LAW FOR ALL

Saturday, January 30, 2021

Whether it is the Principal of the College who is empowered to appoint Warden of the Hostel of the College or it is the Governing Body in whom the power to appoint Warden is vested ?,

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 13 Of 2021

(Arising out of SLP(C)No.8053 of 2019)

THE CHAIRPERSON GOVERNING BODY

DAULAT RAM COLLEGE ...APPELLANT(S)

VERSUS

DR. ASHA & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2. This appeal has been filed by the appellant

questioning the judgment dated 06.03.2019 of the

Division Bench of Delhi High Court issuing certain

directions in LPA No.316 of 2018 filed by respondent

No.1-Dr. Asha, although not interfering with the

judgment of the learned Single Judge dated 09.03.2018

disposing of the writ petition filed by Dr. Asharespondent No.1. The appellant aggrieved by the

directions issued by the Division Bench has filed this

appeal.

3. Brief facts giving rise to this appeal are:

Daulat Ram College is affiliated to the

University of Delhi since 1960. The Hostel of the

Daulat Ram College is an integral part of the College.

The Daulat Ram College Society is a registered Society

which was established on 03.03.1960 which in turn has

established Daulat Ram College (hereinafter referred

to as the ‘College’). The Daulat Ram College Society

has a Memorandum of Association as well Rules. The

College has a Governing Body which is approved by the

Executive Council of the University (Delhi

University). We in the present case are only concerned

with the Hostel of the Daulat Ram College and that too

appointment of Warden of the Hostel of the College.

The Governing Body of the College has been appointing

the Warden of the Hostel of the College.

4. On 10.09.2013, respondent No.4-Dr.Kavita Sharma

was unanimously appointed as Warden of the College by

the Governing Body with effect from 12.09.2013 for a

period of two years. The two years’ term of respondent

No.4 as Warden was going to end on 11.09.2015, the

Governing Body of the College vide its Resolution

dated 11.09.2015 re-appointed respondent No.4 as

Warden of the College for two years. The Governing

Body of the College directed the Principal to seek her

willingness/ unwillingness in writing and in case she

is willing, to issue her a letter of appointment with

effect from 12.09.2015. The Principal issued a letter

dated 15.09.2015 informing respondent No.4 that her

term of appointment as Warden of the Hostel of the

College has been extended upto 12.05.2016. The

Chairperson of the Governing Body wrote to respondent

No.3, Principal of the College questioning the letter

dated 15.09.2015 appointing respondent No.4 for a

period of eight months only. The Chairperson of

Governing Body informed that re-appointment was for a

period of two years and explanation was called from

respondent No.3 as to why she has not complied with

the order of the Governing Body. The Chairperson

issued a letter dated 02.05.2016 to respondent No.3

sending agenda for the meeting scheduled to be held on

07.05.2016.

5. The Principal on 02.05.2016 issued notice

inviting applications from permanent teachers who are

interested to work as Warden of College Hostel. Dr.

Asha submitted her application. The Principal,

respondent No.3 issued a letter dated 06.05.2016

appointing respondent No.1-Dr. Asha as Warden of the

College Hostel and she was directed to assume charge

on 21.05.2016. In the meeting of the Governing Body it

was noted that vide Resolution dated 11.09.2015

respondent No.4 was appointed for a period of two

years which term was to expire on 11.09.2017. It was

resolved that necessary letters containing the term of

appointment be sent accordingly. On 21.05.2016 a show

cause notice was issued to respondent No.1 asking her

to explain how she illegally and willfully attempted

to occupy the post of the Hostel Warden when she was

aware that respondent No.4 was the Hostel Warden

appointed by the Governing Body vide its Resolution

dated 11.09.2015 for a term of two years. Respondent

No.1 wrote a letter on 24.05.2016 to the Chairperson,

Governing Body asking that show cause notice issued to

her being unwarranted and not based on facts be

withdrawn. The Principal wrote on June 9/14, 2016 to

the Manager, Indian Overseas Bank informing that

respondent No.1 has been appointed as a Hostel Warden

with effect from 21.05.2016 for two years and she will

operate the College Hostel Accounts with effect from

21.05.2016. On 13.06.2016, the University of Delhi

wrote a letter to respondent No.3 that appointment of

Warden in a College Hostel is purely an administrative

affair of the College and the University has no role

to play in this behalf. The Principal was advised to

act as per clause 6-A(5)(b)(iii) of Ordinance XVIII of

the University.

6. In the Minutes of the meeting of the Governing

Body dated 24.06.2016 it was recorded that the

Principal has illegally appointed Dr. Asha as Warden

of the Hostel of the College. The Governing Body

resolved that earlier status quo be maintained and

respondent No.4, Dr. Kavita Sharma would continue as

the Warden till such time that proper guidelines for

appointment of Warden are made by the Governing Body

Hostel Committee. Respondent No.3 recorded her dissent

in the meeting dated 24.06.2016. The Principal issued

a notice dated 30.07.2016 inviting applications from

interested permanent teachers of the College for the

post of Warden in the College Hostel. Respondent No.1

filed a Writ Petition No.7289 of 2016 praying for

issuing a writ, order or direction in the nature of

mandamus and/or certiorari directing respondent Nos.2

and 3, i.e., the Principal and Chairperson of the

Governing Body to withdraw the notice dated

30.07.2016, declaration was sought that notice dated

30.07.2016 is illegal and unconstitutional. The

petitioner’s case in the writ petition was that she

was appointed as Warden of the Hostel of the College

by Principal vide letter dated 06.05.2016 for a period

of two years and took charge on 21.05.2016. The

allegations were made against the Chairperson,

Governing Body that she has created obstruction in the

functioning of the writ petitioner.

7. Learned single Judge vide order dated 19.08.2016

passed an order of the status quo regarding the

petitioner’s position as Warden of the Daulat Ram

College Hostel. Counter-affidavit was filed by the

Governing Body. Learned Single Judge after hearing the

parties passed a detailed order dated 25.11.2016

vacating the interim order dated 19.08.2016. Against

order dated 25.11.2016 Letters Patent Appeal was filed

by respondent No.3, Principal, Daulat Ram College

where order dated 22.12.2016 was passed by the

Division Bench directing the matter to be listed on

10.01.2017 till such time, status quo as of that day

be maintained. The Division Bench also passed several

orders subsequently and made it clear that pendency of

the appeal shall not come in the way of the learned

Single Judge in deciding the writ petition. Learned

Single Judge by judgment dated 09.03.2018 disposed of

writ petition.

8. Learned Single Judge found that the appointment

of the Warden in the College Hostel is the

administrative affair of the College. The learned

Single Judge held that appointment of the writ

petitioner as Warden in the College Hostel by the

Principal is irregular. In paragraph 14 following was

held:

“14. In the facts and circumstances of

this case, this petition and application

are disposed of with direction to the

Governing Body of respondent-College, for

the post of Warden in question and it be

placed before the Staff Council of

respondent-College, who shall make

recommendation for the post of Warden in

the College Hostel within a period of

four weeks and the said recommendation be

considered by the Governing Body of

respondent-College within two weeks

thereafter, so that the post in question

is expeditiously filled up.”

9. Aggrieved by the judgment of the learned Single

Judge dated 09.03.2018, LPA No.316/2018 was filed by

Dr. Asha-respondent No.1. The Chairperson, Governing

Body wrote to the Principal and other members to

initiate process for the appointment of the Warden. On

Principal not initiating the process of the

appointment, the Governing Body convened a meeting on

07.04.2018. The applications were also invited for the

post of Hostel Warden. Respondent No.4 applied in

pursuance of the application. On 07.04.2018 Governing

Body in its meeting resolved to appoint respondent

No.4 as Warden of the College Hostel. Thereafter an

interim order dated 01.05.2018 was passed by the

Division Bench. On 22.05.2018 Letters Patent Appeal

was filed by respondent No.1 against the judgment

dated 09.03.2018 of the Learned Single Judge.

10. The Division Bench decided the LPA vide judgment

dated 06.03.2019. The Division Bench although did not

interfere with the direction of the learned Single

Judge but in addition issued various directions. The

Division Bench vide its direction in paragraph 41

directed for issue of notice by the Principal of the

College inviting applications for appointment of

Warden of the Hostel, which applications were required

to be placed before the Staff Council which was to

take a decision thereon and make its recommendations

not later than 01.04.2019 and recommendations were to

be placed before the Governing Body. Paragraph 41 of

the Division Bench judgment is to the following

effect:

“41. The Court, while not interfering with

the directions issued by the learned Single

Judge in the impugned order, issues the

following directions:

(i) Within a period ten days from today, and

in any event not later than 18th March 2019,

a notice will be issued by the Principal of

the College inviting applications for

appointment as Warden of the Hostel from

amongst the teaching Staff, not limited to

the Teachers living on campus, but subject to

the undertaking given by the applicant (if

living outside the campus) that if appointed

as Warden she will stay on campus in the tworoom set in the Hostel building.

(ii) The applications received will be placed

before the Staff Council which will take a

decision thereon and make its recommendations

not later than 1st April 2019.

(iii) The recommendations of the Staff

Council shall then be placed before the GB by

the Principal forthwith, and in any event not

later than 3rd April 2019.

(iv) The GB will meet and take a decision on

such recommendation of the Staff Council not

later than 10th April 2019.

(v) If for some reason the GB does not accept

the recommendations of the Staff Council, it

will give its reasons, which will form part

of the minutes of its meeting and send the

minutes to the Staff Council not later than

15th April 2019. In such event, the Staff

Council will again convene and make a fresh

recommendation from among the remaining

applicants and this will be placed before the

GB not later than 17th April 2019. The GB

will be bound such recommendation and will

take a decision on the appointment of the

Warden not later than 20th April 2019. Dr.

Kavita Sharma, if not appointed as Warden in

the above process, shall immediately hand

over charge to the newly appointed Warden.

Likewise, the Matron would abide by the

directions issued in para 39 above.

(vi) The minutes of the meetings of the Staff

Council and the GB in compliance with the

above directions will be placed before the

Court on the next date.”

11. Aggrieved by the judgment of the Division Bench

dated 06.03.2019, the Chairperson, Governing Body,

Daulat Ram College has filed this appeal. While

issuing notice in this appeal on 05.04.2019 following

order was passed by this Court:

“Issue notice.

Till the next date the warden, who is

as on date looking to the affairs of the

hostel, shall continue."

12. We have heard learned counsel for the appellant

and learned counsel appearing for the respondents.

13. Learned counsel for the appellant submits that

appointing authority of Warden of the College Hostel

is the Governing Body of the College. The appointment

of respondent No.1 was directly made by the Principalrespondent No.3 on 06.05.2016 without approval of the

Governing Body which was an illegal appointment.

Learned counsel submits that both learned Single Judge

and Division Bench having found the appointment of

respondent No.1 illegal, the appointment made by the

Governing Body in pursuance of judgment of the learned

Single Judge ought to have been maintained. There was

no occasion for directing fresh appointment as has

been directed by the learned Division Bench of the

High Court. It is submitted that Delhi University vide

its letter dated 23.10.2013 and letter dated

02.08.2016 had clarified that the appointment of

Warden and Matron in College Hostel is purely an

administrative affair of the College and the

University of Delhi has no role to play in this

regard. It is submitted that Ordinance XVIII, 6A(5)

(b)(iii) does not confer any authority to Staff

Council to appoint a Warden of the Hostel of the

College. It is further submitted that the letter of

the University Grants Commission dated 19.02.1987 does

not confer any authority on the Principal to make

appointment of Warden of the Hostel of the College. It

is submitted that the learned Division Bench has

issued various directions which encroach on the right

of the Governing Body to exercise its jurisdiction of

the appointing authority of the Warden of the Hostel

of the College.

14. Learned counsel appearing for respondent No.3

submits that Daulat Ram College is affiliated to the

University of Delhi and 95% grants is funded from

University Grants Commission and only 5% of the funds

is to be paid by the Society-Trust. The letter dated

19.02.1987 was written by the University Grants

Commission in response to the letter of the ViceChancellor, University of Delhi and said letter was

ratified by the Executive Council of the University in

its meeting dated 25.04.1987 that it is the Principal,

who is the appointing authority of the Warden of the

Hostel of the College. The Principal, being the

administrative head of the College, is entitled to

make appointment. It is also submitted that Staff

Council also has no role in the appointment of Warden

which is in the domain of the Principal of the

College.

