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Wednesday, October 31, 2012

the question of the competence of the commanding officer of the accused, who signed and issued the charge sheet, to convene and conduct the summary court-martial against that very accused. - Section 116 provides that the summary court-martial may be held by the commanding officer of any corps, department or detachment of the regular Army, and he shall alone constitute the court. - There is no violation of principles of natural justice. No illegality has been committed in convening the summary court-martial by the commanding officer nor there is any illegality in the conduct of the summary court- martial. The respondent pleaded guilty to the charge before the summary court-martial and the summary court-martial found him guilty. It was only then that the order of dismissing the respondent from service was passed. It is now settled that no reasons are required to be recorded by the court-martial. 23. Civil appeal is allowed. The judgment and order of the Single Judge dated 7.09.2006 and the order of the Division Bench dated 28.08.2008 are set aside. No order as to costs.

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                                                                  REPORTABLE                         IN THE SUPREME COURT OF INDIA    ...

whether the matter should be remanded to the High Court for reconsideration of the LPA, making it clear that in the event such a course of action is considered to be not feasible or appropriate, the contentions of the parties on the merits of the dispute would be considered by us. To resolve the aforesaid question a brief recital of the core facts will be required. - what was challenged in the appeal is the main order dated 3.10.2000 passed in the Writ Petition as well as the order dated 6.1.2004 passed in the Review Petition. What was stated before the Division Bench of the High Court is that the appellant had no grievance against the main order dated 3.10.2000 as it originally stood and the grievance arose only after para 23 of the order dated 3.10.2000 was explained in the subsequent order dated 6.1.2004 passed in the Review Petition. If the above was the stand taken by the appellant, it was naturally incumbent on the part of the appellate bench to consider the appeal against the main order dated 3.10.2000 passed in the writ petition as well as the order dated 6.1.2004 passed in the Review Petition. A scrutiny of the order dated 23.9.2009 passed by the High Court in the writ appeal clearly indicates that apart from incidental references to the claim of the appellant to the land in question, the High Court has proceeded as if the writ appeal was directed against the order dated 6.1.2004 passed in the Review Petition. The said fact being ex facie apparent and the same not having been corrected despite the application for review filed by the appellant (Review Petition No.11/2009), we are of the view that these appeals have to be allowed; the order dated 23.9.2009 should be set aside and the matter remanded to the High Court for a fresh consideration.

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                        IN THE SUPREME COURT OF INDIA                          CIVIL APPELATE JURISDICTION                     CIVIL A...
Tuesday, October 30, 2012

