supreme court judgments 2010

KHANAPURAM GANDAIAH v. ADMINISTRATIVE OFFICER & ORS. [2010] INSC 1 (4 January 2010)

Judgement

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO.34868 OF 2009 Khanapuram Gandaiah ... Petitioner Administrative Officer & Ors. ... Respondents ORDER

1. This special leave petition has been filed against the judgment and order dated 24.4.2009 passed in Writ Petition No.28810 of 2008 by the High Court of Andhra Pradesh by which the writ petition against the order of dismissal of the petitioner's application and successive appeals under the Right to Information Act, 2005 (hereinafter called the "RTI Act") has been dismissed. In the said petition, the direction was sought by the Petitioner to the Respondent No.1 to provide information as asked by him vide his application dated 15.11.2006 from the Respondent No.4 - a Judicial Officer as for what reasons, the Respondent No.4 had decided his Miscellaneous Appeal dishonestly.

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2. The facts and circumstances giving rise to this case are, that the petitioner claimed to be in exclusive possession of the land in respect of which civil suit No.854 of 2002 was filed before Additional Civil Judge, Ranga Reddy District praying for perpetual injunction by Dr. Mallikarjina Rao against the petitioner and another, from entering into the suit land.

Application filed for interim relief in the said suit stood dismissed. Being aggrieved, the plaintiff therein preferred CMA No.185 of 2002 and the same was also dismissed. Two other suits were filed in respect of the same property impleading the Petitioner also as the defendant. In one of the suits i.e. O.S. No.875 of 2003, the Trial Court granted temporary injunction against the Petitioner. Being aggrieved, Petitioner preferred the CMA No.67 of 2005, which was dismissed by the Appellate Court - Respondent No.4 vide order dated 10.8.2006.

 

3. Petitioner filed an application dated 15.11.2006 under Section 6 of the RTI Act before the Administrative Officer-cum-Assistant State Public Information Officer (respondent no.1) seeking information to the queries mentioned therein. The said application was rejected vide order dated 23.11.2006 and an appeal against the said order was also dismissed vide order dated 20.1.2007. Second Appeal against the said order was also 3 dismissed by the Andhra Pradesh State Information Commission vide order dated 20.11.2007. The petitioner challenged the said order before the High Court, seeking a direction to the Respondent No.1 to furnish the information as under what circumstances the Respondent No.4 had passed the Judicial Order dismissing the appeal against the interim relief granted by the Trial Court. The Respondent No.4 had been impleaded as respondent by name.

The Writ Petition had been dismissed by the High Court on the grounds that the information sought by the petitioner cannot be asked for under the RTI Act. Thus, the application was not maintainable. More so, the judicial officers are protected by the Judicial Officers' Protection Act, 1850 (hereinafter called the "Act 1850"). Hence, this petition.

 

4. Mr. V. Kanagaraj, learned Senior Counsel appearing for the petitioner has submitted that right to information is a fundamental right of every citizen. The RTI Act does not provide for any special protection to the Judges, thus petitioner has a right to know the reasons as to how the Respondent No. 4 has decided his appeal in a particular manner. Therefore, the application filed by the petitioner was maintainable. Rejection of the application by the Respondent No. 1 and Appellate authorities rendered the petitioner remediless. Petitioner vide application dated 15.11.2006 had asked 4 as under what circumstances the Respondent No.4 ignored the written arguments and additional written arguments, as the ignorance of the same tantamount to judicial dishonesty, the Respondent No.4 omitted to examine the fabricated documents filed by the plaintiff; and for what reason the respondent no.4 omitted to examine the documents filed by the petitioner.

Similar information had been sought on other points.

 

5. At the outset, it must be noted that the petitioner has not challenged the order passed by the Respondent No. 4. Instead, he had filed the application under Section 6 of the RTI Act to know why and for what reasons Respondent No. 4 had come to a particular conclusion which was against the petitioner. The nature of the questions posed in the application was to the effect why and for what reason Respondent No. 4 omitted to examine certain documents and why he came to such a conclusion.

Altogether, the petitioner had sought answers for about ten questions raised in his application and most of the questions were to the effect as to why Respondent No. 4 had ignored certain documents and why he had not taken note of certain arguments advanced by the petitioner's counsel.

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6. Under the RTI Act "information" is defined under Section 2(f) which provides:

"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."

This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed, especially in matters pertaining to judicial decisions. A judge speaks through his judgments or orders passed by him. If any party feels aggrieved by the order/judgment passed by a judge, the remedy available to such a party is either to challenge the same by way of appeal or by revision or any other legally permissible mode. No litigant can be allowed to seek information as to why and for what reasons the judge had come to a particular decision or conclusion. A judge is not bound to explain later on for what reasons he had come to such a conclusion.

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7. Moreover, in the instant case, the petitioner submitted his application under Section 6 of the RTI Act before the Administrative Officer-cum- Assistant State Public Information Officer seeking information in respect of the questions raised in his application. However, the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him. A judge cannot be expected to give reasons other than those that have been enumerated in the judgment or order. The application filed by the petitioner before the public authority is per se illegal and unwarranted. A judicial officer is entitled to get protection and the object of the same is not to protect malicious or corrupt judges, but to protect the public from the dangers to which the administration of justice would be exposed if the concerned judicial officers were subject to inquiry as to malice, or to litigation with those whom their decisions might offend. If anything is done contrary to 7 this, it would certainly affect the independence of the judiciary. A judge should be free to make independent decisions.

 

8. As the petitioner has misused the provisions of the RTI Act, the High Court had rightly dismissed the writ petition.

 

9. In view of the above, the Special Leave Petition is dismissed accordingly.

RANJIT SINGH v. STATE OF PUNJAB [2010] INSC 2 (4 January 2010)

Judgement

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 8-9 OF 2010 (Arising out of SLP(Crl.) Nos.6599-6600/2009) RANJIT SINGH Appellant(s) :VERSUS:

STATE OF PUNJAB Respondent(s) O R D E R Leave granted.

Heard the learned counsel for the parties.

The appellant was sentenced to imprisonment for life under Section 302 of the Indian Penal Code (I.P.C.), 10 years' rigorous imprisonment under Section 307 I.P.C.

and 10 years' rigorous imprisonment under Section 333 I.P.C. While sentencing the appellant, the Additional Sessions Judge, Ludhiana, did not grant him benefit of set off under Section 428 of the Code of Criminal Procedure, on the basis of the judgment of this Court in Kartar Singh vs. State of Haryana, [AIR 1982 SC 1439 = 1982 (3) SCC 1].

-2- A Constitution Bench of this Court in the case of Bhagirath vs. Delhi Administration, [1985 (2) SCC 580], has specifically overruled Kartar Singh's judgment (supra), the relevant paragraph of which reads as under:

"We have considered with great care the reasoning upon which the decision in Kartar Singh (1982 3 SCC 1) proceeds. With respect, we are unable to agree with the decision. We have already discussed why imprisonment for life is imprisonment for a term, within the meaning of section 428. We would like to add that we find it difficult to agree that the expressions 'imprisonment for life' and 'imprisonment for a term' are used either in the Penal Code or in the Criminal Procedure Code in contradistinction with each other.

Sections 304, 305, 307 and 394 of the Penal Code undoutedly provide that persons guilty of the respective offences, shall be punished with imprisonment for life or with imprisonment for a term not exceeding a certain number of years. But, that is the only manner in which the Legislature could have expressed its intention that persons who are guilty of those offences shall be punished with either of the sentences mentioned in the respective sections. The circumstances on which the learned Judges have placed reliance in Kartar Singh, do not afford any evidence, intrinsic or otherwise, of the use of the two expressions in contradistinction with each other. Two or more expressions are often used in the same section in order to exhaust the alternatives which are available to the Legislature. That does not mean that there is, necessarily, an antithesis between those expressions."

-3- In our considered view, the appellant is entitled to the benefit of set off under Section 428 of the Code of Criminal Procedure.

The appeals are partly allowed and disposed of in the above terms.

.....................J (DALVEER BHANDARI) .....................J (A.K. PATNAIK) New Delhi;

January 4, 2010.

ATHAR HUSSAIN v. SYED SIRAJ AHMED & ORS. [2010] INSC 3 (5 January 2010)

Judgement

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.11 OF 2010 (Arising out of SLP ) No. 24148 of 2007) Athar Hussain. -----Appellant Versus Syed Siraj Ahmed & Ors. ----Respondents

TARUN CHATTERJEE, J.

1. Leave granted.

 

2. This appeal is directed against the judgment and order dated 8th of October, 2007 passed by the High Court of Karnataka at Bangalore by which the High Court had set aside the order dated 11th of June, 2007 of the Family Court, Bangalore vacating its order of injunction dated 21st of April, 2007 passed against the appellant in G.W.C. No. 64 of 2007 preventing him from interfering with the custody of his children with the respondents.

 

3. The appellant is the father of the minor children in whose respect interim custody and guardianship have been sought 1 for. The respondent No.1 is the maternal grandfather of the two minor children of the appellant and respondent Nos. 2, 3 and 4 are their maternal aunt and uncles.

 

4. The appellant married one Umme Asma, daughter of respondent No. 1, in accordance with Islamic rites and customs on 31st of March, 1993. Two children were born out of the wedlock, Athiya Ali, aged about 13 years and Aayan Ali , aged about 5 years. Their mother Umme Asma died on 16th of June, 2006. Subsequent to the death of Umme Asma, the mother of two minor children, the appellant again married to one Jawahar Sultana on 25th of March, 2007 who in the pending proceeding had filed an application before the Family Court for her impleadment in the same.

 

5. A proceeding was initiated on 21st of April, 2007 at the instance of the respondents under Sections 7, 9 and 17 of the Guardian and Wards Act, 1890 (hereinafter referred to as `the Act') in the Court of the Principal Family Judge, Bangalore which came to be registered as G.W.C.No.64 of 2007. In the aforesaid pending proceeding under the Act, an application was filed under Section 12 of the Act read with Order 39 Rule 2 1 and 2 of the Code of Civil Procedure (in short `the Code') in which interim protection was prayed for of the persons and properties of the minor children and also for an order of injunction restraining the appellant from interfering or disturbing the custody of two children till the disposal of the application filed under Sections 7, 9 and 17 of the Act. The case that was made out by the respondents in the affidavit accompanying their application for injunction filed under Section 12 of the Act read with Order 39 Rule 1 and 2 of the Code was a follows :-

6. On the same day on which the respondents filed the applications for being appointed as guardians and for interim injunction against the appellant, i.e. on 21st of April, 2007, the Family Court disposed of the application under section 12 read with Order 39 Rule 1 and 2 of the CPC, and passed an ex parte interim order restraining the appellant from interfering with the custody of the two children of the appellant.

 

7. Feeling aggrieved, the appellant filed an application against the order of the family court under Order 39 Rule 4 of the Code praying for vacation of interim order of injunction 3 passed against him. In the Counter Affidavit accompanying the application filed on 28th of April, 2007 to vacate the interim order of injunction, he denied all averments made in the application filed by the respondents as incorrect and fabricated. It is not in dispute that the appellant is the father and natural guardian of the children. While respondent no.1 is aged about 72 years and is retired and hence is in no position to look after his children, respondent no.2 is living separately after his marriage; respondent nos. 3 and 4 are nearing the age of marriage and would go ahead with their own lives once married. Further respondent no.1 has another son whose wife divorced him on account of harassment for dowry and another daughter who was mentally retarded. These heavy responsibilities which already lie on the respondent make him unfit as a guardian of his children. The only motive of the respondents is to gain the property that the appellant had purchased in favour of Umme Asme.

 

8. Pursuant to a telephonic request made by respondent no.3, he dropped his children at their place on 21st of April, 2007. When he went back to collect them on 22nd of April, 4 2007, he was informed that they would be back only at night.

On 23rd of April, 2007, he was told that the children had gone to Ooty and would return after a few days. Since the appellant had reasons to suspect the bonafide of the respondents, he lodged a complaint before the Inspector of Police, J.C. Nagar, Bangalore on 23rd of April, 2007. The respondents who were summoned to the police station gave an undertaking to the effect that the children would be back on 24th of April, 2007. It is alleged that though the respondents had procured the interim order of injunction on 21st of April, 2007 itself, they did not inform either the appellant or the Police authorities until 25th of April, 2007 on which day they produced the copy of the interim order to the appellant.

 

9. Appellant further alleged that his daughter had been missing classes as she was unduly retained by the respondents, who had no concern whatsoever with respect to the same.

 

10. The death certificate clearly showed leukemia as the sole cause of death of Umme Asma, contrary to the allegations of the respondents. He had deeply loved his wife and as a token 5 of his love, had purchased a property in her name on which he constructed house entirely in accordance with her wishes.

Contrary to what the respondents had alleged, all the expenses for the treatment of his wife and the education of the children were borne by the appellant. His relationship with his deceased wife and the children were indeed cordial. In order to secure education of high quality for his daughter, he got her admitted into a good school and had borne all related expenses, as proved from the receipts issued by the school authorities. He had also obtained an insurance policy in the name of his daughter.

 

11. It is for the vengeance of the appellant's refusal to marry respondent no.3 who wished to marry him after the death of her sister, that they had filed the application claiming custody and guardianship of the children. The photographs produced before the Court were taken when the appellant himself took the respondents on an excursion along with his family in his own car. The mark sheets produced by the respondents bore forged signatures of the appellant whereas the documents bearing his own signature were not produced.

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12. In short, the appellant submitted that in view of suppression and concealment of material facts on part of the respondents, they were not entitled to the equitable relief of injunction. Moreover, he had a prima facie case and the balance of convenience stood in his favour. Irreparable injury would be caused to him as the father of the minor children who would not be safe in the hands of the respondents.

 

13. The family court by its order dated 11th of June, 2007 vacated the interim order of injunction granted on 21st of April 2007. The Court found that the respondents had neither prima facie case nor balance of convenience in their favour, nor vacating the ex parte interim order would cause irreparable injury to them. It was also the finding of the family court that the respondents did not approach the Court with clean hands. The Court found that in support of their contention that Umme Asma died due to the assault cast upon by the appellant, the respondents had not been able to produce any material evidence; nor was any case filed against the appellant. This appears in contrast to their contention that after the death of Umme Asma, her relatives had enquired 7 about the marks on her face which occurred when the appellant had hit her. If this was the case, the respondents would have initiated an enquiry much before, not when almost ten months had expired after the death of Umme Asma. This prolonged silence, according to the trial court, renders the version of the appellant probable that it is to wreck vengeance towards him who refused to marry the respondent no.3 that the entire proceedings had been launched. The death report produced by the appellant, on the other hand, supports the version of the appellant of bone cancer being the cause of his wife's death. The fact that he bore with all medical expenses is also supported by evidence. The appellant has also been able to produce the sale deed of the property which he claims to have purchased in his wife's name out of his love and affection for her.

 

14. The undertaking given by the respondents before Police Authorities with respect to the complaint filed against them by the appellant also strengthens the version of the appellant that as a matter of course, the children stayed with the appellant and that it was the respondents who took them away without 8 his sanction. It is pertinent to note that the respondents did not produce the temporary order of injunction at the time they were asked to file the said undertaking to the Police Authorities. The various receipts produced by the appellant as evincing the expenses he incurred for his wife and children were also considered. Thus it was found that the respondents had no prima facie case.

 

15. The Family Court found the balance of convenience also leaning in favour of the appellant, who is admittedly the natural guardian of the children. The photographs produced by both the parties were considered as indicating the bond the children shared with both. It was found that they were also happy in the company of their step mother. Though Athiya had stated that she was not willing to go with her father, the Family Court felt that it could be no consequence as she was not old enough to form a mature opinion and was susceptible to tutoring. The fact that the son went to the appellant when he saw him in the Court premises indicated that the children were close to the appellant. Accordingly, balance of convenience was found tilting in favour of the appellant.

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16. Irreparable injury will be caused to the father if he is denied interim custody as he is the natural guardian of the children, the care and concern for whom he had established in various ways. Keeping in view the fact that welfare of the children is the paramount consideration, it was noted that the respondent nos. 2 and 3 would get married and start living separately while respondent no.1 is an aged person. Therefore, the appellant was more competent and fit than all to take care of the children. In order not to deprive the children of the love and affection of their maternal relatives, the appellant had agreed to leave the children at the respondents' place on every alternate Saturday and for five days at the beginning of the summer vacation which shows his magnanimity and generosity.

 

17. The contentions of the respondents were not supported by documentary evidence and, therefore, the Family Court was of the opinion that they had not approached the Court with clean hands. Hence, the equitable remedy of injunction could not be granted to them.

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18. Therefore, by its order dated 11th of June, 2007, the Family Court vacated the ad-interim order of temporary injunction restraining the appellant from interfering with the custody of the children with the respondents.

 

19. Aggrieved by this order, the respondents filed a Writ Petition which came to be numbered as W.P. No. 9177 of 2007 before the High Court of Karnataka at Bangalore. Before the High Court, the respondents contended that the parties would be governed by Mohammaden Law which dictates that in the absence of the mother, maternal grand parents shall be the guardian of minor children. It was further contended that the second marriage of the appellant disentitles him to the custody of children. Further, when the children are capable of forming their opinion, they should be allowed to exercise their option with respect to which of the parties they would go with.

The well being of the children which is the paramount consideration in matters of custody was not taken into account by the Family Court whose order is liable to be set aside on this count alone.

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20. The appellant, in response to these submissions, contended that the High Court could not interfere with the findings of the Family Court unless serious infirmity is proven.

The decisions cited by the respondents were distinguished on the ground that these decisions concerned findings that were recorded after a full fledged trial and not an order passed as an ad-interim relief granting custody to one of the parties.

