerned and thereon, that Section 151 CPC

could not be invoked to pass the impugned order, the same deserves rejection.

18. Order 23 Rule 1A CPC reads as under:

“1A. When transposition of defendants as plaintiffs may be permitted.

Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a

defendant applies to be transposed as a plaintiff under rule 10 of Order I the

Court shall, in considering such application, have due regard to the question

whether the applicant has a substantial question to be decided as against any of

the other defendants.”

19. Order 23 Rule 1A CPC gets attracts in two contingencies. When the

plaintiff withdraws the suit and/or if the plaintiff abandons the suit. Then, the

defendants or any of them who want to pursue the suit they have to proceed

under Order 23 Rule 1A CPC for their transposition for the purpose of

continuing the suit.

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CRP No.314 of 2025 10

20. The word ‘abandonment’ means to give up with intent of never again

to resume, ones right or interest.

21. As per “Black’s Law Dictionary”, the word ‘abandonment’ means, the

surrender, relinquishment, disclaimer, or cession of property or of rights.

Voluntary relinquishment of all right, title, claim and possession with the

intention of not reclaiming it.

22. In Kanwar Singh v. Delhi Administration

3

 the contention raised

was that to impound, under Section 418 of the Delhi Municipal Corporation Act

1957, an ‘abandoned’ cattle, abandoned implied the complete leaving of a thing

as a final rejection of one’s responsibilities so that the thing becomes

ownerless. The Hon’ble Apex Court held that the meaning to be attached to

the word ‘abandoned’ would depend upon the context in which it was used. It

was further observed that it is the duty of the Court in construing a statute to

give effect to the intention of the legislature. Paragraphs 11 and 12 of Kanwar

Singh (supra) read as under:

“11. A more serious contention of Mr Kohli, however is that under Section

418 cattle which the Corporation can impound, must be ownerless or tethered

on any street or public place or land belonging to the Corporation. Admittedly

the cattle in question were not tethered on any such place and, therefore, Mr

Kohli contends that their seizure was not permissible. In support of his

contention that “abandoned” implies the complete leaving of a thing as a final

rejection of one's responsibilities so that the thing becomes “ownerless”, Mr

Kohli has referred us to the Law Lexicon and Oxford Dictionary. The meanings

relied on by him are as follows:

3

 AIR 1965 SC 871

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CRP No.314 of 2025 11

“A thing banned or denounced as forfeited or lost, whence to abandon,

desert, or forsake as lost and gone.”

Wharton's Law Lexicon.

“To let go, give up, renounce, leave off; to cease to hold, use or

practise.” The Oxford English Dictionary, Vol. I.

In the Oxford Dictionary the word is also said to mean “to let loose; to set free;

to liberate”. Several other meanings of the word have been given both in that

dictionary as well as in Wharton's Law Lexicon. In the latter as also in

Jowitt's The Dictionary of English law under “abandonment” are given cases

from which it would appear that different meanings have been given to

“abandonment” in different statutes.

12. It will thus be seen that the meaning to be attached to the word

abandoned would depend upon the context in which it is used. In the context in

which it occurs in Section 418(1), the meaning which can reasonably be

attached to the word “abandoned” is ‘let loose’ in the sense of being ‘left

unattended’ and certainly not ‘ownerless’. It is the duty of the Court in

construing a statute to give effect to the intention of the legislature. If, therefore,

giving a literal meaning to a word used by the draftsman, particularly in a penal

statute would defeat the object of the legislature, which is to suppress a

mischief the Court can depart from the dictionary meaning or even the popular

meaning of the word and instead give it a meaning which will advance the

remedy and suppress the mischief, (see Maxwell on Interpretation of Statutes,

11th Edn. pp. 221-24 and 266). In the Act before us when the legislature used

the word ‘abandoned’ it did not intend to say that the cattle must be ownerless.

This is implicit in the proviso to sub-section (1) of Section 418 which says that

anyone ‘claiming’ an animal which has been impounded under that sub-section

can, within 7 days of seizure, get it released on fulfilling certain conditions.

Such a claim could only be made by a person who is the owner of the animal

impounded or who has at least the custody of the animal. We cannot, therefore,

accept the first point raised by Mr Kohli.”

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CRP No.314 of 2025 12

23. In Madhavi Amma v. P. M. Sailaja

4

the plaintiff therein was not

conducting the suit properly and so defendant No.20 therein applied for

transposition which was allowed by the trial Court. In that context, the Kerala

High Court considered if that could be said an abandonment of the suit by

plaintiff and observed as under:

“7. Could it then be said that the plaintiff has abandoned the suit. The

word ‘abandoned’, is not defired. It has therefore become necessary to define

the word. The words “withdrawn” and “abandoned” are used alternatively.

That means the word ‘abandoned’ takes colour from the expression

‘withdrawn’. ‘Withdrawn’ means to remove from the files of the court and

thus prevent the cause being tried. If that be so, the word ‘abandoned’

means to give up with intent of never again resuming one's right or

interest. Going by the pleadings in the petition, it cannot be said that the 20th

defendant has a case that the plaintiff has abandoned the suit. On the other hand

the inference irresistable from the circumstances is that the plaintiff is not

conducting the cases in the way in which it should be conducted from the point

of view of the 20th defendant. That in my view is not a ground for transposition

on the ground that the plaintiff has abandoned the suit.”

24. The intention of the legislature in using the expressions ‘abandoned’

or and ‘withdrawn’ in Order 23 Rule 1A CPC is clear that it should be a

voluntary act of the plaintiff. If the suit cannot be proceeded on account of

death of plaintiff that cannot be voluntary act of the plaintiff so as to attract

Order 23 Rule 1A CPC. For such a case, the legislature has specifically provided

under Order 22 CPC.

25. On the death of the plaintiff, it cannot be said that the plaintiff

abandoned the suit, nor that the suit was withdrawn. Ordinarily, on the death

4

 1988 SCC OnLine Ker 335

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CRP No.314 of 2025 13

of the plaintiff, the legal representatives, if the right to sue survives, shall apply

for their substitution in place of the deceased plaintiff. However, in the present

case, all those legal representatives were already on record as Defendants No.2

to 7. The plaintiff’s suit, in fact, was not against those legal representatives,

but only against the 1st defendant for whose eviction the suit was filed. If the

defendants/legal representatives of the deceased plaintiff, seek their

transposition, as plaintiff in the place of the deceased or anyone of them, it

would not be a case of transposition under Order 23 Rule 1A CPC. They were

already on record so, any application for substitution was also not required and

the same had already been held in the previous CRP(s). The only thing was to

continue the suit against the 1st defendant and for that, some of the legal

representatives of the deceased on record as defendants No.2 to 7 had to be

transposed as plaintiffs.

26. In S. Anjaneyulu (supra), upon which reliance has been placed by

the petitioner’s counsel, it was held that the defendant who wanted to continue

the suit, like in the case of a suit for partition or a suit for dissolution of a

partnership and for rendering of accounts, had no remedy under any of the

Rules under Order 22 for setting aside of abatement so far as the deceased

plaintiff was concerned. Therefore, the only recourse available to him was for

continuing the suit, he had to apply for transposition as a plaintiff.

27. In the aforesaid case, the plaintiff died and the legal representatives

were not coming forward being not interested. They did not make any

application to bring them on record, in such circumstances, it was held that the

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CRP No.314 of 2025 14

defendant who was interested in continuing the suit, had the remedy to apply

for transposition. So, in case of death of the plaintiff if the legal representatives

do not come forward to prosecute the suit, that might have been considered as

abandonment of the suit by the legal representatives of the plaintiff, and so the

remedy of the defendant to apply for transposition under Order 23 Rule 1A

CPC. But, in the present case, defendant No.2, son of the deceased plaintiff

has come forward for this transposition as plaintiff.

28. Section 151 CPC is as under:

“Section 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.”

29. In Rajendra Prasad Gupta vs Prakash Chnadra Mishra

5

, the

plaintiff filed an application to withdraw the suit. Afterwards he changed his

mind and before an order could be passed he filed an application for withdrawal

of the earlier application. The second application was dismissed and the order

was upheld by the High Court taking the view that once the application for

withdrawal of the suit was filed the suit stood dismissed as withdrawn even

without any order on withdrawal application. The Hon’ble Apex Court did not

agree with the said view of the High Court and set aside its order. The Hon’ble

Apex Court held that the rules of procedure are handmaids of justice and every

procedure was permitted to the court for doing justice unless expressly

5

(2011) 2 SCC 705

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CRP No.314 of 2025 15

prohibited and not that every procedure is prohibited unless expressly

permitted. There was no express bar in filing an application for withdrawal of

the withdrawal application. It is relevant to refer to paras 4 to 6 of Rajendra

Prasad Gupta (supra), which are reproduced as under:

“4. We do not agree. Rules of procedure are handmaids of justice. Section

151 of the Code of Civil Procedure gives inherent powers to the court to do

justice. That provision has to be interpreted to mean that every procedure

is permitted to the court for doing justice unless expressly prohibited, and

not that every procedure is prohibited unless expressly permitted. There is

no express bar in filing an application for withdrawal of the withdrawal

application.

5. In Narsingh Das v. Mangal Dubey (ILR (1883) 5All 163), Mahmood, J.

the celebrated Judge of the Allahabad High Court, observed:

"Courts are not to act upon the principle that every procedure is to be

taken as prohibited unless it is expressly provided for by the Code, but on

the converse principle that every procedure is to be understood as

permissible till it is shown to be prohibited by the law. As a matter of

general principle prohibition cannot be presumed."

6. The above view was followed by a Full Bench of the Allahabad High

Court in Raj Narain Saxena v. Bhim Sen and we agree with this view.

Accordingly, we are of the opinion that the application praying for withdrawal

of the withdrawal application was maintainable. We order accordingly.”

30. In My Palace Mutually Aided Co-operative Society vs B.

Mahesh

6

 on the scope of Section 151, CPC the Hon’ble Apex Court clearly

observed that Section 151 CPC can only be applicable if there is no alternative

remedy available in accordance with the existing provisions of law. Then it

6

(2022) 19 SCC 806

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CRP No.314 of 2025 16

provides for civil courts to invoke their inherent jurisdiction and utilise the same

to meet the ends of justice or to prevent abuse of process. Paras 25 to 28 are

reproduced as under:

“25. Section 151 CPC provides for civil courts to invoke their inherent

jurisdiction and utilise the same to meet the ends of justice or to prevent abuse

of process. Although such a provision is worded broadly, this Court has

tempered the provision to limit its ambit to only those circumstances where

certain procedural gaps exist, to ensure that substantive justice is not obliterated

by hypertechnicalities.

26. As far back as in 1961, this Court in Padam Sen v. State of U.P.,

observed as under: (SCC OnLine SC 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."

(emphasis supplied)

27. In exercising powers under Section 151 CPC, it cannot be said that the

civil courts can exercise substantive jurisdiction to unsettle already decided

issues. A court having jurisdiction over the relevant subject-matter has the

power to decide and may come either to a right or a wrong conclusion. Even if a

wrong conclusion is arrived at or an incorrect decree is passed by the

jurisdictional court, the same is binding on the parties until it is set aside by an

appellate court or through other remedies provided in law.

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CRP No.314 of 2025 17

28. Section 151 CPC can only be applicable if there is no alternative remedy

available in accordance with the existing provisions of law. Such inherent

power cannot override statutory prohibitions or create remedies which are not

contemplated under the Code. Section 151 cannot be invoked as an alternative

to filing fresh suits, appeals, revisions, or reviews. A party cannot find solace in

Section 151 to allege and rectify historic wrongs and bypass procedural

safeguards inbuilt in CPC.”

31. In Vinod Seth (supra), upon which the learned counsel for the

petitioner placed reliance, the Hon’ble Apex Court held that as there were

specific provisions in the Code, relating to costs, security for costs and

damages, the Court could not invoke Section 151 CPC on the ground that the

same was necessary for the ends of justice.

32. Based on the said judgment, the contention of the petitioner’s

counsel was that as there was specific remedy under Order 23 Rule1A CPC, the

Court could not have invoked its inherent power to allow the application for

transposition.

33. In Vinod Seth (supra) on the scope of Section 151 CPC the Hon’ble

Apex Court examined the issue as under in paragraphs No.27, 28, 29, 30, 31,

32 and 33.

“27. We will next examine whether the power to make such an order can be

traced to Section 151 of the Code, which 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.”

 28. As the provisions of the Code are not exhaustive, Section 151 is

intended to apply where the Code does not cover any particular procedural

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CRP No.314 of 2025 18

aspect, and interests of justice require the exercise of power to cover a

particular situation. Section 151 is not a provision of law conferring power to

grant any kind of substantive relief. It is a procedural provision saving the

inherent power of the court to make such orders as may be necessary for the

ends of justice and to prevent abuse of the process of the court. It cannot be

invoked with reference to a matter which is covered by a specific provision in

the Code. It cannot be exercised in conflict with the general scheme and intent

of the Code. It cannot be used either to create or recognise rights, or to create

liabilities and obligations not contemplated by any law.

