Govt. Tenders -Refusing to accept the tender at end as in the earlier tender the parties failed to perform the contract - In earlier litigation, the clause 7 was invoked but high court refused to accept the same for debarring the parties for 7 years - Apex court held that the high court failed to interpret it' own order properly and as such set aside the same and allowed the appeal = CIVIL APPEAL NO. 9379 OF 2014 (Arising out of SLP (Civil) No.33798/2012) SHREE SHYAMJI TRANSPORT COMPANY ... Appellant Versus FOOD CORPORATION OF INDIA & ORS. ...Respondents = 2014-Oct. month-http://judis.nic.in/supremecourt/imgst.aspx?filename=41981

  Govt. Tenders -Refusing to accept the tender at end as in the earlier tender the parties failed to perform the contract - In earlier litigation, the clause 7 was invoked but high  court refused to accept the same for debarring the parties for 7 years - Apex court held that the high court failed to interpret it' own order properly and as such set aside the same and allowed the appeal =

   FCI invited tenders for Mandi Labour Contract  (MLC)  for
its centres at Uchana, Sonepat,  Narwana  and  Safidon  and  the  appellants
applied for the tender.  The tender consisted of two parts -  technical  bid
and price bid.   As  per  the  procedure,  on  successfully  qualifying  the
technical bid, the  price  bid  was  to  be  opened.   The  appellants  were
eligible in technical bid thereby making themselves  qualified  for  opening
of price bid.  The said price bid was opened on 2.3.2012.   The  appellants’
bid was not considered by FCI, in view of  the  fact  that  in  the  earlier
tender of Road Transport Contract (RTC) of Hathin–Rajasthan, the  appellants
had failed to deposit the security deposit and  bank  guarantee  within  the
stipulated period as required and the Earnest Money  Deposit  (EMD)  of  the
appellants had been forfeited vide Order  dated  5.11.2011  and  hence,  the
appellants’ MLC tender was rejected invoking sub clause (III)  of  Clause  4
of the Disqualification Conditions.=

Clause 7 of the MTF      to debar the appellants for  the  contract  period.
It appears that apprehension of debarment of appellants  invoking  Clause  7
was brought to the notice of the Court and the High Court did  consider  the
same as a necessary point.  In our view, the finding of  the  Court  on  the
same is binding  on  FCI.   Inspite  of  FCI’s  modification  petition,  the
finding that there was no intentional lapse on the part  of  the  appellant-
Shree Shyamji Transport Company, was neither modified nor set aside.    That
being so, while considering  the appellant’s  tender  for  MLC, FCI was  not
justified in invoking Clause 4 (III) of the MTF  on the  ground   that   the
tender of the appellants pertaining  to  RTC  Hathin–Rajasthan  was  earlier
rejected and that appellant’s EMD was forfeited. High Court,  in  our  view,
has not properly appreciated its own observations in CWP No.21694/2011  that
FCI has not invoked Clause 7 of the MTF to  debar  the  appellants  for  the
contract period.
    2014-Oct. month-http://judis.nic.in/supremecourt/imgst.aspx?filename=41981

                                                        REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 9379   OF 2014
                 (Arising out of SLP (Civil) No.33798/2012)


SHREE SHYAMJI TRANSPORT COMPANY        ... Appellant

                                   Versus

FOOD CORPORATION OF INDIA & ORS.           ...Respondents

                                    WITH

                       CIVIL APPEAL NO. 9380  OF 2014
                 (Arising out of SLP (Civil) No. 3928/2013)


M/S  R.S. LABOUR AND TPT. CONTRACTOR          ..Appellant

                                   Versus

FOOD CORPORATION OF INDIA & ORS.          ..Respondents



                               J U D G M E N T


R. BANUMATHI, J.


            Leave granted.   These appeals arise out of common order of  the
Punjab and Haryana High Court dated 26.7.2012 passed in CWP  Nos.  8415/2012
& 8416/2012 whereby the High Court declined to interfere with the action  of
the Food Corporation of India (FCI)  rejecting  tender  of  the  appellants-
firms.
2.          Brief facts leading to  the  filing  of  these  appeals  are  as
follows:-  The  appellants  are  partnership  firms  having  five  partners.
Respondent No. 2 - FCI invited tenders for Mandi Labour Contract  (MLC)  for
its centres at Uchana, Sonepat,  Narwana  and  Safidon  and  the  appellants
applied for the tender.  The tender consisted of two parts -  technical  bid
and price bid.   As  per  the  procedure,  on  successfully  qualifying  the
technical bid, the  price  bid  was  to  be  opened.   The  appellants  were
eligible in technical bid thereby making themselves  qualified  for  opening
of price bid.  The said price bid was opened on 2.3.2012.   The  appellants’
bid was not considered by FCI, in view of  the  fact  that  in  the  earlier
tender of Road Transport Contract (RTC) of Hathin–Rajasthan, the  appellants
had failed to deposit the security deposit and  bank  guarantee  within  the
stipulated period as required and the Earnest Money  Deposit  (EMD)  of  the
appellants had been forfeited vide Order  dated  5.11.2011  and  hence,  the
appellants’ MLC tender was rejected invoking sub clause (III)  of  Clause  4
of the Disqualification Conditions. According  to  the  appellants,  earlier
tender of the appellants was rejected by an Order  dated 5.11.2011  invoking
Clause 7 of the  Model  Tender  Form  (MTF).   The  appellant-Shree  Shyamji
Transport Company challenged  the said Order dated 5.11.2011 by  filing  CWP
No.21694/2011 which was disposed of by Order dated  6.3.2012  in  which  the
Court observed that FCI had not invoked Clause 7 of the MTF   to  debar  the
appellant-Shree Shyamji Transport Company for the contract  period  and  the
apprehension of the appellant  was   ill-founded.    In  the  light  of  the
observations in CWP No.21694/2011, appellants contend that the  Order  dated
21.3.2012 rejecting the appellants’ tender for MLC invoking Clause  4  (III)
is unsustainable.
3.          Challenging action of the respondents - FCI in  not  considering
their MLC tender, the appellants filed two writ petitions bearing  Nos.  CWP
8415/2012 and 8416/2012 to quash the communication dated 21.3.2012 and  also
prayed for consideration of their price bid with regard to MLC tender  dated
14.3.2012.  The High Court dismissed the writ petitions by  a  common  Order
dated 26.7.2012, interalia, on the  grounds:-   (i)  In  the  Writ  Petition
No.21694/2011,  forfeiture of Earnest Money Deposit (EMD) of the  appellants
was not set aside by  the  Court  and  forfeiture  of  earnest  money  stood
sustained  justifying  the  invocation  of  Clause  4  (III);           (ii)
appellants had also not challenged the action of the  respondents  declaring
it to be   disqualified  under  Clause  4  (III)  of  the  MTF.    Aggrieved
appellants are before us.
4.          Assailing the impugned order, Mr. Jasbir  Singh  Malik,  learned
counsel appearing for the appellants   submitted that in the  light  of  the
order dated 6.3.2012 passed in CWP No.21694/2011, it was  not  open  to  the
respondents to forfeit the earnest money in  respect  of  Hathin  –Rajasthan
RTC tender by invoking Clause 7 of the MTF and the learned  High  Court  did
not correctly interpret its  earlier  order  passed  in  CWP  No.21694/2011.
Learned counsel further submitted that  the  High  Court  has  committed  an
error in observing that the appellant has not challenged the action  of  the
respondents declaring it to be disqualified under Clause 4 (III) of the  MTF
whereas the appellant-firm had actually challenged the  action  of  the  FCI
disqualifying the appellant under Clause 4 (III)  of  the  MTF  in  CWP  No.
8415/2012, contending that Clause  4  (III)  could  not  have  been  invoked
against the appellants.
5.          Refuting the above  contentions,  Mr.  Ajit  Pudussery,  learned
counsel appearing for the respondents, submitted   that  admittedly  EMD  of
the  appellant-firm   in   RTC                              Hathin–Rajasthan
tender was forfeited and forfeiture of EMD was not set  aside  by  the  High
Court in the CWP                   No.21694/2011  and  FCI  rightly  invoked
clause 4(III) of the MTF against the  appellants  in  MLC  Tender.   It  was
submitted that in CWP No.21694/2011, the  High  Court  has  wrongly  assumed
that Clause 7 of the MTF was not being invoked,  when  in  fact  action  had
been taken under Clause 7 only      and thus the  presumption  made  by  the
High Court in  CWP    No.21694/2011  is  contrary  to  the  record.  Learned
counsel  further submitted that strict compliance of tender  conditions  are
provided to ensure that only serious tenderers participate in  the  bids  as
in case after the award of contract if the tenderer  fails  to  perform  his
due obligations,  huge amount of public money is wasted in re-tendering  and
also creating a situation affecting the movement and  distribution  of  food
grains  which  is  not  in  public  interest  and  the  High  Court  rightly
interpreted Clause 4(III) and the impugned order warrants no interference.
6.          We have considered the rival submissions  made  by  the  learned
counsel for the parties and perused the record.  The  question  falling  for
consideration is  that  in  the  light  of  the  observations  made  in  CWP
No.21694/2011 whether the High Court was right in upholding  the  action  of
the respondents-FCI declaring the appellants-firms to be disqualified  under
Clause 4 (III) of the MTF.
7.          Clause 4 (III) of the MTF stipulates  that  the  tenderer  whose
EMD was forfeited in any other contract with FCI during the last five  years
will be ineligible to participate in the bid. For  better  appreciation,  we
may refer to the relevant clause 4 (III) and relevant paras in Clause  5  of
the MTF which read as under:-
“Clause  4. Disqualification Conditions
………
(III)       Tenderer whose Earnest Money  Deposit  and/or  Security  Deposit
has been forfeited by Food  Corporation  of  India   or  any  Department  of
Central or State Government or any other Public  Sector/Undertaking,  during
the last five years, will be ineligible.

