land compensation can be fixed basing on Potential of the land - Even though the valuation of the acquired land cannot be fixed as stated in those sale deeds, it could be fixed to its potential at the rate of Rs. 2,500/- per cent as compensation to the claimants.= Manimegalai .- Versus - The Special Tahsildar

1
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NOs. 2294-2295 OF 2011
Manimegalai .... Appellant(s)
Versus
The Special Tahsildar
(Land Acquisition Officer)
Adi Dravidar Welfare .... Respondent(s)
 J U D G M E N T
R.K. Agrawal, J.
1) The above appeals have been filed against the judgment
and order dated 06.11.2009 passed by the High Court of
Judicature at Madras in A.S. Nos. 88 and 601 of 2001 and
Cross Objection No. 27 of 2007 whereby learned single Judge
of the High Court allowed the appeal filed by the respondent
while dismissing the cross objection filed by the appellant
herein.
2
2) Brief facts:
(a) On 15.09.1993, the Government of Tamil Nadu, issued a
Notification under Section 4(1) of the Land Acquisition Act,
1894 (in short ‘the LA Act’) for acquisition of dry lands for the
purpose of providing house sites to 250 landless poor Adi
Dravidars in Acharapakkam Village, Madurandagam Taluk,
Chengai, MGR District, Madras, having an extent of 4.30.0
hectares or 10.62 acres.
(b) The lands belonging to the appellant herein in Survey
Nos. 300/2A2, 300/3, 302/1A, 302/4, 317/1B2, 302/2B2B
and 320/2C2 were part of the said acquisition. The Land
Acquisition Officer, after complying with the formalities
required in connection with the acquisition of land under the
LA Act, passed an Award dated 22.03.1995, determining a
sum of Rs. 400/- per cent as compensation to the appellant
herein.
(c) Being aggrieved by the meager compensation, a
Reference under Section 18 of the LA Act was sought, seeking
market value for the acquired lands at the rate of Rs. 20,000/-
3
per cent before the Subordinate Court, Madurantagam which
was filed as L.A.O.P. No. 120 of 1998. Learned subordinate
Judge, vide judgment and order dated 27.03.2000, granted
compensation at the rate of Rs. 2,500/- per cent together with
30% solatium and 12% additional amount from the date of
issue of Notification dated 15.09.1993.
(d) Respondent herein, being aggrieved by the judgment and
order dated 27.03.2000, filed A.S. No. 88 of 2001 before the
High Court. Learned single Judge of the High Court, vide
judgment and order dated 06.11.2009 allowed the appeal filed
by the respondent herein by reducing the amount of
compensation granted by learned subordinate Judge from Rs.
2,500/- to Rs. 1,670/- with solatium and other statutory
benefits.
(e) Aggrieved by the judgment and order dated 06.11.2009,
the appellant has filed these appeals by way of special leave
before this Court.
3) Heard Mr. V. Prabhakar, learned counsel for the
appellant. None appeared from the side of the respondent and
perused the records.
4
Point for consideration:-
4) Whether in the present facts and circumstances of the
case the decision of the High Court is just and reasonable in
reducing the compensation?
Rival submissions:-
5) Learned counsel for the appellant contended that the
compensation awarded for the acquired lands was grossly
inadequate and abnormally low and does not reflect the
correct market value of the said lands. He further contended
that the market value of the acquired lands at the relevant
time was not less than Rs. 20,000/- per cent. The potential
value of the acquired lands and rise in price were not
considered by the Land Acquisition Officer. Learned counsel
finally contended that the High Court also erred in law while
computing the market value of the lands in question and
interference by this Court is sought for in this regard.
6) It was the stand of the respondent before the courts
below that the entire land belonging to the claimant was not
acquired but a portion of it alone was acquired. The
5
remaining portion could be used by the claimant. Further, the
respondent is not entitled to pay compensation for the
unacquired land. It was further the stand of the respondent
that the compensation awarded to the claimant is already on
the higher side as compared to the compensation awarded to
the lands in vicinity and no interference is sought for by this
Court in this regard.
Discussion:-
7) The Government of Tamil Nadu issued a Notification for
the acquisition of dry lands, also known as punja lands, for
the purpose of providing house sites to the people. Certain
punja lands belonged to the appellant herein in Survey Nos.
300/2A2, 300/3, 302/1A, 302/4, 317/1B2, 302/2B2B and
320/2C2 were also part of the said acquisition. In the
proceedings before the Special Tahsildar, a notice inviting
objections was published in the village on 18.10.1993.
Subsequently, in the enquiry under Section 5A of the LA Act,
the appellant herein submitted her objections to the proposed
acquisition and contended inter-alia that her total holdings
were 6.11 acres and out of the same, an extent of 4.63 acres
6
had been acquired, thereby, leaving a balance of 1.48 acres
and the same would be rendered useless. Hence, she prayed
that even the said extent also be acquired. However, the
respondent herein affirmed the acquisition only in respect of
4.63 acres of land.
8) An Award enquiry was undertaken by the respondent
wherein appellant herein claimed compensation at the rate of
Rs. 20,000/- per cent for the land acquired. The respondent
herein, on the basis of a sale deed dated 15.04.1993, wherein
an extent of 0.26 acres had been sold in Survey No.
294/A/1-B 16, proceeded to determine the value of the land at
Rs. 400/- per cent. In pursuance of the same, the land
measuring 4.63 acres was awarded a sum of Rs. 1,85,200/-
along with 30% solatium to the tune of Rs. 55,560/- and 12%
additional market value to the tune of Rs. 33,540/- thus
totaling to Rs. 2,74,309/-. However, it was held that no
severance compensation would be payable.
9) Aggrieved by the Award, the appellant sought for a
Reference under Section 18 of the LA Act. The appellant thus
made a Reference to the Court of Additional Subordinate
7
Judge, Chengalpattu which was numbered as LAOP No. 54 of
1995. The appellant herein submitted her claim statement on
the file of LAOP No. 54 of 1995 contending that the
compensation awarded by the respondent was grossly
inadequate and abnormally low and did not reflect the correct
market value of the lands and that the correct market value of
the lands acquired was not less than Rs. 20,000/- per cent on
the date of the Notification and that the acquired lands were
situated in the midst of developed areas and is connecting the
major big areas in the vicinity. LAOP No. 54 of 1995, which
was pending on the file of learned Additional Subordinate
Judge, Chengalpattu was transferred to the file of learned
subordinate Judge, Madurantagam and re-numbered as LAOP
No. 120 of 1998. Vide judgment and order dated 27.03.2000,
learned subordinate Judge, granted compensation to the
appellant herein at the rate of Rs. 2,500/- per cent together
with 30% solatium, 12% additional amount from the date of
Notification which was reduced to Rs. 1,670/- per cent with
solatium and other statutory benefits by learned single Judge
8
of the High Court in appeal vide judgment and order dated
06.11.2009.
10) Since the acquired lands are situated in different survey
numbers, different quantum of compensation has been
awarded for the lands so acquired. The general principles
which have been followed in assessing the compensation
payable in all these matters are the location of the lands
sought to be acquired, their potential for development, their
proximity to areas which are already developed and the
exorbitant rise in the value of the lands over the years. In
some of the cases, the authorities have taken recourse to the
comparison method in regard to the sale transactions effected
in respect of similar land in the area under the notifications
close to the date of notification by which the lands of the
appellant were acquired. The courts have also taken recourse
to assessing the value of the lands for the purposes of
compensation on a uniform rate in respect of the lands
acquired, making a special concession in respect of the lands
which are close to the roads and national highways where a
certain amount of development had already taken place.
9
Therefore, value which has to be assessed is the value to the
owner who parts with his property and not the value to the
new owner who takes it over. Fair and reasonable
compensation means the price of a willing buyer which is to be
paid to the willing seller. Though the Act does not provide for
“just terms” or “just compensation”, but the market value is to
be assessed taking into consideration the use to which it is
being put on acquisition and whether the land has unusual or
unique features or potentialities.
11) Similarly, public purpose is not capable of precise
definition. Each case has to be considered in the light of the
purpose for which acquisition is sought for. It is to serve the
general interest of the community as opposed to the particular
interest of the individual. Public purpose broadly speaking
would include the purpose in which the general interest of the
society as opposed to the particular interest of the individual
is directly and vitally concerned. Generally the executive would
be the best judge to determine whether or not the impugned
purpose is a public purpose. Yet it is not beyond the purview
of judicial scrutiny. The interest of a section of the society may
10
be public purpose when it is benefited by the acquisition. The
acquisition in question must indicate that it was towards the
welfare of the people and not to benefit a private individual or
group of individuals joined collectively. Therefore, acquisition
for anything which is not for a public purpose cannot be done
compulsorily.
12) In the case at hand, it is a matter of record that the said
land is fit for using the same for house sites and situated
adjacent to the National highway and is also near to the busy
area with various facilities. During the course of proceeding,
various sale deeds of adjacent lands were brought to our
knowledge. It is also undisputed fact that the entire land
belonging to the appellant herein was not acquired but a
portion of it alone had been acquired. It is the grievance of the
appellant that the acquisition of land to the extent of 4.63
acres out of total holding of 6.11 acres, rendering the balance
land to be an uneconomical holding for the purpose of
continuing agriculture operations. There is no doubt that the
land owners have to suffer when their lands acquired under
11
the LA Act. Hence, they must be compensated properly in lieu
of their lands to do proper justice.
13) Since the point of consideration before this Court is
related to the amount of compensation, we confine ourselves
to that point only. Learned subordinate Judge, vide judgment
and order dated 27.03.2000 rightly held as under:-
“….There is a railway track in between the data land and
acquired land. Therefore, while considering on the said
angle, the nature of the acquired land and the data land are
not similar. On considering the plan marked on behalf of
the claimant and on behalf of the respondent i.e. Exh. B-2, it
is evident that acquired lands are situated in between the
national highway and railway track. The acquired lands are
nearer to the National highway. The respondent has
admitted in the cross examination that the acquired lands
are acquired for housing purpose, as it is fit for using as
housing plots. As the acquired lands are fit for housing
purpose, the claimants have relied on sale transactions that
are sold nearer to the acquired land, i.e. Exh. A-1, a sale
deed dated 20.11.1992 relating to land in S.No. 323, under
which 9374 sq ft. of land has been sold for Rs. 1,03,200/- at
the rate of Rs. 4,919/- per cent. Similarly, under the sale
deed dated 22.03.1993, an extent of 8 cents have been sold
for Rs. 39,150/- at the rate of Rs. 4,893/- per cent. Under
Exh. B-3 sale deed dated 09.07.1993 an extent of 3 ½ cents
in S.No. 326/1W2 and 325/1A4A have been sold for Rs.
