Land Acquisition Act – (i) Whether in a reference made to the Reference Court under section 18 of the Act, the land owner is barred from amending the amount claimed in the reference application and seeking higher compensation; and even if he could seek amendment, whether such application should be made within the period of limitation mentioned in section 18 of the Act? (ii) Where the landowner has sought increase in compensation for only the land, in the application under section 18 of the Act, whether he can seek increase in compensation for the trees or structures also, before the Reference Court? « advocatemmmohan

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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO...7784...... OF 2011

[Arising out of SLP [C] No.20741 of 2009]

Shri Ambya Kalya Mhatre (d)

Through legal heirs & Ors. ... Appellants

Vs.

The State of Maharashtra ... Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted.

2. Lands belonging to Ambya Kalya Mhatre (`A.K.Mhatre' for short, now

represented by his LRs.) situated at Dapoli village, Panvel taluk, Raigad district,

bearing Sy. Nos.89/1, 85/1, 27/1, 41/1B, 41/1A, 152/3, 155/7, 18/7, 89/3, 23/2 and

99/1 in all measuring 1.73.6 Hectares (17360 sq.m.) with a large number of fruit

bearing trees and a well therein, were acquired for New Bombay project in

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pursuance of preliminary notification dated 3.2.1970 (read with corrigendum dated

5.9.1970) and final notification dated 29.7.1979.

3. The special Land Acquisition Officer (for short `the Collector') awarded the

following compensation by award dated 4.7.1986:

S.No. Description Market Solatium Additional amount Total

value (30%) @ 12% per

annum

1. Land ` 24,898.32 ` 7469.49 ` 49,049.69 ` 81,417.50

2. Trees ` 83,629.00 ` 25,088.70 ` 1,65,586.40 ` 2,74,303.10

3. Well ` 500.00 ` 150.00 ` 990.00 ` 1,640.00

Possession of the land was taken on 9.9.1986. Not being satisfied with the

compensation awarded, A.K.Mhatre made an application dated 10.11.1986 under

section 18 of the Land Acquisition Act, 1894 (`Act' for short) to the Special Land

Acquisition Officer (also referred as `Collector' or `LAO') seeking a reference to a

District Court for enhancement of compensation by ` 90,273/- in regard to the

acquired lands and paid a court fee of ` 1610/- in regard to the increase demanded.

In pursuance of the said request, a reference was made to the Civil Court by the

LAO on 25.11.1986. During the pendency of the reference before the reference

court, A.K. Mhatre died and his legal representatives came on record on 30.9.1988.

4. The appellants made an application on 13.9.1990 before the Reference Court

seeking following amendments to the application for reference :

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(i) As against the compensation of ` 24,898.32 for the entire land (at the rate `

6500, ` 7000 and ` 7500 per acre for different kinds of land) awarded by the LAO,

and the compensation claimed at the rate of ` 50,000/- per acre in regard to some of

the lands, in the application seeking reference, the appellants sought compensation

of ` 3,47,200/- for the acquired lands measuring 17360 sq.m. (at the rate of Rs.20

per sq.m.) that is an increase of ` 3,22,302/-.

(ii) As against the compensation of ` 83,629/- awarded for the trees, the

appellants sought ` 10,48,400/-, that is an increase of ` 9,64,771/-. (The appellant

had not sought any increase in regard to trees in the application for reference).

(iii) As against the compensation of ` 500/- awarded for the well, the appellants

sought ` 50,000/-, that is an increase of ` 49,500/- (Note: The appellant had not

sought any increase in regard to the well in the application seeking reference).

The appellants thus sought in all `43,83,959/- towards additional compensation

with solatium and additional amount. The appellants also paid the additional court

fee for the increase in the claim. The reason given in the application for

amendment seeking increase was that A.K. Mhatre was not then in a position to

pay the court fee on a higher claim, and had therefore restricted the claim for a

lesser amount in the application for reference.

5. The said application for amendment was allowed by the Reference Court on

19.9.1990 and the claims in the reference application were modified as per the

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amendment application. After evidence, the Reference Court by award dated

2.5.1991, determined the compensation as ` 1,21,520/- (at ` 7/- per sq.m.) for the

land, ` 4,46,600/- for the trees and ` 2,000/- for the well, with statutory benefits.

This works out to an increase of `96,631/- for the land, ` 3,62,971/- for the trees

and ` 1500/- for the well. Both sides were aggrieved by the judgment and award of

the Reference Court. The appellants filed Ap. No.104/1992 seeking further

increase and the LAO filed FA No.226/1994 challenging the increase. The appeals

came up for hearing on different dates before the High Court of Bombay.

6. The appeal filed by the appellants came up for hearing first. On 4.3.2003, the

said appeal was allowed in part and the compensation in regard to the land was

increased to `10 per sq. m., by following its earlier decision in State of

Maharashtra vs. Tulsiram Krishna Mungaj (FA No.462 of 1990 decided on

18.7.2001). The claim for increase in regard to the trees and well was rejected.

7. Subsequently the State's appeal came up for hearing before another Bench

of the High Court and was allowed by the impugned judgment dated 11.11.2008.

The High Court held that the claim of appellants for enhanced compensation in

regard to the trees and well, made by amending the application for reference under

section 18 of the Act was barred by limitation prescribed under section 18 of the

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Act, as A.K.Mhatre had sought in the application for reference, only increase in

regard to the land and not in regard to the trees and well. The High Court also held

that once compensation was awarded for the land, no separate compensation could

be awarded for the trees. However, the High Court did not disturb the

compensation that had been awarded by the LAO for the trees and the well,

apparently in view of section 25 of the Act which provides that the amount

awarded by the Collector as compensation cannot be reduced by the reference

court. The High Court therefore set aside the award of additional compensation of

`3,62,971/- towards the trees and ` 1500/- towards the well awarded by the

Reference Court. The said judgment is challenged in this appeal by special leave.

8. On the contentions raised, the following questions arise for our

consideration:

(i) Whether in a reference made to the Reference Court under section 18 of the

Act, the land owner is barred from amending the amount claimed in the reference

application and seeking higher compensation; and even if he could seek

amendment, whether such application should be made within the period of

limitation mentioned in section 18 of the Act?

(ii) Where the landowner has sought increase in compensation for only the land,

in the application under section 18 of the Act, whether he can seek increase in

compensation for the trees or structures also, before the Reference Court?

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(iii) Where compensation is awarded for the land, whether no compensation can

be awarded for trees or well separately?

Re : Questions (i) and (ii)

9. The High Court held that the amendment was barred by limitation on the

following reasoning :

"The Award of the Collector was made on 4th July, 1986. The possession of the

acquired lands was taken on 9th September, 1986 and the payment of

compensation was made on 29th September, 1986. The reference came to be filed

within the prescribed period of limitation. However, about four years thereafter,

i.e. on 19th September, 1990 the reference was amended for enhancing the claim

of compensation for trees and well situate on the land. If the date of amendment

of the reference i.e. 19th September, 1990 is to be taken into consideration, the

claim for further enhancement made by way of amendment is clearly barred by

limitation. Even the respondents do not dispute that if the date of amendment of

reference is to be taken into consideration, the claim for enhanced compensation

in respect of the trees and well would be barred by limitation. x x x x Ordinarily,

amendment of pleadings relates back to the date of filing of the proceedings.

However, the proposition cannot be extended to the question of limitation,

because despite grant of leave to amend proceedings, the court is duty bound to

consider whether the claim is within the prescribed period of limitation, just as the

original claim. Therefore, we find no substance in the submission that the

appellant ought to have challenged the order of amendment of the reference to

enable it to contend that the claim for enhanced compensation is barred by

limitation. Since the amendment of the reference for claiming enhanced

compensation fort he trees and the well situate on the land does not relate back to

the date of filing of the reference, for the purpose of limitation, it must be held

that the claim made on 19th September, 1990 is barred by limitation provided

under Section 18 of the Land Acquisition Act."

10. During the pendency of the special leave petition, the issue whether the

reference court can permit a claimant to amend his claim so as to increase the

compensation claimed, came up for consideration before a Full Court of the

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Bombay High Court in State of Maharashtra v. Sitaram Narayan Patil [2010 (2)

Mh.L.J. 387]. The Full Court overruled the impugned judgment dated 11.11.2008

(which is reported in State of Maharashtra vs. Ambya Kalya Mhatre- 2009 (1)

Mh.LJ 781) and held that a claimant whose land is acquired, can be allowed to

amend his claim application so as to enhance the compensation claimed in an

application for reference under section 18 of the Act and that the "amendment to

increase the compensation claimed in the application for reference under section 18

of the Act can be allowed before the Reference Court as well as at the stage of an

Appeal in the High Court arising out of the decision of the Reference Court." The

Full Court further held that while granting an amendment so as to enhance the

claim for compensation, the general principles for considering an application for

amendment made under Order 6 Rule 17 of the Code of Civil Procedure, 1908

would be applicable. The Full Bench arrived at the said findings on the following

reasoning :

"Section 18 can be invoked by any person interested who has not accepted the

award. He may by written application to the Collector require that the matter be

referred by Collector for determination of the Court and his objections are of the

nature specified in section 18(1). Sub-section 2 of section 18 states that the

application which is to be made in writing shall state the grounds on which the

objections to the Award is raised. On receipt of this application, under section 19,

while making a reference, the Collector shall state for the opinion of the Court in

writing under his hand, the particulars of the case, .... Sub-clause (d) of section

19(1) states that if the objection be to the amount of compensation, the grounds on

which the amount of compensation is determined. Thus, the Collector in his

statement to the Court gives an opinion in writing under his hand about the

grounds on which the amount of compensation was determined by him......