15. Learned counsel appearing for respondent No.1 has

adopted the submissions made by the learned counsel

for respondent No.3. It is submitted that after

judgment of the Division Bench, Staff Council in its

meeting dated 01.04.2019 has recommended respondent

No.1 for appointment as the Warden of the Hostel of

the College, there is no power in the Chairperson of

the Governing Body to appoint any one of her choice as

Warden of the Hostel of the College.

16. On behalf of respondent No.2, it has been

submitted that the appointment of an existing teaching

staff in an honorary capacity as Warden of a College

Hostel is not specifically provided for under any of

the provisions of University of Delhi Act, 1922,

Statutes, and Ordinance. It is submitted that all

Colleges which are affiliated to or constituent of

University of Delhi follow the practice of inviting

applications from interested teachers of their

respective Colleges by putting up a notice by the

Principal of the College and thereafter Principal

recommends/shortlist the name for appointment

whereafter the Governing Body grants approval and the

procedure for appointment takes thereafter.

17. We have considered the submissions of the learned

counsel for the parties and have perused the records.

18. Only two questions arise for consideration in

this appeal:

(1) Whether it is the Principal of the College

who is empowered to appoint Warden of the

Hostel of the College or it is the Governing

Body in whom the power to appoint Warden is

vested ?, and

(2) what is the procedure to be adopted before

making appointment of Warden of the College

Hostel ?

19. Both the questions being inter-related are being

taken together.

20. The claim of the Principal as well as respondent

No.1 that it is the Principal who is the appointing

authority of Warden of the College Hostel is based on

letter of the University Grants Commission dated

19.02.1987. The letter dated 19.02.1987 was written by

the Secretary of University Grants Commission to the

Vice-Chancellor of the Delhi University regarding

revising the existing staffing pattern in the Hostels

of the Colleges affiliated to Delhi University. The

above letter has been brought on record as AnnexureP2. It is useful to extract the entire letter which is

to the following effect:

“UNIVERSITY GRANTS COMMISSION

BAHADURSHAH ZAFAR MARG NEW DELHI

D.O.NO.F.1-4/B84/884(NP-II) Vol.II

February 19, 1987

Dear Professor Moonis Raza

Kindly refer to your office DO letter No.

DC/632/87 dated 3rd February, 1987 regarding

revising the existing staffing pattern in the

hostels of colleges affiliated to Delhi

University in accordance with the

recommendation of the Committee appointed by

the University.

The proposal has been considered in the

light of the information earlier furnished by

the University vide letter No.DSW/85/9391 dated

17th October, 1985 which was required to

streamline the rules about fees charged and

facilities provided in the hostels of the

central universities. We find that there is a

need to revise the staffing pattern in the

hostel mess staff which was fixed as far back

as in 1971.

Though the Warden has been desired to be

provided for the women’s hostels, it is felt

that each hostel should have a warden who

should be responsible for all hostel

administration in the college and he/she should

be appointed by the Principal from amongst

senior teachers in the college. As an incentive

for this extra work an allowance of Rs.300/- pm

be paid. In order to have the accounts of the

hostel up to date and in perfect order a need

for providing a clerk is also felt as a

necessity. Since some of the hostels are also

having the services of Chowkidar/Mali Safai

Karamchari to be left categories provided the

total staff in Group D for hostel mess staff

does not exceed the prescribed limit of

additional four.

In view of the above the commission agrees

to provide the following additional staff for

the smooth functioning of the hostel

activities:

1.Warden (One) To be paid Rs.30/- per month

3.Clerk (One) In the scale of pay of Rs.950-

1500.

3.Ground D In the scale of pay of

employees Rs.(four)in the category 750-

940. of Chowkidar/Mali/Safai

Karamchari

The provision of the above staff will be

effective from 1st January, 1987 and the

pattern of funding will be the same as for the

payment of maintenance grant to Delhi Colleges

i.e. 100% 95% as the case may be. You are

requested to bring this decision to the notice

of the concerned colleges having hostel

facilities with a request that they should send

2 separate statements of accounts in respect of

staff working in the hostels on the existing

pattern and on the basis of the revised pattern

with the accounts of the college for the year

1986-87.

With regards,

Yours sincerely,

(S.P. Gupta)

Prof. Moonis Raza,

Vice-Chancellor,

University of Delhi.”

21. The emphasis has been laid by the counsel for

respondent No.2-University of Delhi on the following

sentence occurring in the letter:

“…it is felt that each hostel should have

a warden who should be responsible for all

hostel administration in the college and

he/she should be appointed by the

Principal from amongst senior teachers in

the college.”

22. The letter of the Secretary dated 19.02.1987

communicates the decision of the Commission. The last

portion of the letter incorporates decision of the

Commission beginning with the word:

“In view of the above the commission agrees

to provide the following additional staff for

the smooth functioning of the hostel

activities:

1.Warden (One) To be paid Rs.30/- per month…”

23. A careful reading of the aforesaid letter

indicates that the decision of the Commission which

was communicated by the Secretary was the decision of

the University Grants Commission to provide additional

staff for smooth functioning of the Hostel of the

College. The Commission neither took decision

regarding appointment of the Warden nor such decision

was communicated by the said letter.

24. It is further submitted that the above decision

of the University Grants Commission dated 19.02.1987

has been ratified by the Executive Council of the

Delhi University vide its minutes dated 25.04.1987. In

the counter-affidavit filed by respondent No.3 the

minutes of the Executive Council dated 25.04.1987 are

filed in which proceeding, Item No.15, the letter of

the University Grants Commission dated 19.02.1987 has

been referred to and the decision taken by the

Executive Commission was recorded. The relevant

minutes of the proceeding of Item No.15 is as follows:

“15. Resolved that receipt of the following

letters from the University Grants Commission and

the Government of India and the action taken

thereon wherever necessary be recorded:-

Letters from the U.G.C.

Letter No.& Date Subject

1. … …

2. … …

3. … …

4. F.I-4/84(NP-II) Conveying the Commissions

Vol.II, dated approval to(i) raising the

19.2.1987 funding pattern of Salaries

of Hostel, employees from

75% to 95% (100% in case of

University maintained institutions) subject to the

condition

that the remaining 5% of the

expenditure may be made by the

Management as in the case of

College administration with no

financial burden, whatsoever,

on the students residing in

the

Hostels. (ii) Sanction for a

few additional posts for

smooth

functioning of Hostel

activities.”

25. A perusal of the above minutes of the Executive

Council of the Delhi University indicates that what

Executive Council noticed in the minutes is that the

Commission has approved the raising of the funding

pattern of salaries of the employees of the Hostel

from 75% to 95% and the remaining 5% of the

expenditure was to be made by the Management as in the

case of College administration with no financial

burden on the students residing in the Hostels. Only

to the extent of the above part of the decision of the

Commission the Executive Council reiterated and there

was no decision by the University that appointment of

Warden of the Hostel is to be made by the Principal of

the College.

26. The University has filed counter-affidavit in the

writ petition before the High Court where it has

categorically taken the stand that the University Act,

Statutes and Ordinance do not provide for appointment

of the Warden of the Hostel College and it is a

private matter concerning the respective college. In

the LPA affidavit was called for and the affidavit

dated 11.01.2019 by Prof. T.K. Das, Registrar,

University of Delhi was filed. In paragraph 5 of the

said affidavit following has been stated:

“5. The appointment of an existing teaching staff

in an honorary capacity as Warden of a college is

not specifically provided for under any of the

provisions of University of Delhi Act, 1922

statutes, and Ordinance; being a private matter

concerning the respective college and University of

Delhi has no role to play. However, all the

collages, which have their own hostel and, are

affiliated or constituted of University of Delhi

follow the practice of inviting applications from

interested teachers of their respective college by

putting up notice by the Principal of said College,

willing to take on this honorary charge. Then the

Principal of the respective college considers such

application received and recommends/shortlist the

name for such appointment. Thereafter, the name of

shortlisted teacher and appointed to the honorary

post of warden is placed before the Governing Body

for approval.”

27. Two earlier letters dated 21.10.2013 and

13.06.2016 which have been brought on record as

Annexure-P7 and Annexure-P23 have also communicated

that appointment of Warden in the College Hostel is

purely an administrative affair of the College and the

University has no role to play in this behalf.

28. In view of the aforesaid, letter dated 19.02.1987

issued by the University Grants Commission cannot be

read to mean that it is Principal who is the

appointing authority of the Warden of the Hostel of

the College.

29. Learned single Judge in its judgment dated

19.08.2016 has rightly held that University Grants

Commission’s letter dated 19.02.1987 is of no avail.

26. Much emphasis has been laid by the learned

counsel for the respondent on Ordinance XVIII which

deals with “Of Colleges and Halls”. Ordinance XVIII,

6-A deals with Staff Council. 6-A relevant for the

present case is quoted hereunder:

“6-A. (1) There shall be a Staff Council in every

College.

(2) All the members of the teaching staff, the

Librarian and the Director of Physical Education

shall constitute the Staff Council.

(3) Subject to the provisions of the Act, the

Statutes and the Ordinances of the University, the

Principal shall act as Principal-in-Council in

respect of matters on which Staff Council is

required to take decisions.

ORDINANCE XVIII

(4) (a) The Principal shall be ex-officio Chairman

of the Staff Council.

(b) The Council shall elect its Secretary, who

shall hold office for a term of one year. The

Secretary may be re-elected for a second term but

no person shall hold office of Secretary for more

than two consecutive terms.

(5) (a) Subject to the provisions of the Act, the

Statutes and the Ordinances of the University, the

Staff Council shall take decisions in respect of

the following matters:

(i) Preparation of College time-table.

(ii) Allocation of extra-curricular work of

teachers not involving, payment of remuneration.

(iii) Organising extra-curricular activities,

including cultural activities of students, sports,

games, National Service Scheme and other social

services schemes and academic societies.

(iv) Laying down guide-lines for purchase of

library books and laboratory equipment in

consultation with the appropriate departments.

(v) Organising admission of students.

(b) Subject to the provisions of the Act, the

Statutes and the Ordinances of the University, the

Staff Council shall make recommendations in

respect of the following matters :

(i) Formulation of recommendations on

introduction of new teaching posts in the

departments and expansion of the existing

departments;

(ii) Formulation of admission policy within the

framework of the policy laid down by the

University;

(iii) Formulation of guidelines regarding

arrangements for the residence and welfare

of students in consultation with

appropriate students organisations;

(iv) Formulation of guide-lines regarding

discipline of the students;

(v) Formulation of policies for recommending

names of teachers for participation in

seminars and conferences and financial

assistance to teachers.

Note : The administrative staff of the College

will not be within the purview of the Staff

Council.”

30. The reliance has been placed on 6-A(5)(b)(iii),

formulation of guidelines regarding arrangements for

the residence and welfare of students in consultation

with appropriate students organisations. When we read

the Ordinance 6-A which deals with the Staff Council

of every College, clause (5)(a) provides that subject

to the provisions of the Act, the Statutes and the

Ordinances of the University, the Staff Council has to

take decisions in respect of the matters enumerated

therein. There is reliance only on clause (5)(b)(iii)

which is extracted above. Clause (5)(b) provides that

subject to the provisions of the Act, the Statutes and

the Ordinances of the University, the Staff Council

shall make recommendations in respect of the matters

mentioned therein. Formulation of guidelines regarding

arrangements for the residence and welfare of students

in consultation with appropriate students

organisations, in no manner can embrace in it the

power to make appointment of Warden. It has been

clearly stated by the University in its letters and

affidavit that it is a matter of administration of the

College and is not dealt in the Act, Statutes and

Ordinances. Had the Ordinance 6-A(5)(b)(iii)

contemplated recommendation of Staff Council for

appointment of Warden, the University could have very

well taken that stand which stand has not been taken

in the present proceedings.

31. The Delhi University has also filed a counteraffidavit in the proceedings before this Court. In the

counter-affidavit filed by the University of Delhi in

these proceedings, the stand of University of Delhi

has again been taken in paragraph 4 which is to the

following effect:

“4. The appointment of Warden of the hostel

maintained by the College

constituent/affiliated to the University of

Delhi is purely an administrative affair of the

College and the University has no role to play

in this behalf. It is respectfully submitted

that the appointment of an existing teaching

staff in an honorary capacity as Warden of a

college is not specifically provided for under

any of the provisions of the University of

Delhi Act, 1922 Statutes, and Ordinances.