 

21. On consideration of these arguments, the High Court by its order dated 8th of October 2007 had set aside the order of the Family Court by which it had vacated the interim order of injunction and passed the following directions:

a. The impugned order is quashed.

b. The respondent father will have visiting rights and shall visit his two children on every Sunday between 9 a.m. and 5 p.m. The father is permitted to take out the children to any place of his and children's choice and shall bring back the children to petitioner's house. This arrangement shall continue pending disposal of the proceedings before the learned Family Judge.

12 c. Having regard to the sensitive issue involved i.e. as to the guardianship of the minor children, the learned Family Judge is directed to conclude the proceedings within six months from the date of receipt of the copy of this order.

d. Any observation made during the course of this order is only for the purpose of considering as to where the children should stay during the pendency of the proceedings. It shall not be treated as a finding on the merits of the case. The learned Family Judge shall not be swayed by any of the observations made during the course of this order.

 

22. The High Court in its impugned judgment had held that while appointing the guardian or deciding the matter of custody of the minor children during the pendency of guardianship proceedings, the first and foremost consideration for the Court is the welfare of the children. The factors that must be kept in mind while determining the question of guardianship will apply with equal force to the question of interim custody. It was observed that the Family Court should 13 have delved a little deeper into the matter and ascertained where the interest of the children lay, instead of recording abstract findings on questions of prima facie case, balance of convenience and irreparable injury.

 

23. The terms on which the appellant and his deceased wife were, the manner in which the respondents obtained the custody of the children are questions that should be determined during the course of trial.

 

24. Though when the children's father is not unfit otherwise he shall be the natural guardian, a child cannot be forced to stay with his/her father. According to the High Court, merely because the father has love and affection for his children and is not otherwise shown unfit to take care of the children, it cannot be necessarily concluded that welfare of the children will be taken care of once their custody is given to him. The girl had expressed a marked reluctance to stay with her father.

The High Court was of the opinion that the children had developed long standing affection towards their maternal grandfather, aunt and uncles. It will take a while before they develop the same towards their step mother. The s*x of the 14 minor girl who would soon face the difficulties of attaining adolescence is an important consideration, though not a conclusive one. She will benefit from the guidance of her maternal aunt, if custody is given to the respondents, which the appellant will be in no position to provide. Further, there is a special bonding between the children and it is desirable that they stay together with their maternal grandfather, uncles and aunt.

 

25. In case of custody of the minor children, the Family Law, i.e. the Mohammedan Law would apply in place of the Act.

Considering the provisions under Section 353 of the Mohammedan Law, the High Court had held that the preferential rights regarding the custody of the minor children rests with the maternal grandparents. After making a doubtful proposition that in case of a conflict between personal law and welfare of the children the former shall prevail, the High Court held that in the case at hand there is no such conflict.

 

26. For the reasons aforementioned, the High Court by its impugned order set aside the order of the Family Court, 15 Bangalore which vacated the interim order of injunction issued against the appellant.

 

27. It is this order of the High Court, which is challenged before us by way of special leave petition which on grant of leave has been heard by us in the presence of the learned counsel appearing on behalf of the parties.

 

28. It was the contention of the appellant before us that the Act will apply to the present case because there is a conflict between the preferential guardian in Mohammedan Law and the Act. It was pointed out that while deciding the custody of the minor children, the welfare of the children had to be taken into consideration and that it was guaranteed by the Act. They have placed their reliance on the case of Rafiq v. Bashiran and ors, [AIR 1963 Rajasthan 239]. The Rajasthan High Court in the cited case held that where the provisions of the personal law are in conflict with the provisions of the Guardians and Wards Act the latter shall prevail over the former.

 

29. Relying on the case of B.N.Ganguly v. C.H.Sarkar, [AIR 1961 MP 173] it was contended by the learned counsel for the 16 appellant that there is a presumption that parents will be able to exercise good care in the welfare of their children.

 

30. It was argued by the learned counsel on behalf of respondents that the impugned order warrants no interference. Before passing the impugned order, the learned Judge had spent over one hour with the children to ascertain their preferences. The children have been living with the respondents since their mother's death in June, 2006 as the High Court had stayed the order of the Family Court vacating the injunction order. While the respondents had been complying with the visitation rights granted to the appellant, the children were not happy with the treatment meted out to them during the time they spent with their father and stepmother. In contrast, respondent no. 3, contrary to the apprehensions expressed by the appellant has stated on record that she had no intention to marry and would devote her life towards the welfare of the children. Respondents further asserted that the cases of Rafiq v. Bashir (supra) and B.N. Ganguly (supra) are not applicable to the facts of this case.

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31. We have heard the learned counsel for both the parties and examined the impugned order of the High Court and also the orders passed by the Family Court. After considering the materials on record and the impugned order, we are of the view that at this stage the respondents should be given interim custody of the minor children till the disposal of the proceedings filed under Sections 7, 9 and 17 of the Act.

Reasons are as follows:

 

32. Section 12 of the Act empowers courts to "make such order for the temporary custody and protection of the person or property of the minor as it thinks proper." In matters of custody, as well settled by judicial precedents, welfare of the children is the sole and single yardstick by which the Court shall assess the comparative merit of the parties contesting for custody. Therefore, while deciding the question of interim custody, we must be guided by the welfare of the children since Section 12 empowers the Court to make any order as it deems proper.

 

33. We are mindful of the fact that, as far as the matter of guardianship is concerned, the prima facie case lies in favour 18 of the father as under Section 19 of the GWC Act, unless the father is not fit to be a guardian, the Court has no jurisdiction to appoint another guardian. It is also true that the respondents, despite the voluminous allegations leveled against the appellant have not been able to prove that he is not fit to take care of the minor children, nor has the Family Court or the High Court found him so. However, the question of custody is different from the question of guardianship.

Father can continue to be the natural guardian of the children; however, the considerations pertaining to the welfare of the child may indicate lawful custody with another friend or relative as serving his/her interest better. In the case of Rosy Jacob v. Jacob A. Chakramakkal, [(1973) 3 S.C.R. 918], keeping in mind the distinction between right to be appointed as a Guardian and the right to claim custody of the minor child, this Court held so in the following oft-quoted words:

"Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in 19 addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them."

 

34. In the case of Mt. Siddiqunnisa Bibi v. Nizamuddin Khan and Ors., [AIR 1932 All 215], which was a case concerning the right to custody under Mohammaden Law, the Court held:

"A question has been raised before us whether the right under the Mahomedan law of the female relation of a minor girl under the age of puberty to the custody of the person of the girl is identical with the guardianship of the person of the minor or whether it is something different and distinct. The right to the custody of such a minor vested in her female relations, is absolute and is subject to several conditions including the absence of residing at a distance from the father's place of residence and want of taking proper care of the child. It is also clear that the supervision of the child by the father continues in spite of the fact that she is under the care of her female relation, as the burden of providing maintenance for the child rests exclusively on the father."

 

35. Thus the question of guardianship can be independent of and distinct from that of custody in facts and circumstances of each case.

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36. Keeping in mind the paramount consideration of welfare of the children, we are not inclined to disturb their custody which currently rests with their maternal relatives as the scope of this order is limited to determining with which of the contesting parties the minors should stay till the disposal of the application for guardianship.

37. The appellant placed reliance on the case of R.V.

Srinath Prasad v. Nandamuri Jayakrishna [AIR 2001 SC 1056]. This Court had observed in this decision that custody orders by their nature can never be final; however, before a change is made it must be proved to be in the paramount interest of the children. In that decision, while granting interim custody to the father as against the maternal grandparents, this Court held:

"The Division Bench appears to have lost sight of the factual position that the time of death of their mother the children were left in custody of their paternal grand parents with whom their father is staying and the attempt of the respondent no.1 was to alter that position before the application filed by them is considered by the Family Court. For this purpose it was very relevant to consider whether leaving the minor children in custody of their father till the Family Court decides the matter would be so detrimental to the interest of the minors that their 21 custody should be changed forthwith. The observations that the father is facing a criminal case, that he mostly resides in USA and that it is alleged that he is having an affair with another lady are, in our view, not sufficient to come to the conclusion that custody of the minors should be changed immediately."

What is important for us to note from these observations is that the Court shall determine whether, in proceedings relating to interim custody, there are sufficient and compelling reasons to persuade the Court to change the custody of the minor children with immediate effect.

 

38. Stability and consistency in the affairs and routines of children is also an important consideration as was held by this Court in another decision cited by the learned counsel for the appellant in the case of Mausami Moitra Ganguli v. Jayant Ganguli, [AIR 2008 SC 2262]. This Court held:

"We are convinced that the dislocation of Satyajeet, at this stage, from Allahabad, where he has grown up in sufficiently good surroundings, would not only impede his schooling, it may also cause emotional strain and depression on him."

 

39. After taking note of the marked reluctance on part of the boy to live with his mother, the Court further observed:

22 "Under these circumstances and bearing in mind the paramount consideration of the welfare of the child, we are convinced that child's interest and welfare will be best served if he continues to be in the custody of the father. In our opinion, for the present, it is not desirable to disturb the custody of Master Satyajeet and, therefore, the order of the High Court giving his exclusive custody to the father with visitation rights to the mother deserves to be maintained."

 

40. The children have been in the lawful custody of the respondents from October, 2007. In the case of Gaurav Nagpal v. Sumedha Nagpal, [(2009) 1 SCC 42], it was argued before this Court by the father of the minor child that the child had been in his custody for a long time and that a sudden change in custody would traumatize the child. This Court did not find favour with this argument. This Court observed that the father of the minor child who retained the custody of the child with him by flouting Court orders, even leading to institution of contempt proceedings against him, could not be allowed to take advantage of his own wrong. The case before us stands on a different footing. The custody of the minor children with the respondents is lawful and has the sanction of the order of the High Court granting interim custody of the children in 23 their favour. Hence, the consideration that the custody of the children should not undergo an immediate change prevails.

The question with whom they remained during the period from the death of their mother till the institution of present proceedings is a matter of dispute between the parties and we are not in a position to reach a conclusion on the same without going into the merits of the matter. At any rate, the children are happy and are presumably taken care of with love and affection by the respondents, judging from the reluctance on part of the girl child to go with her father. She might attain puberty at any time. As the High Court has rightly observed, it may not be in the interests of the children to separate them from each other. Hence, at this juncture, we are not inclined to disturb the status quo, as we are only concerned with the question of interim custody at this stage.

 

41. The learned counsel for the appellant has placed reliance on the case of Rafiq v. Smt. Bashiran and Another [supra].

In this case, the High Court had set aside the order of the Civil Judge granting the custody of the child to her mother's paternal aunt, while the father was not proven to be unfit.

24 Quoting from Tyabji's Mahomedan Law, Third Edition, Section 236 (p. 275) the Court observed:

"The following persons have a preferential right over the father to the custody of (sic)minor girl before she attains the age of puberty.

 

1. Mother's mother

2. Father's mother

3. Mother's grandmother howsoever high

4. Father's grandmother howsoever high

5. Full sister

6. Uterine sister 7. Daughter of full sister, howsoever low.

8. Dauther of uterine sister, howsoever low.

9. Full maternal aunt, howsoever high.

10.Uterine maternal aunt, howsoever high.

11.Full paternal aunt, howsoever high.

 

42. However, the High Court of Rajasthan held that in the light of Section 19 which bars the Court from appointing a guardian when the father of the minor is alive and not unfit, 25 the Court could not appoint any maternal relative as a guardian, even though the personal law of the minor might give preferential custody in her favour.

 

43. As is evident, the aforementioned decision concerned appointment of a guardian. No doubt, unless the father is proven to be unfit, the application for guardianship filed by another person cannot be entertained. However, we have already seen that the question of custody was distinct from that of guardianship. As far as matters of custody are concerned, the Court is not bound by the bar envisaged under Section 19 of the Act. In our opinion, as far as the question of custody is concerned, in the light of the aforementioned decisions, the personal law governing the minor girl dictates her maternal relatives, especially her maternal aunt, shall be given preference. To the extent that we are concerned with the question of interim custody, we see no reason to override this rule of Mohammedan Law and, hence, a prima facie case is found in favour of the respondents.

 

44. Further, the balance of convenience lies in favour of granting custody to the maternal grandfather, aunt and uncle.

26 A plethora of decisions of this Court endorse the proposition that in matters of custody of children, their welfare shall be the focal point. Once we shift the focus from the rights of the contesting relatives to the welfare of the minor children, the considerations in determining the question of balance of convenience also differ. We take note of the fact that respondent no.3, on record, has stated that she has no intention to get married and her plea that she had resigned from her job as a technical writer to take care of the children remains uncontroverted. We are, hence, convinced that the respondents will be in a position to provide sufficient love and care for the children until the disposal of the guardianship application. The second marriage of the appellant, though a factor that cannot disentitle him to the custody of the children, yet is an important factor to be taken into account. It may not be appropriate on our part to place the children in a predicament where they have to adjust with their step-mother, with whom admittedly they had not spent much time as the marriage took place only in March, 2007, when the ultimate outcome of the guardianship proceedings is still uncertain.

27 The learned counsel for the appellant placed reliance on the case of Bal Krishna Pandey v. Sanjeev Bajpayee [AIR 2004 UTR 1] wherein the maternal grandfather of the minor contested with the father of the minor for custody of a girl aged about 12 years. The Uttranchal High court in that case gave the custody of minor to the father rejecting the contention of grandfather (appellant) that the father (respondent) after his remarriage will not be in a position to give fair treatment to the minor. However, in that case, the second wife of the father had been medically proven as unable to conceive. Hence, the question of a possible conflict between her affection for the children whose custody was in dispute and the children she might bear from the father did not arise.

In the case before us, the situation is not the same and the possibility of such conflict does have a bearing upon the welfare of the children.

 

45. As this is a matter of interim custody till the final disposal of the application GWC No. 64 of 2007, we are of the opinion that the interests of the children will be duly served if their current residence is not disturbed and a sudden 28 separation from their maternal relatives does not come on their way. Irreparable injury will be caused to the children if they, against their will, are uprooted from their present settings.

 

46. The learned counsel for the appellant placed strong reliance in the case of Hassan Bhatt v. Ghulam Mohamad Bhat [AIR 1961 J & K 5] which held that the words "subject to the provisions of this section" in sub-section 1 of Section 17 of the Act clearly indicates that the consideration of the welfare of the minor should be the paramount factor and cannot be subordinated to the personal law of the minor. The view expressed by the High Court is clearly correct. As far as the question of interim custody is concerned, we are of the view that there is no conflict between the welfare of the children and the course of action suggested by the personal law to which they are subject.

 

47. At this juncture, we may mention the following factors to which the learned counsel for the appellant invites our attention. In the present case, respondent no. 1 is an old person aged about 72 years and respondent no. 2 is already 29 married, living with his wife and children. Respondent no. 3 and 4 are unmarried and are of marriageable age. Respondent no. 3, the maternal aunt of the children, will go to live with her husband after marriage. Respondent No. 4 after his marriage may or may not live with his father. There is nothing on record to show that the appellant mistreated the deceased mother of minor children. We cannot express our views on the correctness of these averments. These are the matters that must be gone into when the Family Court disposes of the application for guardianship filed by the Respondents, and not at this stage.

 

48. According to the appellant, from the fact that the respondents raised the issue of death of his wife 10 months after her death and one month after he refused the marriage offer of Respondent No. 3, it must be inferred that the respondents have raised this issue merely to obtain the custody of children and that the respondents did not come to court with clean hands. As far as the question of denying the respondents the interim custody of children on the ground 30 that they had not approached the Court with clean hands, we are constrained to say that we are not in a position to conclusively infer the same. The alleged refusal on part of the appellant to marry respondent no.3 which is said to have led the respondents to file the application for guardianship, is again question of fact which is yet to be proved. In Nil Ratan Court had enumerated certain principles while determining the custody of a minor child. This Court under Paragraph 56 observed:

"A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. Thus the strict parameters governing an interim injunction do not have full play in matters of custody."

 

49. The learned counsel for the appellant again relied on a decision of B.N.Ganguly (supra) in which case the High Court of Madhya Pradesh had held that there is a presumption in law that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable 31 as guardians. The facts of that case are quite different from the one at hand. The contesting guardians in that case where contesting on the basis of an alleged adoption, against the parents of the child. Both the parents had joined in making the application and nothing had been said against their habits or way of living. The case stands altogether on a different footing.

 

50. The High court had relied heavily on the preference made by Athiya Ali who then was 10 to 11 years old. In the opinion of High Court, she was capable of making intelligent preference. It may be true that 11 years is a tender age and her preference cannot be conclusive. The contention of the appellant in this respect is also supported by the decision in Bal Krishna Pandey's case (supra). But as we are not dealing with the question of guardianship, but only with the issue of interim custody, we see no reason why the preference of the elder child shall be overlooked. It may be noted that the Family Court had considered fact that the younger child had instinctively approached his father while he met him in the 32 Court premises while vacating the interim order of injunction.

The second child who is just 4 years old cannot form an intelligent opinion as to who would be the right person to look after him and, hence, we must give weight to the preference that Athiya had expressed.

 

51. We find it fit, however, to modify the visitation rights granted to the appellant. He shall be allowed to visit the children on Saturdays as well between 9 am and 5 pm.

 

52. The order of the High court is modified to the extent indicated above, and the order of the Family Court dated 11th of June, 2007 vacating its injunction order is set aside. The Family Court is hereby directed to dispose of the case relating to the guardianship of the two children after adducing evidence by both the parties (both oral and documentary) at an early date, preferably within six months from the date of supply of a copy of this order to it.

 

53. We, however, make it clear that the observations made in the order of the High Court as well as by this Court, if there be 33 any, shall not be taken to be final while deciding the original application filed under Sections 7, 9 and 17 of the Act and the Family Court shall be at liberty to proceed with the disposal of the said proceeding independently of any of the observations made by this Court in this judgment.