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Under the scheme of section 18 of the Act, the reference is required to be filed

within a period of limitation. The period of limitation depending upon the facts of

a given case would be six weeks to six months. Six months being outer limit, in

either of the events, when the applicant was present before the Collector at the

time when the award was made or when he was served with notice under sub-

section (2) of section 12 of the Act. It is now fairly a settled law that this specific

period of limitation is mandatory and is not flexible. As stated above, in order to

refer the matter before the Collector for determination to the Court, the claimant

is required to raise objections regarding the amount of compensation. He is not

under an obligation to specify the amount of compensation. Once his objection as

to the amount of compensation is filed within a prescribed period under sub-

section (2) of section 18 of the said Act, before the Collector, then the Collector is

duty bound to refer the matter to the Court along with his statement as

contemplated under section 19 of the said Act. The claimant thereafter, cannot

introduce any other objections as contemplated under section 18 of the Act either

before the Court or in an appeal under section 54 of the said Act. However, the

claimant once take objection to amount of compensation within a prescribed

period is at liberty to claim enhancement in the compensation, thereafter."

(emphasis supplied)

The learned counsel for the respondent contended that the impugned judgment

dated 11.11.2008 of the High Court lays down the correct legal position and that

the reasoning in the full bench in Sitaram Narayan Patil is not sound.

11. Section 18 of the Land Acquisition Act, 1894 (as amended in Maharashtra)

relating to reference to court is extracted below :

"18. Reference to Court.--(1) Any person interested who has not accepted the

award (or the amendment thereof) may, by written application to the Collector,

require that the matter be referred by the Collector for the determination of the

Court, whether his objection be to the measurement of the land, the amount of the

compensation, the persons to whom it is payable, or the apportionment of the

compensation among the persons interested.

(2) The application shall state the grounds on which objection to the award (or

the amendment) is taken:

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Provided that every such application shall be made,--

(a) if the person making it was present or represented before the Collector at the

time when he made his award (or the amendment), within six weeks from the

date of the Collector's award;

(b) in other cases, within six weeks of the receipt of the notice from the Collector

under section 12, sub-section (2), or within six months from the date of the

Collector's award (or the amendment), whichever period shall first expire.

(3) Any order made by the Collector on an application under this section shall be

subject to revision by the High Court, as if the Collector were a court sub-ordinate

to the High Court, within the meaning of section 115 of the Code of Civil

Procedure, 1908."

An analysis of section 18 of the Act would show that any person interested who

does not accept the award can, by written application to the Land Acquisition

Collector, require the matter to be referred for determination of the court in regard

to any one of the following matters :

(a) Objection to the measurement of the land;

(b) Objection to the amount of compensation;

(c) Objection as to the persons to whom the compensation is

payable; or

(d) Objection to the apportionment of the compensation among the

persons interested.

12. The Land Acquisition Collector is not a court. When he determines the

compensation, he does not adjudicate, but merely makes an offer for the acquired

land, on behalf of the government. If the land owner considers the amount offered

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by the Land Acquisition Collector to be inadequate and makes a request within the

prescribed period, for reference to the civil court under section 18 of the Act, the

Land Acquisition Collector is bound to refer the matter to the Civil Court for

determination of the compensation. He has no choice of refusing to make a

reference, when the request is in time. Neither the act of making an award offering

compensation nor the act of referring the matter to a civil court for determination

of compensation at the request of the land owner are judicial functions, but are

administrative functions. The legal position of an award by the Land Acquisition

Officer vis-`-vis the proceedings in a reference to the civil court under section 18

of the Act is explained thus by this Court in Chimanlal Hargovinddas vs. Special

Land Acquisition Officer, Poona - 1988 (3) SCC 751 :-

"4. The following factors must be etched on the mental screen :

(1) A reference under Section 18 of the Land Acquisition Act is not an

appeal against the award and the court cannot take into account the material relied

upon by the Land Acquisition Officer in his award unless the same material is

produced and proved before the court.

(2) So also the award of the Land Acquisition Officer is not to be

treated as a judgment of the trial court open or exposed to challenge before the

court hearing the reference. It is merely an offer made by the Land Acquisition

Officer and the material utilized by him for making his valuation cannot be

utilized by the court unless produced and proved before it. It is not the function of

the court to sit in appeal against the award, approve or disapprove its reasoning, or

correct its error or affirm, modify or reverse the conclusion reached by the Land

Acquisition Officer, as if it were an appellate court.

(3) The court has to treat the reference as an original proceeding

before it and determine the market value afresh on the basis of the material

produced before it."

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Sub-section (3) of section 18 of the Act (added in Maharashtra) providing that the

Land Acquisition Collector shall be deemed to be a court sub-ordinate to the High

Court, is therefore only for the limited purpose of enabling a revision under section

115 of the Code to be filed against the order of the Collector under section 18 of

the Act, and not for any other purpose.

13. The assumption made by the High Court that when a reference is sought

objecting to the amount of compensation, the claim for increase will have to be

frozen with reference to the amount claimed in the application under section 18 of

the Act and therefore the quantum of the claim cannot subsequently be revised or

increased is misconceived. Similarly, the assumption that if the claim for increase

in an application for reference (relating to an acquisition involving a property

consisting of land, building and trees), was only in regard to the compensation for

the land, the land owner cannot thereafter make a grievance seeking increase in

regard to the building or trees in the pleadings before the Reference Court and that

in such a case, the Reference Court gets the jurisdiction to determine only the

market value in regard to the land and not in regard to the building and trees, is

also not correct. Section 18 does not require a land owner objecting to the amount

of compensation, to make a claim for any specific amount as compensation, nor

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does it require him to state whether the increase in compensation is sought only in

regard to the land, or land and building, or land, building and trees. A land owner

can seek reference to civil court, with reference to any one or more of the four

types of objections permissible under section 18 of the Act, with reference to the

award. His objection can either be in regard to the measurement of the acquired

land or in regard to the compensation offered by the Collector or in regard to

persons to whom it is shown as payable or the apportionment of compensation

among several claimants. Once the land owner states that he has objection to the

amount of compensation, and seeks reference to the civil court, the entire issue of

compensation is open before the Reference Court. Once the claimant satisfies the

Reference Court that the compensation awarded by the Land Acquisition Officer is

inadequate, the Reference Court proceeds to determine the compensation, with

reference to the principles in section 23 of the Act. As the Act does not require the

person aggrieved/landowner to specify the amount of compensation sought, when

objecting to the amount of compensation and seeking a reference, mentioning of

the amount of compensation sought is optional. As there is no obligation to specify

the amount in the application for reference, it can be specified in the claim

statement filed before the Reference Court. The period of limitation in section 18

of the Act has nothing to do with specifying the amount of compensation claimed.

It therefore follows that if the reference is in regard to objection to the amount of

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compensation, the Reference Court can permit any application for amendment of

the claim relating to compensation.

14. The High Court has lost sight of the scheme of the Act. When a land is

acquired, the Land Acquisition Officer makes an offer on behalf of the state

government, in regard to the compensation. The offer made by the Land

Acquisition Officer is not an adjudication of the market value or the compensation

payable to the land owner. When such offer is made, the land owner has the choice

of either accepting the compensation in full and final satisfaction or to seek a

reference to the civil court for determination of the amount of compensation.

Where the land owner does not seek a reference within the time specified in

section 18 of the Act, he is deemed to have accepted the award and the award of

the Land Acquisition Officer attains finality under section 12 of the Act. Section

18 of the Act enables the land owner or person interested to make a written

application to the Collector requiring his objection to the award, to be referred for

determination by the court. In the application, he has to state whether his objection

is in regard to measurement, quantum of compensation, persons entitled to

compensation, or apportionment. He is also required to state the grounds on which

the objection to the award, is taken. But the section does not require the land owner

while seeking a reference, to specify the quantum of compensation demanded by

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him. Section 18 merely requires a land owner who has an objection to the amount

of compensation awarded by the Land Acquisition Officer to require the matter to

be referred to reference court for determination of compensation by specifying the

grounds of objections to the award.