However all the Colleges, which have their own

Hostel and, are affiliated or constituent of

University of Delhi, follow the practice of

inviting application from interested teachers

of their respective College by putting up

notice by the Principal of said College,

willing to take up the honorary charge. Then

the Principal of the respective College

considers such application received and

recommends/shortlist the name for such

appointment. Thereafter, the name of the

shortlisted teacher to be appointed to the

honorary post of Warden is placed before the

Governing Body of the said college for

approval. This practice has been in vogue, more

or the less in the light of the letter of UGC

dated 19.02.1987 (Annexure P-2 herein). The

Hindu college for instance also follows the

same practice.”

32. In the counter-affidavit of the University

referring to practice, the University clearly states

that appointment of Warden is purely an administrative

affair of the College and the University has no role

to play and further the same is not provided for under

any of the provisions of the University of Delhi Act,

Statutes and Ordinances. We, thus, come to the

conclusion that Ordinance XVIII 6-A(5)(b)(iii) does

not empower the Staff Council to make any

recommendation with regard to the appointment of

Warden of the College Hostel.

33. The Governing Body of the College is to

administer the affair of the College. Ordinance XVIII

Chapter VII-2 at page 47 of the paper book is to the

following effect:

“2. The Governing Body will meet at least once

in a term, and, subject as hereinafter

provided, shall have general supervision and

control of the affairs of the College and

maintain its own records of its proceedings

which shall be open to inspection by the

inspection authority.”

34. The Governing Body, thus, has general supervision

of the College. Even in the Colleges and Institutions

which are maintained by the University, it is provided

in Ordinance XX that the Governing Body which is

constituted by the Executive Council is empowered to

appoint the administrative staff of the College.

Similarly, the Governing Body of the affiliated

Colleges is empowered to appoint administrative staff

of the College. The Ordinance does not empower the

Principal to make any appointment of the Warden of the

Hostel nor any other statutory provision has been

referred which empowers the Principal to appoint

Warden of the College.

35. The Principal, however, who is entrusted the over

all internal administration of the College is a person

who knows all the staff of the College and his/her

recommendation with regard to appointment of Warden of

the College Hostel is to carry weight. The Governing

Body while making appointment of Warden of the College

Hostel has to give due weight to the recommendation of

Principal. The appointment of Warden of the Hostel is

made from amongst the permanent staff of the College,

the practice which is followed in the College and with

which there is no dispute between the parties is that

the applications are invited through notice by

Principal for appointment of Warden and after

recommendation is made by the Principal, a decision is

taken by the Governing Body is to appoint Warden.

36. With regard to the role of Staff Council in the

appointment of Warden of the Hostel, we have already

observed that Ordinances do not empower the Staff

Council to make any recommendation with regard to the

appointment of Warden. We have found that the

Principal has no authority to appoint Dr. Asharespondent No.1 as Warden in the Hostel of the College

and appointment made by the Principal was irregular.

The Division Bench also did not interfere with the

judgment of the learned Single Judge. The Division

Bench in the directions in paragraph 41 has directed

that the applications received in response to notice

for appointment of Warden to be placed before the

Staff Council which was to take a decision and make

recommendations on the said applications. We having

found that Staff Council is not statutorily empowered

to make any recommendation regarding appointment of

Warden of the College Hostel, the direction of the

Division Bench requiring placement of all applications

before the Staff Council was uncalled for. The

appointment of Warden of the Hostel being in the

domain of the Governing Body, the High Court should

have left it to the Governing Body to take appropriate

steps along with the Principal of the College for

making appointment of the Warden of the Hostel of the

College. We, thus, are of the view that directions in

paragraph 41 of the Division Bench judgment cannot be

sustained and are hereby set aside.

37. The High Court has also appointed two Advocates

as Commissioners to visit the Hostel premises. The

Commissioners visited the Hostel and submitted report

to the High Court. No further directions are needed in

the above reference.

38. Respondent No.4 in its counter-affidavit has

stated that in pursuance of direction of the learned

Single Judge, respondent No.4 was appointed by the

Governing Body as Warden of the Hostel of the College

whereas respondent No.1 claims that respondent No.1

has been appointed as Warden in pursuance of notice

issued by the Principal on 08.03.2019. The appointment

of respondent No.4 as Warden which was made subsequent

to the judgment of the learned Single Judge by the

Governing Body on 07.04.2018, the tenure of which has

come to end. The initial appointment of respondent

No.1 on 06.05.2016 as well as subsequent appointment

as claimed by respondent No.1 cannot be held to be

valid.

39. The dispute which ensued regarding the

appointment of Warden of the College Hostel arose due

to the fact that position regarding procedure and

right to make appointment on the post of Warden was

not clear and the claim was raised by the Principal on

the strength of letter of the University Grants

Commission dated 19.02.1987 which we have dealt as

above. From the discussion as above, it is clear that

it is the Governing Body of the College which has the

authority to appoint Warden of the College Hostel.

However, the Principal being Executive head of the

entire College and being in position to know the

members of the staff as per prevailing practice the

applications are to be invited through the Principal

of the College and after receipt of the applications

the applications along with recommendation of the

Principal may be placed before the Governing Body

which is to take decision regarding appointment of the

Warden of the Hostel of the College.

40. The affidavit has also been filed on behalf of

the respondent No.3 that Hostel of the College is

closed since June 2019 which has not yet been opened.

An affidavit has also been filed by the appellant

stating that Schools and Colleges were closed under

the orders issued by the Government of India, Ministry

of Home Affairs and it has to be opened in the fair

manner. The appellant submits that Schools, Colleges

and Hostels cannot be opened as of now. The issue

regarding opening of the Hostels is not being subject

matter of this appeal, we need not consider the said

issue in this appeal. It is for the University and

College administration to take a call regarding

opening of the Hostels. We, however, observe that the

Governing Body should initiate process for fresh

appointment of Warden of the Hostel of the College by

inviting applications through Principal of the College

before the Hostel is open for housing the students.

41. In the result, the directions contained in

paragraph 41 of the Division Bench judgment are set

aside. The appeal is allowed subject to observations

as above.

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

( ASHOK BHUSHAN )

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

( M.R. SHAH )

NEW DELHI,

JANUARY 05, 2021.

Friday, January 29, 2021

set aside the judgment of conviction of Mihir and Prabhat under Section 302 read with Section 34 of the Code and the order of sentence under the aforesaid provisions is also set aside. As we find from evidence of the medical professionals that injuries on Kasi Ram and Premchand were simple in nature, judgment of the High Court on their conviction and sentence under Section 325 of the Code is also set aside. 24 We also set aside the conviction and sentence of these two appellants under Section 307 of the Code.

NonReportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.2223 OF 2021

(Arising out of Petition for Special Leave to

Appeal (Criminal) Nos.89738974 of 2019)

MIHIR GOPE ETC. …APPELLANTS

VERSUS

THE STATE OF JHARKHAND …RESPONDENT

J U D G M E N T

ANIRUDDHA BOSE, J.

Leave granted.

2. Anil Mahto and Jatu Mahto had died from injuries

received in consequence of assaults on them on 20th

August, 2005 over a land related dispute. Certain other

members of the appellant’s family were also injured on

account of assault as a result of the same dispute. The

appellants are two sons of one Manohar Gope, with

whom the dispute had arisen. The cause of the dispute

with the members of the deceased victims’ family is

specifically related to the construction of a hut. The

prosecution’s case is that certain members of the Gope

family were the assailants. The appellants before us are

Mihir Gope (in Petition for Special Leave to Appeal (Crl.)

No.8973 of 2019) and Prabhat Gope (in Petition for

Special Leave to Appeal (Crl.) No.8974 of 2019). They

have been held guilty by the Trial Court (Additional

Sessions Judge, Fast Track CourtIV, Bokaro) for

committing offences under Sections 341, 307, 325, and

302 read with Section 34 of the Indian Penal Code, 1860

(the Code). The Trial Court sentenced the two appellants

to undergo rigorous imprisonment for life for committing

offence under Section 302 of the Code, simple

imprisonment for a month in relation to offence under

Section 341 of the Code, rigorous imprisonment for 5

years for offence under Section 325 of the Code, and

rigorous imprisonment for 7 years for offence under

Section 307 of the Code. The sentences had been

directed to run concurrently by the Trial Court.

Altogether five persons including the two appellants were

tried for the offences initiated by a fardbeyan of one Kasi

Ram Mahto on 20th August 2005, being the date of

occurrence of the offence. In the depositions as

reproduced in the paperbook, he has been referred to in

some places as Kari Ram. Similarly, the deceased victim

Jatu Mahto has been referred to as Jadu, Jethu, Jattu

and Indu by different witnesses. We shall, however, refer

to them as Kasi Ram and Jatu in this judgment, ignoring

these discrepancies. None of the parties has raised any

question or dispute on this count. On the basis of the

said fardbeyan, First Information Report was registered

on the same date in Pindrajora police station of Bokaro

district in the State of Jharkhand. In this judgment, we

shall also be referring to the accused persons as also

victims and members of their family by their first names

only. Kasi Ram himself was injured in the assault. He

was examined as Prosecution Witness no.12 in the trial.

Major part of the assault on the members of the Mahto

family, particularly on Anil, Jatu and Kasi Ram was

attributed to Manohar in the fardbeyan and the

prosecution witnesses have broadly corroborated the

content of the fardbeyan. The High Court, in appeals by

the four convicted accused persons, sustained the

judgment of conviction and orders of sentences of these

two appellants. The judgment of conviction of one of the

accused persons, Usha Devi (wife of Mihir), was set aside

by the High Court. The decision of the High Court was

delivered on 10th October, 2018.

3. The fardbeyan was recorded at Bokaro General

Hospital (BGH). It was disclosed therein that Kasi Ram,

the informant, with his wife Puna Devi had reached the

place of occurrence at Obra Mouza from their place of

residence at Bokaro on receiving a phone call from his

brother Premchand (PW11). The phone call conveyed

that Manohar had constructed a hut on the land of the

informant. Jatu, Anil, Premchand, Puranchand,

Dakshineshwar, Mukteshwar and Vijay all members of

the Mahto family had also reached the place of

occurrence when Kasi Ram and Puna Devi reached the

spot. On reaching the place of occurrence at about 8 a.m.

on that date, they found a hut with dalikhapra (earthen

rooftiles) on the land in question. Substantial evidence

was led before the Trial Court on title or ownership of the

land on which the hut was constructed. But that factor is

not of much relevance so far as the present appeals are

concerned, except that the construction of the hut

formed the genesis of the dispute and could be related to

motive of the crime. Manohar, the main assailant along

with his sons Mihir, Prabhat and Kailash were also at

the place of occurrence, as it transpires from the

evidence of Kasi Ram and other prosecution witnesses.

There was exchange of words mainly between Manohar

and Kasi Ram, after which Manohar had attacked Anil on

his head with an iron rod, as a result of which Anil

collapsed on the ground and became unconscious. On

the informant’s attempt to rescue Anil, he was also

assaulted by Manohar on his hands, head, and back. As

per prosecution evidence, the three sons of ManoharMihir (first appellant), Prabhat (second appellant) and

Kailash were supplied with a tangi (a variant of axe),

sawal (crowbar) and a gupti (a longish sword) by Usha

Devi. Before the assault started, Kasi Ram wanted

Manohar to go to the police station with him, presumably

to sort out the dispute, but Manohar refused to go there.

Manohar had asserted that it was his land. It was at that

stage Manohar assaulted Anil on his head with the iron

rod. As regards the sequence in which the assault took

place, Kasi Ram’s evidence is that when “Indu went to tie

Anil with towel then Manohar assaulted him on head

with rod and he became injured”. The name “Indu”, as

has been recorded in the deposition of Kasi Ram (as it

appears in the paperbook) obviously refers to Jatu. In the

sequence of events narrated by the other eyewitnesses,

being PW2, PW3, PW4, PW5, PW7 and PW11, this

particular victim has been referred to as Jatu.

4. Prosecution evidence was accepted by the Trial

Court on the aspect of description of assault by the

accused persons which resulted in death of Anil and

Jatu and also resulted in injuries to Kasi Ram,

Premchand and Puranchand. On his plea of juvenility,

the case of Kailash was separated and sent to the

Juvenile Justice Board. Usha Devi was let off by the High

Court on the reasoning that there was no allegation of

assault by her. Anil had passed away on 20th August,

2005 itself at BGH, whereas Jatu passed away on the

next day, i.e. 21st August, 2005. The injured persons

were initially taken to Chas General Hospital and after

initial treatment, referred to BGH. The former has been

described as the referral hospital in course of the

proceedings before the Trial Court and the High Court.