29. Considering the scope of Section 151, in Padam Sen v. State of

U.P. [AIR 1961 SC 218 : (1961) 1 Cri LJ 322] , this Court observed: (AIR p.

219, paras 8-9)

“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. …

9. … The inherent powers saved by Section 151 of the Code are with

respect to the procedure to be followed by the Court in deciding the cause

before it. These powers are not powers over the substantive rights which any

litigant possesses. Specific powers have to be conferred on the courts for

passing such orders which would affect such rights of a party.”

(emphasis supplied)

30. In Manohar Lal Chopra v. Seth Hiralal [AIR 1962 SC 527] this Court

held: (AIR p. 533, para 21)

“21. … that the inherent powers are not in any way controlled by the

provisions of the Code as has been specifically stated in Section 151 itself. But

those powers are not to be exercised when their exercise may be in conflict with

what had been expressly provided in the Code or against the intentions of the

legislature.”

2025:APHC:18793

 RNT, J

CRP No.314 of 2025 19

31. In Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhayalal

Bhargava [AIR 1966 SC 1899] this Court reiterated that the inherent power of

the court is in addition to and complementary to the powers expressly conferred

under the Code but that power will not be exercised if its exercise is

inconsistent with, or comes into conflict with any of the powers expressly or by

necessary implication conferred by the other provisions of the Code. Section

151 however is not intended to create a new procedure or any new right or

obligation.

32. In Nain Singh v. Koonwarjee [(1970) 1 SCC 732 : AIR 1970 SC 997]

this Court observed: (SCC p. 735, para 4)

“4. … Under the inherent power of courts recognised by Section 151 CPC,

a court has no power to do that which is prohibited by the Code. Inherent

jurisdiction of the court must be exercised subject to the rule that if the Code

does contain specific provisions which would meet the necessities of the case,

such provisions should be followed and inherent jurisdiction should not be

invoked. In other words the court cannot make use of the special provisions of

Section 151 of the Code where a party had his remedy provided elsewhere in

the Code….”

33. A suit or proceeding initiated in accordance with law, cannot be

considered as an abuse of the process of court, only on the ground that such suit

or proceeding is likely to cause hardship or is likely to be rejected ultimately.

As there are specific provisions in the Code, relating to costs, security for costs

and damages, the court cannot invoke Section 151 on the ground that the same

is necessary for the ends of justice. Therefore, we are of the view that a court

trying a civil suit, cannot, in exercise of inherent power under Section 151 of

the Code, make an interim order directing the plaintiff to file an undertaking

that he will pay a sum directed by the court to the defendant as damages in case

he fails in the suit.”

34. In Vinod Seth (Supra) the Hon’ble Apex Court clearly held that as

the provisions of the Code are not exhaustive, Section 151 was intended to

apply where the Code does not cover any particular procedural aspect, and

2025:APHC:18793

 RNT, J

CRP No.314 of 2025 20

interests of justice require the exercise of power to cover a particular situation.

Section 151 was not a provision of law conferring power to grant any kind of

substantive relief. It was a procedural provision saving the inherent power of

the Court to make such orders as may be necessary for the ends of justice and

to prevent abuse of the process of the Court. It cannot be invoked with

reference to a matter which is covered by a specific provision in the Code. It

cannot be exercised in conflict with the general scheme and intent of the Code.

It cannot be used either to create or recognize rights, or to create liabilities and

obligations not contemplated by any law.

35. The scope of Section 151 CPC is well settled. The inherent powers

cannot be invoked by the Court when there is specific provision under the Code.

It can also not be invoked if there is a contrary provision. But when there is no

provision or no specific provision applicable to meet special situation, and there

is also no prohibition, and the ends of justice require or to prevent the abuse of

the process of the Court, it is so necessary, the Court can invoke the inherent

power to achieve that end, saved by Section 151 CPC.

36. Since it is not a case of abandonment or withdrawn or substitution,

this Court is certainly of the view that the learned trial Court, had the power to

allow the application for transposition of the 2nd defendants as plaintiff, under

its inherent power saved by Section 151 CPC. The contention of the learned

counsel for the petitioner that in view of the specific provision under Order 23

Rule1A CPC the inherent powers could not be invoked under Section 151 CPC is

unacceptable. This Court has already held that Order 23 Rule 1 A CPC is not

2025:APHC:18793

 RNT, J

CRP No.314 of 2025 21

applicable. Any other specific provision for transposition in such circumstances

could not be pointed out. Section 151 CPC, saves the inherent powers of the

Court to make such order, as may be necessary for the ends of justice and to

prevent the abuse of process of the Court.

37. In the fact situation of the present case, the learned trial Court has

rightly invoked its inherent powers in the interests of justice and to prevent the

abuse of the process of the Court, there being no specific provision to meet the

situation and there being no prohibition as well.

38. This Court is of the view that for the purposes of transposition, the

petitioner has no case to oppose. The entire endeavour of the petitioner

appears to be not to transpose the 2nd defendant so that the suit may not

proceed in the absence of plaintiff, as the sole plaintiff is already dead and the

suit is for recovery of possession of the plaint schedule property after ejecting

the 1st defendant and his tenants. The petitioner in such a way cannot be

permitted to hamper and install the proceedings of the suit filed in the year

1995.

39. Thus, considered. I do not find any force in the civil revision petition

which deserves to be dismissed.

40. The Civil Revision Petition is dismissed.

41. The learned trial Court shall make endeavour to decide the

O.S.No.104 of 1995 expeditiously, as was also previously directed in CRP Nos.

3697, 3893 and 4049 of 2012, vide judgment dated 28.12.2017, preferably

within a period of one year from the date of receipt of copy of this judgment.

2025:APHC:18793

 RNT, J

CRP No.314 of 2025 22

42. No order as to costs.

 Pending miscellaneous petitions, if any, shall stand closed in

consequence.

_______________________

RAVI NATH TILHARI, J

Date: 09.05.2025

Dsr

Note:

LR copy to be marked

 B/o

 Dsr

2025:APHC:18793

. Andhra Pradesh Civil Courts Act, 1972 — Section 17(1)(ii)(a) — Appellate Jurisdiction The forum for appeal from a decree of the Senior Civil Judge's Court is governed by the amount or value of the subject matter of the suit or proceeding as originally instituted. Where the suit value is below Rs. 50,00,000/- (in this case, Rs. 43,50,000/-), the appeal lies to the District Court, notwithstanding any subsequent increase in the decretal amount. 2. Andhra Pradesh Court fees and Suits valuation Act, 1956 — Section 49, Explanation (3) — Valuation of Appeal vs. Valuation of Suit Explanation (3) to Section 49 mandates that interest accrued during the pendency of the suit till the date of the decree is deemed part of the subject-matter of the appeal for the purpose of calculating the court fee payable. However, this inclusion of interest does not alter the basic valuation of the original suit and therefore does not shift the jurisdiction of the appellate forum as determined by Section 17 of the Civil Courts Act. 3. Procedure — Maintanability and Remittal Where an appeal, correctly valued for court fee based on the decretal amount including interest (above Rs. 50 lakhs), is mistakenly filed before the High Court instead of the District Court (due to the original suit value being below Rs. 50 lakhs), the High Court should, in the interests of justice and considering the timely filing and correct court fee payment, remit the appeal to the concerned District Court rather than merely returning the memorandum of appeal.

 

. Andhra Pradesh Civil Courts Act, 1972 — Section 17(1)(ii)(a) — Appellate Jurisdiction

The forum for appeal from a decree of the Senior Civil Judge's Court is governed by the amount or value of the subject matter of the suit or proceeding as originally instituted. Where the suit value is below Rs. 50,00,000/- (in this case, Rs. 43,50,000/-), the appeal lies to the District Court, notwithstanding any subsequent increase in the decretal amount.

2. Andhra Pradesh Court fees and Suits valuation Act, 1956 — Section 49, Explanation (3) — Valuation of Appeal vs. Valuation of Suit

Explanation (3) to Section 49 mandates that interest accrued during the pendency of the suit till the date of the decree is deemed part of the subject-matter of the appeal for the purpose of calculating the court fee payable. However, this inclusion of interest does not alter the basic valuation of the original suit and therefore does not shift the jurisdiction of the appellate forum as determined by Section 17 of the Civil Courts Act.

3. Procedure — Maintanability and Remittal

Where an appeal, correctly valued for court fee based on the decretal amount including interest (above Rs. 50 lakhs), is mistakenly filed before the High Court instead of the District Court (due to the original suit value being below Rs. 50 lakhs), the High Court should, in the interests of justice and considering the timely filing and correct court fee payment, remit the appeal to the concerned District Court rather than merely returning the memorandum of appeal.

* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

* THE HONOURABLE DR JUSTICE Y.LAKSHMANA RAO

+ APPEAL SUIT (SR) NO: 18100/2024

% 09.05.2025

# Maripalli Naga Lokeswara Rao.

…… Appellant

And:

$ Ravulapalli Kranthi Kumar

….Respondent

!Counsel for the appellant : Sri C.Venkaiah

^Counsel for the respondent : --

<Gist:

>Head Note:

? Cases referred:

2025:APHC:19916

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO

APPEAL SUIT (SR) NO: 18100/2024

ORDER: (per Ravi Nath Tilhari, J)

This appeal has been filed by the defendant in O.S.No.43 of 2021 on the

file of I Additional Senior Civil Judge’s Court, Vijayawada challenging the decree

dated 06.02.2024.

2. The office has raised objection that since O.S.No.43 of 2021 was from the

I Additional Senior Civil Judge’s Court, Vijayawada and the valuation of the suit

was below Rs.50 lakhs (i.e., 43,50,000/-). So, the appeal should have been filed

before the Court of learned District Judge, Krishna District.

3. The appellant raised objection to the office report. The objection and the

argument of learned counsel for the appellant is that the suit has been decreed

also for the interest @ 12% per annum from the date of suit i.e., 09.02.2021 till

the date of decree i.e., 06.02.2024 and further @ 6% per annum from the date of

decree till the date of realisation on the principal sum of Rs.30 lakhs and so

calculated the valuation of the appeal comes to Rs.54,62,000/-, which being

above Rs.50 lakhs. So the appeal would lie to the High Court.

4. Pursuant to the order dated 07.05.2025 on the aforesaid aspect, the office

has submitted the report.

5. We have perused the report.

2025:APHC:19916

6. As per the office report, the valuation of the appeal is Rs.54,62,000/-,

referring to Rule 49 (Explanation 3) of Andhra Pradesh Court fees and Suits

valuation Act, 1956.

7. We have considered the office objection and the submission of learned

counsel for the appellant on such objection.

8. The question is whether the appeal shall lie to the Court of District Judge

or to the High Court under Section 96 CPC? In other words the valuation of the

appeal or the valuation of the suit should govern the issue.

9. Admittedly, the valuation of the suit is valued by the plaintiff was less than

Rs.50 lakhs. The valuation of the present appeal is more than Rs.50 Lakhs,

which includes the interest awarded by the Court from the date of institution of

the suit till its realisation, in two parts i.e., till the date of decree @ 12% and from

the date of decree till its realisation @ 6%.

10. Section 17 of the Andhra Pradesh Civil Courts Act, 1972 reads as under:

“17. Appeals from the decrees and orders of Courts in the District:-

(1) An appeal shall, when it is allowed by law, lie from any decree or order in a civil

suit or proceeding:-

(i) of the District Court, to the High Court;

(ii) of the Court of Senior Civil Judge,-

(a) to the District Court, when the amount or value of the subject matter of the

suit or proceeding is [not more than rupees fifty lakhs,]

(b) to the High Court ; in other cases ; and

(iii) of the Court of Junior Civil Judge, to the District Court.

(2) The District Judge may, subject to the order of the High Court transfer for

disposal any appeal from the decree or order of a Court of Junior Civil Judge

preferred in the District Court, to any Court of Senior Civil Judge within the district.

2025:APHC:19916

(3) Where a Court of Senior Civil Judge is established in any district at a place

remote from the seat of the District Court, the High Court, may, with the previous

sanction of the Government, direct that an appeal from the decree or order of any

Court of Junior Civil Judge within the local limits of the jurisdiction of such Court of

Senior Civil Judge shall be preferred in the said Court of Senior Civil Judge .

Provided that the District Judge may, from time to time, transfer to his down Court,

any appeal so preferred, and dispose it of himself.”