“Clause 5.  Details of Sister Concerns.
………..
(i)   The blacklisted parties by FCI or Govt./Quasi Govt. Organization  will
not be qualified.
(ii)  The parties whose EMD is forfeited by FCI will not be qualified.
(iii) Food Corporation of India reserves the right not to  consider  parties
having any dispute with Food Corporation of India in order  to  protect  its
interest.”


8.          According to  the  respondents,  EMD  of  the  appellant-  Shree
Shyamji Transport Company was forfeited   in  the  earlier  tender  of  Road
Transport Contract  (RTC)                   -Hathin-Rajasthan,   making  the
appellant ineligible to bid in the MLC tender and  therefore,  the  bid   of
the appellant for MLC was rightly rejected by the respondents-FCI  by  Order
dated 21.3.2012.
9.          Insofar as RTC tender  for  Hathin–Rajasthan  is  concerned,  it
appears from the record and the observations of the High Court  in  CWP  No.
21694/2011 that there was no intentional lapse on the part of the  appellant
and the delay in furnishing the security and  the  bank  guarantee  appeared
  to be on account of failure of  banking  operations.    As  per  Clause  7
(iii) of MTF, the successful tenderer within fifteen days of  acceptance  of
its tender, must furnish security deposit for the  due  performance  of  his
obligation under the contract.  While dismissing the writ petition  CWP  No.
21694/2011 on 6.3.2012, High Court observed  that  respondents-FCI  did  not
have any intention to invoke that part of Clause 7  of  the  MTF  indicating
that the respondents-FCI preferred  not  to  debar  the  appellant  for  the
contract period.  For proper appreciation of the contention of the  parties,
it is relevant to refer to the order of the High Court in CWP  No.21694/2011
which reads as under:-
“In so far as  the argument  of  the  learned  counsel  for  the  petitioner
apprehending  debarment  under clause 7  of the MTF is concerned, we are  of
the view that there is nothing  in the impugned order dated  05.11.2011  (P-
16) which may indicate that the respondents have  any  intention  to  invoke
that part of  clause 7 against the petitioner.  The reason for not  invoking
 clause 7 of the MTF appears to be  that  there  is  no  intentional   lapse
committed by the petitioner and the delay  in furnishing  the  security  and
the  bank  guarantee  appears  to  be  on  account  of  failure  of  banking
operations.   Therefore, we appreciate   the  respondents   for  not  having
invoked  clause 7 of the MTF to  debar  the  petitioner   for  the  contract
period.  Therefore, the apprehension of the petitioner    expressed  through
their counsel is ill founded.”

10.          The  respondents-FCI,  in  fact,  filed   Civil   Miscellaneous
Application No.4480/2012 seeking  modification  of  the  above  order  dated
6.3.2012 and prayed to hold that Clause  7(iii)  of  the  MTF  includes  the
debarring of the contractor  and  its  partners  i.e.  the  appellants  from
participating in any future tender of the FCI for a period of  three  years.
By order dated  2.4.2012, the Division Bench of the High Court  disposed  of
the said application and other applications reiterating  its  earlier  order
dated 6.3.2012 that FCI in its order  dated  5.11.2011  (pertaining  to  RTC
Hathin–Rajasthan) did not indicate any intention to  invoke   that  part  of
Clause 7 of MTF to debar the appellants’ firm for the contract period.   The
said Order of the High Court dated 2.4.2012 reads as under:-

“It is thus evident that this Bench has taken the view  that  in  the  order
dated 05.11.2011 (P-16), the respondents did not indicate any  intention  of
invoking  that part of clause 7 of MTF which could  debar   the  petitioner.
The reason for adopting  the aforesaid course has also  been  noted  by  the
Division  Bench   by  observing   that  there   was  no  intentional   lapse
committed by the petitioner and the delay in furnishing   the  security  and
the bank guarantee was on account of  failure  of banking  operations.   The
Bench, in fact, appreciated the respondents for not  invoking  the  part  of
clause 7 of  the MTF  to debar the petitioner   for  the  contract  period.”



11.         Insofar as RTC Hathin–Rajasthan is  concerned,  finding  of  the
High Court that there was no intentional lapse on the part of the  appellant
and that delay in furnishing the security and bank guarantee was on  account
of failure of banking  operation  had  attained  finality.  In  response  to
appellants’ apprehension of debarment under Clause 7 of MTF, Division  Bench
has recorded its finding that  it  appreciates  that  FCI  has  not  invoked
Clause 7 of the MTF      to debar the appellants for  the  contract  period.
It appears that apprehension of debarment of appellants  invoking  Clause  7
was brought to the notice of the Court and the High Court did  consider  the
same as a necessary point.  In our view, the finding of  the  Court  on  the
same is binding  on  FCI.   Inspite  of  FCI’s  modification  petition,  the
finding that there was no intentional lapse on the part  of  the  appellant-
Shree Shyamji Transport Company, was neither modified nor set aside.    That
being so, while considering  the appellant’s  tender  for  MLC, FCI was  not
justified in invoking Clause 4 (III) of the MTF  on the  ground   that   the
tender of the appellants pertaining  to  RTC  Hathin–Rajasthan  was  earlier
rejected and that appellant’s EMD was forfeited. High Court,  in  our  view,
has not properly appreciated its own observations in CWP No.21694/2011  that
FCI has not invoked Clause 7 of the MTF to  debar  the  appellants  for  the
contract period.
12.         The impugned tenders pertain to Mandi Labour Contract (MLC)  for
which the appellants submitted their bid  on  2.3.2012  and  the  appellants
have already suffered debarment for about  three  years.    Considering  the
facts and circumstances of the  case  and  in  the  light  of  High  Court’s
observation made in CWP No.21694/2011, in our view,  the  debarment  of  the
appellants is not justifiable and the  impugned  order  of  the  High  Court
cannot be sustained.
13.         In the result, the impugned order  of  the  High  Court  is  set
aside and the appeals are allowed.  No order as to costs.


                                                                 …………………….J.
                                                               (T.S. Thakur)


                                                                 …………………….J.
                                                              (R. Banumathi)

New Delhi;
October 9, 2014
-----------------------
                                     11

Sec.498 A, 304 B of I.P.C. r/w sec.113 B &Section 114 Illustration (a) of Evidence Act - Once the marriage was proved with in 7 years , once prosecution proved harassment for dowry and once the prosecution proved that the death is not suicide - On the failure of Accused to prove that the death was due to accidental, he can not escape from the claws of Penal code - Apex court held that A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods “soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession”. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.= CRIMINAL APPEAL NO. 1366 OF 2010 SULTAN SINGH ..... APPELLANT VERSUS STATE OF HARYANA ..... RESPONDENT = 2014 - Sept.Month - http://judis.nic.in/supremecourt/imgs1.aspx?filename=41973

Sec.498 A, 304 B of I.P.C. r/w sec.113 B  &Section 114 Illustration (a) of Evidence Act - Once the marriage was proved with in 7 years , once prosecution proved harassment for dowry and once the prosecution proved that the death is not suicide - On the failure of Accused to prove that the death was due to accidental, he can not escape from the claws of Penal code - Apex court held that  A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods “soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession”. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.=

Under
Section 304-B IPC, the appellant has been sentenced to
undergo rigorous imprisonment for 7 years while under
Section 498A, IPC he has been sentenced to undergo
rigorous imprisonment for three years, apart from sentence
of fine.=
 story of bursting of stove was not reliable. =