15. Section 19 of the Act provides that on receipt of the application seeking

reference made in accordance with section 18 of the Act, the Collector is required

to make the reference by forwarding the application for reference (or a copy

thereof) with his statement setting out the grounds on which the amount of

compensation was determined by him. Section 19 is extracted below :

"19. Collector's statement to the Court.--(1) In making the reference, the

Collector shall state, for the information of the Court, in writing under his hand, --

(a) the situation and extent of the land, with particulars of any trees, buildings or

standing crops thereon;

(b) the names of the persons whom he has reason to think interested in such land;

(c) the amount awarded for damages and paid or tendered under sections 5 and

17, or either of them, and the amount of compensation awarded under section

11;

(cc) the amount paid or deposited under sub-section (3A) or section 17; and

(d) if the objection be to the amount of the compensation, the grounds on

which the amount of compensation was determined.

(2) To the said statement, shall be attached a Schedule giving the particulars of

the notices served upon, and of the statements in writing made or delivered by, the

parties interested, respectively."

(emphasis supplied)

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When the reference is received, the court causes notice specifying the date of

hearing for determining the objection of the land owner/person aggrieved (section

20 of the Act). The Reference Court has to call upon the claimants to file their

statement of claim and call upon the Collector to file his objections to the claim

statement and then proceed with the matter. Where the application under section 18

contains the necessary particulars, the Reference Court may treat the application

for reference under section 18 and the Collector's statement under section 19 of the

Act as the pleadings. The land owner is entitled to specify the amounts claimed by

him as compensation and the heads of compensation for the first time in such claim

statement before the Reference Court. He can also file an application amending the

claim. What is not permitted after the expiry of the period of limitation specified in

section 18 of the Act, is changing the nature of objections from one category to

another. If the reference had been sought with reference to objection to amount of

compensation, the land owner cannot after the period of limitation, seek

amendment to change the claim as objection to measurement or objection to

apportionment.

16. A land owner, particularly a rural agriculturist, when he loses the land may

not know the exact value of his land as on the date of the notification under section

4(1) of the Act. When he seeks reference he may be dissatisfied with the quantum

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of compensation but may not really know the actual market value. Many a time

there may not be comparable sales, and even the courts face difficulty in assessing

the compensation. There is no reason why a land owner who has lost his land,

should not get the real market value of the land and should be restricted by

technicalities to some provisional amount he had indicated while seeking the

reference. As noticed above, the Act does not require him to specify the quantum

and all that he is required to say is that he is not satisfied with the compensation

awarded and specify generally the grounds of objection to the award. Under the

scheme of the Act, it is for the court to determine the market value. The

compensation depends upon the market value established by evidence and does not

depend upon what the land owner thinks is the value of his land. If he has an

exaggerated notion of the value of the land, he is not going to get such amount, but

is going to get the actual market value. Similarly if the land owner is under an

erroneous low opinion about the market value of his land and out of ignorance

claims lesser amount, that can not be held against him to award an amount which is

lesser than the market value. When the Act does not require the land owner to

specify the amount of compensation, but he voluntarily mentions some amounts,

and subsequently, if the market value is found to be more than what was claimed,

the land owner should get the actual market value. We fail to see why the land

owner should get an amount less than the market value, as compensation.

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Consequently, it follows that if the land owner seeks amendment of his claim, he

should be permitted to amend the claim as and when he comes to know about the

true market value. When the Act is silent in regard to these matters, to impose any

condition to the detriment of an innocent and ignorant land owner who has lost his

land, would be wholly unjust.

17. The Collector making the offer of compensation on behalf of the state is

expected to be fair and reasonable. He is required to offer compensation based on

the market value. Unfortunately Collectors invariably offer an amount far less than

the real market value, by erring on the safer side, thereby driving the land owner

first to seek a reference and prove the market value before the reference court and

then approach the High Court and many a time this Court, if he does not get

adequate compensation. In most land acquisitions, the land acquired is the only

source of his livelihood of the land owner. If the compensation as offered by the

Collector is very low, he cannot buy any alternative land. By the time he fights and

gets the full market value, most of the amount would have been spent in litigation

and living expenses and the price of lands would have appreciated enormously,

making it impossible to buy an alternative land. As a result, the land owner seldom

has a chance of acquiring a similar land or an equal area of similar land. It would

be adding insult to injury, if the land owner should be tied down to a lesser value

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claimed by him in the reference application, even though he was not required by

law to mention the amount of compensation when seeking reference. The Act

contemplates the land owner getting the market value as compensation and no

technicalities should come in the way of the land owner getting such market value

as compensation.

18. It is relevant to notice the definition of land in section 3(a) of the Act. It

provides that the expression "land" includes benefits to arise out of land, and

things attached to the earth or permanently fastened to anything attached to the

earth. Therefore when the Act refers to acquisition of `land', the reference is not

only to land but also to land, building, trees and anything attached to the earth. In

the absence of any restriction in section 18 of the Act, and the respective roles

assigned by the Act to the Land Acquisition Collector and the Reference Court in

the context of making a reference and determining the compensation, we are of the

view that once the reference is made in regard to amount of compensation, the

Reference Court will have complete jurisdiction to decide the compensation for the

land, buildings and trees and other appurtenances. The Reference Court will also

have the power to entertain any application for increasing the compensation under

whatever head. The fact that the landowner had sought increase only in regard to

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the land in the application for reference, will not come in the way of the landowner

seeking increase even in regard to trees or structures, before the Reference Court.

19. We are conscious of the fact that the State of Maharashtra has a special

provision in the Bombay Court Fees Act, 1959 (Entry 15 in Schedule I) which

requires every claimant who makes an application to the Collector for a reference

to court under section 18 of the Act to pay one half the ad valorem fee on the

difference between the amount awarded by the Collector and the amount claimed

by the claimant. Thus the application under section 18 objecting to the

compensation by implication is required to disclose the amount of compensation

sought and pay court fee on the increase sought. But this is only a requirement in

regard to the Court Fees Act. This only means that if the claim is amended later,

additional court fee may have to be paid. This requirement under the Court Fees

Act cannot be read as a requirement under the Land Acquisition Act. So long as

Land Acquisition Act is not amended to require the person aggrieved to specify the

amount of compensation claimed by him in the reference application, the bar of

limitation will not apply even if the amount is specified in the application for

reference and subsequently a higher amount is sought by way of amendment.

20. We therefore hold that the time limit under section 18 of the Act is only for

seeking the reference by raising the objection to the amount of compensation or

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any of the other three objections. The land owner or persons aggrieved will have to

give only the nature of objection to the award, that is whether it is with reference to

measurement or compensation or person to whom it is payable or apportionment,

and briefly mention the grounds in support of it. Though the land owner can give

the details of his claim and quantum, he is not bound to do so. When the reference

is made, he can give the particulars of the claim for compensation or additional

particulars or even increase the claim.

Re : Question (iii)

21. The High Court has also held that once the compensation is awarded for the

land, there cannot be additional or separate compensation for the trees. For this

purpose, the High Court has relied upon the following observations of this Court in

State of Haryana vs. Gurcharan Singh - 1995 Supp (2) SCC 637 :

"It is settled law that the Collector or the court who determines the compensation

for the land as well as fruit bearing trees cannot determine them separately. The

compensation is to the value of the acquired land. The market value is determined

on the basis of the yield. Then necessarily applying suitable multiplier, the

compensation needs to be awarded. Under no circumstances the court should

allow the compensation on the basis of the nature of the land as well as fruit-

bearing trees. In other words, market value of the land is determined twice over;

once on the basis of the value of the land and again on the basis of the yield got

from the fruit-bearing trees. The definition of land includes the benefits which

accrue from the land as defined in section 3(a) of the Act. After compensation is

determined on the basis of the value of the land as distinct from the income

applying suitable multiplier, then the trees would be valued only as firewood and

necessary compensation would be given."

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22. We are afraid that the High Court has misread the said decision in regard of

valuing the land and trees separately. If the land value had been determined with

reference to the sale statistics or compensation awarded for a nearby vacant land,

then necessarily, the trees will have to be valued separately. But if the value of the

land has been determined on the basis of the sale statistics or compensation

awarded for an orchard, that is land with fruit-bearing trees, then there is no

question of again adding the value of the trees. Further, if the market value has

been determined by capitalizing the income with reference to yield, then also the

question of making any addition either for the land or for the trees separately does

not arise. In this case, the determination of market value was not with reference to

the yield. Nor was the determination of market value in regard to the land with

reference to the value of any orchard but was with reference to vacant agricultural

land. In the circumstances, the value of the trees could be added to the value of the

land.