 

54. The appeal is thus dismissed. There will be no order as to costs.

 

55. In view of the above judgment, the application for impleadment becomes infructuous and is dismissed as such.

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

[Tarun Chatterjee] New Delhi; ............................J

GANGULA MOHAN REDDY v. STATE OF A.P. [2010] INSC 4 (5 January 2010)

Judgement

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1301 of 2002 Gangula Mohan Reddy .. Appellant Versus State of Andhra Pradesh .. Respondent

Dalveer Bhandari, J.

 

1. This appeal is directed against the judgment of the High Court of Judicature of Andhra Pradesh at Hyderabad in Criminal Appeal No. 1039 of 1996 dated 30.3.2002. The appellant was convicted by the Assistant Sessions Judge, Nagarkurnool under Section 306 of the Indian Penal Code (for short `the Code') and sentenced to suffer rigorous 2 imprisonment for 10 years and to pay a fine of Rs.10,000/- and in default to suffer simple imprisonment for six months.

 

2. The appellant, aggrieved by the said judgment of the learned Assistant Sessions Judge filed an appeal before the High Court. The High Court upheld the judgment of the learned Assistant Sessions Judge, but while affirming the conviction of the appellant under Section 306 of the Code, the sentence of rigorous imprisonment of 10 years was reduced to 5 years. The appellant, aggrieved by the said judgment, approached this Court. This Court granted leave and released the appellant on bail.

 

3. The brief facts which are relevant to dispose of this appeal are recapitulated as under:

According to the case of the prosecution, the appellant, who is an agriculturist had harassed his agriculture labour (servant) deceased Ramulu by levelling the allegation that he had committed theft of some gold ornaments two days prior to his death. It was also alleged that the appellant had demanded Rs.7,000/- from the deceased which was given in advance to him at the time when he was kept in employment.

3

4. The prosecution further alleged that the deceased Ramulu could not bear the harassment meted out to him and he committed suicide by consuming pesticides. The prosecution in support of its case examined the father of the deceased as P.W.1 Urikonda Jammanna in which he had stated that his son Ramulu was a farm servant and used to work at the house of the appellant. He also stated that the appellant gave Rs.7,000/- in advance to his son. PW1 also stated that about two years ago, the appellant had asked his son (Ramulu) that his wrist watch was missing from his house and harassed him on which his son had returned the watch to the appellant. PW1 in his statement stated that the appellant also levelled the allegation that the gold ear-rings were also missing from his house and the same were stolen by Ramulu.

PW1 also stated that the appellant also demanded the advance of Rs.7,000/- paid to Ramulu at the time of his employment.

He further stated that Ramulu committed suicide because the appellant had levelled the allegation of theft of ornaments.

 

5. The prosecution also examined Balamma, the mother of the deceased as P.W.2. She also corroborated the statement of 4 PW1 and gave same version of the incident in her testimony.

On the basis of the testimonies of P.W.1 and P.W.2, the Trial Court convicted the appellant under Section 306 of the Code and his conviction on appeal was confirmed by the High Court.

 

6. Learned counsel for the appellant submitted that the conviction of the appellant is totally unsustainable because no ingredients of offence under section 306 of the Code can be made out in the facts and circumstances of this case. It would be profitable to set out section 306 of the Code:

"306. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either descripttion for a term which may extent to ten years, and shall also be liable to fine."

 

7. The word suicide in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. `Sui' means `self' and `cide' means `killing', thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.

5

8. Suicide by itself is not an offence under either English or Indian criminal law, though at one time it was a felony in England. In England, the former law was of the nature of being a deterrent to people as it provided penalties of two types:

7 Degradation of corpse of deceased by burying it on the highway with a stake through its chest.

7 Forfeiture of property of deceased by the State.

 

9. This penalty was later distilled down to merely not providing a full Christian burial, unless the deceased could be proved to be of unsound mind. However, currently there is no punishment for suicide after the enactment of the Suicide Act, 1961 which proclaims that the rule of law whereby it was a crime for a person to commit suicide has been abrogated.

 

10. In our country, while suicide in itself is not an offence, considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under section 309 of IPC.

6

11. `Abetment' has been defined under section 107 of the Code. We deem it appropriate to reproduce section 107, which reads as under:

"107. Abetment of a thing - A person abets the doing of a thing, who - First - Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing."

 

12. Explanation 2 which has been inserted along with section 107 reads as under:

"Explanation 2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."

 

13. Learned counsel for the appellant has placed reliance on a judgment of this Court in Mahendra Singh & Another v.

State of M.P. 1995 Supp. (3) SCC 731. In the case of Mahendra Singh, the allegations levelled are as under:- 7 "My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning."

 

14. The court on aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased.

According to the appellant, the conviction of the appellant under section 306 IPC merely on the basis of aforementioned allegation of harassment of the deceased is unsustainable in law.

 

15. Learned counsel also placed reliance on another judgment of this court in Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618. A three-Judge bench of this court had an occasion to deal with a case of a similar nature. In a dispute between the husband and wife, the appellant husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide. The Court in 8 paragraph 20 has examined different shades of the meaning of "instigation'. Para 20 reads as under:

"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect. or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."

16. In State of West Bengal v. Orilal Jaiswal & Another.

(1994) 1 SCC 73, this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trail for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, 9 discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

 

17. The Court in the instant case came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted commission of suicide by Seema may necessarily be drawn.

 

18. In the instant case, the deceased was undoubtedly hyper sensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.

19. This court in Chitresh Kumar Chopra v. State (Govt.

of NCT of Delhi) 2009 (11) SCALE 24 had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading".

The court opined that there should be intention to provoke, 10 incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others.

Each person has his own idea of self esteem and self respect.

Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

 

20. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing.

Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

 

21. The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.

 

22. In the light of the provisions of law and the settled legal positions crystallized by a series of judgments of this Court, the conviction of the appellant cannot be sustained.

11 Consequently, the appeal filed by the appellant is allowed and disposed of.

 

23. During the pendency of the appeal, the appellant was released on bail. He is not required to surrender. His bail bond is cancelled and he is set at liberty forthwith, if not required in any other case.

 

24. Consequently, the appeal filed by the appellant is allowed.

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

(Dalveer Bhandari) ................................

J.

(A. K. Patnaik) New Delhi;

January 5, 2010.

N.B.C.C.LTD. v. J.G.ENGINEERING PVT.LTD. [2010] INSC 5 (5 January 2010)

Judgement

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO .8 OF 2010 (Arising Out of SLP) No. 19471 of 2007) N.B.C.C. Ltd. .... Appellant Versus J.G. Engineering Pvt. Ltd. .... Respondent WITH
CIVIL APPEAL NO.9 OF 2010 (Arising out of SLP)No.22243 of 2008)

TARUN CHATTERJEE, J.

1. Leave granted.

 

2. These appeals are directed against the final Judgments and orders dated 23rd of March, 2006, and 21st of September, 2007 passed by the High Court at Calcutta in G.A. No.235 of 2006 arising out of A.P. No. 361 of 2005, whereby the High Court had allowed the petition of the respondent and thereby terminated the mandate of the arbitrator and thus appointed a new Arbitrator for deciding the dispute between the parties.

1

3. In order to appreciate the controversy existing between the parties, it may be important to narrate the facts as emerging from the case made by the appellant, which are as follows :- In the month of December 1992, the appellant had issued notice inviting tender for construction of terminal buildings and various ancillary jobs at the Bhubaneshwar Airport at Bhubaneshwar, Orissa. The respondent submitted its offer, which was accepted by the appellant.

On 30th of March, 1993, the appellant entered into a contract with the respondent for construction of the aforesaid work at the Bhubaneshwar Airport for a total consideration of Rs.

5,71,13,541.33/-. The date of commencement of the work was fixed on 1st of March, 1993 and the stipulated date of completion was 31st of October, 1994. However, on 20th of March, 1996, the appellant terminated the contract of the respondent alleging that the respondent had failed to fulfill its part of the obligations required under the contract. On 20th of May, 1996, the respondent invoked the arbitration clause and sought for an appointment of an arbitrator for adjudication of the disputes between the parties. On 9th of August, 1996, the Chairman-cum-Managing Director of the appellant 2 appointed a sole arbitrator to adjudicate upon the claims and counter claims of the parties. The appellant filed its counter claim on 30th of April, 1997 before the sole arbitrator. The respondent submitted its rejoinder and objections to the counter claims on 12th of May, 2001, after about 4 years from the date of reply by the appellant. During this period, the appellant had virtually closed its regional office in Calcutta as most of the work done in its office was completed. This, according to the appellant, caused in several transfers of the arbitrators appointed by the appointing authority. Meanwhile, the appointing authority had appointed three arbitrators due to the above-mentioned reason and the arbitration process had come to a stand still due to the inaction of the respondent and its failure to participate.

Thereafter, on 20th of May, 2004, the respondent filed an application before the Calcutta High Court seeking removal of the then incumbent arbitrator and the arbitral proceedings were stayed by the Court. On 20th of September, 2004, the High Court directed the Chairman-cum-Managing Director of the appellant company to appoint a new arbitrator in terms of the arbitration clause within a period of four weeks from the date of communication of its order. The High Court further directed the arbitrator so appointed to conclude the 3 arbitration proceedings within a period of six months from the date of his appointment. Pursuant to the order of the High Court, the Chairman-cum-Managing Director of the appellant company appointed Shri A.K. Gupta, Deputy General Manager of the appellant as the sole arbitrator. The said arbitrator finally concluded the proceedings after hearing on 18th of June, 2005. It is an admitted position that the time to conclude the arbitration proceeding in terms of the order of the High Court before Shri A. K. Gupta, who was appointed as the sole arbitrator by the Chairman-cum-Managing Director of the company had by then already expired.

However, both the parties extended the time to conclude the arbitration proceeding and to pass an award accordingly, the time was enlarged for conclusion of the arbitration to 30th of September, 2005.

It is also an admitted position that the time limit so fixed i.e.

arbitration must be concluded and award must be passed within 30th of September, 2005, could not be adhered to by the arbitrator and he failed to publish the award within this period. About three months after the expiry of the period of concluding the proceeding and passing of the award, it was the respondent who moved an 4 application before the High Court for a declaration that the mandate of the arbitrator had already stood terminated. We may keep it on record that the appellant had not filed any application for enlargement of time for the conclusion of the arbitration proceeding or to pass the award after the expiry of the period.

On 22nd of December, 2005, the High Court, vide an interim order, restrained the arbitrator from making an award and at the same time, had refused to accept the award produced by the arbitrator before it which were well beyond the period fixed by the High Court. On 23rd of March, 2006, the High Court, by its impugned order, terminated the mandate of the arbitrator on the ground of delay in making the award. The appellant then challenged the above mentioned order of the Calcutta High Court before this Court vide SLP No.19471 of 2007 on 12th of September, 2007. At the same time, the High Court by the impugned order dated 21st of September, 2007 passed in AP No. 361/2005 appointed Mr. Justice Chittatosh Mookherji (As His Lordship then was) as the sole arbitrator to adjudicate the disputes between the parties. The appellant, feeling aggrieved by this order as well has filed a special leave petition which came to be registered as SLP No. 22243 of 2008, which after hearing 5 the learned counsel for the parties and on grant of leave, was heard in presence of the learned counsel for the parties.

 

4. We have heard the learned counsel appearing on behalf of the parties and examined the impugned orders of the High Court and also other materials on record in depth and in detail. As noted herein earlier, the respondent had made an application before the Calcutta High Court under Section 14 of the Arbitration and Conciliation Act, 1996 (in short the "Act") for a declaration that the mandate of the arbitrator Shri A.K. Gupta had already stood terminated. As had already been mentioned above, the appointing authority had appointed three arbitrators prior to the appointment of Shri Gupta who were all unable to conduct the arbitral proceedings for some reason or the other. It may be kept on record that the respondent filed an application before the High Court for a declaration that the appointment of the arbitrator namely, Shri Amitava Basu, who was appointed as the sole arbitrator prior to the appointment of Shri A. K. Gupta had stood terminated by an order dated 20th of September, 2004, by which the High Court had terminated the 6 appointment and ordered the appointing authority of the appellant to appoint a new arbitrator who will conclude the proceeding and pass an award within six months from the date of his appointment. Subsequent to this order of the High Court, the appellant appointed Mr. AK Gupta as the new arbitrator who was to complete his proceedings by 27th of March, 2005 i.e. six months from the date of his appointment.

It is pertinent to mention that the appellant did not file any appeal against the above-mentioned order of the High Court.

Therefore, it may be taken that the appellant had accepted the aforesaid order of the High Court and thereby accepted its decision to fix the time of the arbitration proceedings to be mandatorily concluded within six months from the date of appointment of the arbitrator. The order, thus having assumed finality, a time limit was imposed for the conclusion of the arbitration proceedings. Thus, the appellant is estopped from raising any objection against the imposition of the time limit as had been done by the Court in this respect.

From the records before us, we have noticed that inspite of conducting a number of proceedings, the arbitrator was 7 unable to conclude the proceedings within the time fixed by the High Court. The arbitration clause in the contract enables the arbitrator to extend the time for making and publishing the award by mutual consent of the parties. From a perusal of the documents before us, we notice that the parties mutually agreed to extend the time till 31st August, 2005 for making and publishing the award, which were further extended by the parties till 30th of September, 2005 on account of the arbitrator having failed to conclude the proceedings within the previous date fixed by the parties. But the arbitrator having failed to do so by 30th of September, 2005, the respondent moved the High Court to terminate the mandate of the arbitrator as he had failed to conclude the proceedings within the time limit fixed by the parties. The High Court accordingly terminated the mandate of the arbitrator on account of his failure to publish the award within the time fixed by the parties. We are of the opinion that the High Court was perfectly justified in doing so on an application filed by the respondent before it. Quite interestingly, it has come to our notice that the arbitrator in question had appeared before the 8 High Court and submitted that the award was ready but the same could not be published on account of the interim order passed by the same restraining him from publishing it. There was, however, no order of the Court restraining the arbitrator from publishing the award till almost three months after the expiry of the time fixed by the mutual consent of the parties to make and publish the award prior to the interim order passed by the High Court.

 

5. A perusal of the arbitration agreement quite clearly reveals that the arbitrator has the power to enlarge the time to make and publish the award by mutual consent of the parties.

Therefore, it is obvious that the arbitrator has no power to further extend the time beyond that which is fixed without the consent of both the parties to the dispute. It is an admitted position that the respondent did not give any consent for extension of time of the arbitrator. Thus given the situation, the arbitrator had no power to further enlarge the time to make and publish the award and therefore his mandate had automatically terminated after the expiry of the time fixed by the parties to conclude the proceedings. The learned counsel 9 contended that the arbitration proceedings involved questions of highly technical and complex issues which would require sufficient amount of time to be decided in a just and proper way. However the records clearly illustrate that even after a passage of over nine years, the matter which was to be decided between the parties by way of arbitration, could not be resolved and the process lingered on. Arbitration is an efficacious and alternative way of dispute resolution between the parties. There is no denying the fact that the method of arbitration has evolved over the period of time to help the parties to speedily resolve their disputes through this process and in fact the Act recognizes this aspect and has elaborate provisions to cater to the needs of speedy disposal of disputes. The present case illustrates that inspite of adopting this efficacious way of resolving the disputes between the parties through the arbitration process, there was no outcome and the arbitration process had lingered on for a considerable length of time which defeats the notion of the whole process of resolving the disputes through arbitration. The contention of the appellant therefore cannot be justified that since the 10 dispute was highly technical in nature, it had to be dealt with elaborately by the arbitrator and thus, he was justified in being late. The High Court had thus correctly fixed the time for the arbitration to be concluded within a period of six months from the appointment of the fourth arbitrator Shri A.K.

Gupta considering the time that had been spent for the arbitration process prior to Mr. Gupta's appointment. That apart, even assuming that the arbitration process involved highly technical and complex issues, which was time consuming, even then, it was open for the arbitrator or for the parties to approach the Court for extension of time to conclude the arbitration proceeding which was not done by either by the arbitrator or by any of the parties. As had been correctly noted by the High Court in its impugned judgment, there was no cogent reason for the delay in making and publishing the award by the arbitrator. He already had the relevant materials at his disposal and could base his findings on the observations made by the three arbitrators who were appointed prior to him. The Arbitrator was bound to make and publish his award, within the time mutually agreed to by 11 the parties, unless the parties consented to further enlargement of time. Therefore, the condition precedent for enlargement of time would depend only on the consent of the parties, that is to say, that if the parties agree for enlargement of time. If consent is not given by the parties, then the authority of the arbitrator would automatically cease to exist after the expiry of the time limit fixed. In the present case, the arbitrator had failed to publish the award within the time limit fixed by the parties, and hence, the High Court was justified in terminating the mandate of the arbitrator. We therefore do not find any fault with the impugned order of the High Court in this regard. From a perusal of the records, we can see that the respondent had filed an application to terminate the mandate of the arbitrator before the High Court almost after three months from the date of expiry of the time to publish the award although the appellant did not choose to file any application for enlargement of time for conclusion of the arbitration proceeding. It is obvious that the respondent could not have possibly known about the outcome of the award. Even after the expiry of the time as mentioned above, 12 the arbitrator did not make any effort to publish the award nor was anything conveyed on behalf of the appellant to the respondent for extending the time of the arbitrator to publish his award. It was a clear lapse on the part of both the arbitrators and the appellant who was well aware that the mandate of the arbitrator had already expired and it could only be extended by a mutual consent of the parties according to the arbitration agreement.