Thus
in view of the provisions contained in Section 113-
B of the Indian Evidence Act it can very well be
presumed that the accused persons have caused
dowry death. Since the deceased Lavjeet Kaur
was at the house of the accused and therefore now
it is for the accused persons to explain how she
died an unnatural death within a period of about 4-
½ years of her marriage.
The explanation furnished by the accused persons
with respect to the death of Smt. Lavjeet Kaur in
the form of their defence version to the effect that
the deceased died just by mere accident as she
caught fire on account of bursting of stove when
she was cooking meals cannot be accepted. The
investigating officer ASI Madan Pal took into
possession a plastic can Ex.P-1 smelling kerosene
oil and half burnt Gadda from inside the room of
the house. If Smt. Lavjeet Kaur had been caught
fire while working on the stove I fail to understand
as to how the Gadda lying in the bed room of the
house would have caught fire. Secondly if the
stove would have burst the same must have been
found lying at the place of occurrence, but the
same was not available to the Investigating Officer
when he visited the spot. It clearly negatives the
defence version that Smt. Lavjeet Kaur caught fire
on account of bursting of stove. The argument of
the learned defence counsel to the effect that PW
Gurmeet Singh has deposed that he had seen the
accused setting Smt. Lavjeet Kaur on fire by
sprinkling kerosene oil upon her in the court yard
of the house does not effect the prosecution case
in any way, because I have already observed in
the earlier part of the judgment that the deposition
of PW Gurmeet Singh so far as he has given an
eye version account cannot be believed that
therefore the story of the court yard put forward
by him automatically goes. However, the fact
remains that the Investigating Officer found the
half burnt Gadda Ex.P-2 and the plastic can Ex.P-1
smelling kerosene inside the bed room of the
house. Thus, the non-availability of the burst
stove on the spot itself speaks that the defence
version is nothing but is simply made up story and
cannot be believed.=

A conjoint reading of Section 113-B of the

Evidence Act and Section 304-B IPC shows that

there must be material to show that soon before

her death the victim was subjected to cruelty or

harassment. The prosecution has to rule out the

possibility of a natural or accidental death so as to

bring it within the purview of “death occurring

otherwise than in normal circumstances”. The

expression “soon before” is very relevant where

Section 113-B of the Evidence Act and Section

304-B IPC are pressed into service. The

prosecution is obliged to show that soon before the

occurrence there was cruelty or harassment and

only in that case presumption operates. Evidence

in that regard has to be led by the prosecution.

“Soon before” is a relative term and it would

depend upon the circumstances of each case and

no straitjacket formula can be laid down as to what

would constitute a period of soon before the

occurrence. It would be hazardous to indicate any

fixed period, and that brings in the importance of a

proximity test both for the proof of an offence of

dowry death as well as for raising a presumption

under Section 113-B of the Evidence Act. The

expression “soon before her death” used in the

substantive Section 304-B IPC and Section 113-B

of the Evidence Act is present with the idea of

proximity test. No definite period has been

indicated and the expression “soon before” is not

defined. A reference to the expression “soon

before” used in Section 114 Illustration (a) of the

Evidence Act is relevant. It lays down that a court

may presume that a man who is in the possession

of goods “soon after the theft, is either the thief or

has received the goods knowing them to be stolen,

unless he can account for their possession”. The

determination of the period which can come within

the term “soon before” is left to be determined by

the courts, depending upon facts and

circumstances of each case. Suffice, however, to

indicate that the expression “soon before” would

normally imply that the interval should not be

much between the cruelty or harassment

concerned and the death in question. There must

be existence of a proximate and live link between

the effect of cruelty based on dowry demand and

the death concerned. If the alleged incident of

cruelty is remote in time and has become stale

enough not to disturb the mental equilibrium of

the woman concerned, it would be of no

consequence.

15. Having regard to the entirety of material, we do not

find any ground to interfere with the concurrent finding

recorded by the courts below that it was not a case of

accidental death but a death taking place in circumstances

other than normal. Thus, the presumption under Section

113B of the Indian Evidence Act has been rightly invoked

and the offence against the appellant has been proved.

There is no tangible circumstance to rebut the presumption.