A suggestion to the State Government

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23. In all other States, ad valorem court-fee is payable only when an appeal is

filed against the award of the Reference Court, seeking higher compensation and

not in regard to applications for reference under section 18 of LA Act. Only in

Maharashtra and Gujarat, the land losers are required to pay half of the ad valorem

court-fee while seeking reference to the civil court. Most of the land-losers are

agriculturists. For many of them, the only source of livelihood is taken away by

acquisition of their lands. Though, the Collector is expected to award

compensation based on the market value, quite often, it is seen that in actual

practice, the compensation offered by the Collector is far less than the actual

market value, thereby forcing the land-losers to seek references to civil court. In

such cases, the amount awarded by the Collector being comparatively small, the

requirement to pay ad-valorem court-fee on the application for reference causes

irreparable hardship, forcing the land loser to seek a lesser increase than what is

warranted. The State Government may therefore consider giving appropriate relief

to the land losers by providing for a nominal fixed court-fee, on the application for

reference, instead of ad valorem court fee.

24. We therefore allow this appeal, set aside the judgment dated 11.11.2008 of

the High Court, and remand the matter to the High Court for consideration of the

2

appeal on merits. As the matter relates to a 1970 acquisition and the appeal was of

the year 1994, we request the High Court to dispose of the appeal expeditiously.

...............................J.

(R. V. Raveendran)

...............................J.

(H. L. Gokhale)

New Delhi; ...............................J.

September 12, 2011 (Gyan Sudha Misra)

Land Acquisition Act – (i) Whether in a reference made to the Reference Court under section 18 of the Act, the land owner is barred from amending the amount claimed in the reference application and seeking higher compensation; and even if he could seek amendment, whether such application should be made within the period of limitation mentioned in section 18 of the Act? (ii) Where the landowner has sought increase in compensation for only the land, in the application under section 18 of the Act, whether he can seek increase in compensation for the trees or structures also, before the Reference Court? « advocatemmmohan

the punishment of dismissal from service is shockingly disproportionate to the gravity of the offences held to be proved. While we may not interfere with the findings of guilt, in a case of this nature, having regard to the nature of offences, we may consider the proportionality of punishment to find out whether it is perverse and irrational. Even accepting the said findings of guilt regarding charges (1), (4) and 5(c), it is clearly a case of shockingly disproportionate punishment being meted out to the Commandant for offering an alternative interpretation to « advocatemmmohan

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 876 of 2003

Union of India & Ors. ... Appellants

Vs.

Bodupalli Gopalaswami ... Respondent

With

CRIMINAL APPEAL NO. 877 of 2003

Bodupalli Gopalaswami ... Appellant

Vs.

Union of India & Ors. ... Respondents

J U D G M E N T

R.V.RAVEENDRAN,J.

As the ranks of parties in the two appeals are different, for

convenience, we will refer to the parties by their ranks in Criminal Appeal

No.876/2003.

2

2. The first respondent was the officiating Commandant and later the

Commandant of 227 Company ASC (Supply) Type `G', Ambala

Cantonment (hereinafter referred to as the `Supply Depot') from 19.10.1988

to 26.6.1990. The supply depot had three sections - Dry Rations, Fresh

Rations and Butchery. The appellant as the Commandant was in overall

charge of the supply depot. As per the standard operative procedure for the

Butchery, the following staff were detailed for operation:

(i) Supervisory Officer - Cap. P. S. Malhotra

(ii) Veterinary Officer - Lt. Col. G. S. Srivastava

(iii) J.C.O. in-charge - Sub. G. L. Kalra

(iv) NCO in-charge - Havaldar Clerk D. L. Prasad

3. On receiving complaints about irregularities in the butchery, a team of

three officers from the Central Bureau of Investigation and two Army

Officers carried out a raid/surprise inspection of the butchery on 14.2.1990,

with the prior permission of the second respondent. They intercepted eleven

vehicles belonging to different units returning from butchery after collecting

meat and checked the meat for quality and quantity. They also inspected the

butchery. The Report of the Inspection Team disclosed certain irregularities

in the quality of the dressed meat supplied by the contractor, (which were

being issued to the indenting units), maintenance of live stock and

3

supervision. As a consequence, the officials of the Butchery were all

separately charge-sheeted.

4. The first respondent, who was the Commandant of the Supply Depot

was also issued a charge-sheet dated 30.12.1992 containing the following

charges :

First charge SUCH AN OFFENCE AS IS MENTIOEND IN CLAUSE (f) OF SECTION 52

Army Act OF THE ARMY ACT WITH INTENT TO DEFRAUD,

Section 52(f)

In that he,

at Ambala Cantonment, on 14 Feb.1990, while Commanding 27

Company Supply (ASC), being contract operating officer for meat

dressed, with intent to defraud caused the acceptance of meat from

the contractor with heart as part of meat, well knowing that the same

was not acceptable part of carcasses as per para 86 of Special

Condition of the Contract deed for the period from 1st May 1989 to

31st March, 1990, concerning meat supply at Ambala.

Second charge AN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY

Army Act DISCIPLINE,

Section 63

In that he,

at Ambala Cantonment, on 14 February 1990, while Commanding

27 Company Supply (ASC), having visited butchery of the said

company at the time of inspection of carcasses by the Veterinary

Officer and having found the carcasses dribbling with water, failed

to ensure that wet meat dribbling with water is not issued to the

Units, contrary to para 14(j) of Headquarters PH and HP area Shimla

(ST Branch) Technical Instruction dated 30th November, 1989.

Third charge AN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY

Army Act DISCIPLINE,

Section 63

In that he,

at Ambala Cantonment, during the period from 26th February 1990

to 8th March 1990 while Commanding 27 Company Supply (ASC)

failed to ensure that stock of reserve animals was maintained in the

4

butchery of the said company as per para 51(a) of Special Condition

of the Contract deed for the period from 1st May 1989 to 31st March

1990, consequently no animals were held in reserve in the said

butchery during that period.

Fourth charge AN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY

Army Act DISCIPLINE,

Section 63

In that he,

at Ambala Cantonment, during the period from 11th March 1990 to

22nd March 1990, while Commanding 27 Company supply (ASC),

failed to ensure that stock of reserve animals was maintained in the

butchery of the said company as per para 51(a) of Special

Conditions of the Contract deed for the period from 1st May, 1989 to

31st March, 1990, consequently no animals were held in reserve in

the said butchery during that period.

Fifth charge AN OMISSION PREJUDICIAL TO GOOD ORDER AND MILITARY

Army Act DISCIPLINE,

Section 63

In that he,

at Ambala Cantonment, between 15th January 1990 and March 1990,

while Officer Commanding 27 Company Supply (ASC) and

responsible for overall control of the operation of unit butchery,

improperly failed to implement the Standard Operating Procedure

for Butchery Group Supply Depot Ambala Cantt dated 9th May,

1988, as amended, resulting in the following malpractices:

(a) Duplicate Brands and Veterinary Officer's stamp were

found in possession of contractor's butcher.

(b) All rejected meat and other offals were not being destroyed

as per laid down instructions.

(c) Passed animals were not segregated but were allowed to mix

with the other animals of contractor.

(d) Hanging room was not sealed by the JCO Incharge butchery

after taking the green weight of the carcasses.

(e) Animals passed and branded were not segregated for a

minimum mandatory period of 12 hours before slaughtering.

(f) Over issue/under issue of meat was made to the units in

connivance with the representatives of the units.

Charges 1 and 2 related to what was found during the inspection on

14.2.1990. Charges 3 and 4 related to failure to maintain adequate animals in

5

reserve subsequent to 14.2.1990. Charge 5 related to miscellaneous

omissions and commissions generally based upon what was observed during

the inspection on 14.2.1990.

5. On 14.1.1993, a direction for trial of the first respondent by General

Court Martial (`GCM' or `Court Martial' for short) was issued. On the same

day, an order convening the GCM was issued by the third appellant. The

trial commenced on 22.1.1993 and concluded on 30.7.1993. At the end of

the trial, the GCM found the first respondent not guilty of the second and

third charges, but guilty of the first charge, fourth charge and item (c) of the

fifth charge. On that basis, the GCM imposed the sentence of dismissal from

service on first respondent on 30.7.1993.

6. In pursuance of it, a show cause notice dated 30.6.1995 was issued to

the first respondent calling upon him to show cause why his pensionary

benefits should not be forfeited under Rule 16(a) of the Pension Regulations

for the Army (Part I), 1961 (for short `the Pension Regulations'). After

considering the first respondent's representation, the President of India

ordered the forfeiture of the entire pensionary benefits of the first

respondent, communicated by letter dated 22.12.1995 from the Defence

Ministry to the Chief of Army Staff.

6

7. Feeling aggrieved, the first respondent filed writ petition in the Punjab

& Haryana High Court (registered as Crl.WP No.1797/1997) challenging

General Court Martial proceedings, findings of the General Court Martial

holding him guilty of the charges, sentence of dismissal from service and the

decision of the appellants to forfeit his pensionary benefits. The High Court

by judgment dated 25.8.2000 allowed the writ petition in part. The High

Court held that the GCM proceedings were in order, there was no violation

of any rules or procedure. It also found no ground to interfere with findings

of guilt or the sentence. Consequently, the punishment imposed by the GCM

was upheld. But the High Court held that the order forfeiting the pension and

pensionary benefits of the first respondent was invalid as no reasons were

assigned in the order dated 22.12.1995, for forfeiture thereof. The High

Court therefore quashed the order dated 22.12.1995 forfeiting the pension

and directed the appellants to reconsider the matter with reference to

Regulation 16(a) of the Pension Regulations and the principles laid down by

the Full Bench of the Delhi High Court in Brig.A.K. Malhotra v. Union of

India - (1997) (4) SLR 51. In short, the writ petition was allowed to the

extent of quashing forfeiture of the pension but dismissed in regard to the

challenge to the proceedings of GCM and the order of dismissal.