22,900/- at the rate of Rs. 6,545/- per cent.
14) Learned subordinate Judge, further held as under:-
13) In Exh.B-4, an extent of 2 cents of land in S. No. 123 has
been sold for Rs. 4,752/-. The above sale transactions took
place prior to the notification issued under Section 4(1) but
the said transactions have been considered and rejected by
the respondents. The reason for rejecting Exh. B-3 is that
the land is a house site situated adjacent to the national
12
highway. While considering the reason for rejection is
acceptable or not, the respondents themselves have admitted
that the acquired lands are fit to be converted as house sites.
As the acquisition of land is for house sites, the non
acceptance of value of the house site and acceptance of the
value of agricultural land in S.No. 294, is not acceptable.
The sale deeds Exh.A-1 to A-4 submitted on behalf of the
claimant are relating to the lands in S.No. 323, 325 and 326,
situate adjacent to National Highway and the value of those
lands are more than Rs. 4,000/- per cent which has been
accepted by the government itself, as market value while
registering the document. As the government has accepted
Rs. 4,000/- per cent as market value, the valuation for the
acquired land at the rate of Rs. 400/- per cent is very low.
The acquired lands are situated 2 or 3 survey numbers away
from the lands relating to the survey numbers in Exh. A-1 to
A-4. Even though the valuation of the acquired land cannot
be fixed as stated in those sale deeds, it could be fixed to its
potential at the rate of Rs. 2,500/- per cent as compensation
to the claimants.”
15) An assessment of the compensation payable for land
acquired must take into account several factors, including the
nature of the land, its present use and its capacity for a higher
potential, its precise location in relation to adjoining land, the
use to which neighbouring land has been put to use, the
impact of such use on the land acquired, and so on. In the
case at hand, the respondent determined the value of the suit
land based on the sale deed dated 15.04.1993 under which 26
cents in S.No. 294/A/1-B16 had been sold at the rate of Rs.
400/- per cent which has happened five months prior to the
date of acquisition of the suit land and that land has been
13
taken as data land. Learned subordinate Judge very correctly
appreciated the fact that there is a railway track between the
data land and the acquired land and in that view of the
matter, both the lands cannot be considered as similar. It is
also evident that the acquired lands are in the midst of a
railway track and national highway having capacity for higher
potential. An extent of land in S.No. 323 which was adjacent
to the suit land was sold at the rate of Rs. 4,919/- per cent on
20.11.1992. Similarly, under the sale deed dated 22.03.1993,
an extent of 8 cents has been sold at the rate of Rs. 4,893/-
per cent. There is no doubt that the lands which are situated
adjacent to the main road will fetch good market value than
the lands which are situated beyond the road. Though learned
single Judge of the High Court was of the opinion that there
was no basis of granting Rs. 2,500/- per cent for the suit
lands, we are of the considered opinion that on the basis of the
alleged sale deeds which were done in the proximity within a
very short time amply prove its value in relation to the
adjoining lands. Learned subordinate Judge was right in
holding the potential value of the suit lands.
14
Conclusion:-
16) In view of the above discussion, we do not find any merit
in the order passed by learned single Judge of the High Court.
We set aside the order passed by the High Court dated
06.11.2009 and restore the order passed by the Reference
Court dated 27.03.2000. Consequently, Civil Appeal No. 2294
of 2011 arising out of A.S. No. 88 of 2001 before the High
Court is allowed and Civil Appeal No. 2295 of 2011 arising out
of Cross Objection No. 27 of 2007 before the High Court is
dismissed with no order as to costs.
...…………………………………J.
 (R.K. AGRAWAL)
…………….………………………J.
 (ABHAY MANOHAR SAPRE)
NEW DELHI;
APRIL 16, 2018. 

Arbitration and Conciliation Act - if the parties are not able to agree on the said procedure, or constitute the Arbitral Tribunal to their mutual satisfaction, either of the party has an option to route to an appropriate remedy under Section 11 of the Act, which provides detailed machinery for appointment of Arbitrator through judicial intervention. = IBI Consultancy India Private Limited- Versus - DSC Limited

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
 CIVIL ORIGINAL JURISDICTION
 ARBITRATION CASE (C) NO. 53 OF 2016
IBI Consultancy India Private Limited …Petitioner(s)
Versus
DSC Limited …Respondent(s)
WITH
 ARBITRATION CASE (C) NO. 63 OF 2016
 ARBITRATION CASE (C) NO. 54 OF 2016
 ARBITRATION CASE (C) NO. 57 OF 2016
 J U D G M E N T
R.K.Agrawal J.
1) The IBI Consultancy India Private Limited-the
petitioner-Company is the Indian subsidiary of the IBI Group
based in Canada. The above petitions, under Section 11(6)
read with Section 11(9) of the Arbitration and Conciliation Act,
1996 (hereinafter referred to as ‘the Act’), have been filed by
the petitioner-Company as well as by the IBI Group for
appointment of an Arbitrator to adjudicate the disputes that
2
have arisen between the parties in connection with the
contracts in question.
2) The petitioner-Company has filed two petitions for the
appointment of Arbitrator and its parent company viz., IBI
Group has also filed two petitions of the same nature. Since
the point of consideration is same in all these four petitions,
purpose would be served if we moot the case of either of the
petition and would be disposed off by this common judgment.
Arbitration Case No. 53 of 2016
3) The petitioner-Company is a multi-disciplinary company
engaged in the business of providing system integration and
maintenance service for Toll and Traffic Management Systems
whereas the DSC Limited, the respondent-Company is a
Company registered under the Companies Act, 1956 having
two subsidiary companies. First subsidiary Company of the
respondent-Company is the Lucknow Sitapur Expressway
Limited (LSEL) which is a special purpose vehicle (SPV) of the
respondent-Company and has signed a Concession Agreement
with the National Highways Authority of India (NHAI) for
developing Lucknow-Sitapur Highway Project (LSEL Project)
3
for widening the existing 2-Lane Road to 4-Lane dual
carriageway between Km 413.200 to Km 488.270 on NH-24 in
the State of Uttar Pradesh. Second subsidiary Company of the
respondent-Company is Raipur Expressway Limited (REL),
which is also a special purpose vehicle (SPV) of the
respondent-Company and has signed a Concession Agreement
with the NHAI for developing the Raipur-Aurang Highway
Project (REL Project) for widening the existing 2-lane Road to
4-Lane dual carriageway between Km 239 to Km 281 on NH-6
in the State of Chhattisgarh.
4) Vide e-mail dated 16.02.2010, the respondent-Company
sent a Request for Proposal (RFP) to the petitioner-Company,
inviting technical and commercial proposal for their LSEL and
REL Projects. Vide letter dated 07.06.2010, the
petitioner-Company had given a proposal to execute the
contract for installation, erection and commissioning of the
Toll Collection and Traffic Control Equipments at NH-24. The
respondent-Company, vide letter dated 14.06.2010, accepted
the said proposal. Pursuant thereto, a Contract Agreement
dated 30.08.2010 was executed between the parties. The
4
value of the Contract was mutually finalized at Rs.
1,55,20,700.00 in pursuance of the Contract Agreement. In
total, the IBI group and the petitioner-Company had entered
into 6 (six) separate contracts for the respective LSEL and REL
Projects with the respondent-Company.
5) During completion of the projects, the
respondent-Company defaulted in releasing the agreed
payment to the petitioner-Company and the IBI Group.
Though several verbal and written communication were
exchanged between the parties to this effect, the
respondent-Company could not release the outstanding
payment. On 06.09.2012, a legal notice was sent to the
respondent-Company by the IBI Group as well as by the
petitioner-Company for the recovery of outstanding payment
for all the contracts. Further, on 12.06.2013, a reminder for
outstanding payment was sent to the respondent-Company.
6) On 24.04.2014, a legal notice for invoking Arbitration
Clause and appointment of Arbitrators was sent to the
respondent-Company and the name of Mr. Debashish Moitra,
Advocate was suggested as a Sole Arbitrator, however, there
5
was no reply from the other side. The IBI Group and the
petitioner-herein filed petitions under Section 11 of the Act
before the High Court being Arbitration Petition Nos. 443, 448,
444 and 449 of 2014 before the High Court of Delhi at New
Delhi. Learned single Judge of the High Court, vide order
dated 24.02.2015, disposed of the petitions while holding that
since one of the parties to the petition is an entity incorporated
outside India, therefore, the arbitration of the dispute
involving such an entity would be an ‘international commercial
arbitration’ within the meaning of Section 2(1)(f) of the Act and
for seeking appointment of an Arbitrator in a dispute involving
such an entity, an application will have to be filed before the
Supreme Court under Section 11(9) of the Act. The petitioners
herein have therefore invoked the jurisdiction of this Court by
filing the above petitions.
7) The first and the foremost thing is the existence of an
arbitration agreement between the parties to the petition
under Section 11 of the Act and the existence of dispute(s) to
be referred to Arbitrator is condition precedent for appointing
an Arbitrator under Section 11 of the Act. It is also a well
6
settled law that while deciding the question of appointment of
Arbitrator, court has not to touch the merits of the case as it
may cause prejudice to the case of the parties. The scope
under Section 11(6) read with Section 11(9) is very limited to
the extent of appointment of Arbitrator. This Court has to see
whether there exists an Arbitration Agreement between the
parties and if the answer is affirmative then whether the
petitioner has made out a case for the appointment of
Arbitrator.
8) It is worth mentioning that the position after the
insertion of sub-Section 6(A) of Section 11 of the Act dated
23.10.2015 has been changed. The extent of examination is
now confined only to the existence of the Arbitration
Agreement. At this juncture, it is pertinent to set out Article-1
as well as Clause 3.14 of the Contract Agreement dated
30.08.2010 which are as under:-
7
“Article-1
Contract Documents
The following document shall constitute the Contract
between the client and the contractor, and each shall be
read and construed as an integral part of the Contract;
(i) This Contract Agreement and Appendices hereto
(ii) Letter or indent ref no. No LSEL/Tolling/IBI/HO-2 dated
14th June 2010…..”
“Clause 3.14
Arbitration (as mentioned in ref. No LSEL/Tolling/IBI/HO-1
dated 14th June 2010)
1. In the event of any dispute or difference arising out or
touching upon any of the terms and conditions of this
contract and /or in relation to the implementation or
interpretation hereof, the same shall be resolved initially by
mutual discussion and conciliation but in the event of failure
thereof, the same shall be referred to an independent
arbitrator mutually agreed by the two parties. The decision
of the arbitrator shall be final and binding upon the parties.