2014 - Sept.Month - http://judis.nic.in/supremecourt/imgs1.aspx?filename=41973

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1366 OF 2010
SULTAN SINGH ..... APPELLANT
VERSUS
STATE OF HARYANA ..... RESPONDENT
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This appeal has been preferred against the conviction
and sentence of the appellant under Sections 304-B and
498-A of the Indian Penal Code (for short the “IPC”). Under
Section 304-B IPC, the appellant has been sentenced to
undergo rigorous imprisonment for 7 years while under
Section 498A, IPC he has been sentenced to undergo
rigorous imprisonment for three years, apart from sentence
of fine.
2. The appellant was married to the deceased Lavjeet
Kaur on 27th February, 1990. On 17th June, 1994, PW 4-
Gurmeet Singh lodged First Information Report to the effect
that Lavjeet Kaur was burnt to death by the appellant and
1Page 2
his mother. It was further stated that she was harassed for
dowry soon before her death. Apart from other demands of
dowry, it was stated that 5-6 days before the death, the
appellant visited the parental house of the deceased and
made a demand of Rs.30,000/- for purchase of land. Since
the said demand was not met, he left the house under
protest. On the fateful day, when he (PW-4) visited the
house of the appellant he found that the appellant’s mother
poured oil from a ‘can’ on the deceased and the appellant
ignited the fire. He came to his parents and thereafter he
went to the Civil Hospital where he learnt that the accused
was referred to the PGI Chandigarh but she died on the way.
3. On the basis of this First Information Report, the
investigation was conducted by PW 6-ASI, Madan Pal Singh
and after investigation, the appellant and his mother (who
has been acquitted by the High Court) were sent up for trial.
4. The prosecution examined PW 4-Gurmeet Singh,
brother of the deceased, PW 5-Ujjagar Singh, father of the
deceased, apart from evidence of Investigating Officer and
the Medical Officer and other evidence.
5. The appellant denied the allegations and took the plea
that the deceased caught fire accidentally while working on
2Page 3
a stove. He had gone to the school near their house for
giving his photo for the Identity Card for voting purpose.
When he learnt about the accident, he immediately took
Lavjeet Kaur to the hospital.
6. The trial Court held that though the version of PW 4-
Gurmeet Singh and PW 5-Ujjagar Singh that they had seen
the appellant setting the deceased on fire was not reliable,
their reversion of demand of dowry soon before the death
could not be rejected. Since her death was within seven
years of marriage, demand of dowry was proved and the
death was under the circumstances other than normal,
presumption under Section 113B of the Indian Evidence Act
could be raised. Thus, the commission of offences under
Sections 498-A and 304-B, IPC was proved. It was
held that story of bursting of stove was not reliable. The
relevant discussion in this regard, is as follows :
“From the sworn testimony of PWs Gurmeet Singh
and Ujjagar Singh discussed above it has become
very clear that deceased Smt. Lavjeet Kaur was
subjected to cruelty or harassment by the accused
persons for the demand of dowry right from the
beginning of her marriage till death. Even soon
before her death she was subjected to cruelty by
the accused persons when father of the deceased
could not pay a sum of Rs.30,000/- to accused
Sultan Singh 5/6 days prior to the death of
deceased. Deceased was married with accused
3Page 4
Sultan Singh on 27.2.1990 and she died on
17.6.1994 on account of burn injuries at the
matrimonial home. The fact that the deceased
died on account of burn injuries is well proved
from the medical evidence consisting of the
statements of Dr. S.K. Gupta who medico-legally
examined the deceased immediately on arrival at
Civil Hospital Ambala Cantt., and also of Dr.
Gajinder Yadav PW-3 who conducted the post
mortem examination of the dead body of
deceased. The deceased Smt. Lavjeet Kaur aged
about 22 years had suffered 70% burn injuries and
died on account of the same. Thus, it has been
well established that the death of deceased Smt.
Lavjeet Kaur was caused by burns and she died
unnatural death. It has also been established that
she died within a period of seven years of her
marriage. As already discussed by me that it has
also been established that the deceased was also
subjected to cruelty by the accused persons for
the demand of dowry soon before her death. Thus
in view of the provisions contained in Section 113-
B of the Indian Evidence Act it can very well be
presumed that the accused persons have caused
dowry death. Since the deceased Lavjeet Kaur
was at the house of the accused and therefore now
it is for the accused persons to explain how she
died an unnatural death within a period of about 4-
½ years of her marriage.
The explanation furnished by the accused persons
with respect to the death of Smt. Lavjeet Kaur in
the form of their defence version to the effect that
the deceased died just by mere accident as she
caught fire on account of bursting of stove when
she was cooking meals cannot be accepted. The
investigating officer ASI Madan Pal took into
possession a plastic can Ex.P-1 smelling kerosene
oil and half burnt Gadda from inside the room of
the house. If Smt. Lavjeet Kaur had been caught
fire while working on the stove I fail to understand
as to how the Gadda lying in the bed room of the
house would have caught fire. Secondly if the
stove would have burst the same must have been
found lying at the place of occurrence, but the
same was not available to the Investigating Officer
when he visited the spot. It clearly negatives the
defence version that Smt. Lavjeet Kaur caught fire
on account of bursting of stove. The argument of
the learned defence counsel to the effect that PW
Gurmeet Singh has deposed that he had seen the
accused setting Smt. Lavjeet Kaur on fire by
sprinkling kerosene oil upon her in the court yard
of the house does not effect the prosecution case
in any way, because I have already observed in
the earlier part of the judgment that the deposition
of PW Gurmeet Singh so far as he has given an
eye version account cannot be believed that
therefore the story of the court yard put forward
by him automatically goes. However, the fact
remains that the Investigating Officer found the
half burnt Gadda Ex.P-2 and the plastic can Ex.P-1
smelling kerosene inside the bed room of the
house. Thus, the non-availability of the burst
stove on the spot itself speaks that the defence
version is nothing but is simply made up story and
cannot be believed.
The medical evidence as pointed out by the
learned defence counsel also does not help the
accused persons in any way. It has been deposed
by Dr. Gajinder Yadav that there were deep burns
on legs and chest of the deceased. It has come in
the statements of both the medical officers that
the deceased suffered 70% burn injuries and died
as a result thereof. It has been categorically
stated by Dr. Gajinder Yadav who conducted the
post-mortem examination that the deceased died
on account of burn injuries which were sufficient to
cause death in the ordinary course of nature. I fail
to understand as to what help the accused could
take from the statements of the medical officers
by pointing out that the Medical Officers have
deposed that there was no smell of kerosene from
the body and clothes of the deceased. If it was so
then it also smashes the defence version, because
if the deceased had caught fire by bursting of
stove then also there must be smell of kerosene oil
on her clothes. In my view, the smell of kerosene
might have evaporated in between the time of
occurrence till the post mortem examination
because the occurrence had taken place on
17.6.1994 at about noon time, whereas the post
mortem examination was conducted on 18.6.1994.
Further, the deceased was unconscious when she
was admitted in the hospital and therefore, it is
not known how the deceased could tell Dr. S.K.
5Page 6
Gupta that she had caught fire while working on a
stove. Another person from whom Dr. S.K. Gupta
derived this information was one Amar Nath a
private Medical practitioner, who accompanied the
deceased to the hospital. However, Shri Amar
Nath was not produced in defence to ascertain
whether he had told this fact to the Medical Officer
and if so how he acquired the said knowledge
whether from the deceased or otherwise.
Moreover, in the ruka Ex.PC sent by Dr. S.K. Gupta
to the police there is no mentioning of the bursting
of stove, nor it has been mentioned as to how he
learnt that the deceased caught fire while working
on a stove. It has simply been mentioned that the
deceased was alleged to have sustained burns
70% while working on a stove. The word ‘bursting’
is missing in this ruka, whereas, it was so stated by
Dr. S.K. Gupta when he appeared in the witness
box. If the story of bursting of stove came to his
knowledge it is not known why he omitted to
mention this fact in his ruka Ex. PC sent to the
police. Taking into consideration all the facts and
circumstances I am of the definite view that the
statement of Dr. S.K. Gupta to the effect that there
was the history of burns allegedly sustained by the
deceased due to bursting of stove while cooking
food is not legally sound because neither Amar
Nath was produced, nor deceased could speak
anything before her death.”
7. The appellant preferred an appeal. The High Court
upheld the conviction of the appellant while acquitting his
mother Mohinder Kaur, the co-accused, of the charge under
Section 304-B, IPC but upheld her conviction under Section
498A, IPC. It was observed that the allegation of demand of
dowry soon before the death was only against the appellant
and not against his mother. Rejecting the defence plea of
accidental burning, the High Court observed as under :
6Page 7
“The accused or their persons might have
accompanied Lavjeet Kaur to the hospital. The
accused are naturally interested to save
themselves from legal punishment and such as the
said history might have been given by them or
Amar Nath to save the accused. PW-2 Dr. S.K.
Gupta has no personal knowledge about the
occurrence and has stated that there was history
of burns sustained by Lavjeet Kaur due to bursting
of stove while cooking food. So, that history was
given by the accused or Amar Nath, accompanying
the injured to the hospital.
One another circumstance which militates against
the case of the accused is that the police found the
blood sustained Gadda in the room where the
occurrence is stated to have taken place and not
in the kitchen, as per stand of the accused. That
fact belied the stand of accused.
The statement of Dr. S.K. Gupta that history was
given by the patient does not appeal to reason.
The deceased was having 70% burn injuries and as
such she was not in a position to narrate the
occurrence. The police had no reason to change
the place of occurrence from the kitchen to the
room as shown in the rough site plan. There were
singeing of the skull hair of Lavjeet Kaur besides
having burn injuries on the chest and lower part of
the body. The fact of bursting of stove and giving
the case history by Lavjeet Kaur is not mentioned
by Dr. S.K. Gupta in the record. The doctor is not
supposed to orally know all the facts. It seems
that Dr. S.K. Gupta has stated that the history of
the case was given by the patient simply to favour
the accused, moreso when there is nothing in this
regard on the record. So, no reliance can be
placed on the statement made by Dr. S.K. Gupta,
in this regard.
PW-3 Dr. Gajinder Yadav, has stated that there
was probability of the deceased receiving burn
injuries by accidental fire but he has not stated it
with confidence that in all probability, the death
could be accidental, in the present case. That
doctor has not seen the other circumstantial
evidence at the spot before arriving at the
conclusion. So, the learned trial Court has rightly
held that Lavjeet Kaur, deceased, has died due to
7Page 8
unnatural injuries and not by accidental burn
injuries.”
8. We have heard learned counsel for the parties and
perused the evidence on the record.
9. The main question raised for our consideration is
whether the evidence of demand of dowry soon before the
death was reliable and whether it was a case of accidental
death as pleaded by the defence. The presumption under
Section 113B of the Indian Evidence Act is attracted only in
case of suicidal or homicidal death and not in case of an
accidental death.
10. We are unable to accept the submissions advanced on
behalf of the appellant.
11. The brother and father of the deceased have made
categorical allegation of demand of dowry which confirmed
almost upto the date of death. Even though version of PW 4,
brother of the deceased, and PW 5, father of the deceased,
may be exaggerated to the extent of saying that they saw
the accused and his mother causing burn injuries, there is no
reason to disbelieve their version with regard to demand of
dowry. It is true that in case of accidental death
presumption under Section 113B of the Indian Evidence Act

is not available but there is no reason to hold that in the

present case, the burn injuries were by accident. 

12. Apart from the following reasons given by the trial

Court and the High Court, namely; 

(i) The Investigating Officer found the plastic can

(Exhibit P-1) smelling kerosene oil and a half burnt

mattress (Exhibit P-2);

(ii) The burst stove was not found at the place of

occurrence as stated by the Investigating Officer;

(iii) The deceased suffered 70% burn injuries which was

held to be sufficient to cause death in the ordinary

course of injury, there are other reasons to reject the

plea of accident;

there are other reasons to support the findings.

12. While in the case of homicidal death, if the victim is

caught unaware, a person may not be able to make any

effort to save himself/herself and in case of suicidal burn

injuries a person may take all precautions not to save

himself/herself, in case of accidental burn injuries, victim

makes all possible efforts to save himself/herself which may

leave evidence to show that the death was accidental. Such

a person may raise alarm and try to escape. The

Investigating Officer visiting the scene of occurrence can

notice the available evidence by recreating the scene. In the

present case, there are no probabilities to support the

defence plea of accident, particularly when relations

9Page 10

between the deceased and the appellant were not

harmonious. 

13. Thus, taking of plea by the accused to save

himself/herself is not enough. The contention in the present

case that PW 2-Dr. S.K. Gupta mentioned the history of burn

due to bursting of stove was given by the patient and one

Amar Nath who accompanied her is without any merit. In

the same statement the said witness states that the victim

was unfit to make a statement. Amar Nath, who is said to

have given this information, has not been examined by the

defence. Statement of Dr. S.K. Gupta that Amar Nath gave

this information is hearsay. Moreover, PW 2-Dr. S.K. Gupta

has been examined as an expert witness to give his opinion

about the health condition of the patient based on his

expertise. He is not a witness of fact. Similarly, contention

that PW 3-Dr. Gajinder Yadav who conducted the post

mortem made a statement in cross examination that there

was more probability of death being caused by accidental

fire as there was no smell of kerosene oil from the body of

the deceased and that the fire had started from the lower

parts of the body towards upper parts is equally without any

merit. Such statement of an expert witness without being

based on any specialized knowledge cannot be accepted.

1Page 11

The opinion of expert witness on technical aspects has

relevance but the opinion has to be based upon specialized

knowledge and the data on which it is based has to be found

acceptable by the Court. In Madan Gopal Kakkad

 versus Naval Dubey.1

 , it was observed as under :

“34. A medical witness called in as an expert to

assist the Court is not a witness of fact and the

evidence given by the medical officer is really of

an advisory character given on the basis of the

symptoms found on examination. The expert

witness is expected to put before the Court all

materials inclusive of the data which induced him

to come to the conclusion and enlighten the Court

on the technical aspect of the case by explaining

the terms of science so that the Court although,

not an expert may form its own judgment on those

materials after giving due regard to the expert’s

opinion because once the expert’s opinion is

accepted, it is not the opinion of the medical

officer but of the Court.