7

8. Aggrieved by the quashing of the pension forfeiture order dated

22.12.1995, the appellants (Union of India and the Army Authorities) have

filed Criminal Appeal No.876/2003. Aggrieved by the rejection of the

challenge to the GCM findings and the imposition of the punishment, the

first respondent has filed Criminal Appeal No.877/2003. On the contentions

urged, the following questions arise for our consideration:

In Crl.Appeal No.876/2003

(i) Whether the High Court having upheld the order imposing the

punishment of dismissal, is justified in quashing the order dated

22.12.1995 made under Pension Regulation 16(a), forfeiting the

pension and directing reconsideration?

In Crl.Appeal No.877/2003

(ii) Whether the finding of the High Court that conduct of the

proceedings of the GCM did not violate any rules, calls for

interference?

(iii) Whether the findings of guilt in regard to charges 1, 4 and 5(c)

require interference?

(iv) Whether the punishment of dismissal is excessively

disproportionate to the gravity of the charges proved?

Re : Question (i)

8

9. The High Court having held that there was no irregularity in the court

martial proceedings or infirmity in the findings of guilt and the punishment

imposed, held that there was no justification for forfeiting the pension on the

following reasoning :

".... the general court martial did not think it appropriate to order for the

forfeiture of the pension and pensionary benefits under section 71(h) and

(k) of the Army Act and the obvious inference seems to be that the court

martial did not think it appropriate that despite the dismissal of the service

of the petitioner, he should be awarded the forfeiture of pension and

pensionary benefits as a punishment. As held by the Full Bench of the

Delhi High Court in the case of Brig. A. K. Malhotra (supra), the pension

and pensionary benefits are to eb granted in the normal course unless there

are such circumstances existing under which the offence against the

concerned officer is found to be extra-ordinarily grave and in that case

sufficient reasons must be recorded for the forfeiture of the pension by the

competent authority taking action on the administrative side. In the instant

case the impugned order, Annexure P-12, shows that the forfeiture of the

pension and pensionary benefits was ordered by having regard to

circumstances of the case leading to the dismissal of the officer from

service. In other words, the President considered the forfeiture of the

pension and pensionary benefits only on the circumstances which led to

the trial, conviction and sentence of dismissal from service of the

petitioner by the General Court Martial. The impugned order, annexure P-

12, does not show that it was considered to be a case of extra-ordinarily

grave charge where the pension and pensionary benefits should have been

forfeited or there were other valid and good reasons for the forfeiture of

the pension and pensionary benefits.

10. For this purpose, the High Court relied upon the decision of the Delhi

High Court in Brig. A. K. Malhotra. In the said decision, the Delhi High

Court held that under section 71 of the Army Act, 1950 (`Act' for short),

forfeiture of pension was provided as a measure of punishment for offences

9

tried by the court martial and if the court martial did not, in a given case,

think it fit to forfeit the pension while awarding the punishment, then the

only inference that could be drawn is that the Court Martial was of the view

that the punishment of dismissal alone was sufficient for the offences and

there was no need to inflict the additional punishment of forfeiture of

pension. The Delhi High Court further held that the normal rule is that

pensionary and other benefits are to be granted unless the competent

authority comes to the conclusion that the service of the officer taken as a

whole was not satisfactory from the beginning or unless the offences which

are proved and for which he had been sentenced are so extra-ordinarily

grave that the entire previous satisfactory service has to be excluded from

consideration. The High Court reasoned that if the offence was so extra-

ordinarily grave, the court martial itself would have forfeited the pensionary

benefits, and where the court martial did not deem it necessary, if the

competent authority wanted to deny pension, he must record good and valid

reasons as to why normal rule of granting pensionary benefits is not to be

followed.

11. The direction of the High Court to reconsider the matter in the light

of the legal principles laid down by the Full Bench of the Delhi High Court

in Brig. A.K. Malhotra is no longer valid in view of the fact that the

10

decision in Brig. A.K. Malhotra was reversed by this Court in Union of

India v. P.D. Yadav - 2002 (1) SCC 405. This Court held that even if the

GCM while imposing punishment, does not direct forfeiture of service or

forfeiture of pension under section 71 of the Act having regard to Regulation

16(a) of the Pension Regulations, it is permissible for the President of India

to direct forfeiture of pension in regard to a person dismissed or cashiered

consequent to a trial by the GCM. This Court also held that for passing an

order for forfeiture of pension under Regulation 16(a), all that was necessary

was that cashiering or dismissal of the officer from service and there was no

further need, either to assign reasons for forfeiture or to consider whether the

merit of his prior service warranted any relaxation or relief against

forfeiture.

12. As clarified by this Court in P.D.Yadav, the power to deny pension as

a consequence of an officer being cashiered or dismissed or removed from

service, vests only with the President of India under Pension Regulation

16(a). The President of India may direct either forfeiture of the entire

pension or only a percentage of the pension. Further section 71 of the Act

does not provide for forfeiture of pension as one of the punishments

awardable by Court Martial. Imposition of punishments of cashiering and

11

dismissal from service are provided in clauses (d) and (e) of section 71.

Clauses (h) and (k) of section 71 relied upon to hold that the Court Martial

could also impose the punishment of forfeiture of pensionary benefits, are

extracted below :

"(h): The forfeiture of service for the purpose of increased pay, pension or

any other prescribed purpose.

(k): The forfeiture in the case of a person's sentence to cashiering or

dismissal from service of all arrears of pay and allowances and other

public money due to him at the time of such cashiering or dismissal."

Neither clause (h) nor clause (k) nor any of the other clauses in section 71

refers to and provides for forfeiture of pension as a penalty. This Court held:

"Under Section 71(h), a punishment of forfeiture of service for the

purpose of increased pay, pension or any other prescribed purpose, can be

imposed. If forfeiture of service has the effect of reducing total qualifying

service required to earn pension, a person concerned is disentitled for

pension itself. In other cases, it may have bearing in regard to claim for

increased pay or any other purpose. If by virtue of such punishment itself,

a person is not entitled for any pension, the question of passing an order

forfeiting pension under Regulation 16(a) may not arise. As per Section

71(k), in case of a person sentenced to cashiering or dismissal from the

service, a further punishment of forfeiture of all arrears of pay and

allowances and other public money due to him at the time of such

cashiering or dismissal may be imposed. Clause (k) of Section 71 does not

speak of pension unlike clause (h) of the same Section. x x x x x

Merely because punishment is not imposed under clause (h) or (k) of

Section 71 and other punishments are imposed, it does not mean that the

President is deprived of his power and jurisdiction to pass order under

Regulation 16(a);..."

12

Therefore, the question of court martial imposing the punishment of

forfeiture of pension does not arise at all. The court martial can impose any

of the penalties enumerated in section 71 of the Act. Dismissal or cashiering

of an officer does not lead to automatic forfeiture of pension. The power and

discretion vested in the President of India by virtue of Pension Regulation

16(a), to forfeit and deny the pension in full or in part to an officer, who is

dismissed or cashiered, is independent of the punishment imposed under

section 71 of the Act by the court martial.

13. Having held that the proceedings of the GCM was proper and findings

of guilt did not suffer from any infirmity and the punishment of dismissal

did not call for any interference, the High Court could not have interfered

with the power and discretion exercised under Pension Regulation 16(a). If

there is no violation of rules in conducting the GCM and if there is no

infirmity in the award of punishment, having regard to the decision of this

Court in P.D. Yadav, the forfeiture of pension was not required to be

supported by any other independent reasons nor was it necessary to consider

the previous service or gravity of the offence or other circumstances. The

High Court therefore committed an error in quashing the order dated

22.12.1995 passed by the President of India, forfeiting the pension of the

13

appellant. The appeal by the appellants (Criminal Appeal No.876 of 2003) is

bound to succeed. But this is, however, subject to the decision in the appeal,

preferred by the first respondent. If the first respondent is able to

demonstrate in his appeal that either the proceedings of the GCM violated

the provisions of the Act/Rules/the procedure prescribed, or that the findings

of guilt were perverse and unsustainable, or that the punishment was

shockingly disproportionate to the gravity of the proved offences and

warranted interference, and if this Court accepting his contentions allows his

appeal, and sets aside the order of dismissal or reduces the punishment, then

the very basis for issue of the order of forfeiture of pension under Pension

Regulation 16(a) will disappear and consequently, that order of forfeiture

also will not survive. Therefore, we may now examine the contentions of the

first respondent challenging the validity of the proceedings of the GCM and

imposition of punishment.

