LAW FOR ALL

Tuesday, August 2, 2016

when a complaint case is dismissed by the Magistrate for non-appearance of the complainant or his counsel and the accused is acquitted, then the Magistrate cannot exercise any inherent power to restore the case in the absence of any specific provisions in the Criminal Procedure Code. However, a second complaint case is permissible in law if it could be brought within the limitation.

PETITIONER:
MAJ. GENL. A.S. GAURAYA & ANR.

Vs.

RESPONDENT:
S.N. THAKUR AND ANR.

DATE OF JUDGMENT25/04/1986

BENCH:
KHALID, V. (J)
BENCH:
KHALID, V. (J)
DUTT, M.M. (J)

CITATION:
1986 AIR 1440 1986 SCR (2) 771
1986 SCC (2) 709 1986 SCALE (1)1128

ACT:
Criminal Procedure Code, 1973 - Whether subordinate
criminal Courts have inherent jurisdiction outside the
provisions of the Code.

HEADNOTE:
Respondent No.l, complainant, filed a complaint against
the appellants-accused in the Court of the Judicial
Magistrate, First Class, New Delhi disclosing an offence
punishable under s. 67 and 72-C(l)(a) of the Mines Act, 1952
read with Regulation 106 of the Metallifarous Mines
Regulation, 1961. The Magistrate took the complaint on file
and issued summons to the accused to appear on 6.1.1972. On
6.1.1972 neither the complainant nor the accused were
present and, therefore, the Magistrate dismissed the
complaint in default and for want of prosecution. The
respondent filed an application on 13.1.1972 for restoration
of the complaint and on 20.1.72, after hearing the
complainant, the Magistrate restored the complaint and
issued summons to the accused. Thereafter the accused-
appellants moved an application before the Magistrate
stating that the order dated 20.1.72 was without
jurisdiction since the Magistrate had become functus officio
by order dated 6.1.72. The Magistrate rejected this
application holding that he had inherent powers under the
code of Criminal Procedure to review and recall his earlier
orders. The Additional Chief Judicial Magistrate and the
Delhi High Court dismissed the first and the second revision
petition filed by the appellants against the order of the
Magistrate.
Pursuant to a judgement delivered by the Supreme Court
on 5th August, 1976 in the case of Bindeshwari Prasad Singh
v. Kali Singh, [1977] 1 S.C.R. 125 holding that no Criminal
Court had any inherent jurisdiction, not provided for in the
Criminal Procedure Code, the appellants moved an application
before the Metropolitan Magistrate contending that all
proceedings after the dismissal of the complaint by order
dated 6th January, 1972 were without jurisdiction in the
light
772
of the law laid down by the Supreme Court and requested the
Magistrate to drop further proceedings. The Magistrate
accepted this contention and dropped the proceedings against
the appellants-accused. Aggrieved by this order, the
respondent filed a revision before the Additional Sessions
Judge who reversed the decision of the Magistrate holding
that a pronouncement as to the position of law in a judicial
decision by the Supreme Court cannot be treated as a sort of
legislation by Parliament giving retrospective effect as to
enjoin re-appointing of all matters which have already
become final and closed. Thereupon, the appellants filed a
writ petition before the High Court and the same was
dismissed in limine. Hence this appeal by special leave.
Allowing the appeal.
^
HELD. 1. In view of the law laid down by Supreme Court
in Bindeshwari Prasad Singh v. Kali Singh, [1977] 1 S.C.R.
125, the order of the High Court is set aside and that of
the Magistrate dated 6.1.77 dismissing the complaint is
restored. [781 C]
2.(i) Section 249 of the Criminal Procedure Code
enables a magistrate to discharge the accused when the
complainant is absent and when the conditions laid down in
the said section are satisfied. Section 256(1) of the
Criminal Procedure Code enables a magistrate to acquit the
accused if the complainant does not appear. Thus, the order
of dismissal of a complaint by a criminal court due to the
absence of a complainant is a proper order. Therefore, so
far as the accused is concerned, dismissal of a complaint
for non-appearance of the complainant or his discharge or
acquittal on the same ground is a final order and in the
absence of any specific provision in the Code, a Magistrate
cannot exercise any inherent jurisdiction. [776 E-F: 777 G-
H]
2.(ii) There is absolutely no provision in the Code of
Criminal Procedure of 1908 empowering a Magistrate to review
or recall an order passed by him. Code of Criminal Procedure
does contain a provision for inherent powers, namely,
Section 561-A which, however, confers these powers on the
High Court and the High Court alone. Unlike Section 151 of
Civil Procedure Code, the subordinate criminal courts have
no inherent powers. In these circumstances, therefore, the
learned Magistrate had absolutely no jurisdiction to re-call
the order dismissing the complaint. [778 C-E]
773
2.(iii) Filing of a second complaint is not the same
thing as reviving a dismissed complaint after recalling the
order of dismissal. The Criminal Procedure Code does not
contain any provision enabling the Criminal Court to use
such an inherent power. A second complaint is permissible in
law if it could be brought within the limitations imposed by
the Supreme Court in Pramatha Nath Taluqdar v. Saroj Ranjan
Sarkar [1962] Suppl. 2 S.C.R. 297. [777 A-B; 776 H]
Bindeshwari Prasad Singh v. Kali Singh, [1977] 1 S.C.R.
125, followed.
B.D. Sethi v. V.P. Dewan, 1971 Delhi Law Times 162,
over-ruled.
3. A mere reading of Article 141 brings into sharp
focus its expanse and all pervasive nature. There is nothing
like any prospective operation alone of the law laid down by
the Supreme Court. The law laid down by the Supreme Court
applies to all pending proceedings. [780 D; 779 E]
Shenoy and Co. v. Commercial Tax Officer, [1985] 2
S.C.C. 512, relied upon.
In the instant case, the Additional Sessions Judge
overlooked the binding nature of the law declared by the
Supreme Court mandating under Art. 141, every court
subordinate to this Court to accept it. The High Court could
have, if it had examined the matter, corrected the error
into which the Sessions Judge fell. The observations of the
Sessions Judge disclose a confusion of thought about the
effect of decision rendered by the Supreme Court and a
misreading of Article 141 of the Constitution. [779 F-G;D-E]

JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
184 of 1979.
From the Judgment and Order dated the 9.8.78 of the
Delhi High Court in Criminal Misc. No. 391 of 1978.
Rajender Nath Sachar, D.N. Mishra, Ms. L. Goswami and
T.M. Ansari with him for the Petitioners.
774
V. Mahajan and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by
KHALID, J. This Criminal appeal by special leave,
involves the question :
Whether a Sub-ordinate Criminal Court has any
inherent jurisdiction outside the provisions of
the Criminal Procedure Code ?
Incidentally, the scope of Article 141 of the Constitution
also comes up for consideration.
The facts of the case can be stated first. The
appellants, two in number, are the accused in a complaint
filed by the first respondent in the Court of the Judicial
Magistrate, First Class, New Delhi, disclosing an offence
punishable under Section 67 and 72C(l)(a) of the Mines Act,
1952, read with Regulation 106 of the Metallifarous Mines
Regulation 1961. The learned Magistrate took the complaint
on file and issued summons to the accused to appear on
6.1.1972. On 6.1.1972 neither the complainant nor the
accused were present and therefore, the Magistrate passed
the following order :
"Accused not present. None present for the
complainant also. The complaint is hereby
dismissed in default and for want of prosecution."
On 13.1.1972, the complainant filed an application for
restoration of the complaint. On 20.1.1972, the Magistrate
passed the following order :
"I heard Shri T.S. Sodhi. The complaint be
restored. Summon accused for 21/2."
On 21.2.1972, the accused petitioners moved an application
before the Magistrate stating that the order dated 20.1.1972
was without jurisdiction since the Magistrate had become
functus officio, by his order dated 6.1.1972. This
application was rejected by the Magistrate by his order
dated 8.5.1972. He was of the view that he had inherent
powers under the Code of Criminal Procedure to review and
re-call his earlier orders.
775
Aggrieved by this order, the petitioners filed a A
revision before the Court of Additional Chief Judicial
Magistrate, New Delhi, which was dismissed on 6/7/1973.
This was followed by another revision before the High
Court of Delhi. The Delhi High Court dismissed the revision
by its order dated 10.1.1975, relying upon an earlier
decision of the same Court to the effect that a criminal
court had certain inherent powers, though not specifically
mentioned in the Code.
On 5.8.1976, this Court delivered its Judgment in the
case of Bindeshwari Prasad Singh v. Kali Singh, [1977]
S.C.R. 125 holding that no criminal court had any inherent
jurisdiction, not provided for in the Criminal Procedure
Code. The petitioners, armed with this decision, moved an
application before the Metropolitan Magistrate on
22.12.1976, contending that all proceedings, after the
dismissal of the complaint by order dated 6.1.1972, were
without jurisdiction in the light of the law laid down by
this Court and requested the Magistrate to drop fruther
proceedings. The learned Metropolitan Magistrate accepted
this contention and by his order dated 16.7.1977 dropped the
proceedings against the petitioners.
Aggrieved by this order, the respondents filed a
revision before the Sessions Judge, New Delhi. The
Additional Sessions Judge, New Delhi, to whom this case
stood transferred, reversed the decision of the Magistrate
by his order dated 7.1.1978 and held that : "so for as
Article 141 of the Constitution of India and the ratio of
these decisions is concerned, there can be no dispute
whatsoever. At the same time a pronouncement as to the
position of law in a judicial decision by the Supreme Court
cannot be treated as a sort of legislation by the Parliament
giving retrospective effect as to enjoin reopening of all
matters which have already become final and closed."
Aggrieved by this order the petitioners moved the Delhi
High Court under Article 227 of the Constitution of India
read with Section 482 of the Code of Criminal Procedure, to
quash further proceedings, relying upon the decision of this
Court mentioned above and contending that the order of the
Sessions
776
Judge was wrong. This revision petition was dismissed in
limine by the High Court on 9.8.1978, observing :
"I find no sufficient reason to interfere with the
impugned order. Dismissed."
It is against this order that this appeal has been filed.
The first question to be considered is whether the
Magistrate could have re-called his order. It cannot be
disputed that the Magistrate has powers to dismiss a
complaint and discharge the accused when the complainant is
absent. In Ram Prasad Maitra v. Emperor, 1928 A.I.R. - Cal.
569 a division bench of the Calcutta High Court had to
consider the question whether the Sessions judge was
justified in directing the complaint to be sent back to the
Magistrate for further enquiry when the complaint was
dismissed under section 203 of Criminal Procedure Code.
Answering the question in the negative, it was observed :
"...... In a case like this, where the complainant
does not choose to be present, he cannot be heard
afterwards to say that the matter should be sent
back to the Magistrate for further enquiry..."
This Judgment indirectly recognises the power in a
Magistrate to dismiss a complaint for default. We agree with
this conclusion.
Section 249 of the Criminal Procedure Code enables a
Magistrate to discharge the accused when the complainant is
absent and when the conditions laid down in the said section
are satisfied. Section 256(1) of the Criminal Procedure Code
enables a Magistrate to acquit the accused if the
complainant does not appear. Thus, the order of dismissal of
a complaint by a criminal court due to the absence of a
complainant is a proper order. But the question remains
whether a magistrate can restore a complaint to his file by
revoking his earlier order dismissing it for the non-
appearance of the complainant and proceed with it when an
application is made by the complainant to revive it. A
second complaint is permissible in law if it could be
brought within the limitations imposed by this Court in
Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, [1962]
777
Suppl. 2 S.C.R. 297. Filing of a second complaint is not the
A same thing as reviving a dismissed complaint after
recalling the earlier order of dismissal. The Criminal
Procedure Code does not contain any provision enabling the
criminal court to exercise such an inherent power.
In B.D. Sethi v. V.P. Dewan, 1971 Delhi Law Times 162 a
division bench of the Delhi High Court held that a
Magistrate could revive a dismissed complaint since the
order dismissing the complaint was not a Judgment or a final
order. In paragraph 9, the Court observes as follows :
"9. As long as the order of the Magistrate does
not amount to a Judgment or a final order there is
nothing in the Code of Criminal Procedure
prohibiting the Magistrate from entertaining a
fresh application asking for the same relief on
the same facts or from re-considering that order.
During the course of the proceedings, a Magistrate
has to pass various interlocutory orders and it
will not be correct to say that he has no
jurisdiction to re-consider them.."
We would like to point out that this approach is wrong. What
the Court has to see is not whether the Code of Criminal
procedure contains any provision prohibiting a Magistrate
from entertaining an application to restore a dismissed
complaint, but the task should be to find out whether the
said Code contains any provision enabling a Magistrate to
exercise an inherent jurisdiction which he otherwise does
not have. It was relying upon this decision that the Delhi
High Court in this case directed the Magistrate to re-call
the order of dismissal of the complaint. The Delhi High
Court referred to various decisions dealing with section 367
(old code) of the Criminal Procedure Code as to what should
be the contents of a Judgment. In our view, the entire
discussion is misplaced. So far as the accused is concerned,
dismissal of a complaint for non-appearance of the
complainant or his discharge or acquittal on the same ground
is a final order and in the absence of any specific
provision in the Code, a Magistrate cannot exercise any
inherent jurisdiction.
778
For our purpose, this matter is now concluded by a
judgment of this Court in the case of Bindeshwari Prasad
Singh v. Kali Singh, [1977] 1 S.C.R. 125. We may usefully
quote the following passage at page 126 :
"....... Even if the Magistrate had any
jurisdiction to re-call this order, it could have
been done by another judicial order after giving
reasons that he was satisfied that a case was made
out for re-calling the order. We, however, need
not dilate on this point because there is
absolutely no provision in the Code of Criminal
Procedure of 1908 (which applies to this case)
empowering a Magistrate to review or re-call an
order passed by him. Code of Criminal Procedure
does contain a provision for inherent powers,
namely, Section 561-A which, however, confers
these powers on the High Court and the High Court
alone. Unlike Section 151 of Civil Procedure Code,
the subordinate criminal courts have no inherent
powers. In these circumstances, therefore, the
learned Magistrate had absolutely no jurisdiction
to re-call the order dismissing the complaint. The
remedy of the respondent was to move the Sessions
Judge or the High Court in revision. In fact,
after having passed the order dated 23.11.1968,
the Sub-divisional magistrate became functus
officio and had no power to review or re-call that
order on any ground whatsoever. In these
circumstances, therefore, the order even if there
be one, re-calling order dismissing the complaint
was entirely without jurisdiction. This being the
position, all subsequent proceedings following
upon re-calling the said order, would fall to the
ground including order dated 3.5.1972, summoning
the accused which must also be treated to be a
nullity and destitute of any legal effect. The
High Court has not at all considered this
important aspect of the matter which alone was
sufficient to put an end to these proceedings. It
was suggested by Mr. D. Goburdhan that the
application given by him for re-calling the order
of dismissal of the complaint would amount to a
fresh complaint. We are,
779
however, unable to agree with this contention
because there was no fresh complaint and it is not
well settled that a second complaint can lie only
on fresh facts or even on the previous facts only
if a special case is made out. This has been held
by this Court in Pramatha Nath Taluqdar v. Saroj
Ranjan Sarkar (supra). For these reasons,
therefore, the appeal is allowed. The order of the
High Court maintaining the order of the Magistrate
dated 3.5.1972 is set aside and the order of the
Magistrate dated 3.5.1972 summoning the appellant
is hereby quashed.
When the matter went before the High Court, the
decision of this Court referred above must have been brought
to its notice, since the order by the Additional Sessions
Judge refers to it. We would have happy if the High Court
had considered the matter in some detail especially when its
attention was drawn to this decision instead of dismissing
the revision in limine. The observations of the Sessions
Judge, extracted above, discloses a confusion of thought
about the effect of a decision rendered by this Count and a
misreading of Article 141 of the constitution. There is
nothing like any prospective operation alone of the law laid
down by this Court. The law laid down by this court applies
to all pending proceedings. If the Sessions Judge had
expressed his helplessness because of the earlier order of
the High Court binding on him and had allowed the revision
on that ground, we could have understood the reasoning
behind it. He got rid of the effect of this Court's Judgment
by observing that a decision by this Court cannot be treated
as "a sort of legislation by Parliament" and thus overlooked
the binding nature of the law declared by this Court,
mandating under Article 141, every Courts subordinate to
this Court to accept it. The High Court could have if it had
examined the matter, corrected the error into which the
Sessions Judge fell.
The sweep of Article 141 of the Constitution, so far as
the Judgments of this Court are concerned, came up for
consideration before this Court recently in Shenoy and Co.
v. Commercial Tax Officer, [1985] (2) S.C.C. 512 to which
one of us was a party. It is not necessary to refer to the
facts of that case, in detail. Suffice it to say that the
contention
780
that the law laid down by this Court in an appeal filed by
the State would not bind the other parties against whom the
State of Karnataka did not file appeals from a common
Judgment, was repelled by this Court in the following words:
"....It is, therefore, idle to contend that the
law laid down by this Court in that Judgment would
bind only the Hansa Corporation and not the other
petitioners against whom the State of Karnataka
had not filed any appeal. To do so is to ignore
the binding nature of a judgment of this Court
under Article 141 of the Constitution. Article 141
reads as follows :
"The law declared by the Supreme Court shall be
binding on all courts within the territory of
India." A mere reading of this article brings into
sharp focus its expanse and is all pervasive
nature. In cases like this, where numerous
petitions are disposed of by a common judgment and
only one appeal is filed, the parties to the
common judgment could very well have and should
have intervened and could have requested the Court
to hear them also. They cannot be heard to say
that the decision was taken by this Court behind
their back or profess ignorance of the fact that
an appeal had been filed by the State against the
common judgment....
To contend that this conclusion applies only to
the party before this Court is to destroy the
efficacy and integrity of the judgment and to make
the mandate of Article 141 illusory. But setting
aside the common judgment of the High Court, the
mandamus issued by the High Court is rendered
ineffective not only in one case but in all
cases."
Normally, when several matters are disposed of by a common
Judgment, and the defeated party files only one appeal
against one such matter and succeeds in that matter, he
would still be faced with the plea of finality of the
Judgment based on res-judicata by those against whom appeals
were not filed. But this plea did not find favour with this
Court in the above
781
case. It was held that the Judgment rendered by this Court
in one appeal, took away the finality of the common Judgment
even against those against whom appeals were not filed
because of the all pervasive operation of Article 141.
We do not think it necessary to probe further into the
facts of this case and lengthen this Judgment, for one good
reason; this case has moved along the files of various
Courts for more than 15 years and it is high time that we
give it a decent burial. In view of the law laid down by
this Court in Bindeshwari Prasad Singh's case (supra) we set
aside the order of the High Court, allow this appeal and
restore the order of the Magistrate, dated 6.1.1972
dismissing the complaint.
M.L.A. Appeal allowed.
782