5. In the First Information Report, Manohar and his

three sons, Mihir, Prabhat and Kailash were named as

accused persons. After investigation, chargesheet was

submitted arraigning four of them as also Usha Devi as

accused persons. Records pertaining to Kailash were

sent to the Juvenile Justice Board. All four were

convicted and sentenced to imprisonment by the Trial

Court. We have already indicated the sentence imposed

on them.

6. The prosecution examined altogether sixteen

witnesses. Seven among them, being Puna Devi (PW2),

Puranchand (PW3), Vijay Kumar (PW4), Mukteshwar

(PW5), Dakshineshwar (PW7), Premchand (PW11) and

Kasi Ram (PW12) deposed as eyewitnesses. The autopsy

surgeon Dr. Pramod Kumar, who was examined as PW9

attributed the cause of death of the two deceased victims

to severe head injuries and excessive bleeding leading to

shock and cardio respiratory failure. In the case of Jatu,

blood coagulate was found in pia and dura mater of skull

leading to shock and cardio respiratory failure. On

dissection of Anil’s skull, blood clots in “profuse amount”

were found in between pia and dura mater, i.e. the

membranes that envelop the brain and spinal cord and

separate them from the walls of their bony cases (skull

and vertebral column). External injury of Anil, as per

deposition of PW9 was “lacerated wound with fracture of

occipital bone size 4½”

X 1” bone deep”. Jatu’s external

injuries were “fracture of occipital bone with swelling;

fracture of left parietal bone with lacerated wound………”.

PW13, Dr. Shishir Kumar Singh Munda had examined

Premchand (PW11, injured witness) and found his

injuries to be simple in nature caused by hard blunt

object. There were lacerated wounds on his left hand and

scalp, right fronto parietal region 2” X 1” X 1/3”. The two

other medical witnesses were Dr. Dhananjay Rajak (PW14) and Dr. Narendra Kumar Das (PW15). Dr. Rajak had

examined Anil and Jatu on the same day at BGH. He

found, in case of Anil, a stitched wound on occipital

parietal area 4” long. In case of Jatu, Dr. Rajak has

deposed that he found “1 stitched wound on occipital

area 3” long”. The injuries in both cases were attributed

to hard blunt object by the PW14. In case of

Premchand, he referred to the following injuries in his

statements made in course of examination :

“i. contusion left shoulder 3” X 1”

ii. contusion scapular left 8” X 1”

iii. contusion scapular region right 8” X 1/2”.

Another contusion 6” X 1”

iv. stitched wound left hand.”

The injuries of Premchand were found to be simple

in nature caused by hard blunt substance by Dr. Rajak.

Dr. Narendra Kumar Das (PW15) was the head of the

department of Neurosurgery at BGH at the material point

of time. He assessed the injuries of Anil and Jatu to be

grievous. Injury of Premchand, according to him, was

simple in nature and possibly caused by a hard and

blunt object. So far as injuries of Kasi Ram are

concerned, Dr. Shishir Kumar Singh Munda (PW13)

deposed that he had lacerated wound on right parieatal

region and on his right palm. According to this medical

witness, both the injuries were simple in nature and

caused by hard blunt objects.

7. The assessment of injuries of Jatu, Anil and

Premchand by Dr. Narendra Kumar Das would appear

from the following part of his deposition:

“1. On 20.08.05 I was posted at BGH in

same capacity. Patient Mr. Jethu Mehto

was seen and treated by me. He was

treated for severe head injury.

2. CT scan of brain was done.

CT scan no. 22305 dated 20.08.05.

CT scan shows multiple intracelebral

hemorrhage in the left temproperital

region with fracture of left parital bone.

The nature of injury was grievous. This

report is prepared and signed by me.

Mark it as Ext. 7/5.

3. The injury may be caused by hard and

blunt object.

4. On the same day I had examined Anil

Kr. Mahto. His hospital number was

13538. He was treated for severe head

injury. CT scan brain was done. Number

is 22306 dt. 20.08.05. CT Scan shows

multiple intra cerebral hemorrhage with

brain edema and fracture of left parital

and occipital bone. Nature of injury was

grievous possible by hard and blunt

object.

5. This report is prepared by me and

signed by me mark it as Ext. 7/6.

6. On the same day I had examined

Premchand Mahto. He was treated for

multiple injuries.

i. Head injury : CT Scan brain was

done. Number is 23307 dt.

20.08.05. CT scan shows no

evidence of intra cerebral

hemorrhage or fracture. The

nature was simple.

ii. Compound fracture of IInd

metacarpal bone left hand. Nature

was grievous possibly by hard and

blunt object. This report is

prepared by me. Mark it as Ext.

7/7.

7. The injury on the person of Jethu

Mahto may be caused if someone fall on

heavy object. There is no CT Scan

separate with this report. On the person

of Anil Mahto also the injury may be

caused due to fall, so with Premchand

Mahto.”

(quoted verbatim)

8. The depositions of the eyewitnesses for the

prosecution broadly gives the description of events that

corresponds with the fardbeyan, but there are

discrepancies on the role of each of the accused persons

in effecting specific strikes on the victims individually.

Prosecution also sought conviction on the basis of a

confessional statement of Manohar. Prosecution case is

that Manohar’s statement led to the recovery of a sawal

and a stick from his house. There were two seizure

witnesses Laxmi Devi (PW1) and Gulichand Mahto

(PW10). The latter was presented by the prosecution as

seizure witness of bloodsoaked soil. At this stage,

however, his deposition has insignificant impact on these

appeals as prosecution has relied upon other direct

evidences, primarily eyewitness account and evidence of

the medical practitioners, and not much turns in these

appeals on recovery of bloodsoaked earth. Laxmi Devi is

the wife of Prabhat Gope. She was presented as a

witness by the prosecution on seizure of the sawal and

the stick from Manohar’s house. In her deposition,

however, she has stated that the paper on which she had

signed was blank.

9. Two witnesses were examined by the defence, Netai

Gope and Shambhu Gope. Both of them deposed as

eyewitnesses. As recorded in the Trial Court’s judgment,

they sought to attribute the injuries to acts on the part of

the informant and his family members only. It was stated

by them that the informant and his brothers had

gathered near the hut armed with several weapons, the

likes of which we have already referred to. When they

tried to pull down the tiled hut, the defence witnesses

stated, some of the roof tiles fell on the members of the

informant’s side and that was the cause of the injuries.

The appellants sought to buttress this defence by

drawing our attention to the depositions of PW9, PW13

and PW15, all medical professionals. They stated in

their examination that the injuries treated or analysed by

them could be caused due to fall. But this opinion of the

medical practitioners was on probable cause. The story of

accidental injuries caused by the informant’s side

themselves however was not believed by either the Trial

Court or the High Court. We do not find any flaw in the

reasoning of the two courts of fact on this aspect.

10. The question, in the given context, which falls for

determination is as to whether these two appellants can

be convicted under the aforesaid provisions of the Code.

It is a fact that all the eyewitnesses were related to the

victims, but for that very reason we cannot disbelieve

their version, particularly since the Trial Court and the

High Court found no reason to reject their evidence. The

story of the defence that the injuries of the victims were

unintentionally inflicted by falling tiles when the

members of the victims’ family were dismantling the

structure does not inspire confidence. The prosecution

witnesses have been consistent and uniform in their

version that it was Manohar and his sons who had

caused the injuries.

11. The appellants before us are Mihir and Prabhat. The

evidence of the seven prosecution witnesses, who have

deposed as eyewitnesses, being Puna Devi (PW2), wife of

Kasi Ram (the informant), Puranchand (PW3), an

injured witness, Vijay Kumar (PW4), Mukteshwar (PW5), Dakshineshwar (PW7), Premchand (PW11) and Kasi

Ram (PW12) are uniform in that Manohar had dealt the

first blow to Anil, followed by a blow on Kasi Ram and

thereafter on Jatu at the time the latter was attending to

injured Anil. The seven witnesses are also uniform in

saying that Manohar dealt the blows to these three

victims using an iron rod.

12. So far as Mihir and Prabhat are concerned, evidence

of Kasi Ram (PW12) is that Manohar assaulted Anil first,

then him and thereafter Jatu. He, in his deposition has

referred to sons of Manohar as “boys of Manohar”, and

assault by them has been specified to be on Puranchand

and Premchand. PW2 has also ascribed the blows on

Anil and Jatu to Manohar. At the same time, she has

stated that Mihir had assaulted Anil and Jatu on their

heads. Assault on Anil and Jatu has also been ascribed

to Prabhat. PW2 and PW5 have stated that Usha Devi,

whose conviction was set aside by the High Court had

supplied an axe to Mihir, sawal to Prabhat, and a gupti

to Kailash. Puna Devi has deposed that Mihir as well as

Prabhat had assaulted Anil, Jatu, Premchand,

Puranchand and Kasi Ram (her husbandthe informant).

Puranchand’s (PW3) evidence is that Mihir, Prabhat and

Kailash assaulted Anil with an axe on the back of his

head. He also deposed that all the four accused had

assaulted Anil, Premchand and Jatu. To Mihir, he

attributed assault by an axe. Vijay Kumar (PW4) has

attributed collective assault to three sons of Manohar on

Jatu, Premchand and Puranchand. He also referred to

strikes by Manohar on Anil, Kasi Ram and Jatu.

Evidence of Mukteshwar (PW5) is that Mihir assaulted

Anil and Jatu with the axe on their heads whereas

Prabhat with another brother assaulted Premchand and

Puranchand. Dakshineshwar’s (PW7) narration of the

assault in his deposition is also broadly similar whereas

Premchand (PW11) has stated that Jatu was attacked by

Mihir and Manohar using a tangi and Puranchand and

himself were attacked by Kailash and Prabhat with iron

rod. The depositions of the prosecution witnesses thus

are not uniform on the aspect of the role of these two

appellants in assaulting Anil and Jatu. Usha Devi,

against whom allegation was of supply of weapons to

Mihir, Prabhat and Kailash, has been acquitted by the

High Court.

13. Learned counsel for the appellants has stressed on

the fact that injury records of the referral hospital were

not produced or made exhibits at the stage of the trial.

But from the depositions of the four medical

practitioners, injuries of Anil, Jatu, Kasi Ram and

Premchand are revealed. There is no medical evidence of

any injury having been caused to Puranchand. While we

analyse the evidence relating to injuries of Anil and Jatu,

we find that the autopsy surgeon (PW9) found only one

injury on the head of Anil being fractured occipital bone.

This was a lacerated wound. So far as Jatu is concerned,

we find from his deposition that he had a fractured

occipital bone with swelling and fracture of left parietal

bone with lacerated wound. Dr. Shishir Kumar Singh

Munda (PW13) had examined Premchand and found

lacerated wound on his left hand as also on his scalp in

the right fronto parietal region. He also examined Kasi

Ram and found two injuries, lacerated wound on right

parietal region and lacerated wound on the right palm.

Dr. Dhananjay Rajak (PW14) had examined Anil on the

day of occurrence at about 11.30 a.m. in the casualty

department of BGH. His deposition also reveals that Anil

had a stitched wound on the occipital parietal area. On

Jatu, he found a 3” long stitched wound on the occipital

area. As regards injuries of Premchand, he observed

contusions and we have referred to his observations in

earlier part of this judgment. Dr. Narendra Kumar Das

(PW15) had examined Jatu, and in his deposition he has

stated that his CT scan showed multiple intracerebral

haemorrhage in the left temporoparietal region with

fracture of the left parietal bone. As regards probable

cause of the injuries, PW9 stated that injury to Anil

could be caused if he had fallen on a hard surface. Jatu’s

could have been caused if some heavy blunt object fell on

his head. Cause of the other injury to Jatu, according to

him, could occur if someone smashed on small or heavy

substance. Dr. Narendra Kumar Das (PW15) on the

other hand interpreted Jatu’s CT scan in the following

manner:

“CT scan shows multiple intracelebral

hemorrhage in the left lemproperietal region

with fracture of left partial bone…”

14. It would be apparent from the evidence of the

medical practitioners that there was only one injury on

Anil’s head whereas on Jatu’s head, there is a probability

that he suffered two injuries. But the injuries on Jatu’s

head cannot be said to have been caused by either axe or

tangi, which are sharp edged weapons. Even if we

proceed on the basis that both axe and tangi have blunt

sides and such blunt sides were used to strike, that very

fact cannot establish involvement of both Mihir and

Prabhat in striking Anil and Jatu. Thus, we do not think

the Trial Court and the High Court had rightly concluded

on involvement of Mihir and Prabhat in assault of Anil

and Jatu so as to implicate them for murder under

Section 302 read with Section 34 of the code. The eye

witnesses’ accounts, as we have already observed shows

element of exaggeration and inconsistency in implicating

both Mihir and Prabhat for their strikes on Jatu. There is

apparent inconsistency in the eye witness account in

describing the assaults by these two appellants on Anil

and Jatu. PW2 has attributed assault on both Anil and

Jatu to Manohar and all his sons. This is a very

generalised description. PW3 has stated that Manohar,

Mihir and Prabhat (collectively referring to them with the

pronoun “they”) had assaulted Jatu. P.W. 4’s evidence on

assault against Anil and Jatu is not specific, but general.