11. As per Section 17(1)(ii)(a), the appeal, when it is allowed by law, shall lie

from any decree or order in a civil suit or proceeding of the Court of Senior Civil

Judge to the District Court, when the amount or value of the subject matter of the

suit or proceeding is not more than rupees Fifty lakhs and in other cases to the

High Court. We are of the view that the present case falls within clause (a), as

there is no dispute that the amount or value of the suit is Rs.43,50,000/- i.e., is

less than Rs.50 lakhs.

12. Section 49 of the Andhra Pradesh Court fees and Suits valuation Act,

1956, is reproduced as under:

“49. Appeals - The fee payable in an appeal shall be the same as the fee that

would be payable in the Court of first instance on the subject-matter of the appeal:

Provided that, in levying fee on a memorandum of appeal against a final decree

by a person whose appeal against the preliminary decree passed by the Court of

first instance or by the Court of appeal is pending, credit shall be given for the fee

paid by such person in the appeal against the preliminary decree.

Explanation (1) – Where the appeal is against the refusal of a relief or against the

grant of the relief, the fee payable in the appeal shall be the same as the fee that

would be payable on the relief in the Court of the first instance.

Explanation (2) – Costs shall not be deemed to form part of the subject – matter of

the appeal except where such costs form themselves the subject – matter of the

appeal or relief is claimed as regards costs on grounds additional to, or

independent of, the relief claimed regarding the main subject-matter in the suit.

2025:APHC:19916

Explanation (3) - In claims which include the award of interest subsequent to

the institution of the suit, the interest accrued during the pendency of the

suit till the date of decree shall be deemed to be part of the subject-matter of

the appeal except where such interest is relinquished.

Explanation (4) – Where the relief prayed for in the appeal is different from the

relief prayed for or refused in the Court of first instance, the fee payable in the

appeal shall be the fee that would be payable in the Court of first instance on the

relief prayed for in the appeal.

Explanation (5) – Where the market value of the subject-matter of the appeal has

to be ascertained for the purpose of computing or determining the fee payable,

such market value shall be ascertained as on the date of presentation of the

plaint.”

12. A bare perusal of Section 49 shows that the fee payable in an appeal shall be

the same as the fee that would be payable in the Court of first instance, on the

subject matter of the appeal. There is proviso as also added to section 49, but the

same is not relevant in the present case. Explanation 3 also provides that in

claims which include the award of interest subsequent to the institution of the suit,

the interest accrued during pendency of the suit till the date of decree, shall be

deemed to be part of the subject-matter of the appeal except where such interest

is relinquished. So as per explanation 3, it is clear that the interest granted from

the date of institution of the suit shall be deemed to the part of the subject matter

of the appeal, and the same shall not be the part of the subject matter or value of

the suit. So, the amount towards grant of inerest from the date of institution of the

suit, cannot be counted under Section 17 of the Andhra Pradesh Civil Courts Act,

1972, as it is not value or amount of the suit. The forum for appeal is to be

determined as per Section 17. The value or the amount of the subject matter of

the suit being less than Rs.50 lakhs (i.e., Rs.43,50,000/-) as in the appeal, the

2025:APHC:19916

present appeal, in this Court is not maintainable. The same should have been

filed in District Court.

13. Office objection is sustained.

14. Let office be taken necessary steps as per procedure.

15. It is made clear that so far as the payment of court fee is concerned, the

interest awarded by learned Trial Court from the date of institution of the suit at

onwards that would be calculated for the value of the appeal and the Court fee

would be payable on that amount. So far as the filing of the appeal is concerned,

the valuation of the suit shall be considered for the forum. Therefore, in the ends

of justice, as the appellant has already paid the court fee on the valuation of the

appeal and as also file the appeal within time of this Court instead of returning the

memo to be presented before the concerned District Court, we direct the Registry

to remit the present appeal to the District Court concerned with due notice to the

appellant.

___________________

RAVI NATH TILHARI,J

_______________________

DR.Y. LAKSHMANA RAO,J

Dated:09.05.2025

AG

2025:APHC:19916

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO

APPEAL SUIT (SR) NO: 18100/2024

Dated:09.05.2025

AG

2025:APHC:19916

I. Civil Procedure - Foreign Judgment Conclusiveness (Sec. 13 CPC)Foreign Judgment - Custody Matters - Conclusiveness - Scope of Inquiry: The petitioner sought a finding from the Family Court on all six grounds under Section 13 of the Civil Procedure Code (CPC) (e.g., lack of jurisdiction, not on merits, fraud) to hold a Texas Court custody order non-binding. Held: The Family Court's scope is to decide the main petition (FCOP) on its merits, and its finding that the foreign judgment is "not binding" is sufficient to decide the main dispute. Further inquiry into grounds like 'fraud' requires relevant material and is not essential for the Family Court to determine the FCOP.II. Jurisdiction (Foreign Court)Exclusive Jurisdiction of Foreign Court: The Trial Court's finding that the Foreign Court (Texas) cannot exclude the jurisdiction of Indian Courts (Family Court, Tirupati) in entertaining custody petitions was held to be well-considered and affirmed by the High Court.III. Merits of the Case (Sec. 13(b) CPC)Foreign Judgment 'Not on Merits': Where the petitioner contends they contested the foreign proceedings only on jurisdiction and not on merits, the foreign court's resulting order, recording the petitioner's non-participation on merits, is a clear indication that the decree was not passed on merits as per the petitioner's own submission.IV. Direction to PartiesUse of Foreign Orders in India: The High Court explicitly directed that since the Family Court, Tirupati, has observed that the foreign judgments are not binding on it, the respondent cannot give undue credence to these foreign orders or rely upon them before any statutory authority in India for any purpose.V. Review PetitionDisposal of Review Petition: The Review Petition was disposed of by incorporating the High Court's clarifying observations (paras 6 to 9) into the original Order passed in the Civil Revision Petition (CRP), thereby confirming and clarifying the original disposition.

 

I. Civil Procedure - Foreign Judgment Conclusiveness (Sec. 13 CPC)	Foreign Judgment - Custody Matters - Conclusiveness - Scope of Inquiry: The petitioner sought a finding from the Family Court on all six grounds under Section 13 of the Civil Procedure Code (CPC) (e.g., lack of jurisdiction, not on merits, fraud) to hold a Texas Court custody order non-binding. Held: The Family Court's scope is to decide the main petition (FCOP) on its merits, and its finding that the foreign judgment is "not binding" is sufficient to decide the main dispute. Further inquiry into grounds like 'fraud' requires relevant material and is not essential for the Family Court to determine the FCOP.
II. Jurisdiction (Foreign Court)	Exclusive Jurisdiction of Foreign Court: The Trial Court's finding that the Foreign Court (Texas) cannot exclude the jurisdiction of Indian Courts (Family Court, Tirupati) in entertaining custody petitions was held to be well-considered and affirmed by the High Court.
III. Merits of the Case (Sec. 13(b) CPC)	Foreign Judgment 'Not on Merits': Where the petitioner contends they contested the foreign proceedings only on jurisdiction and not on merits, the foreign court's resulting order, recording the petitioner's non-participation on merits, is a clear indication that the decree was not passed on merits as per the petitioner's own submission.
IV. Direction to Parties	Use of Foreign Orders in India: The High Court explicitly directed that since the Family Court, Tirupati, has observed that the foreign judgments are not binding on it, the respondent cannot give undue credence to these foreign orders or rely upon them before any statutory authority in India for any purpose.
V. Review Petition	Disposal of Review Petition: The Review Petition was disposed of by incorporating the High Court's clarifying observations (paras 6 to 9) into the original Order passed in the Civil Revision Petition (CRP), thereby confirming and clarifying the original disposition.

THE HONOURABLE SRI JUSTICE HARINATH.N

IA.No.3 of 2025 (Review Petition)

in

CRP.No.1372 of 2025

ORDER :

1. The review petition is filed primarily submitting that while the

CRP was heard by this Court and reserved for orders on

12.08.2025. As the orders in the CRP were awaited, the learned

Division Bench of this Court had allowed the CC.No.617 of 2019

on 12.09.2025. The petitioner had filed the contempt case

against the respondent for willfully disobeying the orders of this

Court passed in WP.No.47795 of 2018. This court had

pronounced orders on 08.10.2025. It is submitted that the

contempt case was allowed on 12.09.2025 and at paragraph 25

of the order, the learned Division Bench of this Court had

observed that the issue raised in Ground – D relating to

jurisdiction of the Court in Tirupati and the effect of the judgment

of the Court in Texas are issues which would have to be raised

before the Family Court, Tirupati.

2. The primary contention of the petitioner is that the learned Family

Judge did not determine the six points raised by the petitioner.

The six points are as follows ;

(a) Foreign Court Judgments stated above have not been

pronounced by a Court of Competent jurisdiction ;

(b) have not been given on merits of the case ;

2025:APHC:45924

//2//

(c) on the fact of the record refused to recognize the law of India

as well as founded on an incorrect view of International Law;

(d) the result of proceedings are opposed to natural justice;

(e) the result of fraud and ;

(f) founded on a breach of laws in force in India, as claimed by

the petitioner.

3. The contention of the petitioner is that the Foreign Court lacks

jurisdiction to pass orders, more so when the petitioner had

disputed the jurisdiction. It is also the contention of the petitioner

that the respondent would be flashing the orders of the Foreign

Court before the Statutory Authorities and claim that the orders

which are validly subsisting and passed by Foreign Court are to

be honored and given due credencewherever they are produced.

4. It is submitted that the respondent had suppressed the fact of

pendency of proceedings before the Family Court, Tirupati in the

proceedings initiated before the Texas Court. It is also submitted

that the orders passed by the Foreign Court were secured by

playing fraud and seeks a direction of this Court to the Family

Court to give a finding on each of the six points raised by the

petitioner referred to above.

Consideration of the Court on the Review Petition:-

5. This Court vide order dated 08.10.2025 disposed the CRP by

observing that the finding of the Family Court regarding the nonbinding nature of the judgments and orders passed by a Foreign

2025:APHC:45924

//3//

Court referred to in the petition would suffice for determining the

main dispute in FCOP.No.110 of 2018.

6. Insofar as, the exclusive jurisdiction of Texas Court is concerned,

the Trial Court has rightly observed that the finding of Texas

Family Court on the point of jurisdiction was not accepted. The

said observation and finding of the trial Court that the Foreign

Courts cannot exclude the jurisdiction for entertaining the

custody petitions by the Indian Courts. To that extent the

observation of the Family Court is well considered. This was

rightly observed by the learned Family Court Judge.

7. Insofar as determining on whether the orders passed by the

Foreign Court are not on merits is concerned, the contention of

the petitioner that the petitioner had contested the matters before

the Foreign Court only to the extent of jurisdiction and not on

merits of the case is concerned would evidently indicate that the

orders passed by the Foreign Court recorded the nonparticipation of the petitioner on merits in the proceedings before

the District Court, 247th Judicial District, Harris County, Texas.

8. The other points i.e., (d)the result of proceedings are opposed to

natural justice;(e)the result of fraud and ;(f)founded on a breach

of laws in force in India, as claimed by the petitioner, are

concerned, the Family Court cannot determine such issues in the

2025:APHC:45924

//4//

absence of the relevant material. The scope of the Family Court

is to decide the FCOP.No.110 of 2018 on merits. That apart the

order of the learned Family Court Judge is well considered.

9. On the facts of this case, it is made clear that the respondent

cannot give undue credence to the orders passed by the Foreign

Court and rely upon them before any statutory authority in India

for any purpose. When the family Court, Tirupati on the facts of

the case has observed that the judgments passed by the Foreign

Court are not binding on the Family Court, Tirupati.

10. On these considerations, the review petition is disposed off by

incorporating paras ‘6 to 9’ in the order passed in CRP.No.1372

of 2025 after para 9. Registry is directed to make necessary

corrections and issue neat copy.