Quite independently and without reference to the aforesaid decision, another Bench of this Court in Rathnavathi and Another v. Kavita Ganashamdas[2] came to the same conclusion. It was held in paragraph 42 of the Report that a mere reading of Article 54 would show that if the date is fixed for the performance of an agreement, then non-compliance with the agreement on the date would give a cause of action to file a suit for specific performance within three years from the date so fixed. But when no such date is fixed, the limitation of three years would begin when the plaintiff has notice that the defendant has refused the performance of the agreement. It was further held, on the facts of the case that it did not fall in the first category of Article 54 since no date was fixed in the agreement for its performance.The Clauses of the agreement for consideration in Rathnavathi were Clauses 2 and 3 and they read as follows:- “2. The purchaser shall pay a sum of Rs. 50,000 (Rupees fifty thousand only) as advance to the seller at the time of signing this agreement, the receipt of which the seller hereby acknowledges and the balance sale consideration amount shall be paid within 60 days from the date of expiry of lease period. 3. The seller covenants with the purchaser that efforts will be made with the Bangalore Development Authority for the transfer of the schedule property in favour of the purchaser after paying penalty. In case it is not possible then the time stipulated herein for the balance payment and completion of the sale transaction will be agreed mutually between the parties.” As far as the present appeal is concerned, the agreement between Gulab Bai and Madina Begum did not specify a calendar date as the date fixed for the performance of the agreement. Consequently, the view expressed in Ahmadsahab Abdul Mulla and Rathnavathi on the first part of Article 54 clearly applies to the facts of the case. In taking a contrary view, ignoring the absence of a specified date for the performance of the agreement and reversing the Trial Court, the High Court has fallen in error.; whether the High Court was right in merely deciding the issue of limitation in a first appeal filed under Section 96 of the Code of Civil Procedure without going into the merits of the case. Quite recently, in Vinod Kumar v. Gangadhar[3] this Court had occasion to consider the issue whether, under Section 96 of the Code of Civil Procedure, the first appellate court ought to decide all the issues before it or not. - the High Court only considered the issue of limitation and did not consider the other issues in the appeal. This was impermissible. The result is that since we do not agree with the view taken by the High Court on the issue of limitation, there is no option but to set aside the view expressed by the High Court and following the decisions of this Court, remand the matter to the High Court to decide the remaining issues in the first appeal filed under Section 96 of the Code of Civil Procedure.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6687 OF 2016

Madina Begum & Anr. .…Appellants
versus
Shiv Murti Prasad Pandey & Ors. .…Respondents

J U D G M E N T
Madan B. Lokur, J.
1. The two questions for our consideration are whether the suit filed
by the appellant Madina Begum was barred by limitation in terms of the
first part of Article 54 of Schedule 1 of the Limitation Act, 1963 and
whether the High Court ought to have decided the first appeal filed by
Madina Begum not only on the preliminary issue of limitation but also on
all other issues. As far as the first question is concerned our answer is
in the negative and as far as the second question is concerned, in our
opinion, the High Court ought to have considered all the issues in the
first appeal rather than only the preliminary issue of limitation.
2. The land in dispute in this appeal is 1.63 acres of agricultural
land bearing khasra nos. 438, 439, 440 and 456 (total area being 2.13
acres) in Patwari Halka No. 26 Gram Amkhera, Tehsil and District Jabalpur.
3. There was a dispute about the title of the entire aforesaid land and
to resolve that dispute, Gulab Bai claiming to be the owner and in
possession of the entire land, filed Suit No. 479A of 1994 in the Court of
the Additional District Judge in Jabalpur. The defendants in the suit were
Amar Singh and Jaswant Singh. The prayer made by Gulab Bai in her plaint
was for a declaration with regard to her title and possession. She also
prayed for an injunction restraining the defendants Amar Singh and Jaswant
Singh from interfering with her possession.
4. On 2nd August, 2001 the suit was decreed in favour of Gulab Bai and
thereafter on 3rd September, 2001 she entered into an agreement to sell
1.63 acres of agricultural land being the disputed property to Madina
Begum. The consideration for the sale was Rs. 4,89,000/- out of which an
advance of Rs. 1,25,000/- was paid by Madina Begum to Gulab Bai. This fact
is recorded in the agreement to sell.
5. What we are concerned with in this appeal is the interpretation of
Clause 3 of the agreement to sell which reads as follows:-

“3 That Party no. 1 has sold 1.63 acres land at the rate of Rs. 3,00,000/-
(Rs. Three lakh) per acre and Party no. 1 Gulab Bai has obtained Rs.
1,25,000/- (One lakh twenty five thousand) as advance. The rest of the
amount of Rs. 3,64,000/- (Rs. Three lakh sixty four thousand) would be paid
by Party no. 2 to Party no. 1 within the period of six months from this
date and having received it the party no. 1 will execute Benama Registry in
favour of Party no. 2 or any such person specified by party no. 2 in one
part or many parts.”

6. Apparently on coming to know that Gulab Bai had agreed to sell the
disputed land to Madina Begum an appeal being F.A. No.399 of 2001 was filed
by Amar Singh and Jaswant Singh in the High Court of Madhya Pradesh
challenging the decree dated 2nd August, 2001. An interim application
under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure was filed
along with the appeal. The application was taken up for consideration on
22nd September, 2001 and while issuing notice in the application it was
directed as follows:-
“In the meanwhile till the disposal of M(C) P. No. 3231/2001, status quo
regarding possession over the suit property shall be maintained and the
respondent shall not alienate the suit property.”