Re : Question (ii)

14. The first respondent has contended that there is a serious procedural

irregularity in the constitution and conduct of the court martial, that in spite

of his challenge, it was not set right and therefore, the entire Court Martial

proceedings and consequently, the punishment, were vitiated. According to

14

first respondent, the Presiding Officer of the Court Martial - Brig. S.K.

Kaushal had earlier summarily tried two prosecution witnesses - Sub.

Baryam Singh and Sub. Harjinder Singh (who had drawn meat for their units

on 14.2.1990) for drawing less quantity of meat and awarded the reprimand

for negligent performance of duties. As the summary trials were in regard to

the same incident when the prosecutor disclosed the said fact on 15.4.1990,

the first respondent raised a challenge objecting to Brig. S.K.Kaushal being

the Presiding Officer, as he was disqualified from serving on a GCM having

regard to clause (c) of sub-rule (2) of Rule 39 of the Army Rules 1954

(`Rules' for short). He further alleged that the Presiding Officer would have

formulated an opinion in regard to the incident and consequently, be biased.

In spite of it, the Convening Authority wrongly directed the GCM to

proceed, overruling his objection under section 130 of the Act read with rule

44 of the Rules. He submits that participation by the Presiding Officer

vitiated the entire proceedings, rendering the same invalid and void.

15. Rule 39 of the Army Rules 1954 reads thus :

"39. Ineligibility and disqualification of officers for court-martial.--(1) An

officer is not eligible for serving on a court-martial if he is not subject to the Act.

(2) An officer is disqualified for serving on a general or district court-martial if he

--

(a) Is an officer who convened the court; or

(b) Is the prosecutor or a witness for the prosecution; or

15

(c) Investigated the charges before trial, or took down the summary of evidence,

or was a member of a court of inquiry respecting the matters on which the

charges against the accused are founded, or was the squadron, battery,

company, or other commander, who made preliminary inquiry into the case, or

was a member of a previous court-martial which tried the accused in respect of

the same offence; or

(d) Is the commanding officer of the accused, or of the corps to which the

accused belongs; or

(e) Has a personal interest in the case.

(3) The provost-marshal or assistant provost-marshal is disqualified from serving

on a general court-martial or district court-martial."

It is clear from Rule 39 that an officer is disqualified for serving on a GCM

if (i) he had investigated the charges before trial, or (ii) he took down the

summary of evidence, or (iii) he was a member of a court of inquiry

respecting the matters on which the charges against the accused were

founded, or (iv) he was a Squadron, Battery, Company or other Commander

who made preliminary inquiry into the case, or (v) he was a member of a

previous Court Martial which tried the accused in respect of the same

offence. A careful reading of the said Rule demonstrates that the act of

summarily trying others for other offences relating to the same incident is

not a ground of disqualification. The charges against the first respondent

were completely different from the charges against the persons who were

summarily tried by Brig. Kaushal. The Presiding Officer did not suffer from

any of the disqualifications enumerated in Rule 39. The Convening

16

Authority was therefore justified in directing the GCM to proceed with the

trial. Therefore, the challenge to the constitution of the GCM with Brig.

Kaushal as the Presiding Officer is liable to be rejected.

16. The High Court did not find any merit in the contention that after the

Court Martial was constituted on 3.2.1993, the first respondent ought to have

given 96 hours after giving the names of the members constituting the Court

Martial. The first respondent has also not established his allegations that

Judge Advocate was biased and Dy. JAG who ultimately reviewed the

findings, was also biased as he was actively guiding the prosecution. The

first respondent has not been able to demonstrate any error in the finding of

the High Court that there was no infirmity in the constitution of the Court

Martial and the procedure followed by it.

Re : Question (iii)

17. The principles relating to judicial review in regard to court martial

proceedings are well settled. Unless the court martial has acted without

jurisdiction, or exceeded its jurisdiction or had acted perversely or

arbitrarily, the proceedings and decision of the court martial will not be

17

interfered in exercise of power of judicial review. In Union of India vs.

Major A. Hussain - 1998 (1) SCC 537, this Court held :

"Though court-martial proceedings are subject to judicial review by the

High Court under Article 226 of the Constitution, the court-martial is not

subject to the superintendence of the High Court under Article 227 of the

Constitution. If a court-martial has been properly convened and there is no

challenge to its composition and the proceedings are in accordance with

the procedure prescribed, the High Court or for that matter any court must

stay its hands. Proceedings of a court-martial are not to be compared with

the proceedings in a criminal court under the CrPC where adjournments

have become a matter of routine though that is also against the provisions

of law. It has been rightly said that court-martial remains to a significant

degree, a specialised part of overall mechanism by which the military dis-

cipline is preserved. It is for the special need for the armed forces that a

person subject to Army Act is tried by court-martial for an act which is an

offence under the Act. Court-martial discharges judicial function and to a

great extent is a court where provisions of Evidence Act are applicable. A

court-martial has also the same responsibility as any court to protect the

rights of the accused charged before it and to follow the procedural safe-

guards. If one looks at the provisions of law relating to court-martial in the

Army Act, the Army Rules, Defence Service Regulations and other Ad-

ministrative Instructions of the Army, it is manifestly clear that the proce-

dure prescribed is perhaps equally fair if not more than a criminal trial

provides to the accused. When there is sufficient evidence to sustain con-

viction, it is unnecessary to examine if pre-trial investigation was adequate

or not. Requirement of proper and adequate investigation is not jurisdic-

tional and any violation thereof does not invalidate the court-martial un-

less it is shown that the accused has been prejudiced or a mandatory provi-

sion has been violated. One may usefully refer to Rule 149 quoted above.

The High Court should not allow the challenge to the validity of convic-

tion and sentence of the accused when evidence is sufficient, court-martial

has jurisdiction over the subject-matter and has followed the prescribed

procedure and is within its powers to award punishment."

18. The High Court after exhaustive consideration found that the trial was

conducted in accordance with the rules and there was no violation of the

procedure or principles of natural justice. On behalf of the prosecution, as

18

many as 13 witnesses were examined. A large number of documents

(marked A to Z, AA to ZZ and AAA to ZZZ and AAAA to GGGG), apart

from three material objects (ME1 to ME 3) were exhibited. The first

respondent was supplied with complete set of proceedings including all

exhibits. He was permitted to have the assistance of a legal practitioner. He

was given due opportunity to cross examine the witnesses and lead his own

evidence. After completion of evidence, the General Court Martial put

questions to the accused with reference to the evidence and gave him an

opportunity to explain his position. Detailed submissions on behalf of the

prosecution and the defence were heard. It was thereafter that the Court

Martial gave its findings and imposed the punishment. This is not a case of

no-evidence. Inadequacy and unreliability of evidence are not grounds for

interference. The Court Martial had jurisdiction. Violation of prescribed

procedure has not been made out. In exercise of power of judicial review, it

is not possible to re-assess the evidence or sit in judgment over the finding

of guilt recorded by the Military Tribunal. The scope of interference with the

findings of the GCM is very narrow and should be exercised in rare cases.

This is not one of them. We, therefore, find no reason to interfere with

findings of guilt regarding changes 1, 4 and 5(c).

19

Re : Question (iii)

19. This takes us to the last question as to whether the punishment of

dismissal is shockingly disproportionate to the gravity of the charges. The

principles relating to judicial review of punishment imposed, as a part of the

decision making process by Court Martial, have been explained, in Ranjit

Thakur vs. Union of India - 1987 (4) SCC 611, where this Court interfered

with the punishment imposed by a court martial on the ground that it was

strikingly disproportionate to the gravity of offence on the following

reasoning :

"Judicial review generally speaking, is not directed against a decision, but

is directed against the "decision making process". The question of the

choice and quantum of punishment is within the jurisdiction and discretion

of the Court-Martial. But the sentence has to suit the offence and the

offender. It should not be vindictive or unduly harsh. It should not be so

disproportionate to the offence as to shock the conscience and amount in

itself to conclusive evidence of bias. The doctrine of proportionality, as

part of the concept of judicial review, would ensure that even on an aspect

which is, otherwise, within the exclusive province of the Court-Martial, if

the decision of the Court even as to sentence is an outrageous defiance of

logic, then the sentence would not be immune from correction.

Irrationality and perversity are recognised grounds of judicial review."

In Union of India vs. R.K. Sharma - 2001 (9) SCC 492, this Court explained

the observations in Ranjit Thakur. It clarified that in Ranjit Thakur, the

charge was ridiculous, the punishment was harsh and disproportionate and it

was on such gross facts that this Court had held that the punishment was so

20

strikingly disproportionate that it called for interference; and the said

observations in Ranjit Thakur are not to be taken to mean that a court can,

while exercising the power of judicial review, interfere with the punishment

merely because it considers the punishment to be disproportionate. It was

held that only in extreme cases, which on their face, show perversity or

irrationality, there could be judicial review and merely on compassionate

grounds, courts should not interfere. In this background, we may examine

the third question.