The arbitration shall be in Delhi and the arbitrator shall give
his award in accordance with “The Arbitration and
conciliation Act, 1996”.
2. In the event of arbitrator dying, neglected or refusing to
act or resigning or being unable to act for any reason or his
award being set aside by the court for any reason the parties
will mutually agree another to act as Arbitrator.
 (Emphasis supplied by us)”
9) On a careful perusal of Article-1 as well as Clause 3.14 of
the Contract dated 30.08.2010 along with the Letter of Indent
dated 14.06.2010, it is evident that the letter dated
14.06.2010 is a part of the Contract and it shall be read and
construed as an integral part of the Contract. Therefore, the
contention of the respondent-Company that there does not
8
exist any arbitration agreement between the parties is not
sustainable in the eyes of law. We are of the considered view
that Arbitration clause exists in the Contract and we hold this
point in favour of the petitioner-Company.
10) It is a cardinal principle of the Arbitration and
Conciliation Act that the parties are free to decide the number
of arbitrators, provided, it is an odd number, as well as the
procedure for appointing them. However, if the parties are not
able to agree on the said procedure, or constitute the Arbitral
Tribunal to their mutual satisfaction, either of the party has
an option to route to an appropriate remedy under Section 11
of the Act, which provides detailed machinery for appointment
of Arbitrator through judicial intervention.
11) Accordingly, Justice Amitava Roy, a former Judge of this
Court, is appointed as the sole Arbitrator to adjudicate the
disputes between the parties on such fees he may fix.
Nevertheless to say, the said appointment is subject to the
necessary disclosure being made under Section 12 of the Act
and the Arbitrator not being ineligible under Section 12(5) of
the Act. 
9
12) The petitions as well as interlocutory application, if any,
are disposed of accordingly.
..…………….………………………J.
 (R.K. AGRAWAL)
.…....…………………………………J.
 (S. ABDUL NAZEER)
NEW DELHI;
APRIL 16, 2018. 

a cut at the rate of 10 % is very reasonable towards development of acquired land = Mohammad Yusuf and Others Etc. Etc. - Versus- State of Haryana and Others.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.3807-3825 OF 2018
(Arising out of Special Leave Petition (C) No. 35281-35299
OF 2016)
Mohammad Yusuf and Others Etc. Etc. .... Appellant(s)
Versus
State of Haryana and Others. .... Respondent(s)
WITH
CIVIL APPEAL No.3826 OF 2018
(Arising out of Special Leave Petition (C) No. 3585 OF 2017
AND
CIVIL APPEAL Nos. 3827-3859 OF 2018
(Arising out of Special Leave Petition (C) Nos. 4413-4445 OF 2017
J U D G M E N T
R.K.Agrawal,J
1) Leave granted.
2) The above appeals have been filed against the impugned
common judgment and order dated 03.06.2016 passed by
learned single Judge of the High Court of Punjab and Haryana
at Chandigarh in R.F.A. No. 6617 of 2012 (O&M) and other
1
connected matters whereby the High Court partly allowed the
appeal filed by the appellants herein while dismissing the
cross appeals of the respondent-State.
3) Brief Facts:-
(a) The Government of Haryana, Revenue Department, vide
Notification under Section 4 of the Land Acquisition Act, 1894
(hereinafter referred to as ‘the LA Act’) dated 18.10.2005 has
notified the land of Village Ferozpur Namak, Tehsil Nuh,
District Mewat for the construction of Mini Secretariat at
District Mewat, admeasuring 372 karnals 2 marlas (i.e. 46
acres 4 karnals and 2 marlas). Consequently, the Government
of Haryana, vide Notification dated 25.05.2006, issued
declaration that the land is required for a public purpose.
(b) Notice under Section 9 of the LA Act was issued to all the
landholders and interested persons. The Land Acquisition
Collector (LAC), Nuh, Mewat, vide Award No. 1 dated
05.11.2007 assessed the market value of the acquired land at
the uniform rate of Rs 16 lakhs per acre along with 30%
solatium and 12% additional amount to the landholders.
2
(c) Being aggrieved, the appellants herein filed a Reference
under Section 18 of the LA Act which was registered as LA
Case No. 394/01.12.10/19.09.11 before the Land Acquisition
Collector-cum-SDO(C) Nuh, Mewat. On 28.08.2012, the
Reference Court, enhanced the compensation to Rs. 72,00,000
lakhs per acre and applied the development cut at the rate of
55% and a further cut of 5% on account of waiting period,
totaling to 60%. Thus, the compensation was determined at
Rs. 28,80,000/- per acre along with the statutory benefits.
(d) Being not satisfied, the appellants herein preferred a
Regular First Appeal (RFA) being No. 6617 of 2012 alongwith
other set of appeals before the High Court. Respondent-State
also filed cross appeals before the High Court. Learned single
Judge of the High Court, vide common judgment and order
dated 03.06.2016, partly allowed the appeals of the
landholders by enhancing the compensation to Rs. 64,80,000
per acre along with other benefits while dismissing the cross
appeals filed by the respondent-State.
3
(e) The landholders, being aggrieved by the judgment and
order dated 03.06.2016, has preferred these appeals by way of
special leave before this Court.
4) Heard Mr. R.S. Suri, learned senior counsel for the
appellants and Mr. P.S. Patwalia, learned senior counsel for
the respondent-State and perused the records.
Point(s) for consideration:-
5) The short point of consideration arises before this Court
is as to whether in the light of present facts and
circumstances of the case, any interference is sought for by
this Court?
Rival contentions:-
6) At the outset, learned senior counsel for the appellants
argued that the High court failed to consider that the land
acquired had great future potential for being developed as
residential as well as commercial area, hence, the
compensation ought to have been awarded accordingly.
Learned senior counsel further contended that the assessment
of the compensation has not been done considering the
following factors like potential value, location of land, future
4
prospects, the development of land in question and the likely
injury to be sustained by the appellants herein for loss of their
future earnings etc. It was also contended that the High Court
has not considered the facts that the acquired land has
immense potential which is situated at a distance of half
kilometers from the Nuh City, and also situated within 30 kms
from the cyber city and could be directly approachable from
Indira Gandhi International Airport, New Delhi.
7) Further, the Reference Court allowed a cut of 55% on
account of development for raising infrastructural activities
and other amenities and a cut of 5% on account of waiting
period which was reduced by the High Court to 10% which is
also not in accordance with law vis-à-vis the fact that the
acquired land has all the infrastructural facilities on the date
of Notification.
8) Per contra, learned senior counsel for the
respondent-State submitted that the High Court has rightly
determined the compensation while condoning the potentiality
of the area and also after having regard to the sale deeds of
adjoining areas and a cut of 10% on the assessed value of the
5
acquired land has been applied in accordance with law
vis-à-vis the fact that the acquired land has all the
infrastructural facilities on the date of Notification.
9) Learned senior counsel further submitted that the
compensation awarded is adequate in terms of principles
incorporated under Section 23 of the LA Act as also
interpreted by this Court in a catena of cases. Learned senior
counsel finally contended that the amount of compensation
has been awarded considering the factors like potential value
location of land, future prospects, the development of land in
question and the likely injury to be sustained by the
appellants, if any, and no interference is sought for by this
Court in the matter.
Discussion:-
10) The intention behind the enactment of the Land
Acquisition Act, 1894 was to acquire land for welfare purposes
and to compensate the owners adequately. It is well known
fact that the Right to Property is a Constitutional Right (earlier
it was a Fundamental Right until 1978) as provided under
Article 300 A of the Constitution of India. The term
6
“compensation” was interpreted by this Court in a number of
cases that it is to be “a just equivalent of what the owner has
been deprived of.” Hence, the acquisition must pass the test of
compensation being reasonable, just and fair. The term justice
as enshrined in the preamble includes justice in economic
terms and the term economic justice in itself mandatorily
requires compensation to be adequate.
11) In a catena of cases, this Court has held that
compensation should be adequate and there must be no
injustice with the land owners since they stand deprived from
their very vital right i.e., Right to Property. At the same time, it
is also to be kept in mind that no hypothetical view shall be
taken as it may be harmful to the public exchequer in case of
acquisition for public purposes. Hence, courts must maintain
balance between both the parties. In the cases of land
acquisitions, generally courts confronted with the short but
important question that what ought to be the ideal market
value for the acquired land. This Court, in Major General
Kapil Mehra and Ors. vs. Union of India & Anr. (2015) 2
SCC 262 while dealing with the matter held as under:-
7
“10. Market Value: First question that emerges is what would
be the reasonable market value which the acquired lands are
capable of fetching. While fixing the market value of the
acquired land, the Land Acquisition Officer is required to
keep in mind the following factors:- (i) existing geographical
situation of the land; (ii) existing use of the land; (iii) already
available advantages, like proximity to National or State
Highway or road and/or developed area and (iv) market value
of other land situated in the same locality/village/area or
adjacent or very near to the acquired land.”
12) For the purpose of deciding compensation of land in case
of acquisition, Section 23 of the LA Act is the fundamental
section which says that some vital factors to be considered
while determining compensation. At this juncture, it is
pertinent to re-produce the said section herein below:
23. Matters to be considered in determining
compensation.-(1) In determining the amount of
compensation to be awarded for land acquired under this
Act, this court shall take into considerationFirst,
the market value of the land at the date of the
publication of the notification under section 4,sub-section(1);
Secondly, the damage sustained by the person interested, by
reason of the taking of any standing crops or trees which
may be on the land at the time of the Collector’s taking
possession thereof;
Thirdly, the damage ( if any) sustained by the person
interested, at the time of the Collector’s taking possession of
the land, by reason of severing such land from his other
land;
Fourthly, the damage (if any) sustained by the person
interested, at the time of Collector’s taking possession of the
land ,by reason of the acquisition injuriously affecting his
other property, movable or immovable, in any other manner,
or his earnings;
8
Fifthly , if , in consequence of the acquisition of the land by
the Collector, the person interested is compelled to change
his residence or place of business, the reasonable expenses
(if any) incidental to such change; and
Sixthly, the damage (if any) Bonafide resulting from
diminution of the profits of the land between the time of the
publication of the declaration under section 6 and the time
of the Collector’s taking possession of the land.