7. On 16th November, 2001 Gulab Bai executed a Will (which was
registered) in which she categorically mentioned that she had negotiated
the sale of 1.63 acres of land to Madina Begum and had given possession
thereof to her but the remaining amount and registration of the sale
remained to be completed. In her Will, Gulab Bai appointed Shiv Murti
Prasad Pandey and Devendra Prasad Pandey (respondents herein) as her
executors. The Will mentioned that upon her demise, her agricultural land
except 1.63 acres will devolve on Shiv Murti Prasad Pandey and Devendra
Prasad Pandey and in the event of her death before the registration of the
sale deed it would be their responsibility to execute and register the sale
deed in favour of Madina Begum. Unfortunately, Gulab Bai passed away on 2nd
January, 2002.
8. Thereafter, F.A. No. 399 of 2001 filed by Amar Singh and Jaswant
Singh was heard by the High Court and came to be dismissed on 28th
September, 2006. We are told that the decree passed by the High Court has
attained finality.
9. Upon the dismissal of the aforesaid appeal, it appears that Madina
Begum required Shiv Murti Prasad Pandey and Devendra Prasad Pandey to
execute the sale deed but apparently they did not take any steps in this
regard. On the contrary, it appears that on or about 2nd August, 2008 the
land in dispute was mutated in the name of Anita Jain pursuant to a sale
made in her favour by Shiv Murti Prasad Pandey and Devendra Prasad Pandey.
10. When Madina Begum came to know of the transfer of the disputed land,
she sent a notice to Shiv Murti Prasad Pandey and Devendra Prasad Pandey on
13th August, 2008 calling upon them to execute the sale deed in terms of
the agreement to sell dated 3rd September, 2001 and the Will executed by
Gulab Bai on 16th November, 2001. The notice was replied to by Shiv Murti
Prasad Pandey and Devendra Prasad Pandey and we are told that they declined
to execute the sale deed. This led to Madina Begum filing a suit, inter
alia, for specific performance of the agreement being Suit No. 17A of 2008
(perhaps renumbered later as 41A of 2010) in the Court of the Additional
District Judge, Jabalpur.
11. The defendants in the suit namely Shiv Murti Prasad Pandey and Devendra
Prasad Pandey and Anita Jain filed their written statement and one of the
contentions raised was that the suit was barred by limitation having been
instituted more than three years beyond the date specified in the agreement
to sell dated 3rd September, 2001. It was also submitted that Madina Begum
had given an advance of only Rs. 90,000/- which had since been returned to
her and that on 19th November, 2001 the agreement to sell between Gulab Bai
and Madina Begum was cancelled.
12. On the pleadings, one of the issues framed by the Trial Court was issue
No. 8: Whether the suit is time barred?
13. The Trial Court considered the issue whether the suit filed by Madina
Begum was barred by time and answered it in the negative. It was held in
paragraph 38 of the decision rendered on 1st February, 2011 as follows:-

“38. On perusal of the record it is gathered that agreement Ex. P-1 was
executed on 03.09.2001 and thereafter stay has been granted by Hon’ble High
Court in first appeal on 22.09.2001 but the first appeal was finally
decided on 28.09.2006 vide Ex. P-5 since it was dismissed and in this
manner, the stay order had become ineffective on 28.09.2006. Thereafter,
the plaintiffs have sent notice to the defendants in August 2008 i.e. after
two years from the date of decision in the first appeal which was dismissed
on 28.09.2006 which was done within prescribed period of three years.
Therefore, it cannot be said that the plaintiffs had filed the suit beyond
the period of limitation with a view to harass the defendants. Thus,
issues No. 8 and 9 are being answered against the defendants.”

14. Even though the issue of limitation was decided in her favour, the suit
filed by Madina Begum was dismissed on merits. Feeling aggrieved by the
dismissal of the suit on merits Madina Begum preferred First Appeal No. 175
of 2011 in the High Court of Madhya Pradesh and that led to the impugned
judgment and order dated 16th August, 2013. The Division Bench hearing the
appeal did not go into the merits of the dispute between the parties but
only adverted to the issue of limitation and since it was found that the
institution of the suit was barred by time (contrary to the conclusion of
the Trial Court) there was no necessity of considering the merits of the
case.
15. In coming to the conclusion that the suit was barred by time, the High
Court considered Article 54 of Schedule 1 of the Limitation Act, 1963 (for
short, “the Act”). The discussion thereon was brief and it reads as
follows:-

“Under Article 54 of the Limitation Act, the prescribed period of
limitation for filing a suit of specific performance of a contract is three
years and the period of three years has to be calculated based on two
contingencies i.e. the date fixed for performance of the contract or if no
such date is fixed, the date when the plaintiffs had notice about refusal
of the performance by the defendants. In this case, admittedly, a date for
performance is fixed i.e. six months from the date of execution of the
contract and, therefore, as a specific period for performance is fixed, the
period of limitation would be three years w.e.f. 3.03.2002 i.e. the date
when the period of six months for execution of the sale-deed lapsed.”

16. The High Court held that since the suit was barred by limitation, the
Trial Court committed a grave error in recording a finding that the suit
was within limitation.
17. The interpretation of the first part of Article 54 of Schedule 1 of the
Act is no longer res-integra. Article 54 reads as follows:-
|“54. |For specific performance of |Three years|The date fixed for the |
| |a | |performance, or, if no |
| |contract | |such date is fixed, |
| | | |when the plaintiff has |
| | | |notice that performance|
| | | |is refused.” |

18. In Ahmadsahab Abdul Mulla (2) (Dead) v. Bibijan and Ors.[1] the
following question was considered by a three judge Bench of this Court:
“Whether the use of the expression “date” used in Article 54 of the
Schedule to the Limitation Act, 1963 (in short “the Act”) is suggestive of
a specific date in the calendar?”
19. While answering this question on a reference made to the three judge
Bench, this Court considered the meaning of the word “date” and “fixed”
appearing in Article 54. Upon such consideration, this Court held that the
expression “date fixed for the performance” is a crystallized notion. When
a date is fixed it means there is a definite date fixed for doing a
particular act. Therefore, there is no question of finding out the
intention from other circumstances. It was reiterated that the expression
“date” is definitely suggestive of a specified date in the calendar.
Paragraphs 11 and 12 of the Report in this regard are of importance and
they read as follows:-

“11. The inevitable conclusion is that the expression “date fixed for the
performance” is a crystallized notion. This is clear from the fact that
the second part “time from which period begins to run” refers to a case
where no such date is fixed. To put it differently, when date is fixed it
means that there is a definite date fixed for doing a particular act. Even
in the second part the stress is on “when the plaintiff has notice that
performance is refused”. Here again, there is a definite point of time,
when the plaintiff notices the refusal. In that sense both the parts refer
to definite dates. So, there is no question of finding out an intention
from other circumstances.

12. Whether the date was fixed or not the plaintiff had notice that
performance is refused and the date thereof are to be established with
reference to materials and evidence to be brought on record. The
expression “date” used in Article 54 of the Schedule to the Act definitely
is suggestive of a specified date in the calendar. We answer the reference
accordingly. The matter shall now be placed before the Division Bench for
deciding the issue on merits.”

20. Quite independently and without reference to the aforesaid decision,
another Bench of this Court in Rathnavathi and Another v. Kavita
Ganashamdas[2] came to the same conclusion. It was held in paragraph 42 of
the Report that a mere reading of Article 54 would show that if the date is
fixed for the performance of an agreement, then non-compliance with the
agreement on the date would give a cause of action to file a suit for
specific performance within three years from the date so fixed. But when
no such date is fixed, the limitation of three years would begin when the
plaintiff has notice that the defendant has refused the performance of the
agreement. It was further held, on the facts of the case that it did not
fall in the first category of Article 54 since no date was fixed in the
agreement for its performance.
21. The Clauses of the agreement for consideration in Rathnavathi were
Clauses 2 and 3 and they read as follows:-

“2. The purchaser shall pay a sum of Rs. 50,000 (Rupees fifty thousand
only) as advance to the seller at the time of signing this agreement, the
receipt of which the seller hereby acknowledges and the balance sale
consideration amount shall be paid within 60 days from the date of expiry
of lease period.
3. The seller covenants with the purchaser that efforts will be made with
the Bangalore Development Authority for the transfer of the schedule
property in favour of the purchaser after paying penalty. In case it is
not possible then the time stipulated herein for the balance payment and
completion of the sale transaction will be agreed mutually between the
parties.”