It has been correctly observed by the High Court that the arbitrator had become functus officio in the absence of extension of time beyond 30th of September, 2005 to make and publish the award. After the said date, the arbitrator had no authority to continue with the arbitration proceedings. The learned counsel appearing on behalf of the appellant argued that in the absence of any statutory period prescribed under the Act for rendering an award, the direction of the Court to conclude the arbitration proceedings within the time prescribed by it, would not make an award passed beyond the time so prescribed, null and void. He further argued that the High Court was wrong in not extending the time fixed by it in the order dated 20th of September, 2004, for early conclusion of the arbitration 13 proceedings and terminating the mandate of the arbitrator when neither the Act nor the arbitration agreement prescribed any time for making and publishing the award.

 

6. The learned counsel appearing on behalf of the appellant had M/s Chopra Land Developers Pvt. Ltd. & Anr. [AIR 2007 SC 1401] to satisfy us that the award which was passed after four months of entering upon reference does not ipso facto become nonest and the Court has power to extend time and give life to the vitiated award. So far as this decision is concerned, we may keep it on record that this decision was rendered under the Arbitration Act of 1940 and not under the present act with which we are only concerned. In view of our reasonings given hereinafter and in view of the facts involved in this case, we do not find any ground to rely on this decision of this Court for the purpose of this case. The other decision cited by the learned counsel for the appellant is the decision reported in General Manager, Department of Telecommunications, by LRs. And Others [2003 (9) SCC 662]. The learned counsel 14 particularly relied on para 8 of the said decision. We have carefully gone through para 8 of the decision relied on by the learned counsel for the appellants. We may not forget that we are concerned in this case with the Arbitration and Conciliation Act, 1996 and not under the Land Acquisition Act, 1894. Without going into the details of this decision, we may simply say that this decision cannot have any manner of application and the principles laid down to the facts and circumstances of the present case. The last decision, which was cited by the learned counsel for the appellant is the decision reported Ltd. and Another [2004 (1) SCC 540]. In our view, this decision also is of no help to the appellant. The principles laid down in the said decision cannot have any application in the present case although the decision rendered in this case is the decision under the Arbitration and Conciliation Act, 1996.

 

7. Taking into consideration the arguments of the appellant, it is necessary to mention here that the Court does not have any power to extend the time under the Act unlike Section 28 of the 1940 Act which had such a provision. The Court has therefore been denuded of the power to enlarge time for making and publishing an award. It is true 15 that apparently there is no provision under the Act for the Court to fix a time limit for the conclusion of an arbitration proceeding, but the Court can opt to do so in the exercise of its inherent power on the application of either party. Where however the Arbitration agreement itself provides the procedure for enlargement of time and the parties have taken recourse to it, and consented to the enlargement of time by the arbitrator, the Court cannot exercise its inherent power in extending the time fixed by the parties in the absence of the consent of either of them.

 

8. The counsel for the appellant further contended that the High Court could not have terminated the mandate of the arbitrator on the ground that the award was passed beyond the time limit fixed by it. It is clear from an apparent perusal of the judgment of the High Court and the records before us that the High Court had not terminated the mandate of the arbitrator on the ground that the arbitrator could not pass the award within the time fixed by it vide its order dated 20 th of September, 2004. In fact, the arbitrator had continued to proceed with the arbitration procedure after the time fixed by the Court had expired on account of the mutual consent of the parties to extend the time limit. Such an action was clearly warranted under the arbitration 16 agreement in force between the parties. On the contrary, the arbitrator had ceased to have any authority only after the time limit fixed by the parties had expired and the respondent did not give consent to the extension of the time for publishing the award. Thus, such a contention of the appellant cannot be accepted. The High Court had merely asserted this fact that the mandate of the arbitrator had automatically expired after the time fixed by the parties to the effect that it had lapsed.

 

9. The Appellant further argued that the High Court had failed to appreciate that the parties had undergone the process of arbitration for a long time and it was not wise to terminate the mandate of the arbitrator when the award was ready and fit to be published, considering the fact that a huge sum of money had been spent during the proceedings. Therefore, the High Court should not have ordered the appointment of a new arbitrator. It is to be noted that the High Court in its impugned judgment had ordered Shri A.K. Gupta to hand over the relevant materials relating to the proceedings to the newly appointed arbitrator. Thus, such an action would inherently make it clear for the newly appointed arbitrator to conduct the proceedings 17 and it is not required from him to start the proceedings from scratch all over again. Further, if the award was ready as had been contended by the appellant, it is baffling that even after three months from the expiry of the period fixed by the parties for publication of the award, the arbitrator had not come out with the award or had notified the respondent that the award was ready. It was only when the High Court restrained the arbitrator from coming out with any award in the dispute that the arbitrator submitted before the Court that the award was ready to be published. At the risk of repetition, we may once again note, that the Court has no inherent power to enlarge the time for publication of the award once it has not been extended by the parties to that effect.

 

10. The appellant further argued that the arbitrator having concluded the proceedings couldn't be said to have failed to act so as to attract the provisions of Section 14 of the Act and call for termination of the mandate of the arbitration. He had also contended that under Section 15 (2) of the Act, substitute arbitrator should be appointed according to the rules that were applicable to the appointment of the arbitrator. Accordingly, his contention was that the High Court had erred in holding that the appointing authority had not 18 appointed an arbitrator while terminating the mandate of the arbitrator in the same proceedings.

It is necessary to mention here Section 14 and Section 15 of the Act for the sake of convenience.

"Section 14: Failure or impossibility to act - (1) The mandate of an arbitrator shall terminate if- (a) He becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay;

and (b) He withdraws from his office or the parties agree to the termination of his mandate.

(2) If a controversy remains concerning any of the grounds referred to in clause (a) of subsection (1), a party may, unless otherwise agreed by the parties, apply to the court to decide on the termination of the mandate.

(3)If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply 19 acceptance of the validity of any ground referred to in this section or sub-section (3) of section 12."

"Section 15: Termination of mandate and substitution of arbitrator- (1) In addition to the circumstances referred to in section 13 or section 14, the mandate of an arbitrator shall terminate- (a) Where he withdraws from office for any reason; or (b) By or pursuant to agreement of the parties (2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.

(3)Unless otherwise agreed by the parties, where an arbitrator is replaced under subsection (2), any hearings previously held may be repeated at the discretion of the arbitral tribunal.

(4)Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalid solely because there has been a change in the composition of the arbitral tribunal."

20

11. With reference to the contention made by the appellant that the arbitrator having concluded the proceedings couldn't be said to have failed to act so as to attract the provisions of Section 14 of the Act, which will call for termination of the arbitration proceeding. It is pertinent to mention here that the arbitrator had not concluded the proceedings as had been agreed to by the parties within the time fixed for doing so. The mandate of the arbitrator was terminated only because of the fact that the arbitrator having failed to conclude his proceedings within time did not warrant to be continued as an arbitrator in the absence of the consent of both the parties. It is clear from a bare reading of sub section 1 (a) of section 14 of the Act, the mandate of an arbitrator shall terminate if he fails to act without undue delay. In the present case, it is clear that the arbitrator had extended the time provided to it without any concrete reasons whatsoever and thus his mandate was liable to be terminated. Sub section 1(b) further states that the mandate of an arbitrator shall also stand to be terminated if he withdraws from his office or the parties agree to the termination of his mandate. From the perusal of the records and the submissions of the parties, we observe that the mandate of the arbitrator was extended by an agreement between 21 the parties, which was not extended beyond 30th September, 2005.

Thus it can be construed that the parties had not agreed to the extension of the mandate of the arbitrator failing which, the mandate was automatically terminated.

 

12. Further, Subsection (2) of Section 14 of the Act stipulates that if a controversy remains concerning any of the grounds referred to under clause (a) of subsection 1, a party may, unless otherwise agreed to by the parties, apply to the Court to decide on the termination of the mandate. Thus the respondent rightly applied to the Court for the termination of the mandate of the arbitrator pursuant to the provisions of this section, and the Court was within its jurisdiction to decide accordingly.

 

13. However, the contention of the Appellant that the High Court had erred in not allowing the appellant to decide upon the appointment of an arbitrator pursuant to sub-section (2) of Section 15 of the Act must be accepted. Section 15 (2) of the Act provides that where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator replaced. In this connection, it would be appropriate to refer to the relevant portion of the impugned judgment 22 of the High Court, which gives an elaborate observation on the above-mentioned issue raised by the appellant:

"The question therefore is, whether in view of section 15 (2) of the 1996 Act, an independent arbitrator can be appointed by this Court as prayed for by the appellant or whether the appellant should once again invoke the Arbitration Clause, call upon the Chairman-cum- Managing Director of the respondent to appoint an arbitrator, wait for a further period of 30 days, to see whether the Chairman-cum-Managing Director acts or not and then make a request to the Hon'ble Chief Justice or his designate under Section 11(6) of the 1996 Act to appoint an arbitrator.

Arbitration is an informal, quick and easy alternative mode of adjudication of disputes by agreement of the parties. This Court cannot but take judicial notice of the fact that the Arbitration Clause was invoked way back in May 1996 and almost 10 years have expired since then.

The appointment of successive Arbitrator by the Chairman-cum-Managing Director of the respondent has only resulted in delay.

When the mandate of an arbitrator is terminated on the ground of delay, the rules applicable to the appointment of the arbitrator are to apply to the appointment of a new arbitrator. It would, however, be a mockery of justice, if every time the mandate of an arbitrator was terminated or the arbitrator resigned or otherwise became unable to proceed, the parties were to start from scratch, by invoking the Arbitration Clause.

Once the mandate of the arbitrator terminates, the person required to appoint arbitrator is required to fill up the vacancy with utmost expedition, failing which the provisions of section 11 (6) of the 1996 Act would be attracted. In the instant case, as per the Arbitration agreement the Chairman-cum-Managing Director was 23 required to appoint a new arbitrator in case the arbitrator became unable to continue, whatever be the reason.

Even thought the time limit for conclusion of arbitration expired on 30th September, 2005, the Chairman-cum- Managing Director of the respondent did not appoint another arbitrator."

 

14. We have carefully examined the aforesaid observations of the impugned judgment of the High Court. We are of the view that in view of a three-Judge Bench decision of this Court in the case of Northern Railway Administration, Ministry of Railway vs. Patel Engineering Company Ltd. [2008 (10) SCC 240] in which a decision of this Court in Ace Pipeline Contracts Private Limited vs. Bharat Petroleum Corporation Limited [(2007) 5 SCC 304] was also referred to, the application for appointment of an Arbitrator under Section 11 of the Act should be referred back to the High Court for fresh decision. Arijit Pasayat, (as His Lordship then was), heading a three-Judge Bench of this Court after considering the scope and object of the Act particularly Section 11 of the Act concluded the following :- "A bare reading of the scheme of Section 11 shows that the emphasis is on the terms of the agreement being adhered to and/or given effect as closely as possible. In other words, the Court may ask to do what has not been 24 done. The court must first ensure that the remedies provided for are exhausted. It is true as contended by Mr.

Desai, that it is not mandatory for the Chief Justice or any person or institution designated by him to appoint the named arbitrator or arbitrators. But at the same time, due regard has to be given to the qualifications required by the agreement and other considerations.

xxxxxxxxxxxxxx In all these cases at hand the High Court does not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other considerations necessary to secure the appointment of an independent and impartial arbitrator. It needs no reiteration that appointment of the arbitrator or arbitrators named in the arbitration agreement is not a must, but while making the appointment the twin requirements of Sub-section (8) of Section 11 have to be kept in view, considered and taken into account. If it is not done, the appointment becomes vulnerable. In the circumstances, we set aside the appointment made in each case, remit the matters to the High Court to make fresh appointments keeping in view the parameters indicated above."

In the aforesaid decision in the case of Northern Railway Administration (Supra), Arijit Pasayat, J. (as His Lordship then was), held that the High Court in the said case did not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other conditions necessary to secure the appointment of an independent and impartial arbitrator. In the aforesaid decision, this Court also concluded that since the 25 requirement of sub-section (8) of Section 11 was not at all dealt with by the High Court in its order, the appointment of an arbitrator without dealing with Sub-Section 8 of Section 11 of the Act became vulnerable and accordingly, such appointment must be set aside.

Similar is the position in this case. In this case also, before appointing an arbitrator under Section 11(6) of the Act, the High Court had failed to take into consideration the effect of Section 11(8) of the Act as was done in Northern Railway Administration (supra).

 

15. In view of the discussions made hereinabove and particularly, in view of the principles laid down by this Court in Northern Railway Administration (supra), we set aside the impugned order and remand the case back to the High Court for fresh decision of the application under Section 11(6) of the Act and while considering the application afresh, the High Court is directed to take into consideration the aforesaid decision of this Court.

16. The appeals are thus allowed to the extent indicate above.

There will be no order as to costs.

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

[Tarun Chatterjee] New Delhi; .........................J

.

SKYLINE EDUCATION INSTITUTE (PVT) LTD. v. S.L.VASWANI & ANR. [2010] INSC 6 (5 January 2010)

Judgement

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.1360-1361 OF 2005 Skyline Education Institute (India) ...Appellant Private Ltd.

Versus S.L. Vaswani and another ...Respondents With CIVIL APPEAL NO. 1362 OF 2005.

J U D G M E N T G.S. SINGHVI, J.

 

1. These appeals are directed against order dated 6.10.2004 passed by the Division Bench of Delhi High Court whereby it dismissed FAO(OS) No.212 of 2003 preferred by Skyline Education Institute (India) Private Limited (hereinafter referred to as `the appellant') against the order of the learned Single Judge who refused to restrain Satilila Charitable Society and S.L. Vaswani (hereinafter referred to as `the respondents') from using the name `Skyline' as a part of their trading name in relation to their activities in the field of education and/or as a trademark in relation to any printed matter, including the course material, literature, syllabus etc. and partly allowed FAO(OS) No.213 of 2003 preferred by the respondents insofar as the learned Single Judge directed them not to start any new course similar to the course run by the appellant, namely, graduate and post-graduate courses in Management, Travel and Tourism and further directed them to insert a note in the advertisement etc. that their institute is in no way related to the appellant.

2. The appellant is incorporated under the Companies Act.

Although, the appellant's main objects, as specified in para `A' of the Memorandum of Association, are to impart and train in all areas, subjects, fields and disciplines of education, including hospitality, tourism and business management; to act as representative of various foreign educational institutions, universities, organizations, bodies or any other type of institutions for recruiting students and rendering other related services; to establish and run in any part of India, colleges or schools to impart education on such terms and conditions as may be laid down by the Company from time to time but a closer look at the incidental or ancillary objects enumerated in para `B' and other objects enumerated in para `C' of the Memorandum of Association shows that the appellant can engage itself in all types of possible business activities.

 

3. Respondent No.1, Satilila Charitable Society is registered under the Societies Registration Act. It is said to be part of Skyline group of companies/concerns, the details of which are given below:

i) M/s. S.K. Contracts (P) Ltd. (a company started in 1986) ii) M/s. Skyline Construction Co. (a partnership firm started in 1990) iii) M/s. Skyline Constructions (a partnership firm started in 1993) iv) M/s. Skyline Construction Engineers & Builders Co. (a partnership firm started in 1999) v) M/s. Skyline Contractors (P) Ltd. (a company started in 1999) vi) M/s. Skyline Software (P) Ltd. (a company for imparting education in software started in 2001)

4. The main object of respondent No.1 is to establish colleges for higher technical education for various sections of the community. In November, 2001, respondent No.1 acquired 13 acres of land in the Institutional complex, Greater NOIDA, U.P. at a cost of Rs.5.25 crores for establishing a multi disciplinary college. Thereafter, the respondents obtained permission from All India Council for Technical Education (AICTE) and established an institution with the name Skyline Institute of Engineering and Technology. They also recruited teaching faculty, made admissions in 4 disciplines and started five-year engineering course with effect from 9.9.2002.

 

5. As soon as respondent No.1 issued an advertisement for recruiting teachers, the appellant got served notice dated 31.1.2002 upon the respondents and called upon them to stop using the word `Skyline' in the name of their institute by alleging that the same was affecting its goodwill. Some dialogue appears to have taken place between the functionaries of the appellant and respondent No.1 but without any tangible result. Therefore, the appellant filed Suit No.1553 of 2002 in Delhi High Court for grant of permanent injunction restraining the respondents herein, their officers, servants, agents, representatives, franchisees or any of them from using the name `Skyline' as part of their trading name in relation to the activities in the field of education and/or as a trademark in relation to any printed matter, literature, syllabus, etc. or in any other manner whatsoever. The appellant further prayed for award of damages to the tune of Rs.5,01,600/- and for issue of a direction to the respondents to give details of the profits earned by them by the alleged wrongful use of the name `Skyline' and deliver all printed material including syllabi, course materials, stationery, blocks, dies, etc. bearing the name `Skyline'.

 

6. In the plaint, the appellant averred that it was established in 1996 on the lines of the previously existing and highly successful Skyline College, Sharjaha, which was brain child of Mr. Kamal Puri, an eminent educationist, who set up first Skyline Institute in 1990 with the object of providing high quality graduate and post-graduate level professional education and training to the students. The appellant further averred that Skyline Business School was established in 1997 as its division with the object of imparting high quality education in the field of management at under-graduate and post-graduate levels and in a period of one decade it has acquired a substantial reputation and good will on account of highly qualified and dedicated faculty, the internationally competitive courses and scientific methodology of imparting education. The appellant claimed that it has affiliation with the University of Oxford, University of Lincolnshire and Humberside, U.K., National American University, USA and other bodies like International Air Transport Association, Travel Agents Association of India, Confederation of Indian Industry, Universal Federation of Travel Agents Association, etc.

and that these bodies have collaborated with the Skyline Business School for their requirement of trained personnel in the travel business. The appellant then averred that its four months diploma course and the Skyline Business School's three years' bachelor degree course in business administration have been advertised ever since their inception and the applications submitted by it in 1997 and 1998 for registration of trademarks, Skyline Institute, Skyline Medalist, Skyline Business School and Skyline Lead Faculty in class 16 inter alia for printed matter, literature, stationery, etc. are pending before the competent authority. The appellant referred to an advertisement issued by Skyline Institute of Engineering and Technology and pleaded that adoption of the name `Skyline' by the respondents has caused deception and confusion in the mind of the public necessitating filing of the suit for permanent injunction. The appellant also filed an application under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure (C.P.C.) for grant of temporary injunction restraining the respondents, their officers, etc. from using `Skyline' as a part of their trademark in relation to their activities in the field of education, etc.