 ___________________

JUSTICE HARINATH.N

Date:31.10.2025

KGM

2025:APHC:45924

//5//

THE HONOURABLE SRI JUSTICE HARINATH.N

IA.No.3 of 2025 (Review Petition)

in

CRP.No.1372 of 2025

Dated 31.10.2025

KGM

2025:APHC:45924

CONSTITUTION OF INDIA, 1950 Articles 12, 21, and 300-A — Right to Livelihood and Property — Terminal Benefits — Withholding of Dues: Held: Pension, Gratuity, and other terminal benefits are not a bounty but constitute "property" under Article 300-A. Deprivation of such statutory entitlements, particularly for senior citizens who retired without stigma, violates the "right to livelihood" under Article 21 and is impermissible save by authority of law. Held: District Cooperative Central Bank (DCCB) and Primary Agricultural Cooperative Society (PACS) are instrumentalities falling under the definition of "State" (Article 12), possessing a constitutional obligation to pay statutory dues promptly. II. PAYMENT OF GRATUITY ACT, 1972 Section 4 (1)(a) — Entitlement to Gratuity — Statutory Right: Held: Gratuity upon superannuation is a statutory right accruing to the employee; the employer cannot withhold payment based on internal financial disputes or non-remittance of share by an allied entity (PACS). Held: Forfeiture clauses under Section 4(6) are not attracted in the absence of termination for misconduct, and hence, withholding payment for retired employees is illegal. Section 7 (3) and (3A) — Delayed Payment of Gratuity — Interest: Held: Failure to pay gratuity within the statutory period of thirty days mandates the payment of simple interest on the delayed amount as per Section 7(3A). Interest was awarded at a rate of 10% per annum from the date the amount became payable until the date of actual payment. III. ADMINISTRATIVE LAW / CO-OPERATIVE SOCIETIES Financial Incapacity — Joint and Several Liability — Policy Decisions: Held: The plea of financial incapacity or paucity of funds advanced by the PACS (Respondent No. 3) for non-remittance of its share towards terminal benefits is not a valid defence to deny retired employees their statutory dues. Held: In light of the Memorandum of Intent dated 11.01.2013 and the employees’ service under both entities, the DCCB (Respondent Nos. 1 & 4) and the PACS (Respondent No. 3) are held jointly and severally liable to ensure the immediate payment of all terminal benefits. Direction: DCCB was directed to effect payment of all dues and costs within eight weeks, with liberty to recover the appropriate share from the PACS.

 

CONSTITUTION OF INDIA, 1950

Articles 12, 21, and 300-A — Right to Livelihood and Property — Terminal Benefits — Withholding of Dues:

• Held: Pension, Gratuity, and other terminal benefits are not a bounty but constitute "property" under Article 300-A. Deprivation of such statutory entitlements, particularly for senior citizens who retired without stigma, violates the "right to livelihood" under Article 21 and is impermissible save by authority of law.

• Held: District Cooperative Central Bank (DCCB) and Primary Agricultural Cooperative Society (PACS) are instrumentalities falling under the definition of "State" (Article 12), possessing a constitutional obligation to pay statutory dues promptly.

II. PAYMENT OF GRATUITY ACT, 1972

Section 4 (1)(a) — Entitlement to Gratuity — Statutory Right:

• Held: Gratuity upon superannuation is a statutory right accruing to the employee; the employer cannot withhold payment based on internal financial disputes or non-remittance of share by an allied entity (PACS).

• Held: Forfeiture clauses under Section 4(6) are not attracted in the absence of termination for misconduct, and hence, withholding payment for retired employees is illegal.

Section 7 (3) and (3A) — Delayed Payment of Gratuity — Interest:

• Held: Failure to pay gratuity within the statutory period of thirty days mandates the payment of simple interest on the delayed amount as per Section 7(3A). Interest was awarded at a rate of 10% per annum from the date the amount became payable until the date of actual payment.

III. ADMINISTRATIVE LAW / CO-OPERATIVE SOCIETIES

Financial Incapacity — Joint and Several Liability — Policy Decisions:

• Held: The plea of financial incapacity or paucity of funds advanced by the PACS (Respondent No. 3) for non-remittance of its share towards terminal benefits is not a valid defence to deny retired employees their statutory dues.

• Held: In light of the Memorandum of Intent dated 11.01.2013 and the employees’ service under both entities, the DCCB (Respondent Nos. 1 & 4) and the PACS (Respondent No. 3) are held jointly and severally liable to ensure the immediate payment of all terminal benefits.

• Direction: DCCB was directed to effect payment of all dues and costs within eight weeks, with liberty to recover the appropriate share from the PACS.

APHC010243682016

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3504]

FRIDAY, THE THIRTY FIRST DAY OF OCTOBER

TWO THOUSAND AND TWENTY FIVE

PRESENT

THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM

WRIT PETITION NO: 8465/2016

Between:

Chittiboyina Bharata Rao ...PETITIONER

AND

The Krishna District Cooperative Central Bank Ltd and

Others

...RESPONDENT(S)

Counsel for the Petitioner:

1.PEETA RAMAN

Counsel for the Respondent(S):

1.A RAJENDRA BABU

WRIT PETITION NO: 8675/2016

Between:

P. Chandramouleswara Rao ...PETITIONER

AND

The Krishna District Cooperative Central Bank Ltd and

Others

...RESPONDENT(S)

Counsel for the Petitioner:

1.PEETA RAMAN

Counsel for the Respondent(S):

1.A RAJENDRA BABU

2025:APHC:45848

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WRIT PETITION NO: 8878/2016

Between:

Banda Siva Rama Krishna Prasad ...PETITIONER

AND

The Krishna District Cooperative Central Bank Ltd and

Others

...RESPONDENT(S)

Counsel for the Petitioner:

1.PEETA RAMAN

Counsel for the Respondent(S):

1.A RAJENDRA BABU

WRIT PETITION NO: 9772/2016

Between:

A. Sai Babu ...PETITIONER

AND

The Krishna District Cooperative Central Bank and

Others

...RESPONDENT(S)

Counsel for the Petitioner:

1.PEETA RAMAN

Counsel for the Respondent(S):

1.A RAJENDRA BABU

The Court made the following:

2025:APHC:45848

3

THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM

WRIT PETITION Nos.8465, 8675, 8878 & 9772 of 2016

COMMON ORDER:

The writ petitions are filed to declare the action of the respondents in

withholding the terminal benefits of the petitioners as illegal, arbitrary, etc., and

for consequential direction to pay the terminal benefits to the petitioners along

with interest @ 18% per annum and also to pay costs of these proceedings to

the petitioners.

2. Heard Sri Peeta Raman, learned counsel for the petitioners and Sri

A.Rajendra Babu, learned counsel for respondent Nos.1 & 4.

3. The petitioners have approached this Court seeking direction to the

respondents to disburse their terminal benefits. As the relief sought in all these

writ petitions is identical and similar lines of arguments were advanced by the

learned counsel for both sides, they were taken up together.

Brief case of the petitioners:

4. The petitioners were initially appointed as Cadre Secretaries i.e., Paid

Secretaries, under the administrative control of the 1st respondent/Krishna

District Cooperative Central Bank Ltd. (in short ‘DCCB’). As per orders of the

DCCB, the petitioners and other similarly situated persons were allotted to

Primary Agricultural Cooperative Society (in short ‘PACS’). At that point, the

post of Paid Secretary got decategorized as Secretary and from then the

2025:APHC:45848

4

petitioners discharged their duties under the administrative control of concerned

PACS till 01.03.2009.

5. While the things stood thus, in order to implement the NABARD

guidelines on expenditure and man power norms, it was decided to take back

the services of the reverted decategorized Paid Secretaries (Secretaries) of

PACSs by the respective district DCCBs.

6. Subsequently, the petitioners after completing their tenure at the

concerned PACS, again they joined in the service of the 1st respondent DCCB

on 02.03.2009. During the course of their service, the petitioners continued to

work for enrichment of the DCCB and PACSs without any remark and rendered

their unblemished service till their retirement age i.e., on 30.06.2009,

30.04.2011, 30.06.2010 and 30.11.2013 respectively.

7. To the petitioners’ dismay, the terminal benefits due to them on their

retirement right from the year 2009 onwards, were not paid by the respondents

on the ground that the share towards terminal benefits from the 3rd respondent

PACS had not been released.

8. According to the petitioners, the 1st respondent in order to clear/pay the

terminal benefits to the petitioners by adding its share as well as the share of

the APCOB issued Circular vide Establishment/SCA/2013-14, dated

24.01.2014 and asked the President, Penamaluru, PACS to deposit its part

share with regard to the terminal benefits of the petitioners, but the same was

not honoured by the President, PACS, Penamaluru till today.

2025:APHC:45848

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9. The petitioners who are senior citizens being deprived of their terminal

benefits i.e., gratuity, leave encashment, etc., having left with no other

efficacious remedy have approached this Court under Article 226 of the

Constitution of India, by filing the instant writ petitions.

Submissions of the respective counsels: [[

10. Sri Peeta Raman, learned counsel for the petitioners referring to the

averments made in the writ affidavits, has advanced arguments. He asserted

that indisputably petitioners after extending their unblemished service to the

respondents DCCB, had retired from their respective services without any

disciplinary or criminal proceedings pending against them and in spite of the

same, they have not received their terminal benefits since then.

11. The learned counsel also urged that all the petitioners are senior citizens,

and non-release of the terminal benefits i.e., gratuity and leave encashment,

etc, from the respondent DCCB and PACS, would cause multifarious problems

and adversely affect the petitioners and their family members physically,

psychologically and fiscally. He submitted that the action of the respondents in

withholding the terminal benefits of the petitioners, who are senior citizens, has

put their right to life in peril.

12. The learned counsel for the petitioner also submitted that as the present

writ petitions were instituted way back in the year 2016 and with the efflux of

time, some of the petitioners are no longer in contact with him and he

apprehends that they might have passed away.

2025:APHC:45848

6

13. Conversely, Sri A. Rajendra Babu, learned counsel representing

respondent Nos.1 & 4, had drawn the attention of this court to the Circular vide

Establishment/SCA/2013-14 dated 24.01.2014 issued by the 1st

respondent/Krishna District Co-operative Central DCCB to the 3rd respondent,

whereunder, the 1st respondent DCCB Executive Committee on 27.03.2013

approved the Memorandum of Intent dated 11.01.2013, prescribing the scheme

pertaining to the payment of terminal benefits and other benefits to the retired

Special Category Assistants absorbed into the District Co-operative Central

Banks in the State of Andhra Pradesh.

14. The learned counsel submitted that according to the said Memorandum

of Intent, the 1st respondent DCCB directed the 3rd respondent on 24.01.2014

itself to remit their share of gratuity and leave encashment so as to enable

payment to the concerned employees after adding their respective share. He

further submitted that right from the issuance of the said circular to till date, the

3

rd respondent by stating their financial incapacity orally, has not remitted their

share of amount to the 1st respondent DCCB and as a result, the terminal

benefits have not been paid to the petitioners. To that effect, the learned

counsel forwarded written instructions dated 30.08.2025 before this Court

received from the 1st respondent DCCB and the same is made part of record,

at the time of hearing the case.

15. This Court has considered the submissions made by both the counsel

and perused the material available on record.

2025:APHC:45848

7

16. It is apparent that right from the year 2016 onwards, the respondent

Nos.1 to 4 have not filed their respective counters in spite of multiple

opportunities given by this Court.

17. In view of the fact that all the writ petitions are identical and common

arguments advanced by both the learned counsel for the parties in the

respective cases, this Court ventures to pass Common Order.

Analysis of the Court:

18. The core issue emerged in the instant lis is that the non-payment of

gratuity, leave encashment and other terminal benefits of the retired employees,

without there being any legal impediment is valid or not?

19. It is undisputed that all the petitioners initially joined in the 1st respondent

DCCB as Cadre Secretaries (Paid Secretaries), and discharged their duties in

the 3rd respondent/PACS as per the orders of the 1st respondent DCCB.

Thereafter, the petitioners’ post of Paid-Secretaries got decategorized and the

nomenclature of the said post was metamorphosized as Secretaries. Further,

as there were administrative exigencies, the petitioners worked in the control of

the 3rd respondent/PACS. Pursuant to the change in policy decision, all the

petitioners again joined the 1st respondent DCCB service as Special Category

Assistants on 02.03.2009 (petitioners in W.P.Nos.8465, 8675 & 8878 of 2016)

and 25.10.2010 (petitioner in W.P.No..9772 of 2016). The details of the

petitioners are set out in the below tabular format:-

2025:APHC:45848

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Sl. No. Name and father’s

name

Date of

appointment

Date of

retirement

1. Chittiboyina Bharata

Rao, S/o.Subba Rao

(W.P. No.8465 of 2016)

October, 1984 30.06.2009

2. P. Chandramouleswara

Rao, S/o Satyanarayana

(W.P. No.8675 of 2016)

March, 1974 30.04.2011

3. Banda Siva Rama

Krishna Prasad S/o.

Syama Sundara Dattu

(W.P. No.8878 of 2016)

March, 1978 30.06.2010

4. A. Sai Babu S/o.

Hanumantha Rao (W.P.

No.9772 of 2016)

March, 1978 30.11.2013

20. Finally, on attaining the age of superannuation, the petitioners retired

from their respective service from the 1st respondent DCCB on 30.06.2009

(petitioner in W.P. No.8465 of 2016), 30.04.2011 (petitioner in W.P.No.8675 of

2016, 30.06.2010 (petitioner in W.P.No.8878 of 2016) and 30.11.2013

(petitioner in W.P.No.9772 of 2016) without any stigma

21. It is also borne out from the record that in order to adopt a uniform

procedure in the matters relating to payment of terminal benefits of Special

Category Assistants absorbed in DCCBs, Memorandum of Intent dated

11.01.2013 arrived between the representatives of the A.P Co-operative Banks

Association and A.P. State DCCB’s Employees Union in the presence of

Government Officials including Hon’ble Minister for Co-operation, Government

of A.P; Special Chief Secretary, Agriculture Marketing & Cooperation,

Government of A.P; Addl. Registrar of Co-operative Societies, Government of

A.P; Managing Director, APCOB and Executive Director, A.P. Co-operative

2025:APHC:45848

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Banks Association. The relevant portion of the Memorandum of Intent

dated 11.01.2013 reads as under:

“……….