22. As far as the present appeal is concerned, the agreement between
Gulab Bai and Madina Begum did not specify a calendar date as the date
fixed for the performance of the agreement. Consequently, the view
expressed in Ahmadsahab Abdul Mulla and Rathnavathi on the first part of
Article 54 clearly applies to the facts of the case. In taking a contrary
view, ignoring the absence of a specified date for the performance of the
agreement and reversing the Trial Court, the High Court has fallen in
error.
23. It is not necessary for us to multiply authorities on the subject
particularly when the issue has been conclusively settled by a Bench of
three learned judges of this Court in Ahmadsahab Abdul Mulla and we see no
reason to take a different view.
24. The second question that requires consideration is whether the High
Court was right in merely deciding the issue of limitation in a first
appeal filed under Section 96 of the Code of Civil Procedure without going
into the merits of the case. Quite recently, in Vinod Kumar v.
Gangadhar[3] this Court had occasion to consider the issue whether, under
Section 96 of the Code of Civil Procedure, the first appellate court ought
to decide all the issues before it or not. Reference was made to a very
large number of decisions rendered by this Court and it was concluded,
particularly relying upon Madhukar v. Sangram[4] decided by a Bench of
three learned judges of this Court that sitting as a court of first appeal
it is the duty of the High Court to deal with all the issues and evidence
led by the parties before recording its findings.
25. In so far as the present appeal is concerned, the High Court only
considered the issue of limitation and did not consider the other issues in
the appeal. This was impermissible. The result is that since we do not
agree with the view taken by the High Court on the issue of limitation,
there is no option but to set aside the view expressed by the High Court
and following the decisions of this Court, remand the matter to the High
Court to decide the remaining issues in the first appeal filed under
Section 96 of the Code of Civil Procedure.
26. It is a little unfortunate that the parties have to undergo another
round of litigation which could easily have been avoided if the settled
legal principles laid down by this Court from time to time were followed in
regard to the requirements of Section 96 of the Code of Civil Procedure.
This is quite apart from the delay caused in the resolution of the dispute
between the parties.
27. In view of our discussion, the appeal is allowed and the impugned
judgment and order of the High Court dated 16th August, 2013 is set aside
and the matter is remanded to the High Court for deciding the remaining
issues in the appeal on merits.

...………………….J (Madan B.
Lokur)

..………………….J

New Delhi; (R.K.
Agrawal)
August 1, 2016
-----------------------
[1] (2009) 5 SCC 462
[2] (2015) 5 SCC 223
[3] (2015) 1 SCC 391
[4] (2001) 4 SCC 756

government bungalows occupied by former Chief Ministers of the State of Uttar Pradesh.= it is held that the 1997 Rules so far as they are not in consonance with the provisions of the 1981 Act are bad in law. The government bungalows allotted to the respondents is held to be bad in law and the concerned respondents shall hand over possession of the bungalows occupied by them within two months from today and the respondent-Government shall also recover appropriate rent from the occupants of the said bungalows for the period during which they were in unauthorized occupation of the said bungalows.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.657 OF 2004

Lok Prahari ... Petitioner

Versus

State of U.P. & Ors. ... Respondents

J U D G M E N T

ANIL R. DAVE, J.

1. A short but serious and significant issue has been raised in this
public interest litigation, which pertains to government bungalows occupied
by former Chief Ministers of the State of Uttar Pradesh.

2. The Petitioner is a Society registered under the Societies
Registration Act with objects pertaining to public welfare, etc. and the
petition has been filed through its General Secretary, who appeared in
person. He is a former officer of All India Services and has ventilated
grievances which are definitely serious one, touching the State exchequer
and conduct of the persons who were Chief Ministers of the State of Uttar
Pradesh. The main submission made in the petition is that several former
Chief Ministers had occupied Government bungalows of Type VI even after
demitting office of the Chief Minister for several years without any right
to retain the same, which is not only immoral and illegal, but it also does
not befit persons who were Chief Ministers of the State.

3. At the time when the petition was admitted on 13th January, 2006,
this Court had passed the following Order:
“The challenge in this petition is to the validity of Ex-Chief Ministers
Residence Allotment Rules, 1997. The petitioner claims it to be illegal,
malafides and colourable exercise of power. It is also claimed that the
Rules, which are non-statutory, could not have been framed in the light of
the provisions of the Uttar Pradesh Ministers (Salaries, Allowances and
Miscellaneous Provisions) Act, 1981.

On the other hand, it has been, inter alia, contended on behalf of
the State that in the federal structure, there is no bar if provision is
made for allotment of residential accommodation to ex-Chief Ministers of
the State. It is also contended that the matter deserves to be examined
further in the light of the provisions of the President’s (Emoluments and
Pension) Act, 1951. The further contention is that the former Presidents
and the Prime Ministers are also allotted residential accommodation after
they cease to hold those positions.

In our view, the writ petition raises important questions, which
require deeper consideration. Accordingly, while issuing Rule, we direct
that notice be issued to the Union of India and other State
Governments/Union Territories.”

Thus, we have to examine whether the provisions of Ex-Chief Ministers
Residence Allotment Rules, 1997 (hereinafter referred to as ‘the 1997
Rules’) are valid or contrary to the provisions of the Uttar Pradesh
Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981
(hereinafter referred to as the ‘the 1981 Act’).

4. As several former Chief Ministers had occupied government bungalows,
a petition, in the nature of a Public Interest Litigation, being Writ
Petition No.1313 (M/S) of 1996 was filed before the High Court of
Judicature at Allahabad by Janhit Sangathan, a registered Society of
retired senior Civil Servants. At the time when the said petition was
filed, there were no Rules or Regulations permitting former Chief Ministers
to occupy government bungalows.

5. In the aforestated circumstances, the State of U.P. i.e. respondent
no.1 framed the 1997 Rules during the pendency of the said petition. The
1997 Rules are not statutory Rules and they are in the nature of executive
instructions. The 1997 Rules provide that former Chief Ministers should be
provided government bungalows for their residence for the life and upon
their death, the family members occupying the bungalow should hand over
vacant possession of the bungalow within 3 months from the date of the
death of the former Chief Minister and failing which they would be liable
to pay penal rent. The 1997 Rules do not provide for allotment of bungalows
either to the family members of the former Chief Ministers or to any Trust
or Society concerned with any former Chief Minister.

6. As the 1997 Rules were framed during the pendency of Writ Petition
No.1313 (M/S) of 1996, the aforestated Writ Petition was amended so as to
challenge the validity of the 1997 Rules on the ground that the 1997 Rules
were not only unconstitutional and illegal, but were also violative of the
provisions of Article 14 of the Constitution of India.

7. At the time of hearing of the said petition, a statement was made by
the learned Additional Advocate General appearing for respondent no.1 that
only Type V bungalows would be allotted to the former Chief Ministers and
the former Chief Ministers will have to make some payment of rent for
occupying such bungalows. Some other provisions with regard to expenditure
to be incurred for maintenance of the bungalows were also referred to by
him. The learned Additional Advocate General had further submitted that
possession of bungalows allotted to private trusts or organizations would
be taken back by the government as there was no provision with regard to
making allotment of government bungalows to such
trusts/societies/organizations etc. Ultimately, the petition was disposed
of on 20th August, 2001 without deciding the validity of the 1997 Rules in
view of the fact that the aforestated statements were made by the learned
Additional Advocate General on behalf of Respondent no.1-State. It was
also directed that the family members of the former Chief Ministers, who
were occupying such premises even after the death of the former Chief
Minister will have to vacate the premises within a particular period.

8. It further appears that in spite of the statement made by the learned
Additional Advocate General, the government did not do the needful for
getting possession of the bungalows occupied by the family members of the
deceased former Chief Ministers and in the aforestated circumstances, the
present writ petition was filed with the following main prayer :
“(1) declare the Ex-Chief Ministers Residences Allotment Rules, 1997
(Annexure P-4 to the WP) illegal being malafides, colourable exercise of
power and against the provisions of the Constitution.”

It has also been prayed that rent payable by the unauthorized occupants of
such bungalows be recovered and those who were occupying bungalows allotted
to former Chief Ministers be evicted.

9. It has also been prayed that certain private trusts or organizations
or societies, who are occupying government bungalows be also directed to
vacate the bungalows.

10. It is pertinent to note that after disposal of Writ Petition No.1313
(M/S) of 1996, respondent no.1-State framed rules titled as “The
Distinguished Personality Trust Allotment of Houses in Lucknow under the
Control of State Estate Department Rules, 2003” (hereinafter referred to as
‘the 2003 Rules’) under Office Memorandum dated 31.12.2003 to deal with
lease of houses for the use of any social service trust set up in the name
of a distinguished person who is known as a National hero. In addition, a
policy decision dated 4th July, 2005 was taken regarding allotment of
premises at Lucknow, under the administrative control of Respondent No.2
department, to certain NGOs/Trusts, Non-Government persons and employees’
Union, who were not included under the 2003 Rules.

11. In pursuance of the aforestated 2003 Rules, one of the respondents
had been allotted a bungalow on lease for 30 years, which was renewable for
a further period of 90 years at the yearly rent of rupee 1/- by virtue of
Office Memo dated 22nd January, 2004. Similarly, several other bungalows
had also been allotted on lease to different bodies, by and large, on
similar terms in pursuance of the aforestated 2003 Rules.