 

7. In the written statement filed by them, the respondents pleaded that the appellant is running its institute illegally without obtaining permission from statutory bodies like AICTE, UGC, etc. and that it does not have affiliation with any University. According to the respondents, there is no connection between Skyline College based in UAE and the appellant's Skyline Business School and that the courses conducted by Skyline Business School are not approved by any competent body. The respondents gave the details of their activities and averred that Skyline Institute of Engineering and Technology was established to provide high quality education to the students in the field of technical education. The respondents asserted that the appellant cannot claim monopoly over the word `Skyline' which is a general word and is being used by as many as 32 companies operating in Delhi, 117 companies operating all over the country and worldwide there are thousands of institutes/institutions, companies, firms, etc.

which are using that word as part of their name. The respondents further pleaded that they were already running several companies/firms with the name Skyline and there is no possibility of deception and confusion among the students due to establishment of Skyline Institute of Engineering and Technology. Another plea taken by the respondents is that as per existing law no trademark can be granted in respect of educational services and, as such, the appellant does not have the locus standi to seek an order of injunction against them more so because Skyline Institute of Engineering and Technology was established in 2002 by spending more than Rs.20 crores and the students have already taken admission against 240 seats sanctioned by AICTE. The respondents also alleged that the appellant was operating from the premises of Laxman Public School, Hauz Khas pursuant to an agreement entered into by Shri Kamal Puri in the name of Skyline Express. The respondents also filed reply on similar lines to the application for temporary injunction.

Findings of the Learned Single Judge

8. After considering the pleadings of the parties and arguments of their counsel, the learned Single Judge opined that the word `Skyline' being neither an invented nor specific word, has to be considered a generic word more particularly when thousands of persons and institutions are using the same as a part of their trading name or business activities. The learned Single Judge held that even a prior user of the name `Skyline' by the plaintiff would not confer upon it an exclusive right to use that name to the exclusion of others and pendency of the applications for registration under the Trade Marks Act, 1999 is inconsequential. The learned Single Judge then took cognizance of the fact that while the appellant is neither approved by AICTE nor affiliated with any university, the respondents have already obtained the recognition/permission and affiliation from the concerned statutory bodies and have spent huge amount for establishing the institute and further that the first batch of the students is already undergoing five-years course and held that the appellant is not entitled to equitable and discretionary relief by way of temporary injunction. While rejecting the argument that use of the word `Skyline' by the respondents for the Institute of Engineering and Technology established by them will create confusion in the mind of the general public and the prospective students who want to pursue their studies in the field of engineering and technology, the learned Single Judge observed:

"In the opinion of this Court, merely by the use of the word "Skyline" as a prefix in the name of the two institutes, there is no likelihood of such a confusion because the full name of the plaintiff institute is "Skyline Education Institute (India) Pvt.

Ltd." while that of the defendant is "Skyline Institute of Engineering and Technology" used in defendant's name are sufficient to indicate to all concerned that the defendant is not the same institute as the plaintiff. In any case, care can be taken to clarify such a confusion, even if there is any likelihood of such a confusion."

 

9. Notwithstanding the above conclusion, the learned Single Judge partly allowed the application filed by the appellant. The operative portion of order dated 6.5.2003 passed by the learned Single Judge reads thus:- "In the result, the application is partly allowed and till the disposal of the suit, the defendants are hereby restrained from starting any new courses similar to the courses run by the Plaintiff viz. graduate and post- graduate education in management, travel and tourism.

The ex-parte ad-interim order dated 01.10.2002 is modified to the extent that the defendants will be free to make publicity/issue advertisements etc. in their existing name for any courses in technical/Engineering education provided the said advertisements contain a note to the effect that the institute of the defendants is not related to the Plaintiff's institute being run under the name of "Skyline Educational Institute (India) Pvt.

Ltd.", in any way."

 

10. The appellant and respondents challenged the order of the learned Single Judge by filing separate appeals. The Division Bench expressed its agreement with the learned Single Judge that the word `Skyline' is not a generic word but was an adoptive word and observed:

"We also find no force in the argument of the counsel for the respondent that the word `skyline' was not a generic word and was an adoptive word as far as education is concerned. A student who would like to go to an educational institution, he is not a lay customer. If a student likes to go to St. Stephens College in Delhi or want to go to Sri Ram College of Commerce or Hindu College, he will go to these colleges and not to other although there may be similarity of names of other colleges. When the learned single Judge came to the conclusion that there is no similarity in the name of two parties, appellant using the name `skyline' as a prefix with the institute of technology and engineering and the respondent using `skyline' business school', a student would not get any deception by both names. A very large number of institutes, firms and companies etc. are using the word `Skyline' as part of their name which fact has not been categorically denied by the respondent."

The Division Bench then observed that after having found that the appellant has failed to make out a prima facie case and that balance of convenience was not in its favour, the learned Single Judge was not justified in directing the respondents not to go ahead with the courses of BBA management and MBA management.

This is evinced from the following extracts of the order of the Division Bench:

"Normally once all the ingredients like prima facie case, balance of convenience, equity if not found in favour of grant of injunction, injunction in any form ought not to have been granted. At the same time, that does not mean that Court in order to do justice cannot mould the relief or can grant an injunction in terms not prayed for to do justice between the parties. The concept of grant of injunction also have to be seen in the light as to what would be the loss suffered on account of an injury by non-grant of such an injunction. The argument, which has been raised before us that it was basically respondents suit for grant of an injunction against the appellant from using the word Skyline. Having come to the conclusion that Skyline was a word which was used by a very large number of people in India and abroad and it was a generic word, we cannot appreciate as to how the learned Single Judge has granted an injunction against the appellant not to start courses in management. To say the least, the present litigation is to have more commerce in education and less education in commerce.

Private commercial houses by advertising fancy name of foreign universities lure students in this country. All this exercise is not in realm of imparting education but knowing fully well that in India the name of a foreign university is lucrative enough to get larger chunk of money from the pockets of the parents. What is the value of these degrees, whether they are permitted to do so or not, we will advert later. Here is a classic case of the respondent who got letters from the University of Lincolnshire and Humberside, UK both dated 17th October, 1996 which too was for a period of five years only with effect from 1st May, 1997. It as a certificate which the respondent was to given in travel and tourism. However, respondent started giving advertisements for education in BBA (Hons.) with specialization in marketing or tourism.

One such advertisement is at page 516 of the paper book.

It was contended before us by Mr. Singh that on 11 th March, 1998 they had also an arrangement of BBA Marketing programme from the said university. At this stage, we would not like to go to the question whether the respondent could have represented that they could offer courses in BBA Marketing or not, what is of relevant is even if we accept the argument of learned counsel for the respondent, they are `study centre' of a deemed university, Manipal Academy of Higher Education, that is also from the year 2003. The authorization to start courses came in the year 2003, although it was contended by the respondent that they have started courses from 2001. Was it justifiable on their part? Whether they could do so? Was there any legal bar? All are these issues which would be taken care of in the trial. Both the parties would be at liberty to lead evidence and argue the matter. At this stage, when the learned trial Judge has not entertained the plea of the respondent from prima facie case, balance of convenience and irreparable injury to respondent, restraining the appellant not to go ahead with their courses of BBA Management and MBA Management after due approval from AICTE in comparison to respondent being a `Study Center' only was without any basis."

 

11. Shri Sudhir Chandra, learned senior counsel appearing for the appellant argued that even though the word `Skyline' is being used by several companies, institutions and organizations, the same cannot be treated as a generic word and the contra concurrent finding recorded by the learned Single Judge and the Division Bench is legally unsustainable. Learned senior counsel submitted that though the appellant has not got registration under the Trade Marks Act, being prior user of the word `Skyline', it is entitled to an order of injunction against the use of that word by respondent No.1 as part of their educational activities and the learned Single Judge and Division Bench committed serious error by refusing to protect the appellant from illegal, unlawful and unauthorised use of the word `Skyline' by the respondents. Shri Sudhir Chandra pointed that the appellant is an affiliate of the University of Lincolnshire and Humberside, U.K. and an approved study center of Manipal University and argued that the High Court committed an error by declining the appellant's prayer to restrain the respondents from using the word `Skyline' with the Institute of Engineering and Technology established by them. Learned senior counsel emphasized that even an unregistered prior user can file an action for passing off and the High Court committed serious error by refusing relief to the appellant ignoring the fact that the respondents established the Institute of Engineering and Technology by prefixing the word `Skyline' with the sole object of encashing the goodwill generated by the appellant and its sister concern which is operating in UAE. In support of his arguments, the learned senior counsel relied upon the judgments of this Court in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories 1965 (1) SCR 737, Ruston & Hornsby Ltd. v. The Zaminidara Engineering Co. 1969 (2) SCC 727, N.R. Dongre and others v. Whirlpool Corporation and another 1996 (5) SCC 714 and Satyam Infoway Ltd. v. Sifynet Solutions (P) Ltd. 2004 (6) SCC 145.

 

12. Shri L.N. Rao, learned senior counsel for the respondents supported the impugned order to the extent the Division Bench rejected the appellant's prayer for restraining the respondents from prefixing the word `Skyline' with the Institute of Engineering and Technology established by them and argued that this Court may nullify the effect of the direction given by the learned Single Judge in its entirety. He submitted that the discretion exercised by the High Court in declining the appellant's prayer for injunction does not suffer from any legal error and this Court may not interfere with the impugned orders because the concurrent finding recorded by the learned Single Judge and Division Bench on the issue of prima facie case is based on correct appreciation of the factual matrix of the case and in any case, equity is not in favour of the grant of injunction in terms of the prayer made by the appellant.

13. We have thoughtfully considered the entire matter.

Before pronouncing upon the tenability or otherwise of the appellant's prayer for restraining the respondents from using the word `Skyline' for the Institute of Engineering and Technology established by them, we consider it necessary to observe that as the suit filed by the appellant is pending trial and issues raised by the parties are yet to be decided, the High Court rightly considered and decided the appellant's prayer for temporary injunction only on the basis of the undisputed facts and the material placed before the learned Single Judge and unless this Court comes to the conclusion that the discretion exercised by the High Court in refusing to entertain the appellant's prayer for temporary injunction is vitiated by an error apparent or perversity and manifest injustice has been done to it, there will be no warrant for exercise of power under Article 136 of the Constitution. In Wander Ltd. v. Antox India (P) Ltd 1990 (Supp.) SCC 727, this Court was called upon to determine the scope of appellate court's power to interfere with the discretion exercised by the court of first instance in granting or refusing the prayer for temporary injunction. The facts of that case were that in the suit filed by it, respondent-Antox India (P) Ltd. had prayed for restraining the appellant from using registered trade mark `Cal- De-Ce'. The learned Single Judge of the High Court refused to entertain the respondent's prayer but on reconsideration of the matter the Division Bench passed an order of injunction. This Court reversed the order of the Division Bench and observed:

"... In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion."

 

14. The proposition of law laid down in Wander Ltd. v. Antox India (P) Ltd (supra) was reiterated in N.R. Dongre v. Whirlpool Corporation (supra) in which this Court considered the correctness of an order of temporary injunction passed by the learned Single Judge of the Delhi High Court in a suit filed by the respondents to restrain defendants from manufacturing, selling, advertising or in any way using the trade mark `Whirlpool' or any other trade mark deceptively or confusingly similar to the trade mark `Whirlpool' in respect of their goods. The claim of the plaintiffs-respondents was based on prior user of the mark `Whirlpool'. After considering the rival pleadings and material placed before him, the learned Single Judge granted temporary injunction. The Division Bench confirmed that order and dismissed the appeal preferred by the appellant. This Court, declined to interfere with the discretion exercised by the learned Single Judge and Division Bench of the High Court and held:

"Injunction is a relief in equity and is based on equitable principles. On the above concurrent findings, the weight of equity at this stage is in favour of the plaintiffs and against the defendants. It has also to be borne in mind that a mark in the form of a word which is not a derivative of the product, points to the source of the product. The mark/name `WHIRLPOOL' is associated for long, much prior to the defendants' application in 1986 with the Whirlpool Corporation, Plaintiff 1. In view of the prior user of the mark by Plaintiff 1 and its trans- border reputation extending to India, the trade mark `WHIRLPOOL' gives an indication of the origin of the goods as emanating from or relating to the Whirlpool Corporation, Plaintiff 1. The High Court has recorded its satisfaction that use of the `WHIRLPOOL' mark by the defendants indicates prima facie an intention to pass off the defendants' washing machines as those of the plaintiffs or at least the likelihood of the buyers being confused or misled into that belief."

 

15. A somewhat similar view was expressed in Cadila Health Care Ltd. v. Cadila Pharmaceuticals 2001 (5) SCC 73.

 

16. The ratio of the above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity.

 

17. In the light of the above, we shall now consider whether the impugned order is vitiated by an error of law apparent on the face of the record or refusal of the High Court to grant injunction in terms of the prayer made by the appellant has resulted in manifest injustice. A little journey in the backdrop of the case shows that the only ground on which the appellant sought temporary injunction against the respondents was that the word `Skyline' is a specific/distinct word and being a prior user, it was entitled to seek a restraint against the respondents from using that word in the name of the Institute of Engineering and Technology established by them. The learned Single Judge, after examining the rival pleadings and material placed before him recorded a well reasoned finding that the appellant has failed to make out a prima facie case. The learned Single Judge opined that the word `Skyline' is a generic word because the same is being used by thousands of persons and institutions as part of their trading name or business activities. The learned Single Judge noted that while the plaintiff is neither approved by AICTE nor affiliated with any university, the respondents have obtained the requisite recognition and affiliation from the concerned statutory bodies and 240 students have already been admitted in the five years course and held that grant of injunction in terms of the prayer made by the appellant will be inequitable. The Division Bench independently considered the entire matter and expressed its agreement with the learned Single Judge that the appellant has failed to make out a prima facie case for grant of injunction.

The Division Bench also agreed with the learned Single Judge that the word `Skyline' was a generic word because it was being used by a large number of people in India and abroad. The Division Bench then held that after recording adverse findings on the issues of prima facie case, balance of convenience and equity, the learned Single Judge was not justified in directing the respondents not to undertake in courses in management, tour and travels, etc. and append a note in the advertisements that their institute has no concern, whatsoever with the appellant's institution.

Accordingly, the Division Bench substantially vacated the modified injunction order passed by the learned Single Judge.

 

18. In our opinion, the findings recorded by the learned Single Judge and Division Bench on the crucial factors like prima facie case, balance of convenience and equity are based on a correct and balanced consideration of various facets of the case and it is not possible to find any fault with the conclusions recorded by them that it is not a fit case for restraining the respondents from using the word `Skyline' in the name of the institute established by them. It has not been disputed on behalf of the appellant that the word `Skyline' is being used as trade name by various companies / organizations / business concerns and also for describing different types of institute/institutions.

The voluminous record produced by the respondents before this Court shows that in India as many as 117 companies including computer and software companies and institutions are operating by using word `Skyline' as part of their name/nomenclature. In United States of America, at least 10 educational/training institutions are operating with different names using `Skyline' as the first word. In United Kingdom also two such institutions are operating. In view of this, it is not possible to agree with the learned counsel for the appellant that the Skyline is not a generic word but is a specific word and his client has right to use that word to the exclusion of others.

 

19. There is another reason for declining the appellant's prayer for grant of temporary injunction. The appellant is shown to have started Skyline Business School in 1997 as one of its division but has conveniently not mentioned that it had started another institution under the aegis of Asian Educational Society housed in the same building where the appellant claims to have its registered office. After three years of starting Skyline Business School, the Director of the appellant vide his letter dated January 4, 2000 permitted the President, Asian Educational Society to use the trade mark Skyline Business School, name and the logo albeit without disclosing as to when Skyline Business School was registered under the Trademarks Act, 1999. Thereafter, Skyline Group's Asian Educational Society through its President, Shri Kamal Puri entered into an agreement dated 9.12.2001 with Manipal Academy of Higher Education (deemed university) for establishing a branch campus at Skyline Business School, Delhi. Sikkim Manipal University also approved Skyline Business School as a University Study Center for taking management programme under distance education despite the fact that the Skyline Business School is not recognized or approved by AICTE/UGC. In 1996, University of Oxford approved the appointment of a center in the premises of the appellant at Laxman Public School, Hauz Khas Enclave, New Delhi for Certification in Leisure Studies and in Travel and Tourism.

In 1997, Skyline Business School entered into a Memorandum of Cooperation with University of Lincolnshire and Humberside, U.K.

whereby the latter agreed to offer its BBA (Hons.) Tourism course through a center established at the appellant's campus. In large number of advertisements issued in the name of the appellant or Skyline Business School, it has not been made clear that they are neither approved nor recognized by any of the statutory bodies like, AICTE, UGC, etc. Of course, in some of advertisements, it has been mentioned that the degrees/diplomas purported to be awarded by the Skyline Business School are not recognized by Government of India, State Government, UGC/AICTE. All this lends sufficient credibility to the observations made by the Division Bench of the High Court that the present litigation is to have more commerce in education and less education in commerce and gives an impression that functioning of the appellant is shrouded in mystery and those seeking admission in the courses organised by it may find themselves in serious trouble at any given point of time because the degrees and diplomas awarded in the name of foreign universities are not recognised by statutory bodies/authorities in India.