Mortgage - deposit of title deeds - default - sale underthe State Financial Corporation Act, 1951 - in meanwhile private sale - not valid - High court cannot set aside the corporation sale as it was done underthe State Financial Corporation Act, 1951= the property in question was duly advertised for sale pursuant whereto the fifth respondent had offered the highest amount. On acceptance of the said offer by the UPFC, the entire amount was paid and the sale was confirmed by the Corporation. No sale deed was however executed by the Corporation in favour of the fifth respondent. It also appears that before the property was put up for sale by the Corporation, the original owner, Smt. Nisha Devi Jaiswal had sold the same to the third and fourth respondents, who, in turn, had sold the same to the writ petitioner by sale deed dated 29.08.2001. The aforesaid sale by the original owners to the vendors of the writ petitioner and, thereafter, by said vendors to the petitioner himself was made when the property stood mortgaged in favour of the UPFC. It is in the above circumstances, that the writ petitioner had approached the High court seeking interference with the sale of the property made in favour of the fifth respondent pursuant to the advertisement dated 20.10.2002 issued by the UPFC and further for transfer of the property in favour of the writ petitioner besides restoration of possession thereof which was taken over by the Corporation. 13. The sale made by the UPFC in favour of the fifth respondent was in exercise of the statutory powers vested in the Corporation by Section 29 of the State Financial Corporation Act, 1951. Under the aforesaid provisions of the Act default in re-payment of any loan by an industrial undertaking vests in the Financial Corporation the right to take over the management or possession or both of the industrial concern along with the right to transfer the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation. By virtue of sub-section (2) of Section 29 of the Act such transfer of property by the Corporation will vest in the transferee all rights in the property as if the transfer had been made by the owner thereof. 14. No serious issue either with regard to the validity of the exercise of the power under the Act or the manner of sale of the property by the Corporation pursuant to the advertisement dated 20.10.2002 had been raised in the Writ Petition. What was contended before the High Court is that the Writ Petitioner, Vishnu Dutt Sharma, had purchased the property by sale deed dated 29.08.2001 without any knowledge or information of the mortgage created by the original owner, Smt. Nisha Devi Jaiswal in favour of the Corporation and that the sale pursuant to the advertisement was also without notice to him. A right to the property based on certain equitable principles was also claimed to strengthen which, the offer covered by the interim order of the High Court dated 28.05.2003 was made by the writ petitioner. 15. The issues raised by the writ petitioner before the High court really pertained to the claim of better title of the writ petitioner to the property in question on the basis of the sale deed dated 29.08.2001. The validity of the sale deed dated 29.08.2001 executed in favour of the writ petitioner by his vendors during the subsistence of the mortgage in favour of the Corporation and the rights of the fifth respondent to the said property on the basis of the sale made in his favour by the Corporation pursuant to the advertisement dated 20.10.2002 are the issues that arose in the Writ Petition. Broad and expansive though the powers of the High Court under Article 226 may be, adjudication of the aforesaid questions, some of which also required proof of certain basic facts, in our view, was not appropriate in the domain of public law. Though the High Court in its order dated 05.12.2006 did not expressly say so, the affect of the several directions issued by it, in fact, amounts to an adjudication of the issues outlined above. 16. The essence of the dispute between the parties denuded the lis a public law character. Nor was any issue arising out of public law functions of the State or its authorities involved. In such a situation resort to the public law remedy should not have entertained by the High Court. (Vide Godavari Sugar Mills Ltd. vs. State of Maharashtra[1]). Even if the vindication of the writ petitioner’s rights under the sale deed dated 29.08.2001 is ignored and we are to proceed on the basis that the writ petitioner questioned the sale made by the Corporation, the writ petitioner would not be entitled to an adjudication of the rights of the parties inter se but at best to a judicial review of the administrative action of the Corporation with regard to the sale made (Vide Kisan Sahkari Chini Mills Ltd. and ors. vs. Vardan Linkers and others[2] ) But as already noticed neither the exercise of the statutory power under the Act by the Corporation in the matter of the sale of the property nor the process of the sale transaction was questioned in the Writ Petition either on account of lack of jurisdiction or abuse of authority. In the above facts, the High Court should have refused an adjudication of the Writ Petition and, instead, ought to have required the aggrieved parties to seek their remedies in an appropriate manner and before the competent civil forum. 17. In view of the above discussions, we allow both the appeals and set aside the order dated 05.12.2006 passed by the High Court of Uttarakhand at Nainital.

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|REPORTABLE                   |                         IN THE SUPREME COURT OF INDIA                          CIVIL APPELATE JURISD...

for granting bail under MCOCA. = twin conditions, viz., (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. The satisfaction contemplated in clauses (a) and (b) of sub-section (4) of Section 21 regarding the accused being not guilty, has to be based on “reasonable grounds”. Though the expression “reasonable grounds” has not been defined in the Act, it is presumed that it is something more than prima facie grounds. We reiterate that recording of satisfaction on both the aspects mentioned in clauses (a) and (b) of sub- section (4) of Section 21 is sine qua non for granting bail under MCOCA. 22) The analysis of the relevant provisions of the MCOCA, similar provision in the NDPS Act and the principles laid down in both the decisions show that substantial probable cause for believing that the accused is not guilty of the offence for which he is charged must be satisfied. Further, a reasonable belief provided points to existence of such facts and circumstances as are sufficient to justify the satisfaction that the accused is not guilty of the alleged offence. We have already highlighted the materials placed in the case on hand and we hold that the High Court has not satisfied the twin tests as mentioned above while granting bail. - the impugned order having been passed ignoring the mandatory requirements of Section 21(4) of MCOCA, cannot be sustained. Accordingly, the impugned order of the High Court dated 10.08.2011 in Criminal Bail Application No. 872 of 2011 granting bail to the respondent is set aside and the order of the special Judge dated 07.05.2011 in M.C.O. Special Case No.10 of 2010 is restored. In view of the same, the respondent is directed to surrender before the Special Court within a period of two weeks from the date of passing of this order, failing which, the special Court is directed to take appropriate steps for his arrest. 24) The appeal of State of Maharashtra is allowed.

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                                                                  REPORTABLE                         IN THE SUPREME COURT OF INDIA    ...