12. The short submissions made by the petitioner were to the effect that
after demitting the office as a Chief Minister, a person has no right to
occupy any Government bungalow for his residence and yet several persons
named in the petition, who were Chief Ministers of the State of Uttar
Pradesh had continued to occupy Government bungalows, which are maintained
by the Government by spending enormously huge amount every year. In absence
of any statutory provision, according to the petitioner, continued
occupation or occupation of another house after demitting the office of a
Chief Minister is illegal and therefore, they should be asked to vacate the
bungalows occupied by them and should also be asked to pay notional rent
for the unauthorized occupation. Another submission made by the petitioner
was that even if some rules and regulations are made for allotting
residential bungalows to former Chief Ministers, it would be discriminatory
and violative of the provisions of Article 14 of the Constitution of India
for the reason that other dignitaries like the Chief Justice of the State
or Principal Chief Secretary or Speaker of the Assembly etc. are not given
such facilities. Giving residential bungalows to some of the persons
holding constitutional position in the State, by ignoring other almost
similarly situated persons would not be proper and even if there is any
regulation empowering the Government to allot residential bungalows to
former Chief Ministers, the Rules or Regulations made to that effect cannot
be said to be legal and Constitutional.

13. Another submission made by the petitioner was that the Government
authorities did not act as per the real spirit with which judgment in the
case of Shiv Sagar Tiwari v. Union of India (1997) 1 SCC 444, was delivered
by this Court. As per observations made in para 72 of the said judgment,
keeping in view the very high constitutional position occupied by the
President, Vice-President and Prime Minister, they should be accommodated
in government premises after they demit their office, so that problem of
suitable residence does not trouble them in the evening of life.
Observations in substance are to the effect that except the aforestated
dignitaries, nobody else should be provided government accommodation after
he or she demits his/her office. By not following the aforestated
observations made by this Court in the matter relating to allotment of
accommodation to former Chief Ministers, the Government authorities have
shown a little respect to this Court and the law of the land.

14. Another submission was to the effect that several trusts and
organizations had been allotted government bungalows without any
justifiable reason. In the case of Shiv Sagar Tiwari (supra), this Court
has observed that government bungalows should not be allotted to private
organizations. Of course, the judgment delivered in the case of Shiv Sagar
Tiwari (supra) deals with bungalows situated in Delhi but situation in
Lucknow is quite similar because there is also acute shortage of
residential accommodation for government employees in the said city.
According to the petitioner, government employees/officers, who are
entitled to government accommodation by virtue of their service conditions
are not allotted residential quarters due to shortage of government
premises and therefore, they are constrained to occupy private premises,
for which the government has to pay a sizeable amount by way of house rent
allowance to the concerned government employees/officers. According to the
petitioner, on one hand there is an acute shortage of government premises
and the government employees are constrained to occupy private premises for
which a hefty amount is paid by the government by way of allowances and on
the other hand the government bungalows are given to private trusts or
organizations without getting any rent or by getting nominal rent of rupee
1/- or so per month. Thus, according to the petitioner, this adversely
affects the State exchequer and therefore, possession of all bungalows
which have been allotted to private organizations and trusts or such
parties without charging adequate market rent must be taken back by the
government in the interest of the public at large.

15. So as not to lengthen this judgment, we are not referring to the
names of the persons/former Chief Ministers and trusts and private
organizations to whom government bungalows have been given without getting
adequate market rent.

16. The submission made by the petitioner was also to the effect that
occupation of residential bungalows after expiry of the term of office of
the Chief Ministers is in violation of the provisions of the Uttar Pradesh
(Salaries, Allowances and Miscellaneous Provisions) Act, 1981, (hereinafter
referred to as ‘the 1981 Act’) which pertains to salaries and other
perquisites to be given to the Chief Ministers.

17. The 1981 Act provides that the Ministers are to be provided residence
without any payment of rent throughout the term of their office and for a
further period of 15 days after they demit their office. Thus, there is no
provision with regard to permitting any Minister, including the Chief
Minister, to retain the official premises or any other premises in their
capacity as a Minister or a Chief Minister, 15 days after completion of his
term as a Minister or the Chief Minister.

18. The petitioner also submitted that the 1997 Rules were framed in
exercise of executive power and they are in violation of the provisions of
Article 14 of the Constitution of India. He submitted that the Chief
Ministers cannot be given different treatment in the matter of allotment of
bungalows after they demit their office. If other Ministers and other
constitutional functionaries like Judges and the Chief Justice of the High
Court, Governor of the State, Speaker of the Assembly, etc. are not
provided such accommodation after completion of their tenure, there is no
justification for providing any government bungalow either free of charge
or at a nominal rent to the former Chief Ministers. The action of
respondent no.1 in framing the 1997 Rules is thus illegal and is a
colourable exercise of power and is also violative of Article 14 of the
Constitution of India as the State gives preferential treatment to the
former Chief Ministers, which is not given to other constitutional
functionaries.

19. The petitioner, therefore, prayed that the petition be allowed and
the 1997 Rules be quashed and set aside as being discriminatory and
violative of the provisions of Article 14 of the Constitution of India.

20. On the other hand, the learned counsel appearing for respondent no.1
State vehemently submitted that it is for respondent no.1 government to
exercise its executive power and allot bungalows to former Chief Ministers
even after they demit their office. According to him, ‘former Chief
Ministers’ is a class of persons and therefore, it cannot be said that
there is any preferential treatment given to the former Chief Ministers.
He further submitted that it is for the State to decide whether to give
such accommodation to former Chief Ministers and the said decision being
executive decision in pursuance of a particular policy, this Court should
not ordinarily interfere with the executive decision of respondent no.1-
Government.

21. The learned counsel appearing for the State tried to explain the
circumstances in which the government bungalows had been provided to the
former Chief Ministers. The learned counsel also questioned the right of
the petitioner to challenge the validity of the 1997 Rules. According to
him, the petitioner has no locus standi to challenge the validity of the
said Rules by filing a petition under Article 32 of the Constitution of
India before this Court. He further submitted that the validity of the
said Rules had been questioned in Writ Petition No.1313 (M/S) of 1996 and
the said petition has already been disposed of, but the said Rules had not
been declared to be invalid or unconstitutional by the High Court and
therefore, this petition challenging the validity of the 1997 Rules is not
maintainable.

22. The Respondents, while justifying the 1997 Rules took a stand that
some of the respondents are given ‘Z’ plus Security by the Union of India
and it is necessary to provide proper accommodation with requisite
infrastructure in a secured locality. For providing such security, the
State has to see that the accommodation of the concerned person is safe and
therefore, it is necessary to provide a special type of accommodation to
such persons.

23. The Union of India in its affidavit dated 13th December, 2006 has
contended that aspect of emoluments and pensions of former President and
Vice President of India is governed by “President’s Emoluments and Pensions
Act, 1951” and “Vice President’s Pension Act, 1997” and rules framed there-
under. The facilities provided to the Prime Minister are also governed by
Office Memorandum dated 6.12.1991 issued by the Government of India and he
had not to say anything about the facilities to be given to the former
Chief Ministers.

24. On the basis of the aforesaid contentions, the following issues arise
for our consideration:

a) Whether the writ petition filed in the public interest is
maintainable and whether the writ Petitioner has locus standi to file the
writ petition.

b) Whether the Ex-Chief Ministers Residence Allotment Rules, 1997 are
legal and valid.

25. So far as the first issue is concerned, in our opinion, the
petitioner has locus standi to file the writ petition. It has been
submitted in the petition that the petitioner society is formed by retired
civil servants, journalists and other persons who are residents of the
State of U.P. and have no malafide intention behind filing the present
petition and none of them has any personal grudge against any of the
occupants of the government premises or any of the former Chief Ministers.
In our opinion, when the petitioner society is challenging the validity of
the 1997 Rules, whereby government bungalows have been allotted to former
Chief Ministers, especially when there is an acute shortage of government
premises, in our opinion, it cannot be said that the petitioner has no
locus standi to file the present petition.