TERMS AND CONDITIONS

1. The payment of terminal benefits to the SCAs who were

taken into the services of DCCBs as on 01-03-2009 and

thereafter; rendered service up to 5 years in the DCCBs shall

be as under:

(i) Gratuity:

A sum of Rs. 1,00,000/-shall be payable by the

PACS as per its Bye-laws/Service Regulations,

complying the eligibility based on last pay drawn

(basic + DA) at PACS, before absorption into

DCCB.

The DCCB shall pay @one month's salary

(basic+DA) for each completed year of service

rendered in DCCB, complying eligibility based on

last pay drawn (basic + DA) at DCCB at the time

of superannuation.

(ii) Leave Encashment:

Total eligibility shall be Max. 240 days (subject to

availability of leave to his credit) and

encashment based on gross salary last drawn in

PACS, proportionately, for the service rendered

in PACS, and at the rate of gross salary drawn in

DCCB, proportionately, for the service rendered

in DCCB.

(iii) Additional Compensation:

Keeping in view the long service of the Special

Category Assts. in the Coop. Credit System and

in view of the problems and time taken in settling

of matters of their terminal benefits, a sum of Rs.

1,50,000/- (Rs. one lakh and fifty thousand only

in addition to the computed amounts payable as

indicated at (i) and (ii) above, shall be paid as a

compensatory benefit to them. This commitment

2025:APHC:45848

10

of additional compensation shall be shared by

the DCCB and APCOB at Rs 75,000/- each.

This above additional compensation of Rs

1,50,000/- shall be paid only to the Special

Category Assts. who retired within five years

upon joining in the DCCBs.

2. The decadarised Paid Secretaries who joined in DCCBs as

Staff. Assts., under 5:4:1 quota and who are in service as on

01-03-2009 are eligible under the scheme, if this is

advantageous to them at the time of their retirement.

3. The SCAs who have completed 5 years of service in the

DCCB shall however be eligible for the terminal benefits as

per the SR of the DCCBs.

4. The services of Special Category Assts., for purposes like

seniority in DCCB, will be reckoned from their respective dates

of absorption in the DCCBS; however, any promotions

effected in the DCCBs prior to the date of this Mou, will not be

affected or jeopardized by this clause.

5. With the above settlement of retirement benefits, the

Unions/Associations representing Paid Secretaries/ Special

Category Assts: shall not make any other/additional demands,

pertaining to terminal benefits and they shall withdraw all court

cases filed by them pending in various courts, including

Labour Courts.

6. The DCCBs/APCOB Boards of Managements will be

requested to approve the above arrangement. The respective

PACS shall pay their share of the eligible amount in respect of

each Special Category Asst. through the DCCB concerned.

7. On approval by the Managements, the CEOs of DCCBs will

ensure implementation of the guidelines specified in this Mou,

Further, the DCOs will ensure that the PACS share in respect

of the terminal benefits of the Special Cat. Staff Assts. will be

remitted into the respective DCCBS………”

22. From the above, it appears that in order to settle the issues pertaining to

the terminal benefits, the above said Memorandum was articulated by the

respondent authorities. Further, it is incontrovertibly proved that all the

petitioners extended their service and have attained the age of superannuation

2025:APHC:45848

11

without any stigma or legal impediment. Therefore, the petitioners are certainly

entitled for their terminal benefits for their livelihood after retirement.

23. Admittedly, the respondents are liable to pay the statutory and mandatory

entitlement i.e., terminal benefits, gratuity, etc., of the employee in terms of the

provisions of Payment of Gratuity Act,1972., (hereinafter referred to as ‘Act’)

which is a legislation enacted with a laudable object of ensuring social security

to the working class. The relevant portion of Section 4 of the Act is extracted

hereunder:

“4. Payment of gratuity.-(1) Gratuity shall be payable to an

employee on the termination of his employment after he has rendered

continuous service for not less than five years,

(a) on his superannuation, or

(b) on his retirement or resignation, or

(c) on his death or disablement due to accident or disease:

Provided that the completion of continuous service of five years

shall not be necessary where the termination of the employment of any

employee is due to death or disablement:

[Provided further that in the case of death of the employee,

gratuity payable to him shall be paid to his nominee or, if no nomination

has been made, to his heirs, and where any such nominees or heirs is

a minor, the share of such minor, shall be deposited with the controlling

authority who shall invest the same for the benefit of such minor in such

bank or other financial institution, as may be prescribed, until such

minor attains majority.]…………”

(2)………………”

(3)………………”

(4)………………”

(5)………………”

(6) Notwithstanding anything contained in sub-section (1),

(a) the gratuity of an employee, whose services have been

terminated for any act, wilful omission or negligence causing any

damage or loss to, or destruction of, property belonging to the employer

shall be forfeited to the extent of the damage or loss so caused;

b) the gratuity payable to an employee [may be wholly or partially

forfeited]—

2025:APHC:45848

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(i) if the services of such employee have been terminated for his

riotous or disorderly conduct or any other act of violence on his part, or

(i) if the services of such employee have been terminated for any

act which constitutes an offence involving moral turpitude, provided

that such offence is committed by him in the course of his

employment……..”

24. A plain reading of Section 4 (1) of the Act would ascertain that once an

employee has rendered continuous services for not less than five years on his

superannuation or retirement, he/she shall be entitled to get gratuity except in

the circumstances enunciated in Section 4 (1) (a) of the Act. Coming to the

case on hand, admittedly even as per the version of the respondents also, all

the petitioners were superannuated without any legal impediments or stigma.

25. Hence, under any circumstances, Section (6) (a) (b) of the Act would not

be attracted. In other words, the action of the respondents' withholding of

gratuity is not permissible under any circumstances. In fact, the right to receive

gratuity is a statutory right; the respondent authorities cannot take it away

except through the procedure enunciated under the law.

26. It is also apt to note the relevant portion of Section 7 of the Act, which

reads as under:-

7. Determination of the amount of gratuity.- (1) A person

who is eligible for payment of gratuity under this Act or any

person authorised, in writing to act on his behalf shall send a

written application to the employer, within such time and in such

form, as may be prescribed, for payment of such gratuity.

(2) As soon as gratuity becomes payable, the employer shall,

whether an application referred to in sub-section (1) has been

made or not, determine the amount of gratuity and give notice in

writing to the person to whom the gratuity is payable and also to

the controlling authority specifying the amount of gratuity so

determined.

2025:APHC:45848

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[(3) The employer shall arrange to pay the amount of gratuity

within thirty days from the date it becomes payable to the person

to whom the gratuity is payable.

(3A) If the amount of gratuity payable under sub-section (3) is

not paid by the employer within the period specified in subsection (3), the employer shall pay, from the date on which the

gratuity becomes payable to the date on which it is paid, simple

interest at such rate, not exceeding the rate notified by the

Central Government from time to time for repayment of long-term

deposits, as that Government may, by notification specify:

Provided that no such interest shall be payable if the delay in

the payment is due to the fault of the employee and the employer

has obtained permission in writing from the controlling authority

for the delayed payment on this ground.]

27. A perusal of the above statutory provision clearly reveals that if the

employer fails to pay the gratuity amount within thirty days from the date it

becomes payable to the person, then the interest from that date would also

become payable. However, such interest shall not exceed the rate notified by

the Central Government from time to time. In light of the above statutory

provisions, and taking into consideration the existing facts in the present batch

of cases, this Court, without any hesitation, unequivocally rules that the

petitioners’ right to interest on delayed payment is statutory in nature and not

subject to the discretion of the respondent authorities.

28. In this context, it is apposite to note the dictum of the Hon’ble Supreme

Court in H. Gangahanume Gowda Vs. Karnataka Agro Industries Corpn.

Ltd.1

, while interpreting Section 7 of the Act in its vivid terms, held that there is

a clear mandate in the provisions of Section 7 to the employer for payment of

1

(2003) 3 SCC 40

2025:APHC:45848

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gratuity within time and is entitled to the interest on the delayed payment of

gratuity. The Hon’ble Supreme Court in the recent case between Gagan Bihari

Pristy Vs. Pradip Port Trust & Ors2

(decided on 03.03.2025), while accessing

the rate of interest on the delayed payment of gratuity, held that where an

employee retires and has to receive gratuity amount belatedly, without having

any excuse for delay, the interest would be payable as per the notification issued

by the Central Government and accordingly, the Hon’ble Supreme Court has

awarded interest @ 10% per annum on the delayed payment of the gratuity

amount.

29. When the employees are entitled to the statutory entitlements, the same

cannot be deprived, unless there is any legal impediment, especially in the

event of lapse of time prescribed under the statutory framework.

30. The Constitutional Bench of the Hon’ble Supreme Court in Deokinandan

Prasad Vs. State of Bihar & Anr.

3

, had held as follows:-

“………33. Having due regard to the above decisions,

we are of the opinion that the right of the petitioner to receive

pension is property under Article 31(1) and by a mere

executive order the State had no power to withhold the same.

Similarly, the said claim is also property under Article 19(1) (f)

and it is not saved by sub-article (5) of Article 19. Therefore, it

follows that the order, dated June 12, 1968, denying the

petitioner right to receive pension affects the fundamental right

of the petitioner under Articles 19(1) (f) and 31(1) of the

Constitution, and as such the writ petition under Article 32 is

maintainable. It may be that under the Pension Act (Act 23 of

1871) there is a bar against a civil court entertaining any suit

relating to the matters mentioned therein. That does not stand

2 S.L.P. (C) No.20740 of 2022

3

(1971) 2 SCC 330

2025:APHC:45848

15

in the way of writ of mandamus being issued to the State to

properly consider the claim of the petitioner for payment of

pension according to law.……”

31. Further, in D.S Nakara & Ors. Vs. Union of India, the Hon’ble Supreme

Court, while referring to the Deokinandan Prasad case in the course of

interpreting the pensionary rights and entitlements of the Government servants,

had categorically held as under:-

“……20. The antequated notion of pension being a

bounty, a gratuitous payment depending upon the sweet will

or grace of the employer not claimable as a right and,

therefore, no right to pension can be enforced through Court

has been swept under the carpet by the decision of the

Constitution Bench in Deokinandan Prasad v. State of Bihar

wherein this Court authoritatively ruled that pension is a right

and the payment of it does not depend upon the discretion of

the Government but is governed by the rules and a

government servant coming within those rules is entitled to

claim pension. It was further held that the grant of pension

does not depend upon anyone's discretion. It is only for the

purpose of quantifying the amount having regard to service

and other allied matters that it may be necessary for the

authority to pass an order to that effect but the right to receive

pension flows to the officer not because of any such order but

by virtue of the rules. This view was reaffirmed in State of

Punjab V. Iqbal Singh………

29. Summing up it can be said with confidence that

pension is not only compensation for loyal service rendered in

the past, but pension also has a broader significance, in that it

is a measure of socio-economic justice which inheres

economic security in the fall of life when physical and mental

prowess is ebbing corresponding to aging process and,

therefore, one is required to fall back on savings. One such

saving in kind is when you give your best in the hey-day of life

to your employer, in days of invalidity, economic security by

way of periodical payment is assured. The term has been

judicially defined as a stated allowance or stipend made in

consideration of past service or a surrender of rights or

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16

emoluments to one retired from service. Thus the pension

payable to a government employee is earned by rendering

long and efficient service and therefore can be said to be a

deferred portion of the compensation for service rendered. In

one sentence one can say that the most practical raison d'etre

for pension is the inability to provide for oneself due to old age.

One may live and avoid unemployment but not senility and

penury if there is nothing to fall back upon……”

32. In the case of Sudhir Chandra Sarkar Vs. Tata Iron and Steel Co. Ltd.4

,

the Apex Court had held that:-

“18. For centuries the courts swung in favour of the view

that pension is either a bounty or a gratuitous payment for loyal

service rendered depending upon the sweet will or grace of

the employer not claimable as a right and therefore, no right

to pension can be enforced through court. This view held the

field and a suit to recover pension was held not maintainable.

With the modern notions of social justice and social security,

concept of pension underwent a radical change and it is now

well-settled that pension is a right and payment of it does not

depend upon the discretion of the employer, nor can it be

denied at the sweet will or fancy of the employer.”