35. Nariman, J. in Queen v. Ahmed Ally.

2

, while

expressing his view on medical evidence has

observed as follows:

“The evidence of a medical man or other

skilled witnesses, however, eminent, as to

what he thinks may or may not have taken

place under particular combination of

circumstances, however, confidently, he may

speak, is ordinarily a matter of mere opinion.”

14. We may also note that the presumption under Section

113B of the Indian Evidence Act has been enacted to check

the menace of the dowry deaths and in appreciating the

evidence, the social background of the legislation cannot be

1

(1992) 3 SCC 204

2

(1998) 3 SCC 309

1Page 12

ignored. In Pawan Kumar vs. State of Haryana .

3

 , it was

observed: 

“11. It is true, as argued by learned counsel for

the appellants, that in criminal jurisprudence

benefit of doubt is extendable to the accused. But

that benefit of doubt would arise in the context of

the application of penal law, and in the facts and

circumstances of a case. The concept of benefit of

doubt has an important role to play but within the

confines of the stringency of laws. Since the cause

of death of a married woman was to occur not in

normal circumstances but as a “dowry death”, for

which the evidence was not so easily available, as

it is mostly confined within the four walls of a

house, namely the husband’s house, where all

likely accused reside. Hence the aforesaid

amendments brought in the concept of deemed

“dowry death” by the husband or the relatives, as

the case may be. This deeming clause has a role to

play and cannot be taken lightly and ignored to

shield an accused, otherwise the very purpose of

the amendment will be lost. Of course, the

prosecution has to prove the ultimate essential

ingredients beyond all reasonable doubt after

raising the initial presumption of “deemed dowry

death”.

12. Explanation to Section 304-B refers to dowry

“as having the same meaning as in Section 2 of

the 1961 Act”, the question is: what is the

periphery of the dowry as defined therein? The

argument is, there has to be an agreement at the

time of the marriage in view of the words “agreed

to be given” occurring therein, and in the absence

of any such evidence it would not constitute to be

a dowry. It is noticeable, as this definition by

amendment includes not only the period before

and at the marriage but also the period

subsequent to the marriage.

13. When words in a statute are referable to more

than one meaning, the established rule of

construction is found in Heydon’s case1 also

approved by this Court in Bengal Immunity Co. Ltd.

3

 11 WR Cr. 25

v. State of Bihar2 AIR at p. 674. The rule is to

consider four aspects while construing an Act:

(a) what was the law prior to the law which is

sought to be interpreted;

(b) what was the mischief or defect for which

new law is made;

(c) what is the remedy the law now provides;

and

(d) what is the reason of the remedy.

14. The Court must adopt that construction which,

“suppresses the mischief and advances the

remedy”.

15. Applying this principle, it is clear that the

earlier law was not sufficient to check dowry

deaths hence aforesaid stringent provisions were

brought in, so that persons committing such

inhuman crimes on married women should not

escape, as evidence of a direct nature is not

readily available except of the circumstantial kind.

Hence it is that interpretation which suppresses

the mischief, subserves the objective and

advances the remedy, which would be acceptable.

The objective is that men committing such crimes

should not escape punishment. Hence stringent

provisions were brought in by shifting the burden

onto the accused by bringing in the deemed

clause. As aforesaid, the definition of “dowry” was

amended with effect from 19-11-1986, to include

the period even after the marriage.

16. The offence alleged against the appellants is

under Section 304-B IPC which makes “demand of

dowry” itself punishable. Demand neither

conceives nor would conceive of any agreement. If

for convicting any offender, agreement for dowry is

to be proved, hardly any offenders would come

under the clutches of law. When Section 304-B

refers to “demand of dowry”, it refers to the

demand of property or valuable security as

referred to in the definition of “dowry” under the

1961 Act. It was argued on behalf of the appellants

that mere demand of scooter or fridge would not

be a demand for dowry. We find from the evidence

on record that within a few days after the

marriage, the deceased was tortured, maltreated

1Page 14

and harassed for not bringing the aforesaid articles

in marriage. Hence the demand is in connection

with marriage. The argument that there is no

demand of dowry, in the present case, has no

force. In cases of dowry deaths and suicides,

circumstantial evidence plays an important role

and inferences can be drawn on the basis of such

evidence. That could be either direct or indirect. It

is significant that Section 4 of the 1961 Act, was

also amended by means of Act 63 of 1984, under

which it is an offence to demand dowry directly or

indirectly from the parents or other relatives or

guardian of a bride. The word “agreement”

referred to in Section 2 has to be inferred on the

facts and circumstances of each case. The

interpretation that the appellant seeks, that

conviction can only be if there is agreement for

dowry, is misconceived. This would be contrary to

the mandate and object of the Act. “Dowry”

definition is to be interpreted with the other

provisions of the Act including Section 3, which

refers to giving or taking dowry and Section 4

which deals with penalty for demanding dowry,

under the 1961 Act and the Indian Penal Code. This

makes it clear that even demand of dowry on other

ingredients being satisfied is punishable. This leads

to the inference, when persistent demands for TV

and scooter are made from the bride after

marriage or from her parents, it would constitute

to be in connection with the marriage and it would

be a case of demand of dowry within the meaning

of Section 304-B IPC. It is not always necessary

that there be any agreement for dowry.”

Again in Hira Lal vs. State (Govt. of NCT), Delhi .

4

 , it

was observed as under :

8. Section 304-B IPC which deals with dowry

death, reads as follows:

“304-B. Dowry death.—(1) Where the death of a

woman is caused by any burns or bodily injury or

occurs otherwise than under normal circumstances

within seven years of her marriage and it is shown

that soon before her death she was subjected to

cruelty or harassment by her husband or any

4

(2003) 8 SCC 80

relative of her husband for, or in connection with,

any demand for dowry, such death shall be called

‘dowry death’, and such husband or relative shall

be deemed to have caused her death.

section, ‘dowry’ shall have the same meaning as in

Section 2 of the Dowry Prohibition Act, 1961 (28 of

1961).

(2) Whoever commits dowry death shall be

punished with imprisonment for a term which shall

not be less than seven years but which may

extend to imprisonment for life.”

The provision has application when death of a

woman is caused by any burns or bodily injury or

occurs otherwise than under normal circumstances

within seven years of her marriage and it is shown

that soon before her death she was subjected to

cruelty or harassment by her husband or any

relatives of her husband for, or in connection with

any demand for dowry. In order to attract

application of Section 304-B IPC, the essential

ingredients are as follows:

(i) The death of a woman should be caused by

burns or bodily injury or otherwise than under a

normal circumstance.

(ii) Such a death should have occurred within

seven years of her marriage.

(iii) She must have been subjected to cruelty or

harassment by her husband or any relative of her

husband.

(iv) Such cruelty or harassment should be for or

in connection with demand of dowry.

(v) Such cruelty or harassment is shown to have

been meted out to the woman soon before her

death.

Section 113-B of the Evidence Act is also relevant

for the case at hand. Both Section 304-B IPC and

Section 113-B of the Evidence Act were inserted as

noted earlier by Dowry Prohibition (Amendment)

Act 43 of 1986 with a view to combat the

increasing menace of dowry deaths. Section 113-B

reads as follows:

“113-B. Presumption as to dowry death.—When

the question is whether a person has committed

the dowry death of a woman and it is shown that

soon before her death such woman had been

subjected by such person to cruelty or harassment

for, or in connection with, any demand for dowry

the Court shall presume that such person had

caused the dowry death.

Explanation.—For the purposes of this section,

‘dowry death’ shall have the same meaning as in

Section 304-B of the Indian Penal Code (45 of

1860).”

The necessity for insertion of the two provisions

has been amply analysed by the Law Commission

of India in its 21st Report dated 10-8-1988 on

“Dowry Deaths and Law Reform”. Keeping in view

the impediment in the pre-existing law in securing

evidence to prove dowry-related deaths, the

legislature thought it wise to insert a provision

relating to presumption of dowry death on proof of

certain essentials. It is in this background that

presumptive Section 113-B in the Evidence Act has

been inserted. As per the definition of “dowry

death” in Section 304-B IPC and the wording in the

presumptive Section 113-B of the Evidence Act,

one of the essential ingredients, amongst others,

in both the provisions is that the woman

concerned must have been “soon before her

death” subjected to cruelty or harassment “for or

in connection with the demand of dowry”.

Presumption under Section 113-B is a presumption

of law. On proof of the essentials mentioned

therein, it becomes obligatory on the court to raise

a presumption that the accused caused the dowry

death. The presumption shall be raised only on

proof of the following essentials:

(1) The question before the court must be

whether the accused has committed the dowry

death of the woman. (This means that the

presumption can be raised only if the accused is

being tried for the offence under Section 304-B

IPC.)