PW5 has stated that Mihir had assaulted Anil and Jatu,

apart from Manohar’s strikes. PW7’s deposition is that

both Mihir and Manohar struck Jatu. PW11 attributes

strike by Mihir on Jatu but he has not implicated

Prabhat in any form of assault on Anil or Jatu. Thus, if

we compare the number of injuries on Anil and Jatu as it

transpires from the evidence of medical practitioners,

which is three at the most, they do not match with the

number of strikes made by Manohar, Mihir and Prabhat,

as stated on oath by these witnesses. In our opinion, we

cannot rely on the account of assault given by these

witnesses to the extent they relate to strikes by Mihir and

Prabhat. Barring PW12, the account of the incident

narrated by the other eyewitnesses tend to be based on

overall impression of the strikes rather than factual

narration of events. We consider it safer to rely on the

evidence of PW12, who has given specific and

trustworthy account of the individual assaults. We do not

think the prosecution has been able to prove beyond

reasonable doubt involvement of these two appellants,

Mihir and Prabhat in delivering the blows to Anil and

Jatu.

15. We also find that though there were assaults by

Manohar, Mihir and Prabhat prosecution has failed to

establish on the basis of evidence that these two

appellants shared common intention with Manohar.

Their strikes on the victims can be segregated from those

made by Manohar, as it transpires from evidence. Neither

Mihir nor Prabhat could be held to have been involved in

assault on Anil and Jatu, which forms the basis of

conviction of the appellants under Section 302 of the

Code.

16. Relying on a decision of a coordinate Bench, Manoj

Kumar vs State of Himachal Pradesh [(2018) 7 SCC

327], it was urged on behalf of the appellants that the

offence of the appellants could be brought within

exception 4 to Section 300 of the Code and Part II of

Section 304 thereof, could be applied to the appellants.

But having regard to what we have held, the ratio of that

decision does not apply in the facts of this case.

17. We, accordingly, set aside the judgment of conviction

of Mihir and Prabhat under Section 302 read with

Section 34 of the Code and the order of sentence under

the aforesaid provisions is also set aside. As we find

from evidence of the medical professionals that injuries

on Kasi Ram and Premchand were simple in nature,

judgment of the High Court on their conviction and

sentence under Section 325 of the Code is also set aside.

We also set aside the conviction and sentence of these

two appellants under Section 307 of the Code. We hold

so primarily on the basis of depositions of the three

medical experts, PW13 (Dr. Shishir Kumar Singh

Munda), PW14 (Dr. Dhananjay Rajak) and PW15 (Dr.

Narendra Kumar Das). Opinion of PW13, who examined

Premchand and Kasi Ram, found both their injuries to be

simple, formed of lacerated wound. In examining

Premchand, PW14’s opinion as regards nature of injury

was the same. It was simple injury. Premchand’s CT

scan, as explained by PW15, did not show any evidence

of intracerebral hemmorhage or fracture. He also found

such injury to be simple. Considering the weapons of

assault Mihir and Prabhat were meant to have had used

in inflicting such injuries, and the nature of injuries they

caused on Kasi Ram and Premchand, we do not think

the two appellants had the intention or knowledge that

their acts could have had caused death of Kasi Ram or

Premchand. We also do not find any evidence of

commission of offence under Section 341 of the Code.

None of the eyewitnesses has stated in course of their

examination that Mihir or Prabhat had wrongfully

confined them. The appellants are accordingly acquitted

of charges under all the aforesaid provisions.

18. In our opinion, however, there is sufficient evidence

against Mihir and Prabhat of voluntarily causing hurt by

the instruments we have referred to. We have discussed

the evidence based on which we come to this conclusion.

We hold both the appellants guilty of committing offence

under Section 324 of the Code. We impose sentence of

three years rigorous imprisonment on both Mihir and

Prabhat for committing offence under the aforesaid

provision.

19. In the event the appellants or any one of them have

served out the sentence of three years of rigorous

imprisonment imposed on them in this judgment, such

appellant or the appellants, as the case may be, shall be

set free forthwith, unless the custody of the appellants or

any one of them is required in any other case. Otherwise,

the appellants or any one of them, as the case may be,

shall serve out the remaining term.

20. The appeals are partly allowed, in the above terms.

Pending application(s), if any, stand(s) disposed of.

…..……………..J.

(N.V. Ramana)

..…..……………..J.

(Surya Kant)

……..……………..J.

(Aniruddha Bose)

New Delhi,

Dated: January 8, 2021

whether the acceptance of a conditional offer with a further condition results in a concluded contract, irrespective of whether the offerer accepts the further condition proposed by the acceptor.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7469 OF 2008

M/s. Padia Timber Company(P) Ltd. …Appellant

versus

The Board of Trustees of Visakhapatnam

Port Trust Through its Secretary …Respondent

J U D G M E N T

Indira Banerjee, J.

The short question involved in this appeal is, whether the

acceptance of a conditional offer with a further condition results in a

concluded contract, irrespective of whether the offerer accepts the

further condition proposed by the acceptor. This question does not

appear to have been addressed by the High Court or the Court below.

2. This appeal is against a common Judgment and Order dated

10.10.2006 passed by the High Court of Judicature at Hyderabad in

Appeal Nos.2196 and 2197 of 2000 confirming a Judgment and Order

dated 31.3.2000 of the Additional Senior Civil Judge, Visakhapatnam

allowing the suit being O.S. No.106 of 1993 filed by the RespondentPort Trust against the Appellant for damages, and dismissing O.S.

No.450 of 1994 filed by the Appellant for refund of earnest deposit.

3. On or about 17.7.1990, the Respondent-Port Trust floated a

tender for supply of Wooden Sleepers. The tenders were due to be

opened on 01.08.1990.

4. Clauses 15 and 16 of the tender are extracted hereinbelow:-

“15. The purchaser will not pay separately for transit

insurance and the supplier will be responsible till the entire

stores contracted for arrive in good condition at destination.

The consignee will as soon as but not later than 30 days of

the date of arrival of stores at destination notify the supplier

of any loss, or damage to the stores that may have occurred

during transit.

16. In the event of the supplies being found defective in any

matter the right to reject such materials and return the same

to the supplier and recover the freight by the Port is

reserved.”

5. Pursuant to the aforesaid tender, the Appellant submitted its

offer on or about 01.08.1990. It was a specific condition of the offer

of the Appellant that inspection of the Sleepers, as per the

requirement of the Respondent-Port Trust, would have to be

conducted only at the depot of the Appellant. The Appellant did not

accept Clauses 15 and 16 of the Tender and rather made a counter

proposal. In accordance with the terms and conditions of the tender,

the Appellant deposited Rs.75,000/- towards earnest deposit, along

with its quotation.

6. On or about 02.08.1990, the Controller of Stores of the

Respondent-Port Trust informed the tenderers that the opening of the

tenders had been postponed to 08.08.1990.

7. On 08.08.1990, the Appellant submitted its revised quotation

and/or offer, reiterating that inspection as per the requirement of the

Respondent-Port Trust would have to be conducted only at the depot

of the Appellant. After the tenders were opened certain discussions

took place between the Appellant and the Tender Committee of the

Respondent-Port Trust.

8. By a letter dated 11.10.1990, the Appellant agreed to supply

wooden sleepers to the Respondent-Port Trust on the terms and

conditions stipulated in the said letter. The Appellant reiterated that

the Respondent-Port Trust could inspect the goods to be supplied, at

the factory site of the Appellant at Vepagunta, Visakhapatnam, as

this would facilitate re-transit of rejected goods to the depot of the

Appellant, without additional financial burden.

9. The Appellant made it clear to the Respondent-Port Trust,

that if the Respondent-Port Trust still required inspection at the site of

the Respondent-Port Trust, the Appellant would charge 25% above

the rate quoted by the Appellant for the supply of wooden sleepers.

The said letter is extracted hereinbelow for convenience:-

1. “We are agreeable to supply the B.G Track Indian sale

wood sleepers F.D.R V.P.T site by our own transportation.

2. With regard to inspection clause you can inspect the

material at our factory site at Vepagunta, Visakhapatnam.

This will facilitate us to retransist the rejected materials if

any to our the depot without any additional financial

commitment. If you still require inspection, at your site we

will charge 25% extra in our rate.

3. As the tender committee had mentioned during the

discussion on 10.10.90, we are agreeable to the condition

for the 100 % payment a weekday, after acceptance of the

materials.

4. We charge 24 % interest on all belated payments.

5. We can immediately supply two thousand of BG Tracks

sleepers and the supply can be completed as per your

requirement.

6. We are regular supplier of sleepers to Indian Railways.

We wish to extend our transaction with the V.P.T.

7. We will execute 10% of security deposit as on bank

guarantee and also you have refund to our E.M.D amount of

Rs 75,000/- awaiting your favourable order."

10. Thereafter, further correspondence ensued between the

parties. By another letter dated 20.10.1990 addressed to the

Controller of stores of the Respondent-Port Trust, the Appellant

reiterated that it had not agreed to inspection at the General Stores

of the Respondent-Port Trust. The Appellant made it clear that, in the

event the Respondent-Port Trust insisted on inspection at the General

Stores of the Respondent-Port Trust, the Appellant would charge 24%

extra instead of 25% as mentioned in its earlier letter. The said letter

dated 20.10.1990 was duly received by the Respondent-Port Trust.

11. By a letter dated 29.10.1990, written in response to the

quotations dated 1.8.1990, 8.8.1990 and the letter dated 20.10.1990

of the Appellant, the Respondent-Port Trust informed the Appellant

that the Respondent-Port Trust had accepted the offer of the

Appellant for supply of wooden sleepers at the rate quoted by the

Appellant. Though the Respondent-Port Trust agreed that the

Inspection Committee would inspect the Wooden Sleepers at the site

of the Appellant, the Respondent-Port Trust imposed the further

condition that the Appellant would have to transport the Wooden

Sleepers to the General Stores of the Respondent-Port Trust by road,

at the cost of the Appellant and the final inspection would be made

at the General Stores of the Respondent-Port Trust. The RespondentPort Trust also requested the Appellant to extend the delivery period

of the sleepers until 15.11.1990.

12. By a letter dated 30.10.1990 written in response to the letter

dated 29.10.1990, the Appellant informed the Controller of Stores of

the Respondent-Port Trust that the Appellant was not accepting the

terms and conditions stipulated in the said letter dated 29.10.1990,

which were not as per the Appellant’s offer. The Appellant also

declined to extend the validity of its offer, since prices had gone up.

13. By the aforesaid letter dated 30.10.1990, the Appellant

rejected the proposal of the Respondent-Port Trust and requested that

the earnest money deposited by the Appellant be returned to the

Appellant.

14. It appears that on the same day, i.e. 30.10.1990, the

Controller of Stores of the Respondent-Port Trust put up an Office

Note, seeking sanction of the Chairman of the Respondent-Port Trust

for placing orders on the Appellant for supply of 10,596 Broad Gauge

Track Sleepers and 761 Broad Gauge special size sleepers, at a total

cost of Rs.67,96,764 odd, for which a Letter of intent cum purchase

order dated 29.10.1990 had been issued by the Respondent-Port

Trust.

15. A purchase order No. G 101126 90-91 dated 31.10.1990 was

issued to the Appellant from the office of the Controller of Stores of

the Respondent-Port Trust, requesting the Appellant to supply 10596

Broad Gauge Track Sleepers and 761 Broad Gauge Special Sleepers of

Ist Class Salwood as per the latest Indian Railway Standards, on the

terms and conditions specified in the Purchase Order and the Special

Conditions of purchase appended thereto, according to the

specifications and at the rates mentioned in the Purchase Order.