26. In the case of “Fertilizer Corporation Kamgar Union (Regd) Sindri
and Ors. v. Union of India and Ors. (1981) 1 SCC 568, the Constitution
Bench of this Court has held as under:

“29. ………….Lastly, but most importantly, where does the citizen stand, in
the context of the democracy of judicial remedies, absent an ombudsman? In
the face of (rare, yet real) misuse of administrative power to play ducks
and drakes with the public exchequer, especially where developmental
expansion necessarily involves astronomical expenditure and concomitant
corruption, do public bodies enjoy immunity from challenge save through the
post-mortem of parliamentary organs. What is the role of the judicial
process, read in the light of the dynamics of legal control and corporate
autonomy? This juristic field is virgin but is also heuristic challenge,
so that law must meet life in this critical yet sensitive issued. The
active coexistence of public sector autonomy, so vital to effective
business management, and judicial control of public power tending to go
berserk, is one of the creative claims upon functional jurisprudence.

30-46. xxx xxx xxx

47. ………....Nevertheless, the broad parameters of fairness in
administration, bona fides in action, and the fundamental rules of
reasonable management of public business, if breached, will become
justiciable.

48. If a citizen is no more than a wayfarer or officious intervener without
any interest or concern beyond what belongs to any one of the 660 million
people of this country, the door of the court will not be ajar for him.
But, if he belongs to an organisation which has special interest in the
subject-matter, if he has some concern deeper than that of a busybody, he
cannot be told off at the gates, although whether the issue raised by him
is justiciable may still remain to be considered. I, therefore, take the
view that the present petition would clearly have been permissible under
Article 226.”

Similar was the view taken in S.P. Gupta v. Union of India and Anr. (1981)
Supp SCC 87.

27. Looking at the law laid down by this Court and in view of the fact
that the petitioner society or its members have not filed the petition with
any oblique motive and as we also feel that cause for which the petition
has been filed is just and proper, in our opinion, the petitioner has locus
to file this petition.

28. Now, let us examine the validity of the 1997 Rules framed by
Respondent no.1-State.

Article 164 of the Constitution of India reads as under:-

Article 164: Other provision as to Ministers:-

(1) The Chief Minister shall be appointed by the Governor and the other
Ministers shall be appointed by the Governor on the advice of the Chief
Minister, and the Ministers shall hold office during the pleasure of the
Governor.................

(5) The salaries and allowances of Ministers shall be such as the
Legislature of the State may from time to time by law determine and, until
the Legislature of the State so determines, shall be as specified in the
Second Schedule.....”

29. Therefore, in compliance with Article 164 read with Entry 40, List II
of Seventh Schedule of the Constitution of India, Respondent No.1-State, in
order to determine salaries and allowances payable to the Ministers,
enacted the 1981 Act. In the said Act, Section 2 (e) defines the term
“Minister”.

Section 2 (e) is reproduced herein below:

"2(e) 'Minister' means a member of the Council of Ministers of the
Government of Uttar Pradesh and includes the Chief Minister, a Minister of
State and a Deputy Minister of that State."

In this regard, Section 4 of the 1981 Act may also be considered, which is
as under:

“4: Residence

(1) Each Minister shall be entitled without payment of any rent to the use
throughout the term of his office and for a period of fifteen days
thereafter, of a residence at Lucknow which shall be furnished and
maintained at public expense at the prescribed scale..”

Upon perusal of the above provisions, it is clear that the terms and
conditions of service and salaries and allowances payable to the Ministers
are governed by the 1981 Act, which currently holds the field in this
regard.

30. We may now turn to the issue whether the impugned 1997 Rules are
ultra vires of Article 14 of the Constitution of India and also repugnant
to the provisions of the 1981 Act. The relevant extract of the 1997 Rules
is as under:-

“Rule 4: Allotment of Residence

A residence on falling vacant will be allotted by the Estate Officer to
such ex-chief minister who has given an application under these rules.
There will be no right for allotment of a house outside Lucknow under these
rules.

Rule 6:- Period for which Allotment subsists

The allotment of residence to Ex-Chief ministers shall be effective only
during their life time. The allotment shall be deemed to be automatically
cancelled upon the death of Ex-chief minister and family members residing
therein will have to invariably hand over the possession of the concerned
residence to the Estate Department within 3 months from the date of death.
If the family members residing in the residence do not hand over the
possession, recovery rent, damages etc. shall be taken under the provisions
of UP Public Premises (Eviction of Unauthorized Occupants) Act, 1972.”

31. Upon perusal of the above provisions, it is clear that the term
“Minister” includes the Chief Minister and Section 4 (1) (a) of the 1981
Act, permits a Minister to retain his residence for 15 days after he/she
demits his/her office. In view of the above special provisions made, the
Chief Minister is not entitled to privileges and protection as are
available to the President of India and the Vice-President of India, who
are entitled to an official residence for life.

32. The Respondents while justifying the 1997 Rules, took a stand that
some of the respondents are being given ‘Z’ plus Security from Union of
India and it is necessary to provide proper accommodation with requisite
infrastructure in a secured locality. The afore-said contention of
Respondent no.1 lacks merit and deserves to be rejected for the reason that
as the said security is to be provided by the Ministry of Home Affairs,
Union of India and provisions are already made for such persons as per
Office Memorandum dated 17.11.1997 issued by the Government of India on the
recommendations of the Ministry of Home affairs and it is the obligation of
the Government of India to provide accommodation to such persons in
accordance with its own guidelines and it is not for the Respondent-State
to provide any accommodation and therefore, the ground put forth by the
Respondents is untenable. In fact, the impugned 1997 Rules give largesse
only to former Chief Ministers without any element of reasonableness.

33. The facts on record also reflect that many of the former Chief
Ministers, who are in occupation of Government Bungalows, are either
serving as Members of Parliament or Governors or Cabinet Ministers in
Central Government and they have already been provided another
accommodation. It would, therefore, not be proper, in any case, to allot
permanent residence at two places to one individual.

34. If we look at the position of other constitutional post holders like
Governors, Chief Justices, Union Ministers, and Speaker etc, all of these
persons hold only one “official residence” during their tenure. The
Respondents have contended that in a federal set up, like the Union, the
State has also power to provide residential bungalow to the former Chief
Minister. The above submission of the Respondent State cannot be accepted
for the reason that the 1981 Act does not make any such provision and the
1997 Rules, which are only in the nature of executive instructions and
contrary to the provisions of the 1981 Act, cannot be acted upon.

35. Moreover, the position of the Chief Minister and the Cabinet
Ministers of the State cannot stand on a separate footing after they demit
their office. Moreover, no other dignitary, holding constitutional post is
given such a facility. For the afore-stated reasons, the 1997 Rules are not
fair, and more so, when the subject of “salary and allowances” of the
ministers, is governed by Section 4 (1) (a) of the 1981 Act.

36. There is one more and most important reason for which the 1997 Rules
cannot be said to be legal. The 1981 Act deals with the salaries and
perquisites to be given to all the Ministers, including the Chief
Ministers. The said provisions are statutory, but the 1997 Rules are not
statutory and they are only in the nature of executive instructions. If
there is any variance in statutory provision and executive instruction, the
statutory provision would always prevail. This is a very well-known
principle and no further discussion is required on the subject. When the
1981 Act enables the Chief Minister to have residential accommodation only
during his tenure and for 15 days after completion of his tenure, the 1997
Rules providing for an accommodation for life to the Chief Minister cannot
be said to be legal and valid. For this sole reason, validity of the 1997
Rules cannot be upheld.

37. As far as question of accommodation to the President, Vice-President
and Prime Minister is concerned, there is no challenge in the writ petition
to the same and is limited to the 1997 Rules framed by Respondent No.1
State, therefore, it is in-appropriate to consider the issue dealt with by
this Court in “Shiv Sagar Tiwari v. Union of India” (1997) 1 SCC 444”.

38. This Court, in the case of “SD Bandi v. Karnataka SRTC, (2013) 12 SCC
631, in relation to occupation of government bungalows, beyond the period
for which the same were allotted, observed that “it is unfortunate that the
employees, officers, representatives of people and other high dignitaries
continue to stay in the residential accommodation provided by the
Government of India though they are no longer entitled to such
accommodation. Many of such persons continue to occupy residential
accommodation commensurate with the office(s) held by them earlier and
which are beyond their present entitlement. The unauthorized occupants must
recollect that rights and duties are correlative as the rights of one
person entail the duties of another person similarly the duty of one person
entails the rights of another person. Observing this, the unauthorized
occupants must appreciate that their act of overstaying in the premise
infringes the right of another. No law or directions can entirely control
this act of disobedience but for the self realization among the
unauthorized occupants”.