13) On a plain reading of Section 23 of the LA Act, it is
evident that the compensation has to be calculated according
to the value of the land to the owner and the question to be
considered is whether the person from whom the land was
taken was to lose by having it taken from him. The probable
use to which the land might be put was necessarily an element
to be taken into consideration for calculating the
compensation of acquired land. The land owners get
compensation on the basis of the value of the land, in its
actual condition at the time of the publication of the
Notification under Section 4 of the LA Act.
14) In the instant case, the appellants contented and invited
our attention to the fact that the valuation of the acquired
land should be assessed on urban land criteria since land had
all basic amenities like water, sewer, electricity and telephone
9
lines were already present on the date of Notification under
Section 4 of the LA Act. However for being an urban area,
there must be some other facilities like commercial activities,
population growth, education activities, paying capacity of
people, healthy public transport, infrastructure etc. It is also a
well established rule that in the cases of calculation of
compensation, there cannot be a straight jacket formula,
hence, each case has to be dealt in the light of circumstances
of each case. Common sense is the best and most reliable
guide.
15) It is a well settled law that when there are several
exemplars with reference to similar land, usually the highest
of the exemplars which is a bonafide transaction, will be
considered. In the present case, the Reference Court, in Para
20 held as under:-
“…..Here in this case, applying the said authority to the facts
and circumstances of this case, I am of the considered
opinion that exemplar sale deed Exhibit P1 hold the fields in
preference to the other sale deeds. Reason for exclusion of
sale deeds Exhibit P2 to P3 is that sale deed Exhibit P1 is of
the highest land 1 kanal 6 marlas and is of the highest
amount, which is very close to the date of notification
because vide sale deed Exhibit P1 dated 5.10.2005, land
measuring 1 kanal 6 Marlas, whose nature was “Narmot”,
10
situated in village Ferozpur Namak, Tehsil Nuh, was sold for
a sale consideration of Rs. 11,70,000/- by one Mahmood son
of Inshe Khan in favour of Smt. Hanisha Khatoon wife of
Mohammad Iqbal of the same village. The value per acre of
the land, as per the said sale deed is calculated as Rs.
72,00,000/- per acre. The said sale deed was executed on
5.10.2005 whereas notification under Section 4 of the Act for
the acquired land was published on 18.10.2005 and thus,
this sale deed Exhibit P1 is proximate to the point of time
from the date of issuance of notification under Section 4 of
the Act. No iota of evidence could be led by the respondents
to rebut the veracity of this sale deed. There is nothing on
record to show that the sale deed is not Bonafide and a
genuine transaction. In fact despite availing number of
opportunities, the respondents failed to lead any evidence to
rebut the evidence led by the petitioners.”
16) On a perusal of the Map of the concerned area which is
produced on record by the appellants, we find that the
acquired land in the present case falls within the control area
of Nuh and newly constructed Nalhar Medical College is at a
distance of 3-4 kms from the acquired land. We also find that
the said acquired land is situated on Palwal Road from one
side and on Delhi Road on the other. However, it is a matter of
record that such acquired land is far away from D.C. office
and other offices. Also, Bus Stand as well as Nuh Town is
situated far away from the acquired land. Hence, acquired
land of Firozpur village in such terms cannot be said to be
situated very near to the urban area of Nuh Town. The
11
appellants produced various sale deeds for the perusal of this
Court. The vital sale deed dated 05.10.2005, wherein land
admeasuring 1 kanal 6 Marlas, situated in village Ferozpur
Namak, Tehsil Nuh, was sold for a sale consideration of Rs.
11,70,000/- by one Mahmood s/o Inshe Khan in favour of
Smt. Hanisha Khatoon w/o Mohammad Iqbal of the same
village. If we calculate the value of per acre in terms of the
above sale deed then it stands at Rs 72 Lakhs per acre. It is
pertinent to mention here that the date of this sale deed is
05.10.2005 which is proximate to the date of Notification i.e.,
18.10.2005 under Section 4 of the LA Act. In the present
case, after having regard to the circumstances of the case and
perusal of the sale deeds of adjourning area, we are of the
considered view that the compensation granted at the rate of
Rs. 72 lacs per acre is as per the law and no injustice has
been occurred to the appellants herein.
17) Now coming to the point of development charges which
applied by the High court @10% on the assessed value of
acquired land. Appellants herein contended that the rate of
deduction as applied by the High Court was not required as
12
the acquired land is situated in the area already developed and
have all the potential for development. It is a matter of record
that the Reference Court determined 60% (55% as
development charges and 5% for waiting period) in totality
towards development charges which later on in appeal reduced
by the High Court to 10%. Deductions may be made for a
variety of reasons, which may differ in different cases.
However, in the backdrop of judicial precedents on this issue,
it is well settled position that all deductions should not
cumulatively be exceeded the upper benchmark of 75% and at
the same time, it should be kept in mind that no hypothetical
view shall be taken in order to calculate the percentage of the
development charges.
18) In the present case, the appellants contended that the
acquired land has all basic facilities such as water, electricity,
sewer, telephone etc which respondent-State has not disputed.
These are, however, not enough to meet the purpose of
acquisition. To make such land suitable for the acquisition
purpose i.e. for the construction of Mini Secretariat at Nuh,
some further development is sine qua non. For calculating the
13
percentage of development charges, various factors need to be
taken into consideration such as location of land, facilities
available in nearby area, size of the land, purpose of
acquisition etc. The present acquired land of Firozpur Namak
village which is located at some distance from the Nuh Town
needs to be developed in proper manner like construction of
better and wide roads etc., to make it suitable for the
acquisition purposes. The fact that facilities already available
such as sewer, electricity etc., seems to be taken into
consideration properly while reducing the development
charges by the High Court from 60% to 10%.
19) In the case at hand, after giving our thoughtful
consideration to the facts and circumstance noticed
hereinabove, we are of the considered view that a cut at the
rate of 10 % is very reasonable towards development of
acquired land as some further development would obviously
be required to make it fit for the purpose for which it was
acquired.
14
20) In view of above discussion, we are not inclined to
interfere with the impugned decision of the High Court.
Accordingly, the appeals are hereby dismissed leaving parties
to bear their own cost.
………….………………………J.
 (R.K. AGRAWAL)
.…....……..………………………………J.
(S. ABDUL NAZEER)
NEW DELHI;
APRIL 16, 2018.
15

Constitutional validity of certain Amendments1 made to the Salaries, Allowances and Pensions of Members of Parliament Act, 1954 (hereinafter referred to as “the Act”). - LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S.N. SHUKLA & ANOTHER - Versus - UNION OF INDIA THROUGH ITS SECRETARY & OTHERS

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.  3798 OF 2018
(Arising out of Special Leave Petition (Civil) No.9584 of 2017)
LOK PRAHARI, THROUGH ITS
GENERAL SECRETARY S.N. SHUKLA & ANOTHER ... Appellants
             Versus
UNION OF INDIA
THROUGH ITS SECRETARY & OTHERS     ... Respondents
J U D G M E N T
Chelameswar, J.
1. Leave granted.
2. This appeal arises out of a Writ Petition that challenged the
Constitutional   validity   of   certain   Amendments1
  made   to   the
Salaries, Allowances and Pensions of Members of Parliament Act,
1954   (hereinafter   referred   to   as   “the   Act”).     The   provisions
challenged relate to the payment of pension and other facilities to
1 By the Amendment Act 2003, Act 9 of 2004, Amending Act No. 40 of 2006 and Amending Act 37 of 2010.
1
members of Parliament (hereinafter referred to as “MPs”) and exmembers
of Parliament (hereinafter referred to as “ex­MPs”), and
their   spouses/companions/dependents   (collectively   hereafter
referred   to   as   “ASSOCIATES”).     The   1st  Appellant   sought   the
following   prayers,  inter   alia,   in   the   Writ   Petition   before   the
Allahabad High Court:
1. “Declare that the provisions of various amending Acts to Act
30 of 1954, and particularly those of the Amending Act 9 of
2004, and Amending Act No. 40 of 2006 and Amending Act
37   of   2010,   providing   for   pension/family   pension   to   exMPs/dependents,
travel facilities to spouse and other nonmembers,
(in addition to the companion) and ex­MPs, as well
as continuation of facilities, regarding unutilized quotas of
telephone calls electricity and water units are ultra vires of
the Constitution and the original Act.
2. Issue a mandamus to the opposite parties 1 to 4 to stop
forthwith   payment   of   pension/family   pension   to   exMPs/dependents,
and provision of other facilities in 1 above.
3. Order recovery of illegal pension/family pension from the
recipients thereof.”
3. The   High   Court   dismissed   the   writ   petition   negating   all
contentions raised by the 1st  Appellant herein, holding that the
issue is no longer res integra in view of the Judgment in Common
Cause, A Registered Society v. Union of India2
(hereafter referred
to as “Common Cause”) wherein this Court held that Parliament is
2
(2002) 1 SCC 88
2
competent to legislate on pensions for ex­MPs and as a corollary it
has   the  power to  prescribe  any  condition  subject  to  which   the
pension may be paid. We are in total agreement with the conclusion
of the High Court on the question of legislative competence.
4. The question which remains to be answered is whether any of
the impugned amendments which create various rights in favour of
ex­MPs & their ASSOCIATES and certain other facilities to MPs are
violative of Article 14 of the Constitution of India, 1950 as being
discriminatory. It was the case of the Appellant that the Common
Cause case is silent in this respect. However, the High Court took
the view that the attack on Article 14 is foreclosed by  Common
Cause.
5. It is argued before us that  Common Cause  took note of the
Petitioner’s argument therein3
 that the Act is violative of Article 14,
however, there was neither any discussion on the issue nor any
binding decision on the question.4
   Therefore, it is submitted that
3
 “5. Reference was made by the Petitioner in WP (C) No. 246 of 1993, appearing in person, to the provisions of
Article 14 and it was submitted that there was discrimination in favor of Members of Parliament by giving them
pension when, unlike Judges, they were not subject to the process of impeachment.”
4
“7. The issue before us is squarely one of competence, namely, the competence of Parliament to enact the said
Section 8-A. We need not go into Entry 73 of List I for we are in no doubt that such competence is conferred upon
Parliament by the residuary Entry 97 of List I, and there is no provision in Article 106 or elsewhere that bars the
3
the   High   Court   erred   in   concluding   that   the   challenge   to   the
impugned provisions is impermissible.   We propose to limit our
examination   in   the   present   case   to   the   question   of   the
constitutionality   of   various   Amendments   brought   after   the
Common Cause case on grounds other than legislative competence.
6. To answer the same, we may start with the analysis of the
various   provisions   of   the   Constitution   creating   various
constitutional offices because some of these provisions contemplate
the   possibility   of   the   payment   of   pension   in   respect   to   certain
Constitutional   offices,   while   no   express   reference   is   made   with
regard to various other offices created by the Constitution.