33. Very recently, the Apex Court in State of Uttar Pradesh Vs. Dinesh

Kumar Sharma5

, in its unequivocal words, stated that pension is not a charity

or a bounty and an employee is entitled to receive his pension. Hence, in view

of catena of judgments, the law is well settled without any iota of doubt.

34. Coming to the aspect of financial incapacity/poor financial conditions as

stated by the 3

rd respondent PACS for non-releasing of their share towards

terminal benefits after utilising the services of the petitioners, it is relevant to

4

(1984) 3 SCC 369

5

(2025) SCC OnLine SC 596

2025:APHC:45848

17

note the case of Kapila Hingorani Vs. State of Bihar, wherein, the Hon’ble

Supreme Court at para 34 held as follows:

“…….The State may not be liable in relation to the day to

day functioning of the Companies, but its liability would arise

on its failure to perform the constitutional duties and functions

by the public sector undertakings, as in relation thereto the

State's constitutional obligations The State acts in a fiduciary

capacity. The failure on the part of the State in a case of this

nature must also be viewed from the angle that the statutory

authorities have failed and/or neglected to enforce the social

welfare legislations enacted in this behalf e.g. Payment of

Wages Act. Minimum Wages Act etc Such welfare activities as

adumbrated in Part IV of the Constitution of India indisputably

would cast a duty upon the State being a welfare State and its

statutory authorities to do all things which they are statutorily

obligated to perform…….”

35. In view of the above stated legal position, the respondents 1, 3 & 4, being

the 'State' within the meaning of Article 12 of the Constitution of India coupled

with the fact that specific terms and conditions in Memorandum of Intent dated

11.01.2013, the said respondents 1, 3 & 4, are bound to release the terminal

benefits to the petitioner. A mere financial incapacity or paucity of funds cannot

be a valid defence for non-fulfilment of such statutory obligations, more

particularly, when the employees rendered their services, as such, they are

entitled to terminal benefits under law.

36. The Hon'ble Apex Court also reiterated the above principles in the dictum

of Haryana State Minor Irrigation Tubewells Corporation and others Vs.

G.S. Uppal. The relevant para of the said judgment reads as under:-

“…..34. Thus, the Corporation cannot put forth financial

loss as a ground only with regard to a limited category of

2025:APHC:45848

18

employees it cannot be said that the Corporation is financially

sound insofar as granting of revised pay scales to other

employees is concerned, but finds financial constraints only

when it comes to dealing with the respondents who are

similarly placed in the same category. Having regard to the

well-reasoned judgment of the Division Bench upholding the

judgment and order of the learned Single Judge, we are of the

view that the impugned judgment warrants no interference

inasmuch as no illegality, infirmity or error of jurisdiction could

be shown before us……”

37. Before parting with this case, it is relevant to note that all the petitioners

are septuagenarians, octogenarians, and nonagenarians. Owing to their old

age, they are naturally more vulnerable to health problems and other

unforeseen issues. It is indeed unfortunate that the age old traditional, moral,

cultural values of showing respect and extending dignity to the senior citizens

are gradually declining with time in our modern society. The very notion of the

family itself is deteriorating as people tend to give greater importance to

financial affairs rather than the human values and emotional connections.

38. This Court has come across numerous claims by the senior citizens

under various statutes, wherein, they seek to assert their rightful entitlement to

terminal benefits during the final phase of their lives. It is pertinent to note that

in the instant case, the respondents had extracted work from the petitioners

during their tenure of service. Despite the lapse of more than 14 years from the

age of superannuation of the petitioners and also in the absence of any legal

impediments, the respondents have not paid the terminal benefits. This act of

the respondents shirking their statutory obligation to release the terminal

2025:APHC:45848

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benefits due, which also equally amounts to violation of the petitioners’ statutory

and constitutional rights under the vistas of Article 21 of the Constitution of India.

39. It has been consistently held by the authoritative Constitutional Benches

of the Apex Court right from Deoki Nandan Prasad and D.S Nakara cases as

also in catena of judgments delivered by this Court and other Hon’ble High

Courts that the pension and terminal benefits payable to the employees upon

superannuation age is a property under Article 300-A of the Constitution of India

and it form an integral part of right to livelihood guaranteed under Article 21 of

the Constitution of India. Any deprivation, even of a portion of such amount,

cannot be countenanced, except in accordance with law.

40. In fact, the respondents 1, 3 and 4 fall within the ambit of Article 12 of the

Constitution of India. The 2nd respondent being the State of Andhra Pradesh

exercises the supervisory authority as well as direct control over the other

respondents. Viewed from any perspective, the contention of the 1st respondent

DCCB that the 3rd respondent did not pay its share of the amounts towards the

terminal benefits of the petitioners is legally untenable and also liable to be

depreciated in view of the undisputed fact that all the petitioners are in twilight

of their lives.

Conclusion:

41. In the light of above facts and circumstances involved in the lis, more

particularly, taking note of the fact that the petitioners herein are

septuagenarians, octogenarians, and nonagenarians, coupled with the wellsettled legal principles articulated by the Apex Court right from 1970’s onwards,

2025:APHC:45848

20

this Court is of the view that both DCCB and PACS are jointly and severally

liable to pay the amount towards terminal benefits of the petitioners.

Accordingly, the writ petitions are disposed of in the following terms:-

(i) The respondent Nos.1 & 4 DCCB is hereby directed to

release the total terminal benefits such as gratuity amount,

leave encashment and other entitlements due to the

petitioners or to their family members, with an interest @

10 % from the date on which said amount became payable

till the date of actual payment, after verifying the relevant

documents such as Family Member Certificate, etc., within

a period of eight (8) weeks, from the date of receipt of copy

of this Order.

(ii) However, it is open to the respondent Nos.1 & 4 DCCB to

recover appropriate amounts towards terminal benefits of

the petitioners from respondent No.3 PACS, if so advised.

(iii) The respondents 1, 3 and 4 are also directed to pay costs

of Rs.10,000/- each to the petitioners towards the cost of

writ petitions.

42. As a sequel, all pending applications shall stand closed.

_______________________________

JUSTICE MAHESWARA RAO KUNCHEAM

Date:31.10.2025

GVK

2025:APHC:45848

21

02

THE HON’BLE SRI JUSTICE MAHESWARA RAO KUNCHEAM

WRIT PETITION Nos.8465, 8675, 8878 & 9772 of 2016

Date:31.10.2025

GVK

2025:APHC:45848

URBAN DEVELOPMENT – MASTER PLAN FOR DELHI – LOCAL SHOPPING CENTRES (LSCs) AND SHOP-CUM-RESIDENCE COMPLEXES – COMMERCIAL USE OF UPPER FLOORS – REGULARISATION AND CONVERSION CHARGES – SCOPE AND LIMITATIONS — Held, in shop-cum-residence complexes forming part of designated LSCs, only ground floor originally permitted for commercial use. Upper floors were sanctioned as residential spaces under plans approved for "shop-cum-residential building". Such upper floors can be used commercially only upon payment of conversion charges and regularisation of excess FAR. Non-compoundable deviations must be removed before any commercial activity on upper floors can be permitted. Further held, absence of undertaking to restrict user to residential purpose does not ipso facto confer right to commercial user. Conveyance deed and sanctioned plan are determinative. Sanctioned plan showing residential apartments over shop building conclusively establishes intended residential use of upper floors. (Paras 15, 18, 21, 22, 23, 24) URBAN PLANNING – MASTER PLAN FOR DELHI, 1962, 2001 AND 2021 – DESIGNATION OF LSCs – FAR DIFFERENTIALS AND USER REGULATIONS – Delhi Master Plan 2021 classified shopping areas into Planned LSCs (entirely commercial) and Designated LSCs (shop-cum-residence, allowing conversion of upper floors upon payment). Planned LSCs uniformly had FAR of 100; designated LSCs retained residential FAR, up to 350, reflecting mixed use. New Rajinder Nagar Market classified as pre-1962 rehabilitation colony and “shop-cum-residence” LSC (Designated LSC). Hence, commercial user of upper floors permissible only after conversion and payment of requisite charges under MPD-2021. (Paras 20–22) URBAN REGULATION – POWERS OF MONITORING COMMITTEE AND JUDICIAL COMMITTEE – SCOPE OF DE-SEALING – INDIVIDUAL CASE EXAMINATION – Judicial Committee’s general order dated 18-12-2023 dealt with markets en bloc and not individual premises. Such generalised directions cannot automatically entitle individual owners to de-sealing. Each case must be decided on its own facts upon examination of sanctioned plans, allotment letters, and user clauses. Judicial Committee’s omission to scrutinise individual plans cannot validate a claim for de-sealing. (Paras 7, 10–12) CIVIL PROCEDURE – POWERS OF THE SUPREME COURT IN MONITORING ENVIRONMENTAL AND URBAN USE MATTERS – ADOPTION OF “SLP APPROACH” FOR FACTUAL DETERMINATION – Where Judicial Committee’s consideration was of general nature without case-specific inquiry, Court may resort to SLP approach for factual adjudication to ensure equity and prevent deprivation of statutory remedies. (Para 11) MUNICIPAL LAW – DELHI MUNICIPAL CORPORATION ACT, 1957 – SEALING AND DE-SEALING OF PREMISES – STATUTORY AUTHORITY OF MONITORING COMMITTEE – LIMITATIONS – Monitoring Committee constituted under orders of Court lacked statutory authority to seal premises, as such power rests under DMC Act, 1957, which provides for notice and appeal procedure before Tribunal. Sealing orders of Monitoring Committee earlier set aside (vide Order dated 14-08-2020). Judicial Committee subsequently appointed (Order dated 13-09-2022) to consider de-sealing, regularisation and demolition matters, subject to Court’s supervisory jurisdiction. (Paras 3–6) ENVIRONMENT LAW – PUBLIC INTEREST LITIGATION – M.C. MEHTA CASES – HISTORICAL EVOLUTION OF COURT SUPERVISION OVER URBAN COMPLIANCE IN DELHI – The continuing mandamus in W.P.(C) No.4677/1985 originated as PIL on environmental degradation and urban misuse, leading to Court-appointed committees over decades to enforce zoning and land use laws, including the Monitoring Committee (2006) and Judicial Committee (2022). (Paras 2–5) FACTS – Applicant sought de-sealing of commercial premises at Plot No.106, New Rajinder Nagar Market (LSC), New Delhi (89 sq. yds.), relying on order of Judicial Committee dated 18-12-2023 holding the market to be commercial. MCD contended that only ground floor was commercial and upper floors residential. Held, the lease and conveyance deeds showed Shop No.106 was single-storied at time of conveyance; sanctioned plan (2005) approved residential upper floors. Applicant’s claim of pre-existing commercial use on upper floors not substantiated. FAR computation (existing 217.08 against sanctioned 162.32 for 89 sq. yds. plot) showed excess construction beyond permitted limits. Market is shop-cum-residential LSC under MPD-2021. Applicant directed to seek inspection, pay conversion and penalty charges, and remove non-compoundable deviations before commercial use of upper floors could be allowed. I.A. for de-sealing rejected. (Paras 15–25) HELD – Only ground floor of Plot No.106, New Rajinder Nagar Market, is permissible for commercial use; upper floors sanctioned as residential. Commercial user of upper floors can occur only after payment of conversion charges and regularisation of excess FAR. Judicial Committee’s general order cannot confer automatic de-sealing without case-specific verification. MCD directed to issue notice for joint inspection, quantify violations, conversion and penalty charges. I.A. No.203615 of 2024 for de-sealing rejected. (Paras 23–25) Result: I.A. rejected with directions to MCD for inspection and quantification of regularisation and conversion charges.

URBAN DEVELOPMENT – MASTER PLAN FOR DELHI – LOCAL SHOPPING CENTRES (LSCs) AND SHOP-CUM-RESIDENCE COMPLEXES – COMMERCIAL USE OF UPPER FLOORS – REGULARISATION AND CONVERSION CHARGES – SCOPE AND LIMITATIONS —

Held, in shop-cum-residence complexes forming part of designated LSCs, only ground floor originally permitted for commercial use. Upper floors were sanctioned as residential spaces under plans approved for "shop-cum-residential building".

Such upper floors can be used commercially only upon payment of conversion charges and regularisation of excess FAR. Non-compoundable deviations must be removed before any commercial activity on upper floors can be permitted.

Further held, absence of undertaking to restrict user to residential purpose does not ipso facto confer right to commercial user. Conveyance deed and sanctioned plan are determinative. Sanctioned plan showing residential apartments over shop building conclusively establishes intended residential use of upper floors.

(Paras 15, 18, 21, 22, 23, 24)

URBAN PLANNING – MASTER PLAN FOR DELHI, 1962, 2001 AND 2021 – DESIGNATION OF LSCs – FAR DIFFERENTIALS AND USER REGULATIONS –

Delhi Master Plan 2021 classified shopping areas into Planned LSCs (entirely commercial) and Designated LSCs (shop-cum-residence, allowing conversion of upper floors upon payment).