(2) The woman was subjected to cruelty or

harassment by her husband or his relatives.

(3) Such cruelty or harassment was for or in

connection with any demand for dowry.

(4) Such cruelty or harassment was soon before

her death.

9. A conjoint reading of Section 113-B of the

Evidence Act and Section 304-B IPC shows that

there must be material to show that soon before

her death the victim was subjected to cruelty or

harassment. The prosecution has to rule out the

possibility of a natural or accidental death so as to

bring it within the purview of “death occurring

otherwise than in normal circumstances”. The

expression “soon before” is very relevant where

Section 113-B of the Evidence Act and Section

304-B IPC are pressed into service. The

prosecution is obliged to show that soon before the

occurrence there was cruelty or harassment and

only in that case presumption operates. Evidence

in that regard has to be led by the prosecution.

“Soon before” is a relative term and it would

depend upon the circumstances of each case and

no straitjacket formula can be laid down as to what

would constitute a period of soon before the

occurrence. It would be hazardous to indicate any

fixed period, and that brings in the importance of a

proximity test both for the proof of an offence of

dowry death as well as for raising a presumption

under Section 113-B of the Evidence Act. The

expression “soon before her death” used in the

substantive Section 304-B IPC and Section 113-B

of the Evidence Act is present with the idea of

proximity test. No definite period has been

indicated and the expression “soon before” is not

defined. A reference to the expression “soon

before” used in Section 114 Illustration (a) of the

Evidence Act is relevant. It lays down that a court

may presume that a man who is in the possession

of goods “soon after the theft, is either the thief or

has received the goods knowing them to be stolen,

unless he can account for their possession”. The

determination of the period which can come within

the term “soon before” is left to be determined by

the courts, depending upon facts and

circumstances of each case. Suffice, however, to

indicate that the expression “soon before” would

normally imply that the interval should not be

much between the cruelty or harassment

concerned and the death in question. There must

be existence of a proximate and live link between

the effect of cruelty based on dowry demand and

the death concerned. If the alleged incident of

cruelty is remote in time and has become stale

enough not to disturb the mental equilibrium of

the woman concerned, it would be of no

consequence.

15. Having regard to the entirety of material, we do not

find any ground to interfere with the concurrent finding

recorded by the courts below that it was not a case of

accidental death but a death taking place in circumstances

other than normal. Thus, the presumption under Section

113B of the Indian Evidence Act has been rightly invoked

and the offence against the appellant has been proved.

There is no tangible circumstance to rebut the presumption.

17. For the above reasons, we do not find any merit in this

appeal. The appeal is dismissed. The appellant who is on

bail is directed to surrender to custody to undergo the

remaining sentence.

……..…………………………….J.

[ V. GOPALA GOWDA ]

.….………………………………..J.

NEW DELHI [ ADARSH KUMAR GOEL ]

September 26, 2014

Land Acquisition - enhancement of compensation - Compensation can be granted on bit sales on boundary lands - deduction should be given reasonably basing on locality and amenities etc., - High court enhanced compensation from 6 lakhs and odd to 9 lakhs but discarded the neighboring boundary bit sales though having high market value than the granted - Apex court by giving 60% deduction for the bit sales granted 12 lakhs per acre along with statutory benefits = CIVIL APPEAL NOS. 3982-3987 of 2011 NIRMAL SINGH Etc. Etc. ………APPELLANTS Vs. STATE OF HARYANA THROUGH COLLECTOR ………RESPONDENT = 2014 - Sept.Month - http://judis.nic.in/supremecourt/imgs1.aspx?filename=41972

Land Acquisition - enhancement of compensation  - Compensation can be granted on bit sales on boundary lands - deduction should be given reasonably basing on locality and amenities etc., -  High court enhanced compensation from 6 lakhs and odd to 9 lakhs but discarded the neighboring boundary bit sales though having high market value than the granted - Apex court by giving 60% deduction for the bit sales granted 12 lakhs per acre along with statutory benefits =

All these R.F.A.s
were disposed of in terms of Judgment and award of
even date passed in R.F.A. No. 4538 of 2006, whereby
the High Court enhanced the compensation in respect
of the acquired lands to Rs.9,00,000/- per acre from
Rs.6,60,000/- per acre as was determined by the
Reference Court.=

The High Court has erroneously
held that the compensation cannot be awarded for a
large scale of land on the basis of sale instances
of small pieces of land. =

 the High Court, despite
appreciating that the land pertaining to the sale
deeds produced by the land owners are located just
outside the boundary of the acquired land, has
failed to determine the correct market value of the
acquired land based on the sale instances which are
substantive evidence produced in justification of
the claim.=

i. What should be the appropriate rate of
compensation and extent of deductions towards
developmental charges for the acquired land in
question?
ii. Whether the sale-consideration mentioned in the
sale deeds of small pieces of land, which are
situated close to the acquired land can be
considered for determination of the compensation
in favour of land owners?=

Sale instances in relation to small pieces of

land situated near the acquired land can be

considered, subject to (i) reasonable deductions for

developmental costs that will be incurred in the

future as per the cases referred to supra and (ii)

the evidence that these lands can be compared to the

acquired land in terms of its vicinity and the

comparable benefits and advantages.

Before we determine the extent of deductions

to be allowed on the market value of the acquired

land, we must take note of the following details;

firstly, the acquired land is mostly agricultural in

nature and vacant at the moment; secondly, the

determination of the market value of the acquired

land based on the sale instances in relation to

small pieces of land situated near the acquired land

as produced by the land owners; thirdly, the well

settled principle by this Court in a catena of cases

that larger portions of land incur higher

developmental costs compared to smaller portions of

land. Therefore, we are of the opinion based on the

facts and circumstances of the cases on hand and

keeping in mind the legal principles laid down in

the cases referred to supra, to allow 60% deduction

on the market value of the acquired land towards

developmental expenses.

 The following table depicts the relevant sale

deeds as per the date of notification under Section

4 of the Act that are produced as evidence by the

land owners, followed by the deduction towards

developmental expenses and the value per acre of the

acquired land:

Ex. Date Area sold Value Per

acre(Rs.)

P4 17.5.2001 200 sq. yards 48,40,000

P12 20.6.2001 95 sq. yards 33,88,000

P13 11.1.2001 5.37 marlas 24,13,407

P14 11.1.2001 80 sq. yards 24,20,000

Average market value per acre 32,65,351

Deductions for developmental 

expenses

60% 

VALUE PER ACRE

13,06,140

16. However, having regard the fact that the

acquired land have got non-agricultural potentiality

as the same being in close proximity to the already

developed commercial and residential areas, within

the municipal limits of Pehowa & and the significant

variation in the sale considerations of small pieces

of land situated in the proximity of the acquired

land, we are of the view to award a just and

reasonable compensation in respect of the acquired

land at Rs.12,00,000/- per acre. It is the

contention of the appellants that the lands

described in Ex. P4, P12, P13 and P14 are comparable

to the acquired land with respect to their

potentiality, location and conditions, but on

perusal of the evidence on record, we are of the

view that the said contention may be correct to some

extent, but the exact location of the small pieces

of land covered in the sale instances is not

forthcoming. 

Therefore, the market value of the

acquired land cannot be entirely based at

Rs.13,06,140/- per acre as per the sale instances

mentioned in table above. 

However, having regard to

the location, potentiality of the acquired land and

other relevant factors and circumstances of the

cases we are of the opinion that the appellant-land

owners are entitled for enhancement of compensation.

17. Hence, in view of the foregoing reasons, the

appellant-land owners will be entitled to just and

reasonable compensation at the rate of

Rs.12,00,000/- per acre. 

Besides the above amount,

they will also be entitled to the statutory benefits

in accordance with Sections 23(1A) and 23(2) on the

compensation awarded. 

The appellant-land owners are

also entitled to get interest on the compensation at

the rate of 15% p.a. under the proviso to Section 28

of the Act.

18. All the appeals are allowed accordingly in the

above terms. Since the land of the appellants were

acquired in the year 2002, the respondents are

directed to pay the compensation awarded in favour

Page 21

21

of the appellants by way of demand draft after

proper calculation made within eight weeks from the

receipt of copy of this Judgment and Award. There

shall be no order as to costs.

2014 - Sept.Month - http://judis.nic.in/supremecourt/imgs1.aspx?filename=41972

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NOS. 3982-3987 of 2011
NIRMAL SINGH Etc. Etc. ………APPELLANTS
Vs.
STATE OF HARYANA THROUGH COLLECTOR ………RESPONDENT
WITH
C.A. Nos.7916-7918 of 2011,
C.A. No. 10207 of 2011,
C.A. Nos. 7547-7549 of 2013,
AND
C.A. Nos. 7707-7709 of 2013
J U D G M E N T
V. GOPALA GOWDA, J.