 

20. Shri Sudhir Chandra may be right in his submission that even an unregistered prior user of a name can institute action for passing off and seek injunction against the subsequent user of the same name by proving that misrepresentation by the defendant to the public that the goods/services offered by him are that of the plaintiff and such misrepresentation has caused harm to the goodwill and reputation of the plaintiff or the plaintiff demonstrates that it has suffered loss due to such representation, but, in view of our conclusion that the appellant has failed to make out a case for interference with the discretion exercised by the High Court not to entertain its prayer for temporary injunction, we do not find any valid ground to entertain and accept the argument of the learned senior counsel. For the same reason, we do not consider it necessary to discuss the judgments on which reliance has been placed by Shri Sudhir Chandra.

 

21. Although, during the pendency of the suit, the appellant got registration of trade marks `Skyline MEDALLIST' under No. 795085 and `Skyline Institute' under No. 795086 in class 16 and its prayer for amendment of the plaint was granted by the High Court on 24.8.2006, but, that by itself, is not sufficient for entertaining the appellant's prayer for temporary injunction to restrain the respondents from using the word `Skyline' as part of the Institute of Engineering and Technology established by them.

 

22. We may now advert to C.A. No. 1362/2005. The respondents' grievance is that after having reached the conclusion that the learned Single Judge was not justified in restraining the respondents from starting new courses in business management, etc.

and directing them to append a note in the advertisement that they are in no way related to the appellant, the Division Bench should have set aside all the directions impugned before it. We find merit in the contention of the respondents. When the Division Bench found that the learned Single Judge ought not to have given direction restraining the respondents from starting new courses in business management etc. and directed them to append a note in the advertisement that they are not related to the appellant, then it should have set aside the order of the learned Single Judge in its entirety. The omission on the part of the Division Bench of the High Court to do so calls for a corrective action by this Court.

 

23. In the result, Civil Appeal Nos.1360-1361 of 2005 are dismissed and Civil Appeal No.1362 of 2005 is allowed and the modified injunction granted by the learned Single Judge is vacated in its entirety. The appellant shall pay Rs.50,000/- as cost of unwarranted litigation thrust upon the respondents.

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

[ Tarun Chatterjee ] ..........................J.

[ G.S. Singhvi ] ..........................J.

[ Dr. B.S. Chauhan ] New Delhi, January 05, 2010 ITEM NO.1A COURT NO.13 SECTION XIV

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CIVIL APPEAL NO(s). 1360-1361 OF 2005 SKYLINE EDUCATION INSTITUTE (PVT) LTD. Appellant (s) VERSUS S.L.VASWANI & ANR. Respondent(s) WITH Civil Appeal NO. 1362 of 2005
Date: 05/01/2010 These Appeals were called on for judgment today.

For Appellant in Mr. Hari Shankar K,Adv.

C.A. Nos.1360-1361/2009 & for Respondent in C.A. No.1362/2005 For Respondent in C.A. Nos.1360-1361/2009 & for Appellant in C.A.

No.1362/2005 Ms. Hetu Arora,Adv.

UPON hearing counsel the Court made the following O R D E R Hon'ble Mr. Justice G. S. Singhvi pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Tarun Chatterje, His Lordship and Hon'ble Dr. Justice B. S. Chauhan.

Civil Appeal Nos.1360-1361 of 2005 are dismissed and Civil Appeal No.1362 of 2005 is allowed and the modified injunction granted by the learned Single Judge is vacated in its entirety. The appellant shall pay Rs.50,000/- as cost of unwarranted litigation thrust upon the respondents.

SREE SWAYAM PRAKASH ASHRAMAM & ANR. v. G.ANANDAVALLY AMMA & ORS [2010] INSC 7 (5 January 2010)

Judgement

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7 OF 2010 (Arising out of SLP (C) No. 17235 of 2006) Sree Swayam Prakash Ashramam & Anr. ...Appellants VERSUS G. Anandavally Amma & Ors. ...Respondents

TARUN CHATTERJEE, J.

1. Delay condoned.

2. Leave granted.

 

3. This appeal is directed against the judgment and order dated 9th of May, 2006, passed in Second Appeal No.198 of 2000 of the High Court of Kerala at Ernakulam, by which the High Court had affirmed the concurrent findings of fact arrived at by the courts below in a suit for declaration of easement rights in respect of `B' Schedule property of the plaint as a pathway to the `A' Schedule property of the plaint.

2

4. It may be mentioned that during the pendency of the second appeal before the High Court of Kerala, the original plaintiff expired and his legal representatives were brought on record as substituted respondents before the High Court, who are respondents in this appeal. For the sake of convenience, the appellants herein would be referred to as `the defendants' as they were in the original suit for declaration of easement and permanent injunction filed by the original plaintiff, who is now represented by the respondents herein.

 

5. The case that was made out by the plaintiff (since deceased), in his plaint was as follows: Plaint A and B schedule properties originally formed part of a vast extent of properties which belonged to one Yogini Amma. During the life time of Yogini Amma, she was in enjoyment and management of the entire property for the benefit of the first defendant Ashramam. On her death, her brother and sole legal heir Krishna Pillai and other disciples executed a settlement deed dated 20th of June, 1948 as per the 3 directions of the deceased Yogini Amma. As per the settlement, the Schedule `A' property of the plaint was allotted to the original plaintiff (since deceased). Even thereafter, the original plaintiff (since deceased) continued to be in possession and enjoyment of the said properties effecting mutation and paying taxes. Even before the settlement deed was executed, during the life time of the said Yogini Amma, there is a building being `A' schedule property of the plaint that was in occupation of the original plaintiff (since deceased). There is a gate provided on the South Western portion of the `A' schedule property for ingress and egress to the same and `B' schedule property of the plaint which is a pathway extends up to the road on the West from the said gate. The said gate and `B' schedule pathway are as old as the building in `A' schedule property of the plaint. Other than `B' schedule pathway, there is no other means of direct or indirect access to `A' schedule property of the plaint from any road or pathway. The `B' schedule pathway of the plaint was granted to the original plaintiff (since deceased) as easement right by the said 4 Yogini Amma and the original plaintiff (since deceased) continued to use it as such from time immemorial. This pathway is situated within the property which is now under the control and use of the defendants. Defendant Nos. 2 to 4 tried to close down the gate on the South Western extremity of the B schedule pathway and were also attempting to change the nature and existence of the `B' schedule property of the plaint. An attempt in that direction was made on 21st of July, 1982. Original plaintiff (since deceased) apprehended that defendant nos. 2 to 4 might forcibly close down the pathway. Hence, he filed a suit for declaration of easement of necessity or of grant and permanent injunction restraining the defendants from obstructing the `B' schedule pathway and for other incidental reliefs.

 

6. The defendant No.1 was the Matathipadhi of the Ashramam; defendant Nos. 2 and 3 were its office bearers and defendant No.4 was only an inmate of the Ashramam.

Defendant Nos. 1 to 4 entered appearance and filed a joint 5 written statement praying for dismissal of the suit by making the following defence:

The suit was not maintainable. The descripttion of `A' schedule and `B' schedule properties was incorrect. The original plaintiff (since deceased) was attached to the institution from his childhood. In consideration of the love and affection Yogini Amma had towards the original plaintiff (since deceased), she wished to gift some portion of the property to him and in pursuance thereof, Ashramam represented by the then office bearers executed a settlement deed in respect of the properties. Original plaintiff (since deceased) was the 13th signatory in the said settlement deed.

There is a pathway provided in the settlement deed on the Eastern extremity of the Ashramam properties. There is yet another lane which comes along the Western side of the Ashramam property through which also the plaintiff has access to his property. It is incorrect to say that Plaint `B' schedule is meant as a pathway for ingress and egress to `A' schedule property and that other than `B' schedule property there is no other means of direct or indirect access to `A' 6 schedule property of the plaint. The further allegation that the pathway was granted by the said Yogini Amma to the original plaintiff (since deceased) and that he was using it from time immemorial was also not correct. Originally, there was a narrow pathway which was widened to accommodate traffic to the Ashramam. The present pathway came into existence only within the last 10 years. It can never be considered as an easement of necessity. Original plaintiff (since deceased) has no easmentary right to use the gate and the pathway and he was not entitled to the declaration or injunction prayed for.

Therefore, the suit in the circumstances must be dismissed with costs to the defendants.

 

7. The IInd Additional Munsif, Trivandrum, accordingly, framed the following issues which are as follows :

" 1) Is not the suit maintainable? 2) Whether the plaint schedule descripttion is correct? 3) Is there any pathway as Plaint B schedule? 4) Is the plaintiff entitled to easement right over plaint B schedule as pathway to Plaint A schedule? 5) Is the plaintiff entitled to the declaration as prayed for? 7 6) Whether the injunction prayed for is allowed? 7) Relief and costs."

 

8. After the parties adduced evidence in support of their respective cases and after hearing the parties, the IInd Additional Munsif, Trivandrum decreed the suit for declaration of easement right and for injunction filed by the original plaintiff (since deceased), holding inter alia that :- The court noted that the plaintiff had claimed easement of necessity as well as easement of grant. According to the plaintiff, during the lifetime of Yogini Amma itself, `B' schedule pathway had been given to him as an easement of grant, which had been in use from those days and even prior to the execution of the settlement deed. The deed does not refer to the existence of `B' schedule pathway for the plaintiff to access `A' schedule property. The defendants had alleged the existence of two alternative pathways leading to the `A' schedule property. However, the same was denied by the sole witness produced by the original plaintiff (since deceased). The 8 defendants could not lead any evidence to substantiate their claim that these pathways provide access to `A' schedule property. In a case where the original plaintiff was claiming easement right either as grant or as of necessity the plaintiff has only a primary burden to prove the absence of any alternate pathway. As the defendants have not proved the existence of any pathway for access to Plaint `A' schedule property the version of the plaintiff that there is no alternate pathway shall be accepted. According to the plaintiff, he had been residing in the building on `A' schedule property and had been using `B' schedule pathway from the year 1940. A trace of this pathway could be presumed to be in existence from the time when the Ashramam acquired the properties. As per the deed of settlement, there is a separation of tenements. At the time of its execution itself, the plaintiff could have had access to `A' schedule property only through `B' schedule pathway. As `B' schedule pathway was required for the reasonable and convenient use of the plaintiff's property and that on severance of the tenements, plaintiff can be presumed to have got a right over `B' schedule pathway by an implied grant and 9 also an easement of necessity. It is not on record that either Yogini Amma, or the defendants themselves until 1982 had obstructed this use of pathway. There is no reason to disbelieve the plaintiff's version that Yogini Amma had given `B' schedule pathway as grant for his use as he was a close relative of the former. There is an apparent and continuous use which is necessary for the enjoyment of the `A' schedule property within the meaning of Section 13(b) of the Indian Easements Act, 1882, and, therefore, the plaintiff is entitled to easement right in respect of the pathway. The defendants have not entered the witness box to disprove the evidence led by the plaintiff.

 

10. In these circumstances, it was clear that `B' schedule pathway was given to plaintiff as an easement of grant.

Defendants argued that no implied grant was pleaded in the plaint. However, it does not make a difference to the findings arrived at, as the plaintiff had pleaded easement of grant. The plaintiff's right to `B' schedule pathway does not affect the interest in the Ashramam property in any manner.

1 Since this issue was found in favour of the plaintiff, the relief of declaration and injunction was granted as prayed for.

 

11. Feeling aggrieved by the order of the IInd Additional Munsif, the defendants preferred an appeal before the IIIrd Additional District Judge, Thiruvananthapuram. The Appellate Court, by an order dated 6th of April, 1999, allowed the appeal partly. The issues framed by the Appellate Court were as follows:

1) Whether the Trial Court was justified in granting a decree for declaration in favour of the plaintiff? 2) Whether the finding of the Trial Court that plaintiff is entitled to the decree of permanent injunction is correct? 12.The Appellate Court found that on evidence, it was proved that there is an alternate way on the western side of the `A' schedule property. The plaintiff, however, asserted that there is a difference in level of 14 feet between the `A' 1 schedule property of the plaint and the property adjacent to it which is situated on the western side. However, the existence of an alternate pathway, howsoever inconvenient, will defeat the claim of easement of necessity. The necessity must be absolute and must be subsisting at the time when the plaintiff claims right of way by easement. In the light of these findings, the Appellate Court held that the claim of the plaintiff regarding the right of easement of necessity over the plaint `B' schedule pathway was not sustainable.

13.On the question of easement by grant, the Appellate Court was of the opinion that the plaintiff's claim in that respect stood proved. The plaintiff had acquaintance and association with the Ashramam and Yogini Amma from his childhood days as revealed from the oral and documentary evidence. Considering the location and nature of `B' schedule pathway, the location of two pillars at its inception and the gate from which it started, it could be seen that it had been in use by the plaintiff as a pathway.

The plaintiff had been residing in the house on `A' schedule property even prior to the deed of settlement. Therefore, the 1 Appellate Authority arrived at the conclusion that the plaintiff had obtained right of easement of grant from Yogini Amma over the `B' schedule pathway. An easement of grant is a matter of contract between the parties and it may have its own consideration. (B.B. Katiyar's Commentaries on Easements and Licenses, p. 762). It may be either express or even by necessary implication. Though easement of necessity will come to an end with the termination of necessity, easement acquired by grant cannot be extinguished on that ground as per section 13(b) of the Indian Easements Act, 1882. Therefore, even assuming that the plaintiff had an alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant in favour of the plaintiff.

Therefore, the Trial Court was justified in granting a relief of declaration of right of easement of grant over the `B' schedule pathway. However, the declaration granted on the ground of easement of necessity was not justified.

14.It was further held that the apprehension of the plaintiff on attempted obstruction of the `B' schedule pathway was 1 well-founded and, therefore, the Trial Court was justified in granting the relief of permanent injunction against the defendants.

 

15. Aggrieved by the order of the first Appellate Court, the defendants took a second appeal before the High Court of Kerala. The High Court, by its impugned judgment and order dated 9th of May, 2006, dismissed the appeal and affirmed the orders of the Trial Court and of the Appellate Court.

16.The issues that were raised for consideration of the High Court were as follows:

 

1. While Yogini Amma owned and held the entire land in both the schedules at that time of alleged grant, whether the finding of easement of grant is contrary to law of easement which enjoins the existence of two tenements?

2. Whether the appellate court was right in granting an easement of grant without specifying the nature and extent of easementary right and without restricting it to the right of footway, when the terms of the grant are not known? 1

3. Whether the appellate court was justified in granting a decree for declaration in favour of the plaintiff as regards the easementary right by way of grant? 17.The High Court limited itself to the issue whether the decree of the first appellate court granting the original plaintiff (since deceased) right of easement over `B' schedule property by way of grant concurring with the findings of the trial court was sustainable.

18.Before the High Court, the defendants pleaded that there had been no appeal or cross objection filed by the original plaintiff (since deceased) against the order of the Appellate Court which disallowed the claim of easement of necessity and, therefore, the finding that there existed no easement of necessity in favour of the original plaintiff (since deceased) over the `B' schedule property stood confirmed.

Further they contended that the alternative pathway on the western side of the `A' schedule property was rendered inconvenient by the very act of the original plaintiff (since deceased) who sold that portion of the property to a third 1 party who began digging that pathway resulting in the difference in level. The High Court, on consideration of these contentions, held that though the claim of right of easement by way of necessity over `B' Schedule property may be affected by the subsequent sale of the said plot by the plaintiff in 1983, the claim of right of easement by way of grant over `B' schedule property stood unaffected by the said conduct.

 

19. The very fact that the plaintiff was continuing to use the said pathway for access to `A' schedule property was an indication that there was implied grant of `B' schedule pathway of the plaint for access to the `A' schedule property even while `A' schedule property was separately allotted to him under settlement deed. Such implied grant is inferable also on account of the acquiescence of the defendants in the original plaintiff (since deceased) using `B' schedule as pathway till it was for the first time objected on 21st of July, 1982 as alleged by the original plaintiff (since deceased).

1 20.The High Court observed that the Courts below had concurrently found on a proper appreciation of the evidence adduced in the case that `B' schedule property of the plaint was being used as a pathway by the plaintiff ever after construction of the building in 1940 in `A' schedule property. The defendants did not dispute the case of the plaintiff that the plaintiff was in occupation of the building ever after its construction in 1940. The defendants were also not able to establish that the plaintiff was using any other pathway for access to `A' schedule property and the building therein which was in his occupation. The mere fact that there is no mention in settlement deed enabling the use of the `B' schedule pathway for access to `A' Schedule property and the building therein is no reason to hold that there is no grant as the grant could be by implication as well. The fact of the use of `B' schedule property as pathway ever after execution of settlement deed till 1982 by the plaintiff shows that there was an implied grant in favour of the plaintiff in relation to `B' schedule property for its use as 1 pathway to `A' schedule property of the plaint in residential occupation of the plaintiff.

21.The High Court relied on a number of observations in Katiyars Law of Easement and Licences (12th Edition) on law with respect to "implication of grant of an easement." It may arise upon severance of a tenement by its owner into parts. The acquisition of easement by prescripttion may be classified under the head of implied grant for all prescripttion presupposes a grant. All that is necessary to create the easement is a manifestation or an unequivocal intention on the part of the servient owner to that effect.