39. As stated hereinabove, there is a statutory provision which relates
to salaries and perquisites to be given to the ministers, including the
Chief Minister. The 1981 Act is a statute enacted by Respondent no.1-State
under its power under Article 164 read with Entry 40 of the List II (State
List) of the Seventh Schedule of the Constitution. Thus, there is a
statutory provision with regard to perquisites to be given to the
ministers, including the Chief Minister under Section 4 of the said Act,
which has been reproduced hereinabove. The said Act provides that all the
ministers are entitled to official residence without payment of any rent
and they are also entitled to occupy the said official residence for 15
days even after completion of their term. Thus the statutory provision is
to the effect that the Chief Minister can continue to occupy the official
accommodation for a further period of 15 days after completion of his/her
term.

40. The 1997 Rules are not statutory rules. They are in the nature of
administrative or executive instructions. They would not stand the test of
legality if they are not in consonance with statutory provisions. The said
Rules are definitely in contravention of the statutory provisions and
therefore, the said Rules can be said to be bad in law so far as they are
in contravention of the statutory provisions.

41. There cannot be any dispute that when the rules and regulations or
executive institutions are contrary to any statutory provision, the
statutory provision would prevail and the rules or executive institutions,
so far as they are contrary to the statutory provisions, would fail.

42. In view of the aforestated clear and unambiguous position, in our
opinion, the 1997 Rules, which permit the former Chief Ministers to occupy
government bungalows for life cannot be said to be valid. In the
circumstances, respondent no.1 cannot permit any former Chief Minister to
occupy any government bungalow or any government accommodation after 15
days from the date on which his term comes to an end.

43. So far as allotment of bungalow to private trusts or societies are
concerned, it is not in dispute that all those bungalows were allotted to
the societies/trusts/organizations at the time when there was no provision
with regard to allotment of government bungalows to them and therefore, in
our opinion, the said allotment cannot be held to be justified. One should
remember here that public property cannot be disposed of in favour of any
one without adequate consideration. Allotment of government property to
someone without adequate market rent, in absence of any special statutory
provision, would also be bad in law because the State has no right to
fritter away government property in favour of private persons or bodies
without adequate consideration and therefore, all such allotments, which
have been made in absence of any statutory provision cannot be upheld. If
any allotment was not made in accordance with a statutory provision at the
relevant time, it must be discontinued and must be treated as cancelled and
the State shall take possession of such premises as soon as possible and at
the same time, the State should also recover appropriate rent in respect of
such premises which had been allotted without any statutory provision.

44. In the circumstances, for the reasons stated hereinabove, the
petition is allowed. Rule is made absolute with no order as to costs and
it is held that the 1997 Rules so far as they are not in consonance with
the provisions of the 1981 Act are bad in law. The government bungalows
allotted to the respondents is held to be bad in law and the concerned
respondents shall hand over possession of the bungalows occupied by them
within two months from today and the respondent-Government shall also
recover appropriate rent from the occupants of the said bungalows for the
period during which they were in unauthorized occupation of the said
bungalows.

………………..……………….J.
(ANIL R. DAVE)

…….…………..……………….J.
(N.V. RAMANA)

…….…………..……………….J.
(R. BANUMATHI)
NEW DELHI;
AUGUST 01, 2016.

Service Matter ;- In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking. For these reasons, the judgment of the High Court which set aside the action for recovery is unsustainable. However, we are of the view that the recovery should be made in reasonable instalments. We direct that the recovery be made in equated monthly instalments spread over a period of two years.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 3500 OF 2006

HIGH COURT OF PUNJAB & HARYANA .....APPELLANTS
& ORS

Versus

JAGDEV SINGH .....RESPONDENT

J U D G M E N T

Dr. D Y CHANDRACHUD, J

1 The High Court of Punjab and Haryana allowed, by its judgment dated 1
August 2005, a petition filed by the Respondent under Article 226 of the
Constitution to challenge a direction issued by the State to the Accountant
General for the recovery of an excess payment towards salary.

2 The facts lie in a narrow compass. The Respondent was appointed as a
Civil Judge (Junior Division) on 16 July 1987 and was promoted as
Additional Civil Judge on 28 August 1997 in the judicial service of the
State. By a notification dated 28 September 2001, a pay scale of
Rs. 10000-325-15200 (senior scale) was allowed under the Haryana Civil
Service (Judicial Branch) and Haryana Superior Judicial Service Revised Pay
Rules 2001. Under the rules, each officer was required to submit an
undertaking that any excess which may be found to have been paid will be
refunded to the Government either by adjustment against future payments due
or otherwise.

3 The Respondent furnished an undertaking and was granted the revised
pay scale and selection grade of Rs. 14300-400-18000-300. While opting for
the revised pay scale, the Respondent undertook to refund any excess
payment if it was so detected and demanded subsequently. The revised pay
scale in the selection grade was allowed to the Respondent on 7 January
2002.

4 The Respondent was placed under suspension on 19 August 2002 and
eventually, was compulsorily retired from service on 12 February 2003.

5 In the meantime, this Court in Civil Writ (C) 1022 of 1989 accepted
the recommendations of the First National Judicial Pay Commission (Shetty
Commission). Thereupon, the Haryana Civil Services (Judicial Branch) and
Haryana Superior Judicial Service Revised Pay Rules 2003 were notified on 7
May 2003.

6 In view thereof the pay scales of judicial officers in Haryana were
once again revised with effect from 1 January 1996. An exercise was
undertaken for adjustment of excess payments made to judicial officers,
following the notification of the revised pay rules. On 18 February 2004,
a letter for the recovery of an amount of Rs. 1,22,003/- was served upon
the Respondent pursuant to the direction of the Registrar of the High
Court.

7 The Respondent challenged the action for recovery in writ proceedings
under Article 226. The petition was allowed by the impugned judgment of the
High Court. The High Court found substance in the grievance of the
Respondent that the excess payment made to him towards salary and allowance
prior to his retirement could not be recovered at that stage, there being
no fraud or misrepresentation on his part.

8 The order of the High Court has been challenged in these proceedings.
From the record of the proceedings, it is evident that when the Respondent
opted for the revised pay scale, he furnished an undertaking to the effect
that he would be liable to refund any excess payment made to him. In the
counter affidavit which has been filed by the Respondent in these
proceedings, this position has been specifically [1]admitted. Subsequently,
when the rules were revised and notified on 7 May 2003 it was found
that a payment in excess had been made to the Respondent. On 18 February
2004, the excess payment was sought to be recovered in terms of the
undertaking.

9 The submission of the Respondent, which found favour with the High
Court, was that a payment which has been made in excess cannot be recovered
from an employee who has retired from the service of the state. This, in
our view, will have no application to a situation such as the present where
an undertaking was specifically furnished by the officer at the time when
his pay was initially revised accepting that any payment found to have been
made in excess would be liable to be adjusted. While opting for the benefit
of the revised pay scale, the Respondent was clearly on notice of the fact
that a future re-fixation or revision may warrant an adjustment of the
excess payment, if any, made.

10 In State of Punjab & Ors etc. vs. Rafiq Masih (White Washer) etc1.
this Court held that while it is not possible to postulate all situations
of hardship where payments have mistakenly been made by an employer, in the
following situations, a recovery by the employer would be impermissible in
law:

“(i) Recovery from employees belonging to Class-III and Class-IV service
(or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire
within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a
period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to
discharge duties of a higher post, and has been paid accordingly, even
though he should have rightfully been required to work against an inferior
post.

(v) In any other case, where the Court arrives at the conclusion, that
recovery if made from the employee, would be iniquitous or harsh or
arbitrary to such an extent, as would far outweigh the equitable balance of
the employer's right to recover.” (emphasis supplied).

11 The principle enunciated in proposition (ii) above cannot apply to a
situation such as in the present case. In the present case, the officer to
whom the payment was made in the first instance was clearly placed on
notice that any payment found to have been made in excess would be required
to be refunded. The officer furnished an undertaking while opting for the
revised pay scale. He is bound by the undertaking.

12 For these reasons, the judgment of the High Court which set aside the
action for recovery is unsustainable. However, we are of the view that the
recovery should be made in reasonable instalments. We direct that the
recovery be made in equated monthly instalments spread over a period of two
years.

13 The judgment of the High Court is accordingly set aside. The Civil
Appeal shall stand allowed in the above terms. There shall be no order as
to costs.

.......................................CJI
[T S THAKUR]

..............................................J
[Dr D Y CHANDRACHUD]

New Delhi
JULY 29, 2016.
-----------------------
[1] [2] (2015) 4 SCC 334

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Tuesday, August 2, 2016