16. The Letter of intent and the purchase order were followed by a

letter dated 12.11.1990, written in response to the letter dated

30.10.1990 of the Appellant. By the aforesaid letter, the RespondentPort Trust requested the Appellant to supply the materials ordered as

per the purchase order, inter alia, contending that the purchase order

had duly been placed on the Appellant within the period of validity of

the price quoted by the Appellant, after issuing a letter of intent to

the Appellant, accepting its offer. The Appellant was warned that if

supply was not made as per the purchase order, risk purchase would

be made at the cost of the Appellant and the Earnest Deposit of

Rs.75,000 would be forfeited. The Respondent-Port Trust also noted

that the Appellant had not made the security deposit, to which the

purchase order was subject.

17. By another letter dated 19.11.1990, the Respondent-Port Trust

requested the Appellant to commence supply of materials. In

response to the said letter, the Appellant wrote a letter dated

27.11.1990 to the Respondent-Port Trust, contending that that there

was no concluded contract between the Appellant and the

Respondent-Port Trust and once again requested that the earnest

money deposited by the Appellant with the Respondent-Port Trust be

refunded to the Appellant.

18. On or about 03.9.1991, that is, after ten months, the

Respondent-Port Trust placed an order for supply of wooden sleepers

on M/s. Chhawohharia Machine Tools Corporation, for supply of

wooden sleepers at a much higher rate.

19. The Respondent-Port Trust has contended that, by reason of

refusal of the Appellant to discharge its obligation of supplying the

requisite number of sleepers, as required by the Respondent-Port

Trust, to the Respondent-Port Trust, in terms of the contract, at the

rate quoted by the Appellant in its revised bid, the Respondent-Port

Trust had been constrained to invoke the risk purchase clause as

contained in Paragraph 16 of the Special Conditions of purchase,

appended to the purchase order dated 31.10.1990 and purchase the

wooden sleepers at a higher rate from a third party, incurring losses,

for which the Respondent-Port Trust was entitled to claim damages.

It is the case of the Respondent-Port Trust that the conditions

stipulated in the purchase order, including the Special Conditions of

Purchase constitute the terms of a binding contract.

20. According to the Appellant the negotiations between the

Appellant and the Respondent-Port Trust did not fructify into a

concluded contract, since the Respondent-Port Trust did not accept

the conditions of the offer of the Appellant fully and the Appellant

did not agree to the terms and conditions on which the the

Respondent-Port Trust insisted, particularly the condition of final

inspection at the General Stores of the Appellant.

21. On or about 10.4.1992, the Respondent-Port Trust filed the

suit being O.S. No.106 of 1993 in the Court of II Additional

Subordinate Judge, Visakhapatnam against the Appellant, seeking

damages for breach of contract to the tune of Rs.33,19,991/- along

with interest thereon. The Appellant duly filed its written statement

in the said suit on or about 23.3.1994.

22. In or about June, 1994, the Appellant filed the suit being O.S.

No.450 of 1994 in the Court of Subordinate Judge, Visakhapatnam

claiming refund of earnest money deposited by the Appellant with

the Respondent-Port Trust along with interest @ 24% per annum from

24.4.1991 to 23.4.1993, costs and other consequential reliefs. The

Respondent-Port Trust filed a written statement denying its liability to

refund the earnest deposit.

23. The two suits being O.S. No.106/1993 and O.S. No.450/1994

were clubbed together and heard by the First Additional Senior Civil

Judge, Visakhapatnam. In the first suit, the following issues were

framed for trial:-

(i) Whether the Appellant committed breach of contract?

(ii) Whether the Respondent-Port Trust was entitled to recover

the suit amount from the defendant?

(iii) To what relief was the Respondent-Port Trust entitled?

24. In O.S. 450/1994 (the second suit), the issues were:-

(i) Whether the Appellant was entitled to refund of earnest

money with interest as claimed from the Respondent-Port Trust.

(ii) Whether the suit (second suit) was barred by limitation?

(iii) To what relief, if any, was the Appellant entitled?

25. Since the two suits were clubbed together and the issues in

the two suits were interlinked, common evidence was recorded for

the two suits. While one V. Adinarayana, who had been working in

the Stores Department of the Respondent-Port Trust at the material

time, was examined on behalf of the Respondent-Port Trust, Shri G. C.

Padia, who was the Director of the Appellant was examined on behalf

of the Appellant.

26. The two suits were disposed of together, by a common

judgment and order dated 31.3.2000. While the first suit was decreed

in favour of the Respondent-Port Trust, the second suit filed by the

Appellant was dismissed.

27. After discussing the pleadings and the contentions of the

respective parties, the Trial Court found that it had been admitted

that the Respondent-Port Trust had invited tenders for supply of

wooden sleepers, pursuant to which the Appellant had submitted its

bid.

28. The Trial Court held that the Respondent-Port Trust had

accepted the offer of the Appellant and issued a letter of intent cum

purchase order on 29.10.1990, that is, within the period of validity of

the price quoted by the Appellant. The price quoted by the Appellant

was valid till 31.10.1990.

29. The Trial Court rejected the contention of the Appellant that

the Appellant had revoked its offer before acceptance thereof by the

Respondent-Port Trust, and held that there was a concluded contract

between the Appellant and the Respondent-Port Trust, since the

Respondent-Port Trust had accepted the tender submitted by the

Appellant on 29.10.1990, while the price quoted by Appellant was

still valid. The Trial Court held that the contract was concluded on

29.10.1990 when the letter of intent was issued by the RespondentPort Trust.

30. The Trial Court observed that, in order to determine whether

or not there was a concluded contract between the Appellant and the

Respondent-Port Trust, the crucial question was whether the tender

submitted by the Appellant had been accepted by the RespondentPort Trust within 31st October, 1990, being the stipulated period of

validity of the quotation given by the Appellant. The Trial Court found

that acceptance of the purchase order was completed as against the

Appellant, when the letter of intent cum purchase order was

dispatched from the end of the Respondent-Port Trust.

31. In arriving at the finding that there was a concluded contract

between the Respondent-Port Trust and the Appellant, the Trial Court

relied on Section 4 of the Indian Contract Act, 1872, which is set out

hereinbelow for convenience:

“4. Communication when complete.—The

communication of a proposal is complete when it comes to

the knowledge of the person to whom it is made.

The communication of an acceptance is complete,—

as against the proposer, when it is put in a course of

transmission to him, so as to be out of the power of the

acceptor;

as against the acceptor, when it comes to the knowledge of the

proposer.

The communication of a revocation is complete,—

as against the person who makes it, when it is put into a course

of transmission to the person to whom it is made, so as to be out

of the power of the person who makes it;

as against the person to whom it is made, when it comes to his

knowledge.”

32. The Trial Court found that it had been proved that there was a

concluded contract between the Appellant and the Respondent-Port

Trust, but the Appellant had admittedly not supplied the wooden

sleepers to the Respondent-Port Trust. Once it was proved that there

was a concluded contract and the defendant that is, the Appellant

before this Court, had admittedly not supplied the goods as per the

terms of the purchase order, it had to be held that the defendant had

committed breach of contract. The Trial Court, in effect, held that the

fact that the Appellant had received the letter of intent and endorsed

the receipt thereof within 31st October, 1990, established the case of

the Respondent that the contract had been concluded.

33. The Trial Court held that the Appellant having committed

breach of its obligations under a concluded contract with the

Respondent-Port Trust, the Respondent Port Trust was entitled to

damages as claimed in the suit being O.S. No.106 of 1993. In

awarding damages to the Respondent-Port Trust, the Trial Court took

note of Section 73 of the Contract Act which is set out hereinbelow for

convenience:

"73. Compensation for loss or damage caused by

breach of contract.—When a contract has been broken, the

party who suffers by such breach is entitled to receive, from

the party who has broken the contract, compensation for any

loss or damage caused to him thereby, which naturally arose

in the usual course of things from such breach, or which the

parties knew, when they made the contract, to be likely to

result from the breach of it.”

34. The Trial Court held that in case of breach of a contract for

supply of goods, the Port could claim the difference between the

contracted price and the market price of such goods at the place of

delivery, as damages. If there was no available market price at the

nearest place, the price prevailing in the controlling market could be

considered.

35. The Trial Court considered the judgments in Rajasthan State

Electricity Board and Others v. Dayal Wood Works

; Fateh

Chand v. Balkishan Das

; G.M.T.A.P. Co-op. Mkts. Ltd. v. Dy.

Registrar, Co-op Societies, Raichur

; Marimuthu Gounder v.

Ramaswamy Gounder and Ors.

cited by the Appellant and the

judgments in A.K.A.S. Jamal v. Moola Dawood Sons & Co.

; M/s

Saraya Distillery, Sardarbaggar v. Union of India and Anr.

;

Murlidhar Chiranjilal v. M/s Harishchandra Dwarkadas and

Anr.

; State of Maharashtra and Anr. v. Digambar Balwant

Kulkarni

cited by the Respondent-Port Trust.

36. Relying on the judgment of the Division Bench of Delhi High

Court in M/s Saraya Distillery, Sardarbaggar v. Union of India

1. AIR 1998 AP 381

2. AIR 1963 SC 1405

3. AIR 1998 Karnataka 354

4. AIR 1979 Madras 189

5. AIR 1915 Privy Council 48

6. AIR 1984 Delhi 360

7. AIR 1962 SC 366 (V49 C57)

8. AIR 1979 SC 1339

and Anr. (supra), the Trial Court held that proof of actual repurchase

was not necessary for claiming damages.

37. The Trial Court rejected the contention of the Appellant of

delay in calling for tenders from a third party, on the ground that the

Respondent-Port Trust being a statutory authority and not being a

private individual, was required to follow its rules and procedures in

calling for tenders and accepting the tender of a third party.

38. The Trial Court found that the contract was enforceable till its

completion or its abandonment. The rescission of the contract and

consequential forfeiture of security deposit was proper and within the

terms of the contract.

39. In Rajasthan State Electricity Board and others v. Dayal

Woods Works (supra), cited on behalf of the Appellant before the

Trial Court, the High Court had found on facts that there was no

concluded contract for supply of sleepers and consequently the

plaintiff was entitled to refund of security deposit.

40. In Fateh Chand (supra), cited on behalf of the Appellant

before the Trial Court, a five-Judge Bench of this Court held:-

“10 …...In assessing damages the Court has, subject to the

limit of the penalty stipulated, jurisdiction to award such

compensation as it deems reasonable having regard to all the

circumstances of the case. Jurisdiction of the Court to award

compensation in case of breach of contract is unqualified

except as to the maximum stipulated; but compensation has to

be reasonable, and that imposes upon the Court duty to award

compensation according to settled principles. The section

undoubtedly says that the aggrieved party is entitled to

receive compensation from the party who has broken the

contract, whether or not actual damage or loss is proved to

have been caused by the breach. Thereby it merely dispenses

with proof of “actual loss or damage”; it does not justify the

award of compensation when in consequence of the breach no

legal injury at all has resulted, because compensation for

breach of contract can be awarded to make good loss or

damage which naturally arose in the usual course of things, or

which the parties knew when they made the contract, to be

likely to result from the breach.

11. …..In all cases, therefore, where there is a stipulation

in the nature of penalty for forfeiture of an amount

deposited pursuant to the terms of contract which

expressly provides for forfeiture, the court has jurisdiction

to award such sum only as it considers reasonable, but

not exceeding the amount specified in the contract as

liable to forfeiture.”

41. In Marimuthu Gounder (supra), also cited by the Appellant,

before the Trial Court, a Division Bench of Madras High Court held

that proof of actual damage was a sine qua non to seek damages and

in G.M.T.A.P. Co-op. Mkts. Ltd. v. Dy. Registrar, Co-op

Societies, Raichur (supra) a Single Bench of Karnataka High Court

held that penalty could not be imposed on a milling agent for default

in supply of rice, in the absence of pre-estimation of the loss suffered

on account of the default, even though the contract may have

provided for imposition of penalty.