22.The High Court quoted with approval Katiyar's note to Section 8 of the Easement Act, which reads as follows:

"There are numerous cases in which an agreement to grant easement or some other rights has been inferred or more correctly has been imputed to the person who is in a position to make the grant, on account of some action or inaction on his part. These cases rest on the equitable doctrine of acquiescence, but they may be referred to, for the purpose of classification, as imputed or constructive grants. The party acquiescing is subsequently estopped from denying the existence of easement. It is as if such person had made an actual grant of the easement...

1 ...It is the intention of the grantor whether he can be presumed to have been intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A descripttion in a conveyance may connote an intention to create a right of easement.

An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances".

23.Applying these observations to the facts of the case, the High Court held that though the original grant was by Yogini Amma that grant could not perfect as an easement for the reason that Yogini Amma herself was the owner of both `A' schedule and `B' schedule properties and consequently there was no question of `B' schedule property becoming the servient tenement and `A' schedule property becoming the dominant tenement. However, it was the desire of Yogini Amma that was implemented by her disciples by virtue of the settlement deed. Therefore, the right of the plaintiff to have `B' schedule property as a pathway could not have been taken away by the very same deed. In fact, there was implied grant of `B' schedule 1 property as pathway as can be inferred from the circumstances, namely, i) no other pathway was provided for access to `A' schedule property in the settlement deed and ii) there was no objection to the use of `B' schedule as pathway.

24.Feeling aggrieved by the concurrent orders of the Courts below, the defendants/Appellants have filed the present special leave petition, which, on grant of leave, was heard in the presence of the learned counsel of the parties.

25.We have heard Mr. T.L. Viswanatha Iyer, learned senior counsel for the appellants and Mr. Subramanium Prasad, learned senior counsel for the respondents. We have carefully examined the impugned judgment of the courts below and also the pleadings, evidence and the materials already on record. It is not in dispute that the trial court as well as the First Appellate Court concurrently found on a proper appreciation of the evidence adduced in the case that the `B' Schedule Property of the plaint was being used by the original plaintiff (since deceased) and thereafter, by the respondents even after construction of the building in 2 1940 in `A' Schedule property of the plaint. The appellants also did not dispute the case of the original plaintiff (since deceased) that he was in continuous occupation of the building even after its construction in the year 1940. It is also not in dispute that the appellants were not able to establish that the original plaintiff (since deceased) was using any other pathway for access to `A' Schedule Property of the plaint and the building therein, which was in the occupation of the original plaintiff (since deceased). The case of the appellants that since there was no mention in the deed of settlement enabling the use of `B' schedule pathway for access to `A' schedule property and the building therein, cannot be the reason to hold that there was no grant as the grant could be by implication as well.

It is not in dispute that the fact of the use of the `B' schedule property as pathway even after execution of Exhibit A1, the settlement deed in the year 1982 by the original plaintiff (since deceased) would amply show that there was an implied grant in favour of the original plaintiff (since deceased) relating to `B' schedule property of the 2 plaint for its use as pathway to `A' schedule property of the plaint in residential occupation of the original plaintiff (since deceased). In the absence of any evidence being adduced by the appellants to substantiate their contention that the original plaintiff (since deceased) had an alternative pathway for access to the `A' schedule property, it is difficult to negative the contention of the respondent that since the original plaintiff (since deceased) has been continuously using the said pathway at least from the year 1940 the original plaintiff (since deceased) had acquired an easement right by way of an implied grant in respect of the `B' Schedule property of the plaint. It is an admitted position that both `A' schedule and `B' schedule properties of the plaint belonged to Yogini Amma and her disciples and it was the desire of Yogini Amma that was really implemented by the disciples under the settlement deed executed in favour of the original plaintiff (since deceased).

Therefore, the High Court was perfectly justified in holding that when it was the desire of Yogini Amma to grant easement right to the original plaintiff (since deceased) by 2 way of an implied grant, the right of the original plaintiff (since deceased) to have `B' schedule property of the plaint as a pathway could not have been taken away. In Annapurna Dutta vs. Santosh Kumar Sett & Ors. [AIR 1937 Cal.661], B.K.Mukherjee, as His Lordship then was observed :

"There could be no implied grant where the easements are not continuous and non-apparent.

Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a `formed road' existing over one part of the tenement for the apparent use of another portion or there is `some permanence in the adaptation of the tenement' from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement."

26.In our view, therefore, the High Court was also fully justified in holding that there was implied grant of `B' schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to `A' schedule property of the plaint and there was no objection also to the use of `B' schedule property of the plaint as pathway by the original 2 plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.

27.The learned counsel for the appellant raised an argument that since no case was made out by the plaintiffs/respondents in their plaint about the easementary right over the `B' Schedule Pathway by implied grant, no decree can be passed by the courts below basing their conclusion on implied grant. We have already noted the findings arrived at by the Trial Court, on consideration of pleadings and evidence on record on the right of easement over `B' Schedule pathway by implied grant. The Trial Court on consideration of the evidence of both the parties recorded the finding that there was no evidence on record to show that either Yogini Amma or the defendants themselves until 1982 had objected to the plaintiff's use of `B' schedule pathway to access `A' schedule property. The Trial Court on consideration of the plaintiff's evidence and when the defendant had failed to produce any evidence, had come to the conclusion that the plaintiff was given right of easement by Yogini Amma as an easement of grant.

2 Considering this aspect of the matter, although there is no specific issue on the question of implied grant, but as the parties have understood their case and for the purpose of proving and contesting implied grant had adduced evidence, the Trial Court and the High Court had come to the conclusion that the plaintiff had acquired a right of easement in respect of `B' schedule pathway by way of implied grant. Such being the position, we are not in a position to upset the findings of fact arrived at by the Courts below, in exercise of our powers under Article 136 of the Constitution of India. We also agree with the finding of the Trial Court that from the evidence and pleadings of the parties `B' schedule pathway was given to the plaintiff/respondent as an easement of grant. It is true that the defendant/appellant alleged that no implied grant was pleaded in the plaint. The Trial Court, in our view, was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. Accordingly, there is no substance in the argument raised by the 2 learned senior counsel for the appellants.

28.Since we have accepted the findings of the High Court as well as of the trial court on the question of implied grant, it would not be necessary for us to deal with the decisions on the easement of necessity which necessarily involves an absolute necessity. If there exists any other way, there can be no easement of necessity. Therefore, the decision of this Court in Justiniano Antao & Ors. vs. Smt. Bernadette B.Pereira [2005 (1) SCC 471] is clearly not applicable in view of our discussions made herein above. Similarly two other decisions referred to by the High Court in the impugned judgment need not be discussed because these decisions were rendered on the question of easement of necessity.

29.Such being the state of affairs and such being the findings accepted by the High Court in second appeal, it is not possible for this Court to interfere with such findings of fact arrived at by the High Court which affirmed the findings of the Courts below. No other point was raised by the learned senior counsel for the appellants.

2 30.In view of our discussions made hereinabove, we do not find any merit in this appeal. The appeal is thus dismissed. There will be no order as to costs.

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

[Tarun Chatterjee] New Delhi; .................................J.

STATE OF HARYANA & ORS. v. HEM LATA GUPTA & ORS. [2010] INSC 8 (5 January 2010)

Judgement

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4714 OF 2006 State of Haryana and others ...Appellants Versus Hem Lata Gupta and others ...Respondents With CIVIL APPEAL NO. 4715 OF 2006 CIVIL APPEAL NO. 4716 OF 2006 CIVIL APPEAL NO. 4717 OF 2006 CIVIL APPEAL NO. 4719 OF 2006 CIVIL APPEAL NO. 4720 OF 2006 CIVIL APPEAL NO. 4721 OF 2006

G.S. SINGHVI, J.

 

1. These appeals are directed against the orders of the Punjab and Haryana High Court whereby the alleged denial of advance increments to the writ petitioners (respondents herein) has been declared illegal and the appellants have been directed to grant them increments in terms of the instructions issued 2 by the Government of Punjab vide Memo No. 6462-ED-II(2)60/32640 dated 1.9.1960 and the Government of Haryana vide letter No.152-Edu-II-69/540 dated 5.1.1968.

 

2. The respondents joined service as teachers in different categories i.e., Lecturers, Masters/Mistresses, Language Teachers and Physical Training Instructors either in the undivided State of Punjab or the newly formed State of Haryana, which came into being with effect from 1.11.1966. Some of the respondents possessed post-graduate qualifications at the time of entry in the service while others claim to have acquired such qualifications after joining the service. Smt. Hem Lata Gupta and others filed Writ Petition No. 18638/1997 for issue of a mandamus to the concerned authorities of the Government of Haryana to give them benefit of 2/3 advance increments from the date of acquiring post-graduate qualifications in terms of Memo dated 1.9.1960 issued by the Government of Punjab. The same was disposed of by the High Court with a direction that representation dated 1.10.1997 submitted by the writ-petitioners be decided by the competent authority by passing a reasoned order. In compliance of the Court's directive, the Director of Secondary Education, Haryana (for short, `the Director'), passed order dated 30.7.1998 whereby he rejected the claim of the respondents on the ground that after fixation of their pay in the revised pay scales in terms of the policy contained in letter dated 5.1.1968 of the Government of Haryana, the teachers are not entitled to advance 3 increments in terms of Memo dated 1.9.1960 issued by the Government of Punjab. The Director also observed that the instructions issued by the Government of Punjab were applicable only to the Masters working in the grade of Rs.110/250 and were not applicable to other teachers like Junior Basic Teachers, Language Teachers, Art and Craft Teachers, Physical Training Instructors, Headmasters and Lecturers and, therefore, they cannot claim advance increments in terms of those instructions. For the sake of reference, the relevant portions of order dated 30.7.1998 are extracted below:- I. "That the petitioners were the members of Punjab Educational Service Class-III (School Cadre) Rules, 1955 and their conditions of service were governed by the provisions of the said rules. The pay has been defined in para 10 of the said rules as under:

 

10. Pay: Members of the service will be entitled to such scale of pay as may be authorized by the Govt. from time to time.

This rule clearly contemplates that members of the service like the petitioners will be entitled to such scale of pay as authorized by Govt. from time to time, meaning thereby, as soon as the pay scales of the employees are revised, the present pay scale attached with the post will be of no consequence.

II. That as per rule 10 of the said service rules the petitioners are entitled to such scales of pay as authorized by the govt.

from time to time. In Appendix A of the said rules the pay scales of Rs.110/250 with a higher start of 2/5 advance increments on acquiring of M.A./M.Sc. qualifications which was enforced at the time of framing of the said service rules was only provided for the post of Masters/Mistresses and not to other categories of teachers. The said scale of pay remained operative upto 30.11.1967 because after formation of the State of Haryana, the State Govt. vide letter dated 5.1.1968 had further revised the pay scale of the 4 Masters/Mistresses from Rs.110/250 to 220/400 w.e.f.

1.12.1967. and by virtue of the letter dated 5.1.1968 the earlier circulars regarding revision of pay scales issued by the either Governments stood automatically superseded.

Meaning thereby Masters/Mistresses who were earlier made eligible for the grant of benefit of advance increments in terms of the pay scales shown in Appendix A of the service rules 1955 and further supplemented as per joint Punjab Govt. letter No. 6382-Edu.III (2) 60/32640 dated 1.9.1960 become disentitled to the benefit of advance increments on acquiring Post Graduation qualifications after having been given revised pay scales w.e.f. 1.12.1967. In other words such Masters/Mistresses who got the Post Graduation qualification on or after 1.12.1967 and were appointed in the service or after 1.12.1967 are not eligible to get the benefit of higher start of 2/3 increments as such provisions did not exist in the Govt. letter dated 5.1.68 under which the grades were revised w.e.f. 1.12.1967. By virtue of the statutory sanction in rule 10 of the Punjab Educational Service Class- III (School Cadre) Rules, 1955 vide which the pay scales were subject to variation from time to time, the petitioners are not entitled to the advance increments as after revision of pay scales w.e.f. 1.12.1967 the pay scales shown in Appendix A in the said service rules 1965 and letter dated 23.7.57 did not remain in existence as the petitioners have either been appointed after 1.12.67 or acquired the M.A./M.Sc. qualifications after 1.12.67.

III. xxx xxx xxx IV. That after 1.12.67, the State Govt. had further revised the scales of pay of its employees including the petitioners w.e.f.

1.4.79 and 1.1.86 by framing rules under the proviso of Article 309 of the Constitution of India and these rules are known as Haryana Civil Services (Revised Pay) Rules, 1987 published on 29.2.80 and 29.4.87 respectively. At this time also as provision of grant of 2/3 advance increments on acquiring of M.A./M.Sc. qualification existed and as such the petitioners are not entitled to the benefit of advance increments on acquiring of M.A./M.Sc. qualification existed and as such the petitioners are not entitled to the benefit of advance increments on acquiring of M.A./M.Sc. qualification.

V. xxx xxx xxx 5 VI. That further mere look of the provisions of Appendix-A of the said rules 1955 and later on supplemented vide Punjab Govt., letter No.6482-Edu.III (2) 60/32640 dated 1.9.1960 would show that the benefit of 2/3 advance increments was only given to the category of Masters/Mistresses working in the grade of Rs.110/250 and not to the other categories of teachers like J.B.T., Maths, Sanskrit, Punjabi, Art & Craft teachers, P.T.I., Headmasters and Lecturers. Thus those petitioners who are working/appointed against the said posts are also not entitled to 2/3 advance increments on acquiring of M.A./M.Sc. qualification."

 

3. Respondents Smt. Hem Lata Gupta and 11 others challenged the aforementioned order in C.W.P. No. 17842/1998. They pleaded that in view of the instructions issued by the Government of Punjab vide Memo dated 1.9.1960, they are entitled to advance increments as of right and fixation of their pay in the revised pay scales with effect from 1.12.1967 cannot be made a ground for denying them the benefit of advance increments. In the counter affidavit filed before the High Court, the appellants pleaded that the respondents are not entitled to advance increments in terms of the instructions issued by the Government of Punjab because the same will be deemed to have been superseded with the revision of pay scales of various categories of teachers with effect from 1.12.1967.

 

4. By an order dated 8.1.2001, the Division Bench of the High Court allowed the writ petition and issued direction, which is under challenge in Civil Appeal No.

4714/2006. The Division Bench relied upon the judgments of this Court in 6 Wazir Singh v. State of Haryana 1995 (Supp) 3 SCC 697, State of Haryana v. Harbans Lal (2002) 10 SCC 125 and held that even though pay scales of the teaches were revised by the Government of Haryana, the earlier instructions were not superseded and, as such, the writ petitioners are entitled to the benefit of advance increments in terms of the policy decision contained in Government of Punjab Memo dated 1.9.1960. The Division Bench also noted that teachers employed in Kurukshetra District have been allowed personal pay equal to one increment in their respective grades for a period of 5 years and held that other teachers cannot be discriminated. The writ petitions filed by other respondents were likewise allowed and similar direction was issued for grant of advance increments to them.

 

5. Shri P.N. Misra, learned senior counsel appearing for the appellants argued that as a result of revision of pay scales of the teachers with effect from 1.12.1967, the policy contained in Government of Punjab Memo dated 1.9.1960 will be deemed to have been superseded and the High Court committed serious error by relying upon the said memo for issuing a mandamus for grant of advance increments to the respondents. Shri Misra referred to letters dated 5.1.1968, 20.6.1977 and 20.12.1982 issued by the Government of Haryana and argued that once the State Government took a conscious decision to revise the pay scales of teachers and grant them increments on fulfillment of the specified conditions, the instructions issued by the Government of Punjab could not be 7 invoked by the respondents for claiming benefit of advance increments. On the other hand, Shri Balbir Singh Gupta, learned counsel for the respondents argued that on acquiring higher qualifications, his clients became entitled to advance increments in terms of Memo dated 1.9.1960 issued by the Government of Punjab and they cannot be deprived of that right simply because the Government of Haryana decided to revise the pay scales with effect from 1.12.1967.

 

6. We have considered the respective submissions. In exercise of the powers conferred upon him by the proviso to Article 309 of the Constitution of India, the Governor of Punjab framed the Punjab Educational Service Class-III (School Cadre) Rules, 1955 (for short, "the 1955 Rules") for regulating recruitment and conditions of service of persons appointed to the Punjab Educational State Service, Class III, School Cadre. The same were notified on 30.5.1957. Rule 10 of the 1955 Rules lays down that members of the service will be entitled to such scale of pay as may be authorized by the Government from time to time. The scales of pay of different categories of teachers, which were in force at the relevant time, were specified in Appendix `A' annexed to the 1955 Rules. For the post of Headmasters, the prescribed pay scale was Rs.250-10- 350. For the post of Masters, the prescribed pay scale was Rs.250-10-300. For certain other categories of teachers, the pay scale was Rs.110-8-190/10-250 with a start of Rs.126 to those having the qualification of M.A./M.Sc./M.Ed. with third 8 division and Rs.150 to those possessing qualification of M.A./M.Sc./M.Ed. with second or first division. After two months, the Government of Punjab issued circular dated 23.7.1957 for revision of the scales of pay of certain posts including those of teachers. This was followed by Memo dated 1.9.1960 vide which the State Government sanctioned grant of advance increments to the Masters on their acquiring postgraduate qualifications. The relevant portions of Memo dated 1.9.1960 which constitutes the foundation of the respondents' claim for advance increments are reproduced below:

"Sanction of the Government of Punjab is accorded to the grant of advance increments to the Masters working in the Punjab Education Department, who improve/have improved their educational qualifications in the manner detailed below:- ---------------------------------------------------------------------------- Category of Nature of improved Extent of advance personnel qualifications increments ---------------------------------------------------------------------------- Masters (110-8-190/10-250) 2 increments MA/MSc./M.Ed.