Planned LSCs uniformly had FAR of 100; designated LSCs retained residential FAR, up to 350, reflecting mixed use. New Rajinder Nagar Market classified as pre-1962 rehabilitation colony and “shop-cum-residence” LSC (Designated LSC).

Hence, commercial user of upper floors permissible only after conversion and payment of requisite charges under MPD-2021.

(Paras 20–22)

URBAN REGULATION – POWERS OF MONITORING COMMITTEE AND JUDICIAL COMMITTEE – SCOPE OF DE-SEALING – INDIVIDUAL CASE EXAMINATION –

Judicial Committee’s general order dated 18-12-2023 dealt with markets en bloc and not individual premises. Such generalised directions cannot automatically entitle individual owners to de-sealing.

Each case must be decided on its own facts upon examination of sanctioned plans, allotment letters, and user clauses. Judicial Committee’s omission to scrutinise individual plans cannot validate a claim for de-sealing.

(Paras 7, 10–12)

CIVIL PROCEDURE – POWERS OF THE SUPREME COURT IN MONITORING ENVIRONMENTAL AND URBAN USE MATTERS – ADOPTION OF “SLP APPROACH” FOR FACTUAL DETERMINATION –

Where Judicial Committee’s consideration was of general nature without case-specific inquiry, Court may resort to SLP approach for factual adjudication to ensure equity and prevent deprivation of statutory remedies.

(Para 11)

MUNICIPAL LAW – DELHI MUNICIPAL CORPORATION ACT, 1957 – SEALING AND DE-SEALING OF PREMISES – STATUTORY AUTHORITY OF MONITORING COMMITTEE – LIMITATIONS –

Monitoring Committee constituted under orders of Court lacked statutory authority to seal premises, as such power rests under DMC Act, 1957, which provides for notice and appeal procedure before Tribunal.

Sealing orders of Monitoring Committee earlier set aside (vide Order dated 14-08-2020). Judicial Committee subsequently appointed (Order dated 13-09-2022) to consider de-sealing, regularisation and demolition matters, subject to Court’s supervisory jurisdiction.

(Paras 3–6)

ENVIRONMENT LAW – PUBLIC INTEREST LITIGATION – M.C. MEHTA CASES – HISTORICAL EVOLUTION OF COURT SUPERVISION OVER URBAN COMPLIANCE IN DELHI –

The continuing mandamus in W.P.(C) No.4677/1985 originated as PIL on environmental degradation and urban misuse, leading to Court-appointed committees over decades to enforce zoning and land use laws, including the Monitoring Committee (2006) and Judicial Committee (2022).

(Paras 2–5)

FACTS –

Applicant sought de-sealing of commercial premises at Plot No.106, New Rajinder Nagar Market (LSC), New Delhi (89 sq. yds.), relying on order of Judicial Committee dated 18-12-2023 holding the market to be commercial.

MCD contended that only ground floor was commercial and upper floors residential.

Held, the lease and conveyance deeds showed Shop No.106 was single-storied at time of conveyance; sanctioned plan (2005) approved residential upper floors. Applicant’s claim of pre-existing commercial use on upper floors not substantiated.

FAR computation (existing 217.08 against sanctioned 162.32 for 89 sq. yds. plot) showed excess construction beyond permitted limits. Market is shop-cum-residential LSC under MPD-2021.

Applicant directed to seek inspection, pay conversion and penalty charges, and remove non-compoundable deviations before commercial use of upper floors could be allowed.

I.A. for de-sealing rejected.

(Paras 15–25)

HELD –

Only ground floor of Plot No.106, New Rajinder Nagar Market, is permissible for commercial use; upper floors sanctioned as residential.

Commercial user of upper floors can occur only after payment of conversion charges and regularisation of excess FAR.

Judicial Committee’s general order cannot confer automatic de-sealing without case-specific verification.

MCD directed to issue notice for joint inspection, quantify violations, conversion and penalty charges.

I.A. No.203615 of 2024 for de-sealing rejected.

(Paras 23–25)

Result:

I.A. rejected with directions to MCD for inspection and quantification of regularisation and conversion charges.

2025 INSC 1274

Page 1 of 23

I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A. Nos.203615 & 218080 of 2024

and

I.A. No.210981 of 2025

in

Writ Petition (C) No.4677 of 1985

M.C. Mehta

…Petitioner

Versus

Union of India & Ors.

...Respondents

O R D E R

1. The applicant is concerned with plot bearing No.106

and the building thereon situated in New Rajinder Nagar

Market (LSC), New Delhi, admeasuring approximately 89 sq.

yards. The petitioner by this I.A. prays for de-sealing the

‘commercial premises’ at plot No.106 relying on the common

order dated 18.12.2023 passed by a Judicial Committee

appointed by this Court in W.P.(C) No.4677 of 1985. The very

same order has been challenged by the Municipal

Corporation of Delhi (MCD) in I.A. No.32418 of 2024. We are

in the present I.A. concerned only with the claim filed by the

individual for de-sealing of his premises.

Page 2 of 23

I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

2. Before we go into the nitty gritty of the claim raised in

the I.A., we have to briefly notice the history of the litigation.

As has been submitted by the MCD, over a period of time

number of markets/neighbourhood shopping areas were

developed by the Land and Development Office (L&DO), the

Delhi Development Authority (DDA) & the MCD with

participation of private developers. Based on the Master Plan

for Delhi, 1962 (MPD’1962), the shopping facilities and the

shop-cum-residences were shown in the zonal development

plans wherein layout plans were approved for different

residential colonies by the MCD. Based on the Building ByeLaws, 1959 as amended in 1964, the occupiers of the shopcum-residences put the residential area also to commercial

use upon which show cause notices were issued against the

unauthorised conversions. W.P.(C) No.4677 of 1985, a Public

Interest Litigation (PIL) was filed before this Court

complaining of the stifling environment within Delhi, seeking

multiple prayers to better effectuate the decongestion, like

shifting of heavy and noxious industries, stopping mining

activities in Aravali Hills in and around Delhi, demolition of

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I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

colonies built on forest land as also misuse of premises and

unauthorized constructions.

3. In the said Writ Petition, this Court on 07.05.2004,

appointed a Monitoring Committee comprising of Chief

Secretary of Delhi, the Commissioner of Police, Delhi,

Commissioner of MCD and Vice-Chairman, DDA for

stoppage of illegal industrial activities. Later by order dated

24.03.2006, a three Member Monitoring Committee

comprising of the Former Advisor to the Election

Commission, Chairman of EPCA and a Major General (Retd.)

was appointed to oversee the implementation of law;

especially to proceed against offensive premises, built or

converted unauthorisedly. The Monitoring Committee

appointed in 2006 was divested of its powers in 2012 and

later it was restored in 2017. In the meanwhile, at one point

in 2012, the matters were also transferred to the High Court

which order was also recalled in the year 2017, for the slow

progress made in the High Court, on which date the

Monitoring Committee’s powers were also restored. The

Monitoring Committee proceeded under the authority 

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I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

granted by this Court and sealed residential premises on

leased/free hold land when the same was challenged before

this Court.

4. This Court by order dated 14.08.2020 categorically

found that the Monitoring Committee was appointed only to

prevent misuse of residential premises by conversion to

commercial use and not with respect to residential premise

used as such. The order specifically noticed the constitution

of a Special Task Force (STF) by order dated 25.04.2018

passed by this Court and found that the Monitoring

Committee at best could only make suggestions to the STF

with respect to encroachment on the public land, roads and

public places and not proceed peremptorily to seal the

premises, which would in effect deprive the land

owner/lessee from availing statutory remedies. Various

reports of the Monitoring Committee were referred to and

some extracted. The procedure of sealing, it was expressed,

carries with it civil consequences and there was a procedure

in place as per the Delhi Municipal Corporation Act, 19571

1

For brevity ‘the DMC Act’

Page 5 of 23

I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

providing for an appeal to the Tribunal constituted. It was

found that the Monitoring Committee would not have the

statutory powers conferred on the authorities under the

enactment. The sealing of premises by the Monitoring

Committee was set aside and the notices issued for

demolition, on the reports of the Monitoring Committee,

were also quashed.

5. This Court again by order dated 13.09.2022 appointed

a Judicial Committee to consider the following aspects.

“i) Sealing and de-sealing of properties;

ii) Regularization and/or levy of penalties or

conversion charges;

iii) Demolition of unauthorized construction; and

iv) Directing the removal of encroachment.”

6. The Judicial Committee was conferred with the

jurisdiction to hear the challenge to the orders/decisions on

any of the above aspects passed by or on recommendations

of the Monitoring Committees constituted by this Court by

orders dated 07.05.2004 and 24.03.2006. The orders of the

Judicial Committee with respect to de-sealing and rejection

of the application as opined by this Court could be 

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I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

challenged before this Court wherein it was also observed

that this Court would adopt the SLP approach. The objection

raised by the learned Amicus Curiae regarding certain

applications filed by associations/federations was also

noticed and it was observed that the remedy for individual

cases cannot lie through the associations/federations, since

the factual scenario would vary. All applications pending

before this Court was hence referred to the Judicial

Committee for consideration and passing orders and the

associations/federations as also those seeking individual

relief were directed to approach the Judicial Committee

thereafter; except a challenge to the master plan, ordinances

issued from time to time, the application concerning the

marble markets and challenge to the constitution of the

Monitoring Committee and the STF. We have to immediately

notice that the order of the Judicial Committee challenged in

the above I.A. refers to the markets/shopping centres ‘en

bloc’ and does not deal with the individual case of the

applicant.

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I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

7. We are hence of the opinion that the case of the

applicant to enable de-sealing by virtue of the order passed

by the Judicial Committee will have to be considered on the

merits of the facts arising on the subject premises.

8. We have heard Mr. Kailash Vasdev, learned Senior

Counsel, appearing for the applicant, learned Senior

Counsel Mr. S. Guru Krishna Kumar, the Amicus Curiae and

Mr. Sanjib Sen, learned Senior Counsel appearing for the

MCD.

9. On behalf of the applicant, it was submitted based on

the documents referred to from the I.A., compiled separately

for our convenience, to assert that the subject premises was

intended to be used commercially. Much reliance was also

placed on the order of the Judicial Committee which holds

that the properties in New Rajinder Nagar Market was

intended to be used on a commercial basis. The learned

Amicus Curiae and the learned Senior Counsel appearing for

the MCD, however asserted that only the ground floor could

be used as commercial space and even the applicant had

applied for construction of residential accommodation on the 

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I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

upper floors. Even after completion of the construction for

residential use, the building has been combined with the

adjacent plot, which is against the regulations, the master

plan and the various circulars and notifications issued in this

behalf. A number of such conversions from residential to

commercial have been permitted, based on payment of

conversion charges to ensure that the infrastructure

requirements could be met from such amounts. There was no

intention to enable the allottees of lands to have windfall

benefits, since that would run against the concept of

sustainable development. When residential spaces are

converted as commercial, there would be more footfalls and

there would be need to augment infrastructure; providing

parking spaces and other facilities for common use of the

public visiting the commercial spaces. It is also pointed out

that there are unauthorised constructions made by the

applicant which also has to be dealt with.

10. With respect to the order of the Judicial Committee

which has considered the relevant provisions of the law

juxtaposed with various office orders and dealt with the rival 

Page 9 of 23

I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

contentions, it is more on a general manner and not on an

individual basis. Insofar as New Rajinder Nagar Market is

concerned, the association’s application was before the

Committee and the specific premises referred to are plot

Nos.106 and 79, the first of which belongs to the applicant.

Reliance was placed on a letter issued by the L & DO dated

19.11.1957 to one Dr. K.L Tuli, wherein it was specified that

there was no objection to the sanction of the plan if the first

floor is being used for commercial purpose and not for

residential use. Reference was also made to lease deeds

dated 16.05.1974 and 19.07.1975 pertaining to the Old and

New Rajinder Nagar markets which speaks of erection of

single storied building containing one business flat or double

storied building with one or two business flats. The word

‘business’ was substituted for residential which clearly

indicates that the use intended was commercial and not

residential.

11. We are not persuaded to place any reliance on the

letter issued to a third-party or to the supplementary lease

deeds which are not specified as the one in the name of the

two plots referred therein. We would, hence, go by the 

Page 10 of 23

I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

arguments addressed before us with reference to the various

documents, which though may not be a strictly SLP approach,

will have to be resorted, to enable factual consideration. This

is more so since the consideration by the Judicial Committee

has virtually made ineffective the statutory remedies where

a factual adjudication would have been possible.