7. Article 59(3)5
  specifies that the President shall be entitled to
such   ‘emoluments,   allowances   and   privileges   as   may   be   determined   by
Parliament   by   law’ while Article 158(3)  specifies the  same for  the
Governor. Neither of the Articles make any reference to the payment
of pension. However, Section 2 of the President’s Emoluments and
payment of pension to Members of Parliament.”
5Article 59(3). Conditions of President’s office.- The President shall be entitled without payment of rent to the use
of his official residence and shall be also entitled to such emoluments, allowances, and privileges as may be
determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and
privileges as are specified in the Second Schedule.
4
Pension Act, 1951 provides for the payment of pension and other
facilities to the retiring President.6
8. Article   75(6)7
  and   Article   164(5)   respectively   speak   of   the
salaries and allowances of Ministers, which Parliament and the
State Legislature may determine by law.
9. Articles 978
 and 1869
 provide for the payment of ‘salaries and
allowances’   of   the   Chairman   and   Deputy   Chairman   and   the
Speaker   and   the   Deputy   Speaker   of   Parliament   and   State
Legislatures.   The   Vice­President's   Pension   Act,   1997   has   an
6 Section 2. (1) Pension to retiring Presidents. There shall be paid to every person who ceases to hold office as
President, either by the expiration of his term of office or by resignation of his office, a pension of 6 one lakh twenty
thousand rupees per annum for the remainder of his life. [ (2) Subject to any rules that may be made in this behalf,
every such person shall, for the remainder of his life, be entitled(a)
to the use of a furnished residence (including its maintenance), without payment of rent, a telephone and
a motor- car, free of charge or to such car allowance as may be specified in the rules-,
(b) to secretarial staff consisting of a Private Secretary, a Personal Assistant and a Peon, and office expenses
the total expenditure on which shall not exceed twelve thousand rupees per annum;
(c) to medical attendance and treatment free of charge.
(d) to travel anywhere in India, accompanied by one person, by 9 highest class by air, rail or steamer.
Explanation.-- For the purposes of this sub- section" residence" shall have the meaning assigned to it in the Salaries
and allowances of Ministers Act, 1952 ]
7Article 75. Other Provisions as to Ministers- (6) The salaries and allowances of Ministers shall be such as
Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the
Second Schedule.
8Article 97. Salaries and allowances of the Chairman and Deputy Chairman and the Speaker and Deputy
Speaker.- There shall be paid to the Chairman and the Deputy Chairman of the Council of States, and to the Speaker
and the Deputy Speaker of the House of the People, such salaries and allowances as may be respectively fixed by
Parliament by law and, until provision in that behalf is so made, such salaries and allowances as are specified in the
Second Schedule.
9Article 186. Salaries and Allowances of the Speaker and Deputy Speaker and the Chairman and Deputy
Chairman.- There shall be paid to the Speaker and the Deputy Speaker of the Legislative Assembly, and to the
Chairman and the Deputy Chairman of the Legislative Council, such salaries and allowances as may be respectively
fixed by the Legislature of the State by law and, until provision in that behalf is so made, such salaries and
allowances as are specified in the Second Schedule.
5
identical provision with respect to the payment of pension and post
retirement facilities as are provided to the President.10
10. Article 106 of the Constitution stipulates that MPs shall be
entitled to receive ‘salaries and allowances’ to be determined by
Parliament through legislation.11  There is no express reference to
the payment of pension.
11. On the other hand, the provisos to Article 125(2)12 and Article
221(2)13 respectively make an express reference to the payment of
pension to judges of the Supreme Court and the High Courts.
10 Section 2. Pension to retiring Vice-Presidents.—(1) There shall be paid to every person who ceases to hold
office as Vice-President, either by the expiration of his term of office or by resignation of his office, a Pension 1 [at
the rate of fifty per cent of the salary of the Vice-President] per month, for the remainder of his life
Provided that such person shall not be entitled to receive any pension during the period he holds the office
of the Prime Minister, a Minister or any other office or becomes a Member of Parliament and is in receipt of salary
and allowances which are defrayed out of the Consolidated Fund of India or the Consolidated Fund of a State.
(1A) The spouse of a person who dies —
(a) while holding the office of Vice-President, or
(b) after ceasing to hold office as Vice-President either by the expiration of
his term of office or by resignation of his office, shall be paid a family pension at the rate of fifty per cent
of pension as is admissible to a retiring Vice-President, for the remainder of her life.
11Article 106.Salaries and Allowances of Members.-Members of either House of Parliament shall be entitled to
receive such salaries and allowances as may from time to time be determined by Parliament by law and, until
provision in that respect is so made, allowances at such rates and upon such conditions as were immediately before
the commencement of this Constitution applicable in the case of members of the Constituent Assembly of the
Dominion of India
12Article 125. Salaries, etc., of Judges.- (2) Every Judge shall be entitled to such privileges and allowances and to
such rights in respect of leave of absence and pension as may from time to time be determined by or under law made
by Parliament and, until so determined, to such privileges, allowances and rights as are specified in the Second
Schedule:
Provided that neither the privileges or the allowances of a Judge nor his rights in respect of leave of
absence or pension shall be varied to his disadvantage after his appointment.
13Article 221. Salaries, etc., of Judges.- (2) Every Judge shall be entitled to such allowances and to such rights in
respect of leave of absence and pension as may from time to time be determined by or under law made by
Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule:
Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall
be varied to his disadvantage after his appointment.
6
12. Article 148(3)14  provides that salary and other conditions of
service of the Comptroller and Auditor­General shall be as may be
determined by Parliament by law. The proviso thereto contains a
reference   to   the   payment   of   pension.   The   Comptroller   and
Auditor­General’s (Duties, Powers and Conditions of Service) Act,
1971 contains various provisions for the payment of pension on
his/her demission of office.15
13. Article   32216  declares   that   the   expenses   of   Public   Service
Commissions shall be charged on the Consolidated Fund of India
and   such   expenses   include   “salaries,   allowances   and   pensions”
payable to or in respect of the members or staff of the Commission.
14Article 148. Comptroller and Auditor-General of India.- (3). The salary and other conditions of service of the
Comptroller and Auditor-General shall be such as may be determined by Parliament by law and, until they are so
determined, shall be as specified in the Second Schedule:
Provided that neither the salary of a Comptroller and Auditor-General nor his rights in respect of leave of
absence, pension or age of retirement shall be varied to his disadvantage after his appointment.
15Section 6. Pension.- A person who demits office as the Comptroller and Auditor-General by resignation shall, on
such demission, be eligible to a pension at the rate of two thousand rupees per annum for each completed year of his
service as the Comptroller and Auditor-General:
Provided that in the case of a person referred to in sub-section (1) or sub-section (3), the aggregate amount
of pension admissible under this sub-section together with the amount of pension including the commuted portion, if
any, of his pension, and the pension equivalent of the retirement gratuity if any which may have been admissible to
him under the rules for the time being applicable to the Service to which he belonged immediately before he
assumed office as the Comptroller and Auditor-General, shall not exceed fifteen thousand rupees per annum or the
higher pension referred to in proviso to sub-section (2) or sub-section (3), as the case may be.
16Article 322. Expenses of Public Service Commissions
The expenses of the Union or a State Public Service Commission, including any salaries, allowances and
pensions payable to or in respect of the members or staff of the Commission, shall be charged on the Consolidated
Fund of India or, as the case may be, the Consolidated Fund of the State.
7
14. Article 324(5)17 stipulates that “conditions of service and tenure of
office of the Election Commissioners shall be such as the President may by rule
determine.” Though the Constitution is silent in regard to payment of
pension to the Election Commissioners, Section 6 in the Election
Commission (Conditions of Service of Election Commissioners and
Transaction of Business) Act, 1991 makes provision for payment of
pension to Election Commissioners which is equal to the pension
payable to a Supreme Court Judge.18
15. From the Constitutional scheme it can be seen that no express
mandate exists for the payment of pension with respect to any one
of   the   Constitutional   offices.   However,   Articles   dealing   with   the
Judges   of   the   Supreme   Court   and   the   High   Courts   and   the
Comptroller and Auditor­General stipulate that pensions payable
17Article 324. Superintendence, direction and control of elections to be vested in an Election Commission
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office
of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule
determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner
and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election
Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed
from office except on the recommendation of the Chief Election Commissioner.
18Section 6. Pension payable to Election Commissioners.-
(2) Where the Chief Election Commissioner [or an Election Commissioner] demits office [whether in any
manner specified in [sub-section (3)] or by resignation], he shall, on such demission be entitled to
(a) a pension which is equal to the pension payable to a Judge of the Supreme Court in accordance with the
provisions of Part III of the Schedule to the Supreme Court Judges (Conditions of Service) Act, 1958, as amended
from time to time; and
(b) such pension (including commutation of pension), family pension and gratuity as are admissible to a
Judge of the Supreme Court under the said Act and the Rules made thereunder, as amended from time to time…”
8
may not be varied during their tenure. The implication being that if
the law dealing with the service conditions of any of the incumbents
of any one of the said offices at the time of their appointment
provides for the payment of pension, such a provision of law cannot
be varied to the detriment of the incumbent.
16. The provisions under challenge fall under two categories (i)
provisions which confer the right of free travel etc. to the MPs and
their ASSOCIATES; and (ii) provisions which confer the benefit of
pension and the right of free travel etc. to the ex­MPs and their
ASSOCIATES.
THE PROVISIONS UNDER CHALLENGE:
17.  Section 8A19 of the Act grants pensions to (i) ex­MPs, and (ii)
upon their death, the pension is given to their respective spouses.
Section 8AC20 provides family pension to the spouse of such MPs on
the death of the MP.  It is pertinent to mention here that Section 8A
19 Section 8A. (1) With effect from the 18th day of May, 2009, there shall be paid a pension of twenty thousand
rupees per mensem to every person who has served for any period as a Member of the Provisional Parliament or
either House of Parliament
Provided that where a person has served as a member of the Provisional Parliament or either House of
Parliament for a period exceeding five years, there shall be paid to him an additional pension of thousand five
hundred rupees per mensem for every year served in excess of five years
Explanation. – For the purpose of this sub-section “Provisional Parliament” shall include the body which
functioned as the Constituent Assembly of the Dominion of Indian immediately before the commencement of the
Constitution
20 Inserted by Act 40 of 2006 – effective from 15-9-2006
9
as originally enacted provided that an MP, to be eligible for Pension
must have completed four years of tenure in Parliament. But this
was done away with retrospective effect by the Amendment Act No.9
of 2004.