20. The charges that are held to be proved against the first respondent,

are: (i) Being the Contract Operating Officer for dressed meat, the first

respondent with intent to defraud, caused the acceptance of meat from the

contractor with `heart' as part of the meat knowing that the same was not

acceptable part of carcasses as per para 86 of special conditions of the

contract (vide first charge); (ii) The first respondent, as the Commandant

incharge of the Supply Depot failed to ensure that required stocks were

maintained as reserve, in the Butchery as required by para 51(a) of the

special conditions of contract (vide fourth charge); (iii) The first respondent

as the Commandant responsible for the overall control of the operation of

the Butchery improperly failed to implement the standard operating

21

procedure for Butchery resulting in `passed' animals not being segregated

and being allowed to mix with the other animals of the contractor.

21. According to the charge-sheet, the first charge was an offence falling

under section 52(f) of the Act which provides that subject to the provisions

of the Act, any person who does anything with intent to defraud, or to cause

wrongful gain to one person or wrongful loss to another person, shall, on

conviction by court martial, be liable to suffer imprisonment for a term

which may extend to ten years or such less punishment as is mentioned in

the Act. The other two charges which are held to be proved relate to acts or

omissions which are said to be "prejudicial to good order and military

discipline" punishable under section 63 of the Act on conviction by Court

Martial, with imprisonment for a term which may extend to seven years or

such less punishment as is mentioned in the Act. We may now consider the

nature and content of the charges proved. Section 52(f) and section 63 are

very broadly and generally worded and deal with residuary offences, (one

dealing with property and another dealing with discipline) to provide for and

cover offences which are not specifically provided in sections 34 to 64 of the

Act. The offences under these residuary provisions may fall under a wide

spectrum, ranging from the mildest technical violations to the severest

22

offences relating to fraud or gross indiscipline. It is therefore necessary to

find the degree of gravity of the offence when a person is found guilty of

offences under section 52(f) or section 63. Only then, the court can consider

whether the punishment is so disproportionate to the gravity of the proved

offences that it shocks the conscience of the court or is so perverse or

irrational that it cannot be allowed to stand. As held by this Court

repeatedly, there could be no judicial review merely because the court feels

that the punishment should have been lesser or on the ground of sympathy or

compassion.

22. It is necessary to know who was responsible for what in the butchery.

As per the standard operating procedure of Butchery, the responsibility has

been divided among the Supervisory Officer, JCOs and NCOs. The duties of

the supervisory officer included the following :

"Duties of Supervisory Officer

The Supervising Officer, Butchery will be responsible for the proper and

efficient functioning of the butchery. He will :

(a) Be responsible for passing goat and sheep and maintaining the

reserve stock of animals at all times.

(b) Ensure that proper branding of animals is carried out without any

cruelty to the animals and the branding so done lasts till the carcass

is passed fit by the veterinary officer.

23

(c) Be personally responsible for the books and records showing

reserve stock and animals passed. The records must be complete

and up to date at all times and signed by him duly completed in all

respects.

(d) Visit butchery during slaughter hours at least once a week.

(e) Ensure that the butchery surroundings are kept scrupulously clean.

(f) Ensure that branding irons are kept in sealed box in quarter guard

and take the same whenever required for branding the animals.

(g) Ensure that branding irons are not left over with any body in the

butchery. He will also ensure that weights and measures are

calibrated periodically by the workshop.

(h) He will ensure that the quality of meat always conforms to ASC

specifications and no deviation from these specifications will be

allowed. In doing so he will ensure that the contractor does not use

unfair means such as use of water except for cleaning of carcasses.

(i) He will be present in the butchery throughout the issue time and

will ensure that units get their entitlements. He will also ensure that

every unit rep signs for the quantity and quality of the items being

collected. He will be responsible to check the following documents

maint in the butchery for its correctness and will be responsible to

put up the same to Commandant once a month :

xxxxxx

The duties of JCOs:

(a) "He is responsible for the smooth functioning of the butchery

under the order of Supervising Officer.

(b) He will ensure that highest standard of cleanliness is maintained in

the butchery.

(c) He will ensure that reserve stock of animals is maintained by the

contractor at all times.

(d) He will ensure that strict security is observed as regards to

segregation pen, hanging room, disposal of rejected meat by the

VO and disposal of dead and rejected animals.

(e) He will supervise the slaughter of all animals as per procedure laid

down in order from time to time. He will be personally responsible

24

to ensure that only jhatka meat is being issued unless otherwise

demanded by a unit.

(f) He will be responsible to observe the slaughtering animals. He will

ensure that only branded and segregated animals are slaughtered

and will be present throughout the slaughtering times. He will

ensure that no water is injected in the carcasses by contractor. He

will ensure that the grown weight is taken and minimum 5 hrs

setting time is allowed.

(g) He will ensure that books and records maintained in the butchery

are kept up to date at all times.

(h) He will be responsible to supervise the issue of meat to troops and

ensure that correct quantity as per their demand is issued and

receipt of the same is obtained.

(i) He will ensure that proper duties are allotted to other NCO's and

Sepoy detailed to assist him.

(j) He will ensure that from the time of slaughtering to the time of

issue, the butchery will be open and NCO/Sepoy will sleep at night

properly guarded in the butchery.

(k) He will be responsible for proper setting of meat in that he will see

that the butchers do not use water for any other purpose except for

the cleaning of carcasses.

(l) He will ensure that the meat is properly set before the postmortem

is carried out by Veterinary Officer and will be responsible for

retail issue to units.

The duties of the Veterinary Officer :

"He will be responsible for ante-mortem and post mortem inspection. His

advice as a rule will be accepted unless there are other reasons. He will

ensure that only good and hygienic meat is issued to troops. In doing so he

will ensure :

a. That offals which are not edible are removed.

b. That the meat or the carcasses which is unfit for human

consumption is removed.

c. He will ensure that the rejected meat potion/carcasses are

destroyed either by burning or by deep burying in his presence.

d. He will ensure that meat inspected by him is properly set and

no water is dripping from the carcasses. He will bring to the

25

notice of SO butchery and Commandant if any water is found

in the carcasses so that remedial measures can be taken.

e. He will ensure that veterinary officer stamp has been put on

each and every carcasses including the portion of carcasses

after he had carried out the post mortem examination.

The Commandant was to be in overall charge of the supply depot and his

duties were as under :

"(a) A CO will supervise and control all duties performed by those

under his command, and will be held accountable for, and be responsible

for the security and condition of, all public buildings, armaments,

equipment and stores, of whatever description, appertaining to or on

charge of his unit, corps or establishment.

(b) A CO is responsible for the correct receipt, issue, accounting and

stock taking of all supplies, stores and equipment received or issued by the

unit. He will ensure that daily issues are inspected and weighed in the

presence of an officer or a Junior Commissioner Officer.

(c) A CO is responsible for the maintenance of discipline, efficiency

and proper administration in the unit under his command. He is also

responsible for its training and readiness for war."

23. We may now consider the first charge. The charge that has been held

to have been proved is an offence under section 52(f) of the Act that is while

commanding the supply depot, the first respondent being the Contract

Operating Officer for dressed meat, with intent to defraud, caused the

acceptance of meat from the contractor with heart as part of meat between

1.5.1989 and 31.3.1990, knowing that the same was not acceptable part of

the carcass as per para 86 of the Special Conditions of Contract. What was

26

established was that when the butchery was raided and the meat issued to

units were inspected on 14.2.1990, it was found that out of the dressed meat

weighing 1411.2 kgs. that was issued to various units, the weight of hearts

found as part of the meat was 14.5 kgs. The Supervisory Officer and

Veterinary Officer have been charged and punished in this behalf. The case

against the first respondent was not that he had instructed heart to be

accepted as part of dressed meat nor is it the case that heart was being

regularly accepted as part of dressed meat from the contractor. The case

against first respondent was that when the butchery was being inspected on

14.2.1990, the first respondent as Commandant visited the butchery and

during discussions with the inspecting officers made an observation that to

the best of his knowledge, heart was an edible offal and could be issued on

demand of units and also reiterated the said observation in his confidential

report dated 15.2.1990. Making of the said remark has been interpreted as

the first respondent accepting meat from the contractor with heart as part of

the dressed meat, knowing well that heart was not acceptable part of carcass;

to defraud the government. This charge depends upon the interpretation of

para 86 of the special conditions of the contract and an inference that his

understanding of para 86 amounted to causing acceptance of heart as part of

the dressed meat.

27

24. Para 86 of the `special conditions - meat dressed/meat on hoof' reads

as under :

"86. I/We agree that I/We will supply meat dressed (Jhatka/Halal) as per

ASC Specification No.115, including liver, kidney and testicles passed fit

by the Veterinary Officer/Contract Operating Officer of the total arising of

carcasses and as a part of meat dressed at the rate of meat dressed

(Jhatka/Halal) by weight as given in the schedule. Any other offals,

cuttings and arising of meat carcasses will not be taken over by the

Contract Operating Officer. The same will be removed by me/us and will

be disposed off by me/us in any manner I/We like at my/our cost."