12. This Court has also by Order dated 22.08.2024 looked

at the order of the Judicial Committee dated 18.12.2023 and

found prima facie that the Committee has not looked into

individual cases of buildings/units. It has also been observed

that it is necessary for the Committee to call upon the

applicant to produce copies of the sanctioned plans in

respect of individual buildings/units and copies of

documents of allotments/ purchases. These are the

documents which the Judicial Committee has not looked into,

which was to be done on a case-to-case basis.

13. As has been noticed in the order of the Judicial

Committee the influx of refugee migration to Delhi in the

1950s necessitated the formulation of a master plan for

focused development, helmed by the local authority but with

private participation. The subject plot was allotted to the 

Page 11 of 23

I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

predecessor-in-interest of the applicant through a certificate

of possession produced as Annexure A-29, the layout plan of

which is produced as Annexure A-30. The letter of the L&DO

dated 09.11.1957 with reference to one Dr. K.L. Tuli relied on

by the Judicial Committee is produced as Annexure A-31.

The contention of the applicant is that the subject plot was

given in possession to the predecessors in interest as per

Annexure A-29, specifically designating the property as a

shop which squarely indicates the commercial purpose for

which it is intended. Further, as specified in Annexure A-31

which is a similarly situated plot in the very same market, the

first floor was permitted use as a commercial space. It is the

further contention that the predecessor-in-interest of the

applicant, in the year 1961, constructed the first floor of the

premises as commercial, after obtaining necessary

permission. Subsequently on 06.08.1987, a lease deed was

issued in the name of the predecessor-in-interest of the

applicant as per Annexure A-37 which also showed the

nature of the property as commercial, after which the

conveyance deed was issued in the name of the predecessor-

Page 12 of 23

I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

in-interest of the applicant, indicating, again, the plot to be

commercial.

14. Contemplating sale of the lease hold rights, the

predecessor-in-interest approached the L&DO for an

inspection and the proforma drawn up for the said purpose

Annexure A-40 also indicated it as commercial. The

applicant himself was called upon to pay additional ground

rent at commercial rates for the additional floors (first floor)

which was paid on 27.12.1988 as evidenced at Annexure A41 after which the permission for sale was obtained in 1989.

The applicant came into possession of the premises vide sale

deed dated 28.02.1989 and it was thereafter that an

application was made to convert the property from leasehold

to freehold. The input checklist for conversion, as prepared

by the L&DO Annexure A-45 also indicated the property to

be a shop and the charges paid by the applicant for

conversion was also at commercial rates. There was no

undertaking made by the applicant at any point of time nor

by his predecessor-in-interest that the property would be 

Page 13 of 23

I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

used only for residential purpose or no commercial purpose

would be carried on in the upper floors.

15. Before we look at the documents, as referred to by the

applicant, we have to specifically notice that the admitted

position is that the ground floor of the property in question

was given in possession on lease, and subsequently

conveyed, to be used as a shop for commercial purpose. The

question is only whether the upper floors can be constructed

and used for commercial purpose. Annexure A-29, the

certificate of possession, specifically speaks of house No. 32

in Block No.25 out of which Shop No.106 in Rajinder Nagar

was given possession to the predecessor in interest. We

cannot place any reliance on Annexure A-31 since there is

nothing in the said document of 1957, indicating that the New

Rajinder Nagar Market was intended as a fully commercial

one. Nor is anything placed before us to indicate that the

documents of such property was similar to the demise of

possession in favour of the applicant's predecessor-ininterest. Further admittedly on the said date there was no

additional construction sought for by the predecessor-in-

Page 14 of 23

I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

interest and what existed was the ground floor shop.

Annexure A-34 is an office order issued by the L&DO in the

year 1979 specifically dealing with shop-cum-residences

and the user clause having been specified as shop-cumresidence which has no bearing on the issue.

16. Annexure A-37 is a lease deed dated 06.08.1987 in

favour of Shri Hira Lal, the predecessor-in-interest of Shop

No.106 of New Rajinder Nagar which does not speak of any

first floor having been constructed as contended by the

applicant, in the year 1961. On the very same day, Annexure

A-38 deed of conveyance was also executed, which, in its

Schedule I, specifically speaks of a single storied building

which again puts to peril the contention of the applicant that

there was a first floor constructed in the year 1961 and the

same was also intended for commercial use.

17. Annexure A-39 is a notice of inspection issued to the

predecessor-in-interest in the year 1988 when as contented

by the applicant the leasehold rights in the premises was

sought to be sold. Therein it has been specifically indicated

that the existing building as per the previous plan sanctioned 

Page 15 of 23

I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

under lease/construct by CPWD is only 570 sq. feet on the

ground floor. True, under paragraph 10, the plans under

L&DO were referred to which speaks of first floor coverage

of 529 sq. feet, which as per the proforma prepared on

inspection had not materialised at that point. There is nothing

in Annexure A-41 grant of sale permission to indicate that the

payments were made on commercial rates. The sale deed

itself is relied on by the applicant, produced as Annexure A43 which is dated 28.02.1989 by which the leasehold rights

was transferred to the applicant. The specific recital in the

said deed indicates a government-built Shop No.106,

measuring 89 sq. yards situated in the abadi of New Rajinder

Nagar, Shankar Road, New Delhi with the specified

boundaries, the leasehold rights in which were intended to

be conveyed. Hence, as on the date on which the sale was

made to the applicant, Shop No.106 had only the ground

floor, in the plot of 89 sq. yards area.

18. It is also pertinent that this Court by order dated

20.05.2025 directed the officers of the MCD to visit the

premises and report on the compliances. It was also 

Page 16 of 23

I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

specified that those who want relief of de-sealing must apply

to this Court. This Court also observed that if such

applications are made before Court, the same would be

considered on its merits without being influenced by orders

passed by the Judicial Committee. In this context, we cannot

but notice the finding of the Judicial Committee with respect

to a circular issued by the DDA dated 22.06.2025, which

referred to a case filed by one Asha Pal Gulati in which the

High Court of Delhi after examining the issue and keeping in

view the circular issued by the L&DO in 1983 directed that

with respect to the use of the top floors there would be no

proceedings for misuse. We have not been informed, how

the said circular would apply to the applicant herein,

especially in the context of the communication issued by the

DDA itself on 27.11.2018 produced as Annexure P/1 in I.A.

No.32418 of 2024. In the said letter it has been specified that

shop-cum-residence/shop-plot complex declared as LSC

and CSC (Local Shopping Centre and Convenience

Shopping Centre), wherein standard plan was used, the

upper floor was intended to be residential. Whereas in shopplot complex which were not made as per the standard plan,

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I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

the total plan was for commercial use. The conversion was

allowed after payment of conversion charges in which

circumstances the earlier clarification issued by the DDA was

annulled especially noticing that there was no intention for

the owners of the shop-cum-residential complexes to obtain

windfall gains.

19. The above communication has to be juxtaposed with

Annexure A49, Deed of Conveyance issued in the name of

the applicant herein. It is true that in Annexure A47 and A48

referring to the execution of ‘Conveyance Deed and

Conversion from lease hold to free hold’, it was specified that

there was no undertaking given by the applicant that the

premises will be used only for residential purposes.

However, the absence of the undertaking cannot lead to the

corollary that the permission was for commercial purposes

especially when the plan appended to the Conveyance Deed

as seen from I.A. No.203615 of 2024 speaks of “proposed

shop-cum-residential building plan of plot No.106 situated at

New Rajinder Nagar, New Delhi for Sh. Vinod Kumar Arora

(the applicant)”. The said plan indicates sanction of 

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I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

residential apartments over the shop building and a

basement for storage purposes. The sanction is for

residential buildings with kitchen, bathroom, bedroom etc.

Hence the plan approved for construction of the upper floors

was clearly intended for residential purposes, as applied for

by the applicant, putting again to peril, the contention that

the predecessor-in-interest had constructed the first floor

and put it to commercial use.

20. The learned Senior Counsel for the MCD further

enlightened us on the different categories of markets across

Delhi with reference to the Master Plans notified for Delhi.

The first Master Plan for Delhi was MPD-1962, replaced by

the 2nd Master Plan, MPD-2001 published on 01.08.1990 and

then the 3rd Master Plan, MPD-2021 which came into effect on

07.02.2007. We have from the documents produced by the

applicant himself, found that the applicant has obtained a

sanctioned plan for construction only in the year 2005. The

Master Plan for 2021 conceived the Community Centres (CC)

as shopping and business centres while the Local Shopping

Centre (LSC) and the Convenience Shopping Centre (CSC) 

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I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

would cater to the day-to-day needs of the local population.

Certain areas developed prior to 1962 like Lajpat Nagar,

Rajouri Garden, Tilak Nagar, Kamla Nagar and others which

existed prior to MPD-1962 had consolidation of commercial

activities.

21. The LSCs were categorised into two categories, one

meant exclusively for commercial use and the other for

mixed use where commercial activity was allowed to be

carried out on the ground floor and residential activity

permitted on the upper floors. MPD-2021 designated some of

the shop-cum-residential complexes which were earlier

termed as ‘shop-cum-residence’ plots/shops as Local

Shopping Centres and permitted commercial use of floors

above the ground floor, subject to payment of conversion

charges. The former category of LSCs wherein exclusively

commercial activities were carried out, were thus called

planned LSCs while those in which conversion of the

‘residential’ to ‘commercial’ was permitted were called

designated LSCs. New Rajinder Nagar in which the

applicant’s plot is situated has been notified as a pre-1962

built up residential and rehabilitation colony. The 

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I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

understanding of the applicant was also not otherwise since

the sanctioned plan produced along with the IA, as applied

for the applicant, clearly indicates the sanction of residential

areas on the upper floors.

22. One of the distinguishing factors is that the planned

LSCs, where commercial use was permitted, uniformly had a

Floor Area Ratio (FAR) of 100 in all the Master Plans for Delhi.

Insofar as the designated LSC’s are concerned, FAR was

always one that was permissible for residential plots which

could go up to a maximum of 350 FAR. The Counter Affidavit

filed on behalf of the MCD tabulates the FAR as per the

sanction granted to the applicant which is 162.32 while the

existing area is 217.08; bringing forth an additional of 69.22

sq. mtrs, in excess of that sanctioned for the area of the plot,

which is 89 sq. yards. The permissible FAR upto 350 is

computed as 3.50 x 74.40 sq. mtrs. which equals 260.40 sq.

mtrs for the subject plot. This clearly indicates, according to

the MCD, that the applicant’s plot is situated in the shop-cumresidential LSC which by MPD-2021 is a designated LSC

permitting conversion of the residential area to a commercial 

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I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

area after payment of the conversion charges. The Counter

Affidavit also speaks of FAR in excess of that sanctioned,

inviting penalty charges for the purpose of regularisation.

The Counter Affidavit also notices non-compoundable

deviations on the 1st floor and 2nd floor on the back side.

23. On a broad overview of the documents produced by

the applicant with respect to Shop no. 106 in New Rajinder

Nagar Market, we find that the lease and the subsequent

freehold rights granted permits only the ground floor to be

used as commercial area. The applicant though contends that

the 1st floor was built by his predecessor-in-interest and used

as a commercial area, there is nothing produced to establish

the same. On the contrary, the conveyance deed obtained by

the applicant as produced by him in the IA, referred to by us,

has been annexed with an approval for construction of upper

floors in the year 2005, which approval is also for residential

spaces on the upper floors. We find the New Rajinder Nagar

Market to be a shop-cum-residence LSC as designated in the

MPD-2021. The FAR of the building already constructed, with

the upper floors further fortify the contention of the MCD that 

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I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

over the shop residential spaces were constructed, since the

FAR sanctioned exceeds that for commercial spaces. The

upper floors though eligible for conversion, it can happen

only with payment of the conversion charges. The additional

FAR as built and existing in excess of that sanction will also

have to be regularised by paying penalty charges and any

non-compoundable constructions will have to be removed.

In the above circumstances, we reject the I.A. filed by the

applicant to de-seal the premises at Shop/Plot no. 106, New

Rajinder Nagar Market and also reject the prayer for

permitting the use of upper floors as commercial.

24. We have to notice from the Counter Affidavit, the

violations which were found on inspection with notice to the

applicant. However, we direct the MCD to issue a further

notice for inspection which shall be jointly done and the

violations intimated by a written order specifically pointing

out the non-compoundable constructions. The order shall

also indicate the conversion charges payable for the upper

floors and the penalty charges for regularisation of excess

FAR from that sanctioned. The applicant would be entitled to

comply with the order passed removing the non-

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I.A. No. 203615 of 2024 in W. P.(C) No.4677 of 1985

compoundable constructions/ projections and depositing

the conversion charges as also the penalty charges for

regularisation of the excess FAR so as to carry out

commercial activities in the upper floors.

25. With the above directions, the I.As stand rejected.

 ……….……………………. CJI.

 (B. R. GAVAI)

………….……………………. J.

 (K. VINOD CHANDRAN)

New Delhi;

October 31, 2025.