Section 6B(1)21  of the Act confers a right to all the MPs for
unlimited travel by train along with spouse/companion from any
place in India to any other place in India. Section 6B(2)22 provides
up to 8 air journeys in a year from the MP’s usual place of residence
to Delhi and back when Parliament is in Session and also provides
the spouse of the MP unlimited train travel by First Class AC at any
time   during   the   year.     Section   8AA23  confers   a   right   of   travel
facilities to the ex­MPs and their ASSOCIATES. It provides for free
AC­II Tier pass for one person to accompany an ex­MP in all train
journeys   and   unlimited   free   travel   by   train   along   with
spouse/companion from any place in India to any other place in
India.
18. The provisions are impugned on the following grounds:
21 Substituted by Act 16 of 1999
22 Inserted by Act 37 of 2010 – effective from 1-10-2010
23 Substituted by Act 9 of 2004 – effective from 15-9-2006
10
(i) the contrast in the language displayed in the various Articles
of   the   Constitution   dealing   with   the   salaries   and   other
allowances   payable   to   the   various   Constitutional   office
holders should necessarily lead to the conclusion that the
Constitution does not permit the payment of pension and
other benefits to MPs and ex­MPs;
(ii) the   framers   of   the   Constitution   specifically   denied
pensionary benefits to the MPs and therefore giving of any
POST   RETIREMENT   BENEFITS   to   ex­MPs   and   their
ASSOCIATES   would   amount   to   treating   those   who   were
denied this constitutional right to pension at par with those
constitutional offices whose pension was expressly protected.
And to treat them on the same footing would result in a
violation of the right to equality;
(iii) the   impugned   provisions   are   irrational24  and   arbitrary
because the grant of pension to all ex­MPs without taking
into   consideration   their   respective   tenure   and   economic
conditions goes against public interest25; and
(iv) looked at from the point of view of the taxpayers and crores
of   poor   and   needy   people   of   the   country,   the   impugned
provisions are an unfair and unjust exercise of the legislative
authority of the Parliament.26
19. We  shall   now  examine   the  core  submission  ­  whether  the
silence  in   Article  106  operates  as  a   prohibition   for  payment   of
pension to the former MPs?
20. The   submissions   of   the   Appellants   proceed   on   the   wrong
assumption that certain provisions of the Constitution mandate the
payment of pension to persons who hold constitutional offices like
the Judges of this Court.  We have already examined the language
24 Written Submissions of Petitioner in WP before the Allahabad HC
25 Id.
26 Ground D of the Writ Petition
11
of the relevant provisions of the Constitution. We are of the opinion
that,   on   a   true   and   proper   construction   of   the   text   of   those
provisions, they do not mandate the payment of pension.  They only
protect the pension if payable under the relevant law applicable on
the date of appointment of a person to any one of those offices by
declaring   that   such   a   condition   could   not   be   altered   to   the
detriment of a person subsequent to his appointment. 
However,   the   constitutional   obligation   to   pay   pension   to
persons who hold such offices may arise by implication having
regard to the overall scheme of the Constitution relevant to those
offices.  The need to secure the independence of the holders of those
offices by assuring them that either the legislature or the executive
will not be able to deprive them of the financial resources necessary
to keep them away from impecuniousness, irrespective of the fact
that a decision taken by the incumbents of each of those offices in
discharge of the official responsibilities is acceptable or not either to
the legislature or the executive.   We must hasten to add that we
must not be understood to be making any final declaration of law in
this regard. 
12
The purpose of this analysis is limited only to demonstrate
that the Appellants starts on a wrong premise in assuming that the
text of the Constitution contains express provisions mandating the
payment   of   pension   in   connection   with   certain   constitutional
offices. 
21. The fact that there are express references to the payment of
pension in the Constitution for certain Constitutional functionaries
and not for others, in our opinion does not lead to the conclusion
that   the   Constitution   by   its   silence   prohibits   the   payment   of
pension to those constitutional functionaries. Each Constitutional
office holder functions in accordance with the powers and duties
entrusted to it either by the Constitution or the laws relevant to
their powers and duties. The framers of the Constitution believed
that certain offices required a higher degree of protection, having
regard to the greater degree of independence expected of the holders
of their offices. The framers knew history and the attempts of the
men in power to subjugate the holders of such offices. Safeguards,
therefore, were provided in respect of the various aspects of the
tenure and other conditions of service relevant for their offices.
13
When   it   comes   to   MPs,   however,   such   a   higher   degree   of
constitutional protection is not obviously required as the authority
to make laws rests only with them.
22.  The terms and conditions subject to which a person is either
appointed or elected to occupy the constitutional office is a matter
of   policy   choice.   The   appropriate   legislature   would   be   the
constitutionally designated authority to determine those conditions.
It is too well settled in constitutional law that the authority of
legislature to make a policy choice is only circumscribed by the
limitations   imposed   by   the   Constitution,   either   by   an   express
provision or by a necessary implication arising out of the scheme of
the Constitution.   It is a well established principle commencing
from  McCulloch’s  case27  and followed by a long line of judicial
pronouncements28  that   whatever   is   not   prohibited   by   the
Constitution is permissible for the legislature.
27 McCulloch v. Maryland, 4 Wheat. 316, 425-437, 4 L.Ed. 579 (1819):
 “But we think the sound construction of the Constitution must allow to the national legislature that
discretion with respect to the means by which the powers it confers are to be carried into execution which will
enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the
end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are
Constitutional.”
28 See State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, para 107; see also State of Karnataka v. Union of India,
(1977) 4 SCC 608, para 69
14
23.   Further   if   we   were   to   accept   the   argument   that   those
Constitutional functionaries who are entitled to pension by the text
of the Constitution form a distinct class exclusively entitled to the
payment   of   pension   the   result   would   be   that   the   CAG,   the
Chairman   and   Deputy   Chairman   of   the   Parliament   or   State
Legislature,   and   Ministers   of   the   Centre   and   State   would   be
disentitled to pension.
24. Another argument advanced by the Appellants is that pension
is payable to an employee of State after his superannuation.  Since
MPs are not employees of State, they are not entitled for pension
nor the Parliament is competent to provide payment of pension to
the   ex­MPs.   In   our   opinion,   there   is   a   fallacy   in   the   above
submission, insofar as it assures that pension is only payable to
former employees of State and nobody else.   Such a submission
emanates from the fact that certain payments made to the former
employees of State are called pensions and the misconception of the
Appellants   that   the   expression   ‘pension’   can   only   have   one
meaning. There are various other categories of payments made by
15
State which are called ‘pensions’, such as, Old Age Pension, Widow
Pension, and Disability Pension etc.
25. The appellants have relied upon the decision in Alagaapuram
R. Mohanraj & Others v. Tamil Nadu Legislative Assembly,29 to
argue that the activity of MPs is not an “occupation” contemplated
by Article 19(1)(g) of the Constitution of India and, therefore, no
pension can be paid to ex­MPs or their ASSOCIATES.
26. In our opinion, this argument is only to be rejected, because it
once again is premised on the belief that the expression ‘pension’
has only one connotation in law. The question before this Court in
Alagaapuram   R.   Mohanraj  was   whether   a   Member   of   the
Legislative   Assembly   is   carrying   on   any   occupation   within   the
meaning of Article 19(1)(g) of the Constitution of India.   The fact
that this Court held that this is not an occupation under Article
19(1)(g) need not necessarily mean that the Parliament is prohibited
from making payment of such allowances to MPs if it considers it
appropriate having regard to various relevant factors.
29 (2016) 6 SCC 82.
16
27. The expression “allowances” of MPs occurring under Entry 73
of List­I of the Seventh Schedule,30 in our opinion, is wide enough to
cover the payment of “pension” and the other benefits covered by
the impugned provisions to MPs or ex­MPs.   Even otherwise the
authority of Parliament under Entry 97 of List­I31 is wide enough to
cover the impugned legislation as held by Common Cause.
28.  In   this   context,   we   may   recall   the   remarks   made   by   two
eminent members of the Constituent Assembly, namely Dr. B.R.
Ambedkar   and   Shri   K.T.   Shah   to   illustrate   the   fallacy   of   the
Appellants’ understanding.
29. Dr. Ambedkar, while debating the need to provide pensionary
benefit to the President of India, threw some light on the question:
whether   the   Constituent   Assembly   sought   to   exclude   post
retirement benefits to Members of Parliament:
“Therefore, in the form in which the amendment is moved, I do not
think that it is a practical proposition for anyone to accept. But
there is no doubt about the general view that he has expressed,
that  after a certain period of service in Parliament, Members,
30 Entry 73 of List-I of the Constitution of India
“Salaries and allowances of members of Parliament, the Chairman and Deputy Chairman of the
Council of States and the Speaker and Deputy Speaker of the House of the People.”
31 Entry 97 of List-I of the Constitution of India
“Any other matter not enumerated in List II or List III including any tax not mentioned in either of
those Lists.”
17
including   the   President,   ought   to   be   entitled   to   some   sort   of
pension, and I think it is a laudable idea which has been given
effect to in the British Parliament, and I have no doubt that our
future Parliament will bear this fact in mind.”32
[emphasis supplied]
30. In  debating  whether  it was  necessary  to  make an express
provision for the payment of pension to Governors after they demit
office, Shri Shah observed:
“The object of providing such security for the persons who have
risen to this high level is the same as that which now secures to
every workman in civilized nations an old­age pension, a pension
or   super­annuation   allowance,   which   would   be   calculated   to
suffice to maintain him in the standard of life to which he was
accustomed while at work. A pension is deferred pay, not paid to
the worker while at work; and the analogy will hold here also.
This   also   is   a   type  of  work­perhaps   the  highest  of   its  kindwhich
should not go unprovided for altogether by the State for
the rest of the period on earth of the Parties who have served so
eminently the State.”33
 
[emphasis supplied]
31. We are of the view that these questions are in the orbit of the
wisdom   of   the   Parliament   in   choosing/changing   the   legislative
policy whether the various benefits created under the impugned
provisions are rational having regard to the affluent financial status
of some of the MPs or the poverty of the millions of the population
etc. These are not justiciable issues. In this context, we may refer to
32 Constituent Assembly of India Debates, Vol. VII - Debate on Draft Article 48, 27th December 1948
33 Constituent Assembly of India Debates, Vol. VIII - Debate on Draft Article 135A, 31st May, 1949
18
the principle laid down by this Court in  Dr.   P.   Nalla   Thampy
Terah v. Union of India & Others34:
“If the provisions of the law violate the Constitution, they have to
be struck down. We cannot, however, negate a law on the ground
that we do not approve of the policy which underlies it. Can the
Court, for example, strike down Rule 90 on the ground that the
limit of rupees one lakh is too high in the Indian context? We may
have our own preferences and perceptions but, they cannot be
used for invalidating laws.”