(emphasis supplied)

The word `offal' has two meanings. Firstly, it refers to the edible internal

parts of an animal such as heart, livers, kidneys, testicles and tongue.

Secondly the term `offal' refers to the refuse or waste that is cuttings and

other non-edible parts of the animal which are either fallen or cut-off. One

way of interpreting clause 86 of the special conditions of contract is that the

dressed meat supplied may include liver, kidney, testicles (which are

specifically mentioned) but not other edible internal parts like heart and

tongue. The other interpretation in view of the use of the words "including

liver, kidney, testicles" would be that the dressed meat can include all edible

internal parts which include liver, kidney, and testicles as also heart, and

what should be excluded from the supply are other waste like cuttings, fallen

portions and inedible portions. Be that as it may. Even if we proceed on the

28

basis that clause 86 should be interpreted as specifying that the dressed meat

to be supplied could include only liver, kidney and testicles, but not heart,

that by itself does not mean that the appellant committed any offence. On the

day of raid and inspection, it was found that the supplies included heart (out

of a take quantity of 1411.2 kg. of meat supplied to various indenting units,

14.5 kgs. were heart). The first respondent who visited the Butchery at the

time of the inspection observed that the heart is also an edible offal and

could be issued on demand by the units. He did not say that heart was a part

of dressed meat under clause 86 or that heart was required to be regularly

supplied as part of dressed meat. No evidence was given that he had

instructed the butchery staff to accept `heart' as part of dressed meat and

issue it to the units. It is of some interest to note that the first respondent had

stated that the earlier supply contract was in the monopoly of one Om

Prakash and when that was broken and the contract was given to M/s Rajan

Malik & Co., Om Prakash became inimical to M/s Rajan Malik & Co., that

some of the persons employed by M/s Rajan Malik & Co. in the Butchery

where ex-employees of Om Prakash owing allegiance to Om Prakash, that

some mischief had been done at the instance of Om Prakash to prevent

Rajan Malik & Co. from continuing as contractor, that the raid was at the

instance of Om Prakash and that he and his henchmen were present all

29

through the inspection. The first respondent submitted that he was a victim

in a fight between the contractors. Be that as it may. Therefore, all that is

established is at best a wrong interpretation of clause 86 of the Special

Conditions of Contract.

25. The charge 4 is that between 11.3.1990 and 22.3.1990, the first

respondent failed to ensure that the reserve stock of animals were maintained

in the butchery as per para 51(a) of the Special Conditions of Contract. Here

again the charge should be properly understood. The first respondent was

not the supplier of the animals. The government had entered into a contract

with that supplier and clause 51(a) of Special Conditions is an undertaking

by the Contractor which reads thus : "I/We shall maintain complete at all

time from/upto .......... as reserve of not less than three days supply animals

(sheep/goat) based on the average number of animals to be slaughtered as

meat on hoof daily". Contract also provided (vide clause 52) that if the

contractor failed to do so, the supply officer shall be at liberty to effect risk

purchase be effected at the cost of the contractor and also take other steps.

Therefore, failure to maintain reserve stocks of animals was not an omission

on the part of any person in charge or overall charge of the butchery, but a

breach by the contractor. The omission that could be attributed to the officer

30

in-charge of the butchery or the first respondent is that when the contractor

failed to maintain reserves failure to bring it to the contractor's notice or

failure to take action to make risk purchase and other steps in terms of the

contract. But the charge is not that risk purchase was not effected or that the

first respondent failed to take necessary remedial steps. The evidence

showed that arrangements were made to procure the animals required for

slaughter on day to day basis to ensure no breaks in supply of meat. It has

also come in evidence that ever since 1989, the first respondent had been

informing and complaining to his higher ups that the Ambala area where the

supply depot was situated, had a shortage of stock of animals, that the

contractor was not in a position to maintain the required reserves and

therefore, suggesting that tenders should be invited from contractors in Delhi

where there was an abundance of stocks. Therefore, an omission of the

contractor cannot be considered to be an omission on part of the Contract

Operating Officer, particularly when he had pointed out deficiencies, and

taken remedial steps. Therefore, the effect of the finding in regard to charge

(4) is that the contractor did not keep any animals as reserve between

11.3.1990 and 22.3.1990 as undertaken by it under clause 51(a) of the

Special Conditions. The failure attributed to the supervisory staff of butchery

and the first respondent who was in overall charge was that they failed to

31

ensure that the contractor performed his obligations. What is established

against first respondent under charge (4) is therefore, only a technical lapse.

26. Charge 5(c) is that the appellant failed to implement the standard

operating procedure for butchery which required passed animals to be

segregated and not allowed to mix with the other animals of the contractor.

Animals that were branded and accepted for supply were the `passed

animals'. The evidence was not that passed animals and other animals were

being kept together. The evidence was that on a particular day when the

surprise inspection took place, the passed animals had not been segregated

from the other animals of the contractor which were yet to be branded and

passed. It was also not disputed that there was no specific directive relating

to segregation. Even if there was any lapse, it was a lapse of the JCO as per

the standard procedure for the butchery and not the Commandant of the

supply depot. The omission that could be attributed is at best would be a

technical lapse as far as the first respondent is concerned.

27. The omissions attributed to first respondent in regard to charges 4

and 5(c) were actually omissions by his sub-ordinates and those sub-

ordinates were charge-sheeted. In regard to the subject of charges (1) and

32

(4), the supervisory officer Capt. Paramjeet Singh Malhotra was cashiered

and sentenced to undergo rigorous imprisonment for 30 months and the

Veterinary Officer Lt. Capt. G. S. Srivastava was punished with forfeiture of

eight years past service for the purpose of pension and severely

reprimanded. In regard to the subject of charges (4) and 5(c), the

Supervisory Officer Capt. Paramjeet Singh Malhotra was punished. The role

of the appellant being that of an overall controlling officer of the supply

depot was limited and the charges in so far as the first respondent were

technical in nature. But for the limitation of interference with regard to

findings of fact in judicial review, this might even be a case for interference

with the findings of guilt recorded. Be that as it may.

28. In the circumstances, the punishment of dismissal from service is

shockingly disproportionate to the gravity of the offences held to be proved.

While we may not interfere with the findings of guilt, in a case of this

nature, having regard to the nature of offences, we may consider the

proportionality of punishment to find out whether it is perverse and

irrational. Even accepting the said findings of guilt regarding charges (1), (4)

and 5(c), it is clearly a case of shockingly disproportionate punishment being

meted out to the Commandant for offering an alternative interpretation to

33

clause (86), for the lapses of his supervisory officer and for the breach

committed by the contractor. In the normal course, we would have set aside

the punishment and referred the matter back for consideration and

imposition of a lesser punishment. But having regard to the fact that the

matter is more than 20 years old and the first respondent reached the age of

superannuation long ago, no purpose would be served, by referring it back to

the appellants. We are of the view on the facts and circumstances, interests

of justice would be served if the punishment of dismissal is substituted by

the following punishment : (a) forfeiture of eight years of service for the

purpose of pension; and (b) Severe reprimand. As a consequence, the order

forfeiting pension requires to be set aside as pension can be denied under

Pension Regulation 16(a) only to the officers who are cashiered, dismissed

or removed from service.

29. We accordingly dispose of the appeals as under :

(i) We allow Criminal Appeal No.876 of 2003 and set aside the order of

the High Court quashing the order dated 22.12.1995.

(ii) We allow Criminal Appeal No.877 of 2003 filed by the first

respondent and set aside the order of punishment dated 30.7.1993 imposing

the punishment of dismissal from service and substitute the same with the

34

punishment of forfeiture of eight years of service for purposes of pension

and severe reprimand.

(iii) As a consequence of the punishment of dismissal being set aside and

substituted by a lesser punishment necessarily, the order dated 22.12.1995

forfeiting the pension, passed under Pension Regulation 16(a), is set aside.

The respondents are directed to process and settle his pension claim within

six months.

(iv) The first respondent will not be entitled to any back-wages from the

date of his dismissal to the date of his superannuation, as a consequence of

his dismissal being set aside.

.............................J

[R. V. Raveendran]

.............................J

[P. Sathasivam]

New Delhi;

September 12, 2011.

the punishment of dismissal from service is shockingly disproportionate to the gravity of the offences held to be proved. While we may not interfere with the findings of guilt, in a case of this nature, having regard to the nature of offences, we may consider the proportionality of punishment to find out whether it is perverse and irrational. Even accepting the said findings of guilt regarding charges (1), (4) and 5(c), it is clearly a case of shockingly disproportionate punishment being meted out to the Commandant for offering an alternative interpretation to « advocatemmmohan