42. In Murlidhar Chiranjilal (supra), cited on behalf of the

Respondent-Port Trust this Court held:-

“9. The two principles on which damages in such cases are

calculated are well-settled. The first is that, as far as possible,

he who has proved a breach of a bargain to supply what he

contracted to get is to be placed, as far as money can do it, in

as good a situation as if the contract had been performed; but

this principle is qualified by a second, which imposes on a

plaintiff the duty of taking all reasonable steps to mitigate the

loss consequent on the breach, and debars him from claiming

any part of the damage which is due to his neglect to take

such steps: (British Westinghouse Electric and Manufacturing

Company Limited v. Underground Electric Railways Company

of London [(1912) AC 673, 689] ). These two principles also

follow from the law as laid down in Section 73 read with the

Explanation thereof. If therefore the contract was to be

performed at Kanpur it was the respondent's duty to buy the

goods in Kanpur and rail them to Calcutta on the date of the

breach and if it suffered any damage thereby because of the

rise in price on the date of the breach as compared to the

contract price, it would be entitled to be re-imbursed for the

loss. Even if the respondent did not actually buy them in the

market at Kanpur on the date of breach it would be entitled to

damages on proof of the rate for similar canvas prevalent in

Kanpur on the date of breach, if that rate was above the

contracted rate resulting in loss to it. But the respondent did

not make any attempt to prove the rate for similar canvas

prevalent in Kanpur on the date of breach. Therefore it would

obviously be not entitled to any damages at all, for on this

state of the evidence it could not be said that any damage

naturally arose in the usual course of things.”

43. In State of Maharashtra and Anr. v. Digambar Balwant

Kulkarni (supra), cited on behalf of the Respondent-Port Trust this

Court held that a contract could not be rescinded after the expiry of

the due date for the purpose thereof. Abandonment of the contract

work after expiry of the due date for the purpose would amount to

breach, giving rise to a claim for damages against the party in

breach.

44. In A.K.A.S. Jamal v. Moola Dawood Sons & Co. (supra),

the Privy Council held that a plaintiff who sues for damages owes the

duty of taking all reasonable steps to mitigate the loss consequent

upon the breach and cannot claim as damages any sum which is

incurred due to his own neglect.

45. The High Court has dismissed the appeals filed by the

Appellant, holding that the Trial Court had, on consideration of the

entire evidence and materials available on record decreed the suit

filed by the Respondent-Port Trust and dismissed the claim of the

Appellant.

46. Observing that the main submission made on behalf of the

respective parties before the High Court swirled around whether there

was any concluded contract or not, the High Court noted the following

judgments cited on behalf of the Appellant in this regard:-

(i) Visakhapatnam Port Trust, Visakhapatnam and Anr. v.

Bihar Alloy Steels Ltd. And Ors.

(ii) Raghunandhan Reddy v. The State of Hyderabad thr.

The Secretary to Government Revenue Department

(iii) Mahesh Transport Co. v. T. & D. Workers’ Union

(iv) M.V. Shankar Bhat and Anr. v. Claude Pinto since (D) by

Lrs. and Ors.

(v) Jawahar Lal Burman v. Union of India

(iv) U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. And

Ors.

9. 1991 (1) A.L.T. 582

10. AIR 1963 AP 110

11. AIR 1974 SC 868

12. (2003) 4 SCC 86

13. AIR 1962 SC 378

14. AIR 1996 SC 1373

47. In the judgment and order under appeal, the High Court has

not discussed any of the judgments referred to above. The High

Court simply recorded the contention of the Appellant that there was

no previous approval of the Board of Trustees as contemplated under

Section 34(1) of the Major Port Trusts Act, 1963, and therefore, no

enforceable contract.

48. In Visakhapatnam Port Trust, Visakhapatnam and Anr.

v. Bihar Alloy Steels Ltd. and Ors. (supra) a Division Bench of the

High Court held:

“17. In the instant case the provisions of S. 34 prescribe the

manner in which a contract is to be made on behalf of the

Board of Trustees and further sub-section (3) contains a

prohibition that a contract not made in accordance with the

earlier portions of Section shall not be binding on the Board. It

has been held by the Supreme Court in its decision reported

in H.S. Rokhy v. New Delhi Municipality AIR 1962 SC 554 that

the effect of such a prohibition as is contained in sub-sec. (3)

of S. 34 renders the contract itself void and unenforceable. In

that case the controversy was about estoppel against New

Delhi Municipal Corporation which was governed by the Punjab

Municipal Act, 1911, which contains a similar provision viz., S.

47.”

49. In Visakhapatnam Port Trust, Visakhapatnam and Anr.

v. Bihar Alloy Steels Ltd. and Ors. (supra) this Court held that the

promise as contained in the letter of Traffic Manager to lease an area

of port trust was void and unenforceable against the Board of

Trustees, there being no contract made in accordance with Section 34

of the Major Port Trusts Act.

50. In Raghunandhan Reddy v. The State of Hyderabad thr.

The Secretary to Government Revenue Department (supra), a

Division Bench of the High Court held:

“8. It is a well-established principle of law that only when an offer

is accepted that the contract is concluded and binds the parties.

It is equally well-settled that before an offer is accepted, the

offerer can withdraw his offer, but if the acceptance is conditional

or is not final, then there is no concluded contract.”

51. The judgment of this Court in Mahesh Transport Co. v.

Transport and Dock Workers’ Union (supra), which relates to

the validity and propriety of the reference of an industrial dispute

under Section 10(1) of the Industrial Disputes Act, 1947, apparently

has no relevance to the issues involved in this case. In M.V.

Shankar Bhat and Anr. v. Claude Pinto since (D) by Lrs. and

Ors. (supra), this Court held that an agreement which was subject

to ratification by heirs under a will who were not parties to the

agreement did not create a conclusive contract. The relevance of

the judgment is unexplained.

52. In U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd.

And Ors. (supra) this Court held that a contract by a Government

Notification is not binding unless it is executed in accordance with

its Articles of Association.

53. The High Court found that there was no dispute that tenders

had been called for and that it was the case of the Respondent Port

Trust that the offer of the Appellant had in fact been accepted and

purchase order issued on 31st October, 1990 under registered Post

that had been acknowledged but refused by the Appellant. The High

Court also recorded the contention of the Appellant that in the

absence of previous approval from the Board of Trustees of the

Respondent-Port Trust, under the proviso to Section 34(1) of the Major

Port Trust Act 1963, there could be no enforceable contract. Even

though the High Court referred to the submission of the Appellant

that the letter of intent was subject to ratification by the Board and

and the only witness of the Respondent-Port Trust had admitted that

no contract had been concluded, the High Court did not deal with the

same. The High Court observed:

“….The main reliance placed by the Visakhapatnam Port Trust

under Clause 16 of the tender conditions in Ex.A.1, was that in

the event of non-supply of the material, the Port Trust has

right to cancel the contract itself whereas the case of the

Company was that there was no contract at all. Therefore,

one has to see whether there was really any concluded or

enforceable contract before one could blame the other. There

has been a quite re-assertion through the evidence on behalf

of the Port Trust by P.W.1. There is a reference to a mention in

Ex.A.8 as to the ratification by the Board, which according to

the M/s Padia Timber Company Pvt. Ltd., nothing is

forthcoming. Further, P.W.1 during his cross-examination,

stated that it is true that the contract was not concluded.

However, that itself cannot be a reflection on the nature of

intent, which could follow the facts and circumstances in the

documents, which are staring at. It is to be seen that even

according to the M/s Padia Timber Company Pvt. Ltd., and as

per its letter dated 27.11.1990 ex.A.10, the M/s Padia Timber

Company Pvt., Ltd., admitted about the receipt of the letter

dated 29.10.1990 and the acceptance of tender which is valid

for three months. Therefore, having regard to the letter in

Ex.A.10 mentioning about the acceptance of the tender on

29.10.1990, it is not open to the M/s Padia Timber Company

Pvt. Ltd., to fall back and say that there was no acceptance at

all nor there was any concluded contract. The Court below

was rightly held that the tender of the defendant was duly

accepted on 29.10.1990 which was followed by the purchaser

order on 31.10.1990 and that itself is more enough to show

that there was concluded and enforceable contract. Thus,

nothing lies in the mouth of the M/s Padia Timber Company

Pvt. Ltd., to say that there was no concluded contract.

Further, having regard to facts and circumstances and

admittedly there being no steps at all in terms of such

acceptance, the breach squarely falls only on the M/s Padia

Timber Company Pvt. Ltd. and therefore, the Visakhapatnam

Port Trust has rightly forfeited the amount and the Court below

was rightly held that the said plaintiff namely the

Visakhapatnam Port Trust is entitled for the amounts as

claimed. Following the same and consequently to the said

findings which go to the very root of the case itself, the claim

as made by the M/s Padia Timber Company Pvt. Ltd., for

refund in the other suit also squarely falls to ground with the

self-same reasons. Hence, we do not find any merits in these

appeals...”

54. With the greatest of respect, the High Court has cursorily dealt

with the contentions of the Appellant and has not even discussed the

cases that had been cited on behalf of the Appellant.

55. The Trial Court relied on Section 4 of the Contract Act, but

completely overlooked Section 7. Section 7 of the Indian Contract

Act, 1872 is set out hereinbelow for convenience:-

“7. Acceptance must be absolute.—In order to convert a

proposal into a promise the acceptance must— —In order to

convert a proposal into a promise the acceptance must—"

(1) be absolute and unqualified;

(2) be expressed in some usual and reasonable manner, unless

the proposal prescribes the manner in which it is to be accepted.

If the proposal prescribes a manner in which it is to be accepted,

and the acceptance is not made in such manner, the proposer

may, within a reasonable time after the acceptance is

communicated to him, insist that his proposal shall be accepted

in the prescribed manner, and not otherwise; but, if he fails to do

so, he accepts the acceptance.”

56. It is a cardinal principle of the law of contract that the offer

and acceptance of an offer must be absolute. It can give no room for

doubt. The offer and acceptance must be based or founded on three

components, that is, certainty, commitment and communication.

However, when the acceptor puts in a new condition while accepting

the contract already signed by the proposer, the contract is not

complete until the proposer accepts that condition, as held by this

Court in Haridwar Singh v. Bagun Sumbrui and Ors.

acceptance with a variation is no acceptance. It is, in effect and

substance, simply a counter proposal which must be accepted fully

by the original proposer, before a contract is made.

57. In Union of India v. Bhim Sen Walaiti Ram16

, a three-Judge

Bench of this Court held that acceptance of an offer may be either

absolute or conditional. If the acceptance is conditional, offer can

be withdrawn at any moment until absolute acceptance has taken

place.

58. In Jawahar Lal Burman v. Union of India (supra),

referred to by the High Court, this Court held that under Section 7

of the Contract Act acceptance of the offer must be absolute and

unqualified and it cannot be conditional. However, in the facts and

circumstances of that case, on a reading of the letter of acceptance

as a whole, the Appellant’s argument that the letter was intended

to make a substantial variation in the contract, by making the

deposit of security a condition precedent instead of a condition

15 AIR 1972 SC 1242

16 (1969) 3 SCC 146

subsequent, was not accepted.

59. The High Court also overlooked Section 7 of the Contract Act.

Both the Trial Court and the High Court over-looked the main point

that, in the response to the tender floated by the Respondent-Port

Trust, the Appellant had submitted its offer conditionally subject to

inspection being held at the Depot of the Appellant. This condition

was not accepted by the Respondent-Port Trust unconditionally. The

Respondent-Port Trust agreed to inspection at the Depot of the

Appellant, but imposed a further condition that the goods would be

finally inspected at the showroom of the Respondent-Port Trust. This

Condition was not accepted by the Appellant. It could not, therefore,

be said that there was a concluded contract. There being no

concluded contract, there could be no question of any breach on the

part of the Appellant or of damages or any risk purchase at the cost

of the Appellant. The earnest deposit of the Appellant is liable to be

refunded.

60. Since we hold that the Appellant was neither in breach nor

liable to damages, it is not necessary for us to examine the questions

of whether the compensation and/or damages claimed by the

Respondent Port Trust was reasonable or excessive, whether claim

for damages could only be maintained subject to proof of the actual

damages suffered, and whether the Respondent Port Trust had taken

steps to mitigate losses. We also need not embark upon the

academic exercise of deciding whether prior approval of the Board of

Trustees is a condition precedent for creation of a valid contract for

supply of goods, or whether post facto ratification by the Board

would suffice.

61. The Appellant was entitled to refund of earnest money

deposited with the Respondent-Port Trust. The earnest money shall

be refunded within four weeks with interest @ 6% per annum from

the date of institution of suit No.450 of 1994 till the date of refund

thereof.

62. The appeal is, accordingly, allowed. The Judgment and order

of the High Court under appeal as also the common judgment and

order of the Trial Court in O.S. No.106 of 1993 and O.S. No.450 of

1994 are set aside. There will be no order as to costs.