 These groups of appeals have been filed against
the impugned Judgment and order dated 10.12.2010
passed by the High Court of Punjab and Haryana at
Chandigarh. Since the grievance and prayer of all
the appellant-land owners are similar, namely, for
enhancement of compensation in respect of their
acquired land in question, for the sake of
convenience and brevity, we shall refer to the facts
of C.A. No(s). 3982-3989 of 2011 which have been
filed against the Judgment and award passed in
NON REPORTABLEPage 2
2
R.F.A. Nos. 69 of 2007, 70 of 2007, 71 of 2007, 72
of 2007, 288 of 2008, 289 of 2008. All these R.F.A.s
were disposed of in terms of Judgment and award of
even date passed in R.F.A. No. 4538 of 2006, whereby
the High Court enhanced the compensation in respect
of the acquired lands to Rs.9,00,000/- per acre from
Rs.6,60,000/- per acre as was determined by the
Reference Court.
2. The State of Haryana issued a notification dated
22.08.2001 under Section 4 of the Land Acquisition
Act, 1894 (in short ‘the Act’) for acquisition of
45.3 acres of land owned by the appellants situated
at Pehowa, District Kurukshetra, for the public
purpose, namely for construction of road,
development and utilization of land for residential
and commercial purposes. At the time of proposed
acquisition, the nature of the land was agricultural
and mostly vacant. Declaration that the land is
required for a public purpose was made vide
notification under Section 6 of the Act on
25.01.2002. The Land Acquisition Collector (for
short ‘the Collector’) vide award dated 19.11.2003Page 3
3
assessed the market value of the acquired land at
the rate of Rs.6,00,000/- per acre.
3. Being unsatisfied with the award of the
Collector, the appellant-land owners filed
objections claiming a market value of their land at
Rs.60,00,000/- per acre. The Collector made a
reference to the Addl. District Judge, Kurukshetra
which is the Reference Court under Section 18 of the
Act for determination of the correct market value of
the acquired land. The learned Addl. District Judge
vide his order dated 28.08.2006, on the basis of
material evidence on record assessed the value at
Rs.6,60,000/- per acre besides other statutory
benefits under Sections 23(1A), 23(2) and 28 of the
Act.
4. Regular First Appeals were filed by the
appellant-land owners as they were dissatisfied with
the compensation awarded by the Reference Court and
sought for further enhancement of compensation for
the acquired land, whereas the State filed the
appeals praying for reduction of the compensation
before the High Court of Punjab and Haryana atPage 4
4
Chandigarh.

5. After hearing the parties and going through the
evidence on record, the High Court found that there
was significant variation in the sale instances of
lands located close to the acquired land as depicted
in the sale deeds produced by the State as well as
by the land owners. The High Court, vide its
impugned Judgment and award dated 10.12.2010, by
applying a thumb rule, determined and enhanced the
amount of compensation at Rs.9,00,000/- per acre.
Hence, these appeals are filed by the land owners
with prayer for further enhancement of compensation
in respect of their acquired land by determining the
correct market value.
6. The learned counsel for the appellants contended
that the market value of the acquired land has not
been determined by the High Court based on the sale
instances duly produced and exhibited before the
Addl. District Judge. The High Court has erroneously
held that the compensation cannot be awarded for a
large scale of land on the basis of sale instances
of small pieces of land. The learned counsel hasPage 5
5
further contended that the High Court, despite
appreciating that the land pertaining to the sale
deeds produced by the land owners are located just
outside the boundary of the acquired land, has
failed to determine the correct market value of the
acquired land based on the sale instances which are
substantive evidence produced in justification of
the claim. The learned counsel for the appellants
relied on the case of Haridwar Development
Authority. v. Raghubir Singh1 to support their
contention, wherein this Court has held thus:-
 “7. The acquisition with which we
are concerned relates to a
comparatively small extent of village
land measuring about 38 bighas of
compact contiguous land. The High
Court was of the view that the size
and situation did not warrant any
belting and all lands deserved the
same rate of compensation. The
Authority has not placed any material
to show that any area was less
advantageously situated. Therefore
the view of the High Court that
compensation should be awarded at a
uniform rate does not call for
interference.
9. The claimants do not dispute the
appropriateness of the said sale
transaction taken as the basis for
determination of compensation. Their
1
 (2010) 11 SCC 581Page 6
6
grievance is that no deduction or cut
should have been effected in the
price disclosed by the sale deed, for
arriving at the market value, in view
of the following factors: (i) that
the acquired lands were near to the
main Bye-pass Road and had road
access on two sides; (ii) that many
residential houses had already come
up in the surrounding areas, and the
entire area was already fast
developing; and (iii) that the
acquired land had the potential to be
used an urban residential area.”
7. On the other hand, the learned counsel for the
State contended that the High Court after
considering evidence and all relevant materials on
record has already enhanced the amount of
compensation payable to the land owners more than
the actual value of land. The High Court
categorically observed that there is a lot of
variation in the consideration paid, as is depicted
in the sale deeds produced by the State as well as
by the land owners, though they are located close to
the acquired land. The High Court observed that when
on facts it is found that the land owners have not
been adequately compensated, the courts have to
apply a principle thumb rule. Thus, by applying the
above principle the High Court has already enhanced
the compensation from Rs.6,60,000/- to Rs.9,00,000/-
per acre and hence, the same does not warrant any
further enhancement. It is further contended by the
learned counsel that the High Court did not make
deductions towards developmental charges, but
rightly ignored the sale instances of very small
pieces of land, upon which reliance was placed by
the land owners as it had no co-relation with the
market value of the agricultural land in that area.
8. With reference to the above rival legal
contentions, the following points would arise for
consideration of this Court:
i. What should be the appropriate rate of
compensation and extent of deductions towards
developmental charges for the acquired land in
question?
ii. Whether the sale-consideration mentioned in the
sale deeds of small pieces of land, which are
situated close to the acquired land can be
considered for determination of the compensation
in favour of land owners?
iii. What award?
Since all the questions are interrelated, we arePage 8
8
answering all of them simultaneously.
9. We have carefully considered the respective
arguments of the learned counsel for both the
parties with reference to the material evidence on
record with a view to examine as to whether the land
owners are entitled for enhanced compensation on the
basis of sale instances placed by the appellants on
record in relation to the small bits of land
situated near the acquired land. It has been proved
on record that the acquired land is surrounded by
hafed go-downs, marriage places, grain market and
rice shelters. Undoubtedly, the acquired land is
advantageously located in a prime locale, as it is
close to commercial and residential establishments.
Therefore, the acquired land has attained non
agricultural potentiality. The said land also falls
within the municipal limits of Pehowa, besides being
bound by the river Saraswati.
10. Further, it is on record that the land has been
acquired by the State Government for the purpose of
developing commercial, residential and urban estate,
Pehowa. Since the acquired land is situated withinPage 9
9
the developed area of the municipal limits of
Pehowa, there is no doubt that it has acquired
potential value to be utilised for both residential
and commercial purposes in the future.
11. With respect to the general principles that are
to be followed for determining just and reasonable
compensation to land owners for acquisition of their
land, we refer to the case of Smt. Tribeni Devi and
Ors. v. Collector of Ranchi2; in support of the
same, wherein this Court held that:-
“4. The general principles for
determining compensation have been
set out in Sections 23 and 24 of
the Act. The compensation payable
to the owner of the land is the
market value which is determined by
reference to the price which a
seller might reasonably expect to
obtain from a willing purchaser,
but as this may not be possible to
ascertain with any amount of
precision, the authority charged
with the duty to award is bound to
make an estimate judged by an
objective standard. The land
acquired has, therefore, to be
valued not only with reference to
its condition at the time of the
declaration under Section 4 of the
Act but its potential value also
must be taken into account. The
2
(1972)1 SCC 480Page 10
10
sale-deeds of the lands situated in
the vicinity and the comparable
benefits and advantages which they
have, furnish a rough and ready
method of computing the market
value. This, however, is not the
only method. The rent which an
owner was actually receiving at the
relevant point of time or the rent
which the neighbouring lands of
similar nature are fetching can be
taken into account by capitalising
the rent which according to the
present prevailing rate of interest
is 20 times the annual rent. But
this also is not a conclusive
method. This Court had in Special
Land Acquisition Officer, Bangalore
v. T. Adinarayan Setty (1959) Supp.
1 S.C.R. 404, indicated at page 412
the methods of valuation to be
adopted in ascertaining the market
value of the land on the date of
the notification under Section
4(1) which are : (i) opinion of
experts, (ii) the price paid within
a reasonable time in bona fide
transactions of purchase of the
lands acquired or the lands
adjacent to the lands acquired and
possessing similar advantages; and
(iii) a number of years purchase of
the actual or immediately
prospective profits of the lands
acquired. These methods, however,
do not preclude the Court from
taking any other special
circumstances into consideration,
the requirement being always to
arrive as near as possible an
estimate of the market value. In
arriving to a reasonably correct
market value, it may be necessary
to take even two or all of thosePage 11
11
methods into account inasmuch as
the exact valuation is not always
possible as no two lands may be the
same either in respect of the
situation or the extent or the
potentially nor is it possible in
all cases to have reliable material
from which that valuation can be
accurately determined.”
12. A perusal of the record shows that there is
significant variation in the consideration paid in
the array of sale instances submitted by the
parties. Moreover the consideration paid for the
sale instances produced by the appellants are in
relation to small pieces of land which are near the
acquired land. To consider these small pieces of
land as the basis for determining just compensation
to be paid to the appellants for the acquired land
as urged by the learned counsel for the appellants,
we refer to the legal principles laid down by this
Court after examining the relevant provisions of the
Act in catena of cases. In Special Land Acquisition
Officer and Anr. v. M.K. Rafiq Saheb 3 this Court
held as under:-
3
(2011)7 SCC 714
12
“24. It may also be noticed that in
the normal course of events, it is
hardly possible for a claimant to
produce sale instances of large
tracks of land. The sale of land
containing large tracks are
generally very far and few.
Normally, the sale instances would
relate to small pieces of land.
This limitation of sale transaction
cannot operate to the disadvantage
of the claimants. Thus, the Court
should look into sale instances of
smaller pieces of land while
applying reasonable element of
deduction.”
To determine the rate of compensation to be paid for
the acquired land when the same is made on the basis
of sale deeds with respect to smaller pieces of
land, we have to make deductions in order to keep
provision for the developmental expenses that the
acquirer has to incur. The principle of deductions
in the determination of the compensation based on
the sale instances of smaller pieces of land was
established in Smt. Basavva and Ors. v. Special Land
Acquisition4, wherein this Court held thus:-
“3. ….On the principle of deductions
in the determination of the
compensation, this Court in K.
Vasundara Devi v. Revenue Divisional
Officer, LAO AIR 1995 SC 2481 has
4
(1996)9 SCC 640
considered the entire case law and
has held that the Court, in the first
instance, has to consider whether
sales relating to smaller pieces of
lands are genuine and reliable and
whether they are in respect of
comparable lands. In the event the
Court finds that such sales are
genuine and reliable and the lands
have comparable features, sufficient
deduction should be made to arrive at
the just and fair market value of
large tracks of land. The time lag
for real development and the waiting
period for development are also
relevant consideration for
determination of just and adequate
compensation. Each case depends upon
its own facts. For deduction of
development charges, the nature of
the development, conditions and
nature of the land, the land required
to be set apart under the building
rules for roads, sewerage,
electricity, parks, water etc, and
all other relevant circumstances
involved are to be considered.”
(Emphasis laid by this Court)
A similar opinion was held in Bhagwathula Samanna
and others v. Special Tahsildar and Land
Acquisition Officer, Visakhapatnam Municipality 5,
wherein this Court held as under:-
“7. …. In fixing the market value of
a large property on the basis of a
sale transaction for smaller
property, generally a deduction is
given taking into consideration the
5
(1991)4 SCC 506Page 14
14
expenses required for development of
the larger tract to make smaller
plots within that area in order to
compare with the small plots dealt
with under the sale transaction.
13. The proposition that large area
of land cannot possibly fetch a price
at the same rate at which small plots
are sold is not absolute proposition
and in given circumstances it would
be permissible to take into account
the price fetched by the small plots
of land…..”
 (Emphasis laid by this Court)
13. Further, this Court has discussed the basis on
which deductions on the market value should be made
for the development of land, keeping in mind various
factors that influence it. In the case of Viluben
Jhalejar Contractor v. State of Gujarat6, wherein
this Court held thus:-
“20. The amount of compensation
cannot be ascertained with
mathematical accuracy. A comparable
instance has to be identified having
regard to the proximity from time
angle as well as proximity from
situation angle. For determining the
market value of the land under
acquisition, suitable adjustment has
to be made having regard to various
positive and negative factors vis-à-
vis the land under acquisition by
placing the two in juxtaposition. The
positive and negative factors are as
under:
6
(2005)4 SCC 789
15
Positive factors Negative factors
1. smallness of size largeness of area
2. proximity to a road situation in the interior
at a distance from the
road
3. frontage on a road narrow strip of land with
very small frontage
compared to depth
4. nearness to developed area lower level requiring the
depressed portion to be
filled up
5. regular shape remoteness from developed
locality
6. level vis-à-vis land under
acquisition
some special
disadvantageous factors
which would deter a
purchaser
7. special value for an owner
of an adjoining property to
whom it may have some very
special advantage
16
21. Whereas a smaller plot may be
within the reach of many, a large
block of land will have to be
developed preparing a layout plan,
carving out roads, leaving open
spaces, plotting out smaller plots,
waiting for purchasers and the hazards
of an entrepreneur. Such development
charges may range between 20% and 50%
of the total price.”
Thus, when it comes to deductions for development of
land, it can sway back and forth and can only be
determined after carefully considering factors such
as size of land, nearness to developed area, etc. as
discussed in the above case.
14. Keeping in mind the guidelines laid down by
this Court in the catena of cases referred to supra,
we are of the opinion to determine just and
reasonable compensation for the acquired land on the
basis of the sale instances as submitted by the
appellants by taking the average of the sale
considerations mentioned therein that are relevant
to the date of issue of Notification under Section 4
of the Act. However, the same is to be determined
keeping in mind that developmental costs are higher
for larger areas of land as compared to small
portions of land. The rate of compensation must be
subject to deductions towards developmental purpose