32. An   I.A.   was   filed   in   this   appeal,   which   is   required   to   be
disposed   of.   It   was   from   Respondent   No.   5,   the   Election
Commission of India, which has sought to be deleted from the array
of parties.   It is stated that neither is any relief sought from them
nor is any directive prayed for from Respondent No.5 in this appeal,
as this is a purely constitutional challenge.
I.A. is allowed.   Respondent No. 5 stands deleted from the
array of parties.
34 (1985) Supp SCC 189.
19
33. In view of the foregoing, the appeal stands dismissed, with no
order as to costs.
….....................................J.
                                            (J. CHELAMESWAR)
…......................................J.
                       (SANJAY KISHAN KAUL)
New Delhi;
April 16, 2018.
20

No conviction solely on the basis of evidence of last seen together with the deceased = Navaneethakrishnan -vs- The State by Inspector of Police

1
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1134 OF 2013
Navaneethakrishnan .... Appellant(s)

Versus
The State by Inspector of Police .... Respondent(s)
WITH
CRIMINAL APPEAL NOs. 1135-1136 OF 2013
CRIMINAL APPEAL NO. 1137 OF 2013
J U D G M E N T
R.K. Agrawal, J.
1) The above appeals are directed against the common
judgment and order dated 23.11.2009 passed by the High
Court of Judicature at Madras in Criminal Appeal Nos. 639
and 688 of 2009 whereby the Division Bench of the High Court
dismissed the appeals filed by the appellants herein against
the order dated 18.09.2009 passed by the Fast Track Court
No. II, Salem, in Sessions Case No. 21 of 2009 wherein learned
2
Additional District & Sessions Judge convicted the appellants
herein under Sections 302 read with Section 34, Section 364
and Section 379 of the Indian Penal Code, 1860 (in short ‘the
IPC’) and sentenced to undergo imprisonment for life with
substantive sentences under the IPC.
2) Brief facts:
(a) A First Information Report (FIR) bearing No. 41 of 2008 at
PS Yercaud, District Salem dated 16.02.2008 got registered by
Mahimaidoss (PW-8) stating that on 14.02.2008, John Bosco
(since deceased), who was employed as the driver in his travel
agency, along with one Madhan (since deceased), took a
Maruti Van from him but did not return for two days.
(b) On the very next date, i.e., on 17.02.2008, one more FIR
got registered by one Asokan bearing No. 88 of 2008 stating
that when he went to irrigate his fields, he found a white
colour sack floating in the well. He immediately informed the
same to the local police and when the sack was opened, a
male body with hands tied at the back was found.
(c) On the basis of FIR dated 16.02.2008, Crime No. 41 of
2008 was registered at Yercaud Police Station and during the
3
pendency of investigation, FIR No. 88 of 2008 got registered
and a body was found which was identified as of John Bosco.
(d) During investigation, Sivashankar (A-1 therein) was
apprehended and he confessed about committing the crime
along with (A-2 and A-3) appellants herein stating that they
abducted John Bosco and his friend Madhan and taken them
in the Maruti Van being driven by John Bosco to one of the
relatives of Accused No. 2 therein where they caused death of
John Bosco and Madhan by strangulating them one by one
using a rope and drowned their bodies in water streams using
gunny bags. A-1 also took the investigation officer to the place
where the body of Madhan was found in a gunny bag.
(e) After following the due procedure, a charge sheet was
filed in the Court of Judicial Magistrate No. 5, Salem and the
case was committed to the Court of Additional District &
Sessions Judge, Fast Track Court No. II, Salem and numbered
as Sessions Case No. 21 of 2009. The Court framed charges
under Sections 364, 302 read with Section 34, 201 read with
Section 302 and 379 of the IPC.
4
(f) Learned Additional District & Sessions Judge, vide
judgment and order dated 18.09.2009, convicted all the
accused for the commission of crime under the charging
Sections and sentenced them to undergo imprisonment for life.
(g) Being aggrieved by the judgment and order dated
18.09.2009, the appellants-accused preferred Criminal Appeal
Nos. 639 and 688 of 2009 before the High Court. The Division
Bench of the High Court, vide judgment and order dated
23.11.2009, dismissed the appeals preferred by the appellants
herein.
(h) Being aggrieved by the judgment and order dated
23.11.2009, the appellants herein have preferred these
appeals by way of special leave before this Court.
3) Heard Mr. K.K. Mani, learned counsel for the
appellants-accused and Mr. M. Yogesh Kanna, learned counsel
for the respondent-State and perused the records.
Point(s) for consideration:-
4) The only point for consideration before this Court in the
present facts and circumstances of the case is whether the
5
High Court was right in dismissing the appeals preferred by
the appellants-accused?
Rival contentions:-
5) Learned counsel appearing for the appellants contended
that the courts below failed to appreciate that the conviction
cannot be based upon a retracted confession and it can be
used only in support of other evidence. He further contended
that the courts below erred in convicting the appellants where
the cause of death is not known.
6) Learned counsel further contended that there are several
lacunas in the prosecution version. In support of the same, he
contended that the lower courts failed to appreciate that the
owner of the phone recovered from Accused No. 1 therein is
not PW-8 and some other person and the said person was
never examined by the prosecution. Further, on 14.02.2008,
at about 10.30 a.m., PW-11 has seen the accused along with
the deceased whereas the dead bodies have been found after a
gap of several days and the possibility of intervention of some
other person cannot be ignored.
6
7) Learned counsel appearing for the appellants finally
contended that the High Court ought to have appreciated the
fact that there was no complete chain of circumstantial
evidence in the prosecution case and there are various
discrepancies inherent in it, hence, the benefit of doubt should
be given in favour of the appellants while setting aside the
judgment and order passed by the High Court.
8) Per contra, learned counsel appearing on the behalf of
Respondent-State submitted that the judgment and order
passed by the Division Bench of the High Court upholding the
decision of the Sessions Court is as per the terms and dictates
of law and should not be inferred with and the evidence
against the appellants-accused are sufficient enough to bring
home the guilt.
Discussion:-
9) It is the case of the prosecution that the
appellants-accused planned to earn quick money by robbing a
car and selling the same and for that purpose on 14.2.2008
they went to Yercaud and engaged the taxi of the John Bosco
(since deceased) under the guise of sightseeing. John Bosco
7
(since deceased) also took one Madhan (since deceased) on the
way. The appellants-accused asked the driver-John Bosco to
drop them at Periyar Nagar, Salem at the house of the
grandfather of one of the accused. After reaching there, the
appellant-accused found that the grandfather was not
available. The appellants-accused invited John Bosco into the
house for taking liquor and they killed both of them by
strangulating their necks with a rope. Accused No. 1 therein
took the mobile phone and the Accused No. 3 therein took the
Yashika Camera of one John Bosco. Accused No. 2 therein
concealed the said van in the house of his grandfather. The
number plate of van was changed with a sticker. Thereafter,
they wrapped the dead bodies into separate gunny bags and
threw the gunny bag containing the dead body of John Bosco
into the well of PW-1 and threw away the dead body of
Madhan to some other place.
10) The appellants-accused were charged and prosecuted
under Sections 302 read with 34, 364, 201 read with Section
379 of the IPC. As in the given case no direct evidence of the
incident is available, the prosecution heavily relied upon the
8
circumstantial evidences. To prove the case, the prosecution
has examined as much as 27 witnesses and produced different
relevant documents.
11) In the FIR, bearing No. 41 of 2008, lodged by PW-8, at
Yercaud Police Station, he had specifically mentioned that he
bought a mobile phone in the name of some other person and
handed over the same to John Bosco. PW-8 is the owner of the
vehicle which was being driven by John Bosco at the time of
the incident, and also happens to be his maternal uncle. He
further deposed that John Bosco was working as a driver on
the said vehicle at that time and on the fateful day i.e., on
14.02.2008, he told him that he is going to drop one of his
friends at Salem and left the place at about 11:30 and when
he did not return for two days he filed a missing complaint on
16.02.2008. PW-8 also tried to contact John Bosco over the
mobile phone but it was switched off. Mr. Asaithambi
(PW-26), the investigation officer, stated in his deposition that
on 25.02.2008, PW-8 handed over the bill of the said mobile
phone to him. During investigation and while tracing the IMEI
number of the mobile phone, it was revealed that the said
9
phone was being used by Accused No. 1-Sivasankaran. On
01.03.2008, Accused No. 1 was apprehended by PW-26 and he
voluntarily gave a confessional statement which was witnessed
by PW-13. Based on his confessional statement, PW-26 found
the dead body of Madhan as well as the mobile phone of John
Bosco and a rope was also recovered with which they alleged
to have murdered the deceased. The dead body was identified
by his mother and the same was further proved by skull
imposition test. He further informed the whereabouts of other
accused persons on the basis of which they were arrested from
Yercaud junction. However, he retracted from the given
statement in the court.
12) Accused No. 2-Suresh was apprehended by PW-20 at
Salem Railway Station based on the information given by
Accused No. 1 and on the basis of his information, the
recovery of the alleged Omni Van was affected by PW-26.
Further, Anbalagan (PW-11), who was a Taxi driver at Yercaud
Taxi stand had deposed that the appellants-accused had
spoken to John Bosco on 14.02.2008 for hiring a taxi for
sightseeing. Thereafter, he noticed that the
10
appellants-accused boarded the vehicle of John Bosco and
Madhan also boarded the same vehicle from a short distance.
In fact, PW-11 had identified the appellants-accused in the
court as the persons who had accompanied John Bosco and
Madhan on 14.02.2008.
13) Accused No.-3-Navaneethakrishnan was apprehended by
PW-20 from Salem Railway Station based on the information
given by Accused No. 1. PW-26 deposed that on the basis of
the confession of Accused No. 3, Yashika Camera was
recovered. The dead body of John Bosco was recovered from
the farm of PW-1 on 17.02.2008 on his information and the
same was identified by the mother and father of the deceased
and was further proved by skull imposition test. But it is also
relevant to mention here that in the present case, the
prosecution has no direct evidence to offer. The entire case
rests upon the circumstantial evidence as there is no witness
directly to speak about the occurrence.