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

(NAVIN SINHA)

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

(INDIRA BANERJEE)

JANUARY 05, 2021

NEW DELHI

the applicant seeks permission to sell the stock of minerals lying in the leasehold area and to deposit the sale proceeds directly with the State Government.

19. From the averments contained in the application, it appears that what is claimed by the applicant to be lying at the mining lease area is less than what is alleged by the State Government to have been mined in violation of EC. While it may be permissible to allow the applicant to sell the stock lying at site 9 and to deposit the sale proceeds entirely with the Government, it must be ensured that the applicant does not carry out any mining activity under cover of this Order. 20. Therefore, this application is disposed of permitting the applicant to sell and remove the ore already mined and lying at site, under the supervision of the Committee appointed hereinabove. The Committee shall be assisted by the concerned authorities of the State and the sale proceeds shall go directly to the treasury of the State Government to be adjusted towards the amount due under Section 21(5) of the MMDR Act.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

INTERLOCUTORY APPLICATION NOs.131281 and 131288 0F 2019

AND

INTERLOCUTORY APPLICATION NOs.179704 OF 2018

& 54364 0F 2019

AND

INTERLOCUTORY APPLICATION NO.150858 0F 2019

WRIT PETITION (CIVIL) NO.114 OF 2014

COMMON CAUSE … Petitioner (s)

VERSUS

UNION OF INDIA & ORS. … Respondent (s)

O R D E R

I.A. Nos. 131281 and 131288 of 2019

1. These applications praying respectively for: (i)

intervention in the main matter; and (ii) direction to the State to

permit the applicant to sell off the undisposed stock and for

issuance of transfer permits for the removal of ore from the

leasehold areas, are taken out by a person claiming to be the

legal heir and power of attorney agent of the deceased mining

leaseholder.

2. Heard the learned counsel for the applicant, the learned

counsel for the State of Odisha, the learned Amicus Curiae and

the learned Counsel for the writ petitioner.

3. The claim of the applicant is that one Mr. Suresh

Chandra Padhee was the mining leaseholder in respect of

Banspani Iron Ore and Manganese Mines and the Gurubeda Iron

Ore Mines and that in terms of the amended Section 8A(6) of the

MMDR Act, 1957, the lease stood extended till 31.03.2020. It is

further claimed by the applicant that pursuant to the directions

issued by this Court on 02.08.2017 in Writ Petition (C) No.114 of

2014, a demand notice dated 02.09.2017 has been issued by the

Government demanding an amount of Rs.1,20,22,711/towards

compensation for the excess production. This was in respect of

Banspani Iron Ore. In respect of Gurubeda Iron Ore Mines, a

separate demand notice demanding a sum of Rs.27,71,73,835/

was issued.

4. According to the applicant he has already deposited a

sum of Rs.1,33,17,910/ in respect of Banspani Mines and a

sum of Rs.1,40,00,000/ in respect of Gurubeda Mines.

Petitioner wants permission to remove the ore already mined and

lying at site so that the compensation amount could be paid to

the Government.

5. The State has filed a reply contending interalia: (i) that

in respect of Banspani Mines, the last lease period expired on

28.11.1993; (ii) that the lease is nonoperating ever since 2009

and was declared as lapsed by the proceeding dated 16.06.2015;

(iii) that a revision application is pending against the said order;

(iv) that in respect of Gurubeda Mines, the last lease period

expired on 04.07.2002; and (v) that the mining operation was

discontinued from 30.10.2009 for want of statutory clearances

and the revision filed against the same was also rejected.

6. After stating the above objections, the State Government

has also indicated its no objection to the sale of the already

raised mineral. Paragraph 6 of the reply of the Government

reads as follows:

“It is further submitted that the State Government may have

no objection if the instant case is considered in the ratio of

order dated 15.01.2020 of Hon’ble Supreme passed in I.A.

No.30915 of 2019 filed by M/s Mideast Integrated Ltd. in

W.P.(C) No.114/2014 and the applicant is allowed sell of

raised and disposed stack lying in its mining leases to pay

the compensation amount outstanding against it. However,

no mining operation may be allowed for resumption.”

7. However, it is submitted by Mr. Prashant Bhushan,

learned counsel for the writ petitioner that while there could be

no objection to the removal and sale of the material already

mined and kept, there is every likelihood of the applicant

misusing even a mere permission to sell the existing stock.

Therefore, he suggested that the removal of the material and its

sale should be under the supervision of an independent

Committee of persons, apart from the State Government officials.

8. Since the apprehension is genuine, we appoint Hon’ble

Mr. Justice Bijoy Krishna Patel, Chairperson, Odisha Human

Rights Commission and Hon’ble Mr. Justice S.C. Parija, Former

Judge, Odisha High Court as Members of the Committee.

Subject to the supervision of the said Committee, adequately and

ably assisted by the concerned authorities of the State of Odisha,

the applicant is permitted to sell and remove the material already

mined. The Committee shall ensure that no mining operation is

undertaken under the cover of this Order. The sale proceeds

should go directly to the treasury of the State Government to be

adjusted towards compensation. The applications are disposed

of on the above terms.

I.A. Nos.179704 of 2018 and 54364 of 2019

9. These applications are taken out by a leaseholder of

Oraghat Iron and Manganese Ore Mines in Tehsil Bonai, District

Sundergarh, Odisha praying respectively for: (i) condonation of

delay in depositing the compensation amount as per the

Judgement of this Court in Writ Petition (C) No.114 of 2014 and

for permission to resume mining operations subject to getting all

required clearances; and (ii) to take on record certain additional

documents such as the letter seeking extension of mining lease

etc.

10. According to the applicant, he had a mining lease

executed on 06.04.1998 in respect of an area of 25.847 hectares

and that as per the Judgment of this Court dated 02.08.2017, he

was obliged to make payment of the demand on or before

31.12.2017. However, the applicant could not make payment

within the time stipulated on account of various factors. Hence,

the application for condonation of delay and for permission to

resume mining operations.

11. The State has filed a reply contending that the applicant

does not at all have the requisite clearances to operate the mines

and that the mining operation, though valid for a period of 20

years from 06.04.1998 to 05.04.2018, the mining operations

were stopped on 01.04.2013 for want of statutory clearances.

According to the State, the applicant is not eligible for extension

under Section 8A, as he does not possess the forest clearance.

12. It is admitted by the State that the petitioner has paid

Rs.9,68,08,288/ including interest of Rs.1,43,08,386/ towards

delay in payment together with the demand amount of

Rs.8,24,32,549/ for violation of the Environment Protection Act,

1986 and Forest Conservation Act, 1980. It is also admitted by

the State that the applicant has paid the compensation amount

of Rs.21,12,599/ including interest of Rs.3,51,264/ towards

delay in payment together with the demand amount of

Rs.17,60,177/ for violation of MP/CTO.

13. More importantly, it is stated in paragraph 6 of the reply

that the applicant has approved mining plan valid upto

31.03.2023, but the environment clearance expired on

03.04.2018. The applicant has also not obtained forest clearance

in respect of DLC forest land.

14. From the objections of the State, it appears that the

applicant has cleared all monetary liabilities and that what

stands as an impediment is the nonavailability of statutory

clearances. Therefore these applications are disposed of

permitting the State Government to process the application

subject to all types of statutory clearances being obtained.

I.A. No.150858 of 2019

15. This is an application filed by the holder of a mining lease

in respect of Bholbeda Iron Ore Mines over an area of 62.322

hectares. The mining lease deed was executed on 10.06.1983,

effective for a period of 20 years upto 09.06.2003. The applicant

filed an application for first renewal on 05.06.2002, but when it

was pending, MMDR Amendment Act, 2015 came into effect.

16. According to the applicant, they were alleged to have

mined 32,254 MT of Iron ore in violation of EC and that as per

the Judgment of this Court dated 02.08.2017, the same should

be compensated under Section 21(5) of the MMDR Act.

17. The applicant claims that as per Form H1 of the

applicant company the stock lying at the mining lease area is as

follows:

(i) Lumps:

Grades (% of FE content) Closing stock at mine site (MT)

60% to below 62% 1812.000

62% to below 65% 8489.180

65% and above 18107.145

(ii) Fines

Grades (% of FE content) Closing stock at mine site (MT)

55% to below 58% 5511.000

18. Therefore, the applicant seeks permission to sell the

stock of minerals lying in the leasehold area and to deposit the

sale proceeds directly with the State Government.

19. From the averments contained in the application, it

appears that what is claimed by the applicant to be lying at the

mining lease area is less than what is alleged by the State

Government to have been mined in violation of EC. While it may

be permissible to allow the applicant to sell the stock lying at site

and to deposit the sale proceeds entirely with the Government, it

must be ensured that the applicant does not carry out any

mining activity under cover of this Order.

20. Therefore, this application is disposed of permitting the

applicant to sell and remove the ore already mined and lying at

site, under the supervision of the Committee appointed

hereinabove. The Committee shall be assisted by the concerned

authorities of the State and the sale proceeds shall go directly to

the treasury of the State Government to be adjusted towards the

amount due under Section 21(5) of the MMDR Act.

……………………………..CJI

(S.A. BOBDE)

……………………………….J.

(A.S. BOPANNA)

………………………………..J.

(V. RAMASUBRAMANIAN)

New Delhi

January 06, 2021

This Review Petition has been filed by the Petitioner on the ground that there is no video conferencing facility at Gautambudh Nagar, District Courts. Another ground in the Review Petition is that video conferencing is not permissible in matrimonial matters in accordance with the judgment of this Court date 09.10.2017 in a case titled “Santhini vs. Vijaya Venketesh”.

3. Notice was issued in the Review Petition on 20.03.2018.

Due to the ongoing pandemic, physical functioning of the

Courts has been stopped since March, 2020. Proceedings in all

Courts are being conducted only through video conferencing.

In the normal course we would not have directed video

conferencing in respect of matrimonial matters as per the

judgment of this Court mentioned above. However, in the

present situation where all proceedings are conducted through

video conferencing, we direct the Family Court, District

Gautambudh Nagar, U.P. to conduct the trial through video

conferencing.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION

Review Petition (C) No.472 of 2018

Transfer Petition (C) No.1252 of 2016

Anjali Brahmawar Chauhan .... Petitioner

Versus

Navin Chauhan …. Respondent (s)

O R D E R

1. The Petitioner preferred Transfer Petition (C) No.1252 of

2016 seeking transfer of HMA No.487 of 2015 filed by the

Respondent from the Principal Judge, Family Court, District

Gautambudh Nagar, U.P. to the Court of Principal Judge, Family

Court, Saket District, New Delhi. The Transfer Petition was

dismissed taking into account the fact that no serious

inconvenience will be caused to the Petitioner for travelling

between Gautambudh Nagar, U.P. to Saket, New Delhi. While

dismissing the Transfer Petition, this Court directed the trial to

be conducted at Gautambudh Nagar, Family Court through

video conferencing.

2. This Review Petition has been filed by the Petitioner on

the ground that there is no video conferencing facility at

Gautambudh Nagar, District Courts. Another ground in the

Review Petition is that video conferencing is not permissible in

1 | P a g e

matrimonial matters in accordance with the judgment of this

Court date 09.10.2017 in a case titled “Santhini vs. Vijaya

Venketesh”.

3. Notice was issued in the Review Petition on 20.03.2018.

Due to the ongoing pandemic, physical functioning of the

Courts has been stopped since March, 2020. Proceedings in all

Courts are being conducted only through video conferencing.

In the normal course we would not have directed video

conferencing in respect of matrimonial matters as per the

judgment of this Court mentioned above. However, in the

present situation where all proceedings are conducted through

video conferencing, we direct the Family Court, District

Gautambudh Nagar, U.P. to conduct the trial through video

conferencing.

4. The Review Petition is dismissed.

………....................CJI.

[S.A. BOBDE]

..........……...................J.

[L. NAGESWARA RAO]

….……………………...J.

[VINEET SARAN]

New Delhi

January 22, 2021

2 | P a g e

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Saturday, January 30, 2021

Whether it is the Principal of the College who is empowered to appoint Warden of the Hostel of the College or it is the Governing Body in whom the power to appoint Warden is vested ?,

Friday, January 29, 2021

whether the acceptance of a conditional offer with a further condition results in a concluded contract, irrespective of whether the offerer accepts the further condition proposed by the acceptor.

the applicant seeks permission to sell the stock of minerals lying in the leasehold area and to deposit the sale proceeds directly with the State Government.