that will have to be incurred by the respondent state.

15. Sale instances in relation to small pieces of

land situated near the acquired land can be

considered, subject to (i) reasonable deductions for

developmental costs that will be incurred in the

future as per the cases referred to supra and (ii)

the evidence that these lands can be compared to the

acquired land in terms of its vicinity and the

comparable benefits and advantages.

Before we determine the extent of deductions

to be allowed on the market value of the acquired

land, we must take note of the following details;

firstly, the acquired land is mostly agricultural in

nature and vacant at the moment; secondly, the

determination of the market value of the acquired

land based on the sale instances in relation to

small pieces of land situated near the acquired land

as produced by the land owners; thirdly, the well

settled principle by this Court in a catena of cases

that larger portions of land incur higher

developmental costs compared to smaller portions of

land. Therefore, we are of the opinion based on the

facts and circumstances of the cases on hand and

keeping in mind the legal principles laid down in

the cases referred to supra, to allow 60% deduction

on the market value of the acquired land towards

developmental expenses.

 The following table depicts the relevant sale

deeds as per the date of notification under Section

4 of the Act that are produced as evidence by the

land owners, followed by the deduction towards

developmental expenses and the value per acre of the

acquired land:

Ex. Date Area sold Value Per

acre(Rs.)

P4 17.5.2001 200 sq. yards 48,40,000

P12 20.6.2001 95 sq. yards 33,88,000

P13 11.1.2001 5.37 marlas 24,13,407

P14 11.1.2001 80 sq. yards 24,20,000

Average market value per acre 32,65,351

Deductions for developmental 

expenses

60% 

VALUE PER ACRE

13,06,140

16. However, having regard the fact that the

acquired land have got non-agricultural potentiality

as the same being in close proximity to the already

developed commercial and residential areas, within

the municipal limits of Pehowa & and the significant

variation in the sale considerations of small pieces

of land situated in the proximity of the acquired

land, we are of the view to award a just and

reasonable compensation in respect of the acquired

land at Rs.12,00,000/- per acre. It is the

contention of the appellants that the lands

described in Ex. P4, P12, P13 and P14 are comparable

to the acquired land with respect to their

potentiality, location and conditions, but on

perusal of the evidence on record, we are of the

view that the said contention may be correct to some

extent, but the exact location of the small pieces

of land covered in the sale instances is not

forthcoming. Therefore, the market value of the

acquired land cannot be entirely based at

Rs.13,06,140/- per acre as per the sale instances

mentioned in table above. However, having regard to

the location, potentiality of the acquired land and

other relevant factors and circumstances of the

cases we are of the opinion that the appellant-land

owners are entitled for enhancement of compensation.

17. Hence, in view of the foregoing reasons, the

appellant-land owners will be entitled to just and

reasonable compensation at the rate of

Rs.12,00,000/- per acre. Besides the above amount,

they will also be entitled to the statutory benefits

in accordance with Sections 23(1A) and 23(2) on the

compensation awarded. The appellant-land owners are

also entitled to get interest on the compensation at

the rate of 15% p.a. under the proviso to Section 28

of the Act.

18. All the appeals are allowed accordingly in the

above terms. Since the land of the appellants were

acquired in the year 2002, the respondents are

directed to pay the compensation awarded in favourPage 21

21

of the appellants by way of demand draft after

proper calculation made within eight weeks from the

receipt of copy of this Judgment and Award. There

shall be no order as to costs.

 ………………………………………………………J.

 [V.GOPALA GOWDA]

 ………………………………………………………J.

 [ADARSH KUMAR GOEL]

New Delhi, 

September 26, 2014