14) In the present case, there is no witness of the occurrence
and it is only based on circumstantial evidence. Before
moving further, it would be apposite to refer the law regarding
11
reliability of circumstantial evidence to acquit or convict an
accused. The law regarding circumstantial evidence was aptly
dealt with by this Court in Padala Veera Reddy vs. State of
Andhra Pradesh and Others 1989 Supp. 2 SCC 706 wherein
this Court has observed as under:-
“10. x x x x
(1) The circumstances from which an inference of guilt is sought
to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain
so complete that there is no escape from the conclusion that
within all human probability the crime was committed by the
accused and none else; and
(4) the circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other
hypothesis than that of guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but
should be inconsistent with his innocence.”
15) The prosecution placed reliance before the Court mainly
on three circumstances, firstly, the last seen theory, secondly,
the recovery of material objects which belonged to both the
deceased from the appellants-accused and thirdly, the
identification of the dead body of Madhan from the river bed as
pointed out by the first accused, however, the appellant herein
has raised certain doubts regarding the same.
12
16) The pivotal evidence in the given case is the testimony of
PW-11 who is believed to have lastly seen the
appellants-accused with the deceased. Learned counsel
appearing for the appellants-accused has contended that all
the accused were unknown to PW-11 but no identification
parade was conducted and the said witness has identified the
said accused directly in court after a lapse of about 50 days’
and hence his evidence should not be relied upon.
17) It is a settled proposition of law that the identification
parade of the accused before the court of law is not the only
main and substantive piece of evidence, but it is only a
corroborative piece of evidence. Regarding this, reliance can
be safely placed on Rafikul Alam & Others vs. The State of
West Bengal 2008 Crl. L.J. 2005 wherein it was held as
under:-
“32…..It is accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn testimony of
witnesses in Court as to the identity of the accused who are
strangers to them, in the form of earlier identification proceedings.
This rule of prudence, however, is subject to exceptions when, for
example, the Court is impressed by a particular witness on whose
testimony it can safely rely, without such or other corroboration.
The identification parades do not constitute substantive evidence.
Failure to hold a test identification parade would not make
inadmissible the evidence of identification in Court. The weight to
13
be attached to such identification should be a matter for the
Courts of fact. In appropriate cases it may accept the evidence of
identification even without insisting upon corroboration”
18) PW-11 was able to identify all the three accused in the
Court itself by recapitulating his memory as those persons
who came at the time when he was washing his car along with
John Bosco and further that he had last seen all of them
sitting in the Omni van on that day and his testimony to that
effect remains intact even during the cross examination in the
light of the fact that the said witness has no enmity
whatsoever against the appellants herein and he is an
independent witness. Once the testimony of PW-11 is
established and inspires full confidence, it is well established
that it is the accused who were last seen with the deceased
specially in the circumstances when there is nothing on record
to show that they parted from the accused and since then no
activity of the deceased can be traced and their dead bodies
were recovered later on. It is a settled legal position that the
law presumes that it is the person, who was last seen with the
deceased, would have killed the deceased and the burden to
14
rebut the same lies on the accused to prove that they had
departed. Undoubtedly, the last seen theory is an important
event in the chain of circumstances that would completely
establish and/or could point to the guilt of the accused with
some certainty. However, this evidence alone can’t discharge
the burden of establishing the guilt of accused beyond
reasonable doubt and requires corroboration.
19) Learned counsel for the appellants-accused contended
that the statements given by the appellants-accused are
previous statements made before the police and cannot be
therefore relied upon by both the appellant-accused as well as
the prosecution. In this view of the matter, it is pertinent to
mention here the following decision of this Court in Selvi and
Others vs. State of Karnataka (2010) 7 SCC 263 wherein it
was held as under:-
“133. We have already referred to the language of Section
161 CrPC which protects the accused as well as suspects
and witnesses who are examined during the course of
investigation in a criminal case. It would also be useful to
refer to Sections 162, 163 and 164 CrPC which lay down
procedural safeguards in respect of statements made by
persons during the course of investigation. However, Section
27 of the Evidence Act incorporates the “theory of
confirmation by subsequent facts” i.e. statements made in
custody are admissible to the extent that they can be proved
15
by the subsequent discovery of facts. It is quite possible that
the content of the custodial statements could directly lead to
the subsequent discovery of relevant facts rather than their
discovery through independent means. Hence such
statements could also be described as those which “furnish a
link in the chain of evidence” needed for a successful
prosecution. This provision reads as follows:
“27. How much of information received from accused may
be proved.—Provided that, when any fact is deposed to as
discovered in consequence of information received from a
person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts
to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.
134. This provision permits the derivative use of custodial
statements in the ordinary course of events. In Indian law, there
is no automatic presumption that the custodial statements have
been extracted through compulsion. In short, there is no
requirement of additional diligence akin to the administration of
Miranda warnings. However, in circumstances where it is shown
that a person was indeed compelled to make statements while
in custody, relying on such testimony as well as its derivative
use will offend Article 20(3).”
20) In this view, the information given by an accused person
to a police officer leading to the discovery of a fact which may
or may not prove incriminatory has been made admissible
under Section 27 of the Evidence Act, 1872. Further, in Selvi
(supra), this Court held as under:-
“264. In light of these conclusions, we hold that no
individual should be forcibly subjected to any of the
techniques in question, whether in the context of
investigation in criminal cases or otherwise. Doing so would
amount to an unwarranted intrusion into personal liberty.
However, we do leave room for the voluntary administration
of the impugned techniques in the context of criminal justice
16
provided that certain safeguards are in place. Even when the
subject has given consent to undergo any of these tests, the
test results by themselves cannot be admitted as evidence
because the subject does not exercise conscious control over
the responses during the administration of the test.
However, any information or material that is subsequently
discovered with the help of voluntary administered test
results can be admitted in accordance with Section 27 of the
Evidence Act, 1872.”
21) In Madhu vs. State of Kerala (2012) 2 SCC 399, this
Court while discussing the mandate of Section 27 of the
Evidence Act held as under:-
“49. As an exception, Section 27 of the Evidence Act provides
that a confessional statement made to a police officer or
while an accused is in police custody, can be proved against
him, if the same leads to the discovery of an unknown fact.
The rationale of Sections 25 and 26 of the Evidence Act is,
that police may procure a confession by coercion or threat.
The exception postulated under Section 27 of the Evidence
Act is applicable only if the confessional statement leads to
the discovery of some new fact. The relevance under the
exception postulated by Section 27 aforesaid, is limited “…
as relates distinctly to the fact thereby discovered….”. The
rationale behind Section 27 of the Evidence Act is, that the
facts in question would have remained unknown but for the
disclosure of the same by the accused. The discovery of facts
itself, therefore, substantiates the truth of the confessional
statement. And since it is truth that a court must endeavour
to search, Section 27 aforesaid has been incorporated as an
exception to the mandate contained in Sections 25 and 26 of
the Evidence Act.”
22) Section 27 of the Evidence Act is applicable only if the
confessional statement leads to the discovery of some new
fact. The relevance is limited as relates distinctly to the fact
thereby discovered. In the case at hand, the Yashika Camera
17
which was recovered at the instance of Accused No. 3 was not
identified by the father as well as the mother of the deceased.
In fact, the prosecution is unable to prove that the said
camera actually belongs to the deceased-John Bosco. Though
the mobile phone is recovered from A-1, but there is no
evidence on record establishing the fact that the cell phone
belongs to the deceased-John Bosco or to PW-8 as the same
was not purchased in their name. Further, the prosecution
failed to examine the person on whose name the cell phone
was purchased to show that it originally belongs to PW-8 to
prove the theory of PW-8 that he had purchased and given it
to the deceased John-Bosco. Further, the material objects,
viz., Nokia phone and Motor Bike do not have any bearing on
the case itself. The Nokia phone was recovered from Accused
No. 1 and it is not the case that it was used for the
commission of crime and similarly the motor cycle so
recovered was of the father of Accused No. 3 and no evidence
has been adduced or produced by the prosecution as to how
these objects have a bearing on the case. In fact, none of the
witnesses have identified the camera or stated the belongings
18
of John Bosco. The said statements are inadmissible in spite
of the mandate contained in Section 27 for the simple reason
that it cannot be stated to have resulted in the discovery of
some new fact. The material objects which the police is
claimed to have recovered from the accused may well have
been planted by the police. Hence, in the absence of any
connecting link between the crime and the things recovered,
there recovery on the behest of accused will not have any
material bearing on the facts of the case.
23) The law is well settled that each and every incriminating
circumstance must be clearly established by reliable and
clinching evidence and the circumstances so proved must
form a chain of events from which the only irresistible
conclusion about the guilt of the accused can be safely drawn
and no other hypothesis against the guilt is possible. In a
case depending largely upon circumstantial evidence, there is
always a danger that conjecture or suspicion may take the
place of legal proof. The court must satisfy itself that various
circumstances in the chain of events must be such as to rule
out a reasonable likelihood of the innocence of the accused.
19
When the important link goes, the chain of circumstances gets
snapped and the other circumstances cannot, in any manner,
establish the guilt of the accused beyond all reasonable doubt.
The court has to be watchful and avoid the danger of allowing
the suspicion to take the place of legal proof for sometimes,
unconsciously it may happen to be a short step between moral
certainty and legal proof. There is a long mental distance
between “may be true” and “must be true” and the same
divides conjectures from sure conclusions. The Court in
mindful of caution by the settled principles of law and the
decisions rendered by this Court that in a given case like this,
where the prosecution rests on the circumstantial evidence,
the prosecution must place and prove all the necessary
circumstances, which would constitute a complete chain
without a snap and pointing to the hypothesis that except the
accused, no one had committed the offence, which in the
present case, the prosecution has failed to prove.
Conclusion:-
24) In view of the foregoing discussion, we are of the
considered opinion that both the courts below have erred in
20
relying that part of the statement which can be termed as
confession which were given to the police officer while they
were in custody and it will be hit by Section 26 of the Indian
Evidence Act,1872 and only that part of the statement which
led to the discovery of various materials would be permissible.
Hence, in the absence of any other material evidence against
the appellants-accused, they cannot be convicted solely on the
basis of evidence of last seen together with the deceased.
25) In the light of the above discussion, the judgment and
order dated 23.11.2009 passed by the High Court is set aside.
The appeals are allowed. The appellants who are in custody
shall be set at liberty forthwith, if they are not required in any
other criminal case.
...…………….………………………J.
 (A.K. SIKRI)
.…....…………………………………J.
 (R.K. AGRAWAL)
NEW DELHI;
APRIL 16, 2018.