(3rd Division) MA/M.Sc./M.Ed. 3 increments (1st/2nd Division)

2. The advantage will be enjoyed only once and not for doing any subsequent M.A. It will not be available to those who were given higher start of entry for being MA/M.Sc./M.Ed.

3. These orders will take effect from the date of issue.

The original date of increments shall remain unchanged and the persons concerned should be allowed to retain their old dates of increments."

9

7. Though not directly relevant to the issue raised in these appeals, we may make a mention of circular letter No. 961-4GS-62/5593 dated 16.2.1962 (this circular finds a mention in letter dated 20.12.1982 issued by the Government of Haryana), vide which the Government of Punjab decided to give advance increments/rapid promotions to officers going abroad to improve their qualifications. This was done with a view to ensure that the officers who improve their qualifications in foreign countries continue to serve the State.

 

8. The question of revision of pay scales of the teachers employed under the Government of Haryana was considered by the Education Commission which is also known as Kothari Commission. The recommendations made by that Commission were accepted by the President of India and were implemented by the State Government with effect from 1.12.1967. For this purpose, instructions were issued vide letter No. 152-Edu-II-69/540 dated 5.1.1968, the relevant paragraphs whereof are reproduced below:

I am directed to say that the matter concerning the revision of scales of pay of teaching personnel working in Govt. Schools in Haryana has been engaging the attention of Govt. for sometime past. After careful consideration, the President of India is pleased to accept the recommendations of the Education Commission popularly known "KOTHARI COMMISSION" and revise the scale of pay of Govt. teachers w.e.f. Ist December 1967 in the following manner:- Sr.No. Category of teachers Revised grade

1. J.B.T./J.S.T./J.A.V. & V i) Rs.125-5- 150/5-250 1 Teacher, Drawing Master, (for 85% of the Tailoring Mistresses, Art cadre) & Craft teachers, Domestic ii) Rs.250-10- Mistresses & Shastries 300 (for 15% of the Cadre) N.B. The untrained Teachers with Higher Secondary Matriculation qualifications will draw the starting of Rs.100/- mensum and they will be integrated in the regular pay of scales only after they obtain necessary profession qualification.

 

2. Masters/Mistresses i) Rs.220-8- (Trained Graduates) 300-10-400 (for 85% of the cadre) ii) Rs.400-20- 500 (for 15% of the cadre) N.B. I) The 1st & 2nd class graduates will be entitled to draw one advance increment in addition.

ii) The Untrained graduates will be allowed the starting salary of Rs.200/- per mensum and will be entitled for the regular scales of pay only after attaining the prescribed professional training.

 

3. Lecturers (Post Graduates) i) Rs.300-25- 450-25-600 (For Ist & 2nd class M.A.'s and M.Ed) ii) Rs.250-25- 450/25-550 (For 3rd class M.A.'s and M.Sc's) N.B. The Lecturers will be given one advance increment as soon as they attain professional training.

1 xxx xxx xxx"

 

9. After revision of the pay scales of various categories of teachers, the Government of Haryana issued instructions vide letters dated 26.7.1972, 26.11.1974 and 17.7.1975 for grant of monetary benefits in the form of personal pay to those Government servants who improved their qualifications by undertaking further studies within the country and abroad. In 1977, all the existing instructions were superseded and fresh instructions were issued on the subject vide letter No. 4718-2GS-II-77/17173 dated 20.6.1977, the relevant portions of which are reproduced below:

"Subject: Grant of personal pay to Govt. servants who improve their qualifications by further study within the country and abroad.

Sir, I am directed to refer to the instructions contained in this Department's letter No. 4857-GSII-72/28344 dated 26.9.1972, letter No. 6452-2GSII-74/28173 dated 26.11.1974 and letter No.

434-2GS-II 75/21469 dated 17.7.1975 on the subject noted above and to say that the Government has further considered the matter and in supersession of the aforesaid instructions, taken the following decisions:-

1. Personal pay shall be granted to all employees, who improve their qualifications after joining Govt. service, if the qualifications so acquired from a recognized University is/are higher than the minimum qualifications prescribed for the post on which they were recruited at the time of entry into Govt. Service, in accordance with the scales and conditions laid down in the succeeding paragraphs/sub-paragraphs:- (i) Personal pay admissible for acquiring each of the following qualifications shall be equal to the amount of increment(s) mentioned against each qualifications:- 1 (a) Diploma of at least one year duration One increment (b) Law degree or post graduate Two increments (c) Doctorate or Post Doctorate Four increments qualification Provided that the maximum benefit will not exceed the equivalent of four increments.

(ii) Govt. employees who have acquired the aforesaid qualifications after 26.9.1972 (i.e. whose result as declared on or after the said date) shall be eligible for the benefit of personal pay with effect from the date of declaration of the result of the examination concerned and those who had improved their educational qualifications before 26.9.1972 i.e. whose result was declared before the said date shall be eligible for the benefit of personal pay with effect from the date of issue of these instructions. In either of the two type of cases, thereto of increment for the purpose of calculating the amount of personal pay shall be taken to be the which was last drawn prior to the date of eligibility.

(iii) No benefit shall not be given for such of these qualifications as had already been acquired by the Govt. employee before joining Govt. service."

 

10. The decisions contained in letter dated 20.6.1977 and other related communications were withdrawn by the State Government vide letter dated 20.12.1982, which reads thus:

"No.14/38/82-2GS-II From The Chief Secretary to Government, Haryana.

To

1. All Heads of Departments, the Commissioners, Ambala and Hissar Divisions, all Deputy 1 Commissioners and Sub-Divisional Officer (Civil) in Haryana

2. The Registrar, Punjab and Haryana High Court, Chandigarh Dated, Chandigarh, the 20th December, 1982 Subject: Grant of personal pay to Government servants who improve their qualifications by further study within the country and abroad.

Sir, I am directed to refer to the instruction contained in Punjab Government No.961-4GS-62/5593, dated the 16th February, 1962, Haryana Government letter No.4718-2GS-II-77/17173, dated the 20th June, 1977, letter No.14/3/78-GS-II dated 26.7.78 and letter No. of even number dated the 23rd October, 1978 and letter No.14/18/78-GS-II, dated the 16th July, 1979, on the subject noted above and to say that the matter concerning grant of advance increments as personal pay to Government employees who improve their academic qualifications while in service has been under the consideration of the Government for some time. It has now been decided to discontinue the practice of giving advance increments to Government employees for acquiring higher qualifications and all the instructions issued on the subject as referred to above should be treated as withdrawn with immediate effect.

Yours faithfully Sd/- Joint Secretary General Admn.

For Chief Secretary to Government Haryana"

 

11. Having noticed the factual matrix of the case and various instructions issued by the Governments of Punjab and Haryana, we shall now consider whether the direction given by the High Court for grant of advance increments to 1 the respondents from the date of acquiring postgraduate qualifications is legally correct and justified.

 

12. A reading of rule 10 of the 1955 Rules and Appendix-A appended thereto shows that the pay scales prescribed for different categories of teachers prior to 30.5.1957 were made part of the Rules. After two years, the Government of Punjab issued instructions vide letter dated 23.7.1957 for grant of higher scales of pay to the teachers from the date of acquiring higher qualifications. By Memo dated 1.9.1960, sanction was accorded for grant of 2/3 advance increments to the Masters from the date of improving their educational qualifications.

However, it was made clear that the advantage of advance increments will not be available to those who were given higher start on account of possessing the postgraduate qualifications. This stipulation was incorporated in Memo dated 1.9.1960 because some of the teachers who possessed postgraduate qualifications were already given the benefit of additional increments by being allowed higher start in the prescribed pay scale. These instructions could be treated as having been issued by the Government of Punjab under rule 10 of the 1955 Rules. The teachers employed under the Government of Haryana got benefit of the policy decisions contained in letter dated 23.7.1957 and Memo dated 1.9.1960 till their pay scales were revised vide letter dated 5.1.1968.

1

13. The argument of the respondents, which found favour with the High Court that revision of the pay scales of teachers with effect from 1.12.1967 did not result in automatic supersession of the existing policy decisions sounds attractive in the first blush, but, on a deeper consideration, we are convinced that the said argument is fallacious and should have been rejected by the High Court . All the financial benefits including increments admissible to the teachers in terms of extant policy decisions must have been taken into consideration by Kothari Commission while recommending grant of revised pay scales. If this was not so, there could be no warrant for separately giving one advance increment to first and second class graduate Masters/Mistresses for whom revised pay scales of Rs.220-8-300-10-400 (for 85% of the cadre) and Rs.400-20-500 (for 15% of the cadre) were prescribed. Similarly, there was no justification to give one advance increment to the Lecturers on their attaining professional training.

Equally, there was no occasion for the State Government to give additional benefit by way of increments in the form of personal pay to the employees on improving qualifications after joining Govt. service. This being the position, we are convinced that the High Court was not right in holding that the decision taken by the President of India to accept the recommendations of Kothari Commission for revision of the pay scales of Government teachers and grant of revised pay scales to them with effect from 1.12.1967 did not have the effect of superseding the policy contained in Memo dated 1.9.1960.

1

14. In our view, the teachers employed under the Government of Haryana could claim benefit of the higher pay scales, advance increments etc. in terms of the policy decisions taken by the Government of undivided Punjab and instructions issued by it only till the revision of their pay scales, which were made effective from 1.12.1967 and not thereafter.

 

15. At this stage, we may usefully notice some of the judgments. In State of Punjab v. Kirpal Singh Bhatia (1975) 4 SCC 740, this Court was called upon to consider whether teachers were entitled to higher pay scales in terms of the policy contained in letter dated 23.7.1957. On behalf of the State of Punjab, it was argued that the policy decision taken by the Government was not intended to give benefit of higher scales of pay to all the teachers who acquired higher qualifications and before claiming higher post, the concerned teachers were required to be selected by the Board. While rejecting the argument, this court held as under:

"The High Court said that the contention of the State that the teachers could not be considered for promotion unless they satisfied the condition of subject combination namely, that if they were ordinary graduates with training qualifications, they must have studied two out of the four subjects, namely. History, Geography, Economics and Political Science is not supported by the letter dated November 7, 1958. The High Court rightly said that the letter does not speak of any limitation of subject combination for promotion.

Some of the teachers were from time to time promoted to the posts of masters but never continuously beyond a period of six 1 months. After completion of six months, there was a break to avoid continuity in service for the posts of masters beyond six months.

The State contended that the teachers could not be considered for promotion unless the Board were satisfied that the teachers if ordinary graduates with training qualifications must have also studied two out of four subjects of History, Geography, Economics and Political Science. The teachers on the other hand contended that once the State Government had taken a decision as embodied in the letter dated November 7, 1958, the policy of not allowing the teachers to continue beyond six months on temporary basis was nullifying the letter and spirit of the decision of the letter dated November 7, 1958. The teachers also contended that the promotion of teachers to masters is completely independent of any consideration like the combination of subjects. The High Court rightly held that letter dated November 7, 1958 was subject only to two limitations. One was that teachers could not claim more than one-fourth of the vacancies of the posts of masters and the other was that the claim by way of promotion would be considered by the appointing authority on the basis of seniority-cum-merit. The High Court rightly held that the letter dated November 7, 1958 was not subject to the condition of subjects combination being fulfilled.

There are three categories of teachers -- Science Masters, Mathematics Masters and Social Studies Masters. No condition of combination of subjects can be read into the letter of November 7, 1958."

 

16. In Chaman Lal v. State of Haryana (1987) 3 SCC 113, this Court recognized the entitlement of the teachers to get higher scales of pay from the date of acquiring higher qualifications in terms of the policy contained in letter dated 23.7.1957 issued by the Government of Punjab. The plea of the State Government that those teachers who acquired B.T. or B. Ed. after 1.12.1967 i.e.

the date on which the 1968 order came into force, and before 5.9.1979, would be entitled to higher grade only with effect from 5.9.1979 and those who acquired higher qualification after 5.9.1979 would not be entitled to the higher 1 grade was negatived only on the ground that 1968 order had not been brought to the notice of the Court in State of Punjab v. Kirpal Singh Bhatia (supra).

This is evident from the following portion of paragraph 2 of the judgment:

According to the judgment of the High Court under appeal, the 1968 order did away with the principle of the 1957 order that teachers acquired BT or BEd qualification should get the higher grade and that a concession was shown in 1979 enabling the teachers who acquired the BT or BEd qualification between 1968 and 1979 to get the higher scale from 1979. In our opinion this is plainly to ignore all the events that took place between 1957 and 1980. The principle that pay should be linked to qualification was accepted by the Punjab Government in 1957 and when Kirpal Singh Bhatia case1 was argued in the High Court and in the Supreme Court there was not the slightest whisper that the principle had been departed from in the 1968 order. In fact the 1968 order expressly stated that the Government had accepted the Kothari Commission's report in regard to scales of pay and as already pointed out by us the main feature of the Kothari Commission's report in regard to pay was the linking of pay to qualification. That was apparently the reason why no such argument was advanced in Kirpal Singh Bhatia case. Even subsequently when several writ petitions were disposed of by the High Court of Punjab and Haryana and when the Government issued consequential orders, it was never suggested that the 1968 order was a retraction from the principle of qualification linked pay. The 1968 order must be read in the light of the 1957 order and the report of the Kothari Commission which was accepted. If so read there can be no doubt that the Government never intended to retract from the principle that teachers acquiring the BT or BEd would be entitled to the higher grade with effect from the respective dates of their acquiring that qualification.

 

17. With respect, we find it difficult to appreciate as to how the so-called failure of the Government to bring the 1968 order to the notice of this Court in Kirpal Singh Bhatia's case was relevant for deciding the issue raised in Chaman Lal v. State of Haryana (supra). The facts of Kirpal Singh 1 Bhatia's case were that the respondents before this Court were employed as teachers in the former State of PEPSU. After merger of the State of PEPSU with the State of Punjab, the respondents claimed the revised scale of pay from the date of acquiring the degrees of B.T. or its equivalent in terms of the policy contained in letter dated 23.7.1957. They also claimed promotion to the post of Master. The High Court allowed the writ petitions filed by the respondents. The appeals preferred by the State were dismissed by this Court. Since letter dated 5.1.1968 issued by the Government of Haryana for giving effect to the decision taken by the President of India to accept the recommendations made by Kothari Commission for revision of the pay scales of the Government teachers had no bearing whatsoever on the claim of Kirpal Singh Bhatia and others, there was no occasion for the Government of Punjab to produce that letter before the High Court and/or this Court. We are sure, if the contents of letter dated 5.1.1968 are read in a correct perspective, interpretation thereof in Chaman Lal's case cannot be treated as correct. As per the recommendations of Kothari Commission, the revision of pay scales was linked with qualifications. This has been noted by the Court in Chaman Lal's case and yet the so-called omission on the Government's part to produce letter dated 5.1.1968 before this Court in Kirpal Singh Bhatia's case was made a ground for holding that notwithstanding revision of the pay scales of the teachers employed under the Government of Haryana, they would continue to get the benefit of the policy contained in letter dated 23.7.1957.

2

18. With a view to overcome the difficulties created by the judgment in Chaman Lal's case, the Government of Haryana issued instructions dated 9.3.1990 making explicit what was implicit in the instructions issued vide letter dated 5.1.1968 for implementation of the recommendations made by Kothari Commission. In Wazir Singh v. State of Haryana 1995 Supp. (3) SCC 697, this Court considered the question whether the teachers employed under the Government of Haryana are entitled to higher grade admissible to Masters with effect from the dates of their acquiring B.T./B.Ed. qualifications. The concerned teachers relied upon the policy contained in letter dated 23.7.1957 of the Government of Punjab, judgment in Chaman Lal's case and pleaded that the benefit of higher grade cannot be denied by the Government of Haryana despite the policy contained in Finance Department letter dated 9.3.1990. On behalf of the respondents, it was argued that the policy instructions contained in letter dated 23.7.1957 were superseded by the subsequent instructions issued on 9.3.1990. The Court extracted the observations made in Chaman Lal's case, referred to the policy contained in letter dated 9.3.1990 and held that once the Government altered the earlier policy, the judgment in Chaman Lal's case will have no application and the appellants who had not acquired B.T./B.Ed.

qualification before 9.3.1990 cannot claim the benefit of higher grade of pay automatically.

2

19. In State of Haryana v. Kamal Singh Saharawat (1999) 8 SCC 44, a somewhat similar issue was considered. The High Court had accepted the claim of the teachers that they are entitled to higher scales of pay according to qualifications irrespective of the post held by them. This Court noted that the recommendations made by Kothari Commission were accepted by the State Government and the pay scales of the teachers were revised vide letter dated 5.1.1968. The Court also took cognizance of the policy contained in letter dated 9.3.1990 issued by the Finance Department of the Government of Haryana and rejected the claim of the respondent-teachers that they are entitled to higher scales of pay applicable to the post of Lecturers on their acquiring post-graduate qualifications. Paragraphs 19, 20, 22 and 23 of the judgment which contain detailed consideration of the issue read as under:

 

19. With effect from 1-11-1966, the State of Haryana came into existence. Earlier there was an Education Commission popularly known as "the Kothari Commission" at the national level which made recommendations regarding further revision of pay scales of Teachers who were divided into several categories. The basis for classifications adopted by the Commission was academic qualifications. The recommendations of the Kothari Commission were mostly accepted by the State of Haryana. The pay scales of Teachers were revised and the decision of the Government was contained in Letter No. 152-Edu.II-68/540 dated 5-1-1968 from the Secretary to Government of Haryana, Education Department, Chandigarh to the Director of Public Instruction, Haryana, Chandigarh. The letter also fixed the percentage in which various incumbents were to be divided for purposes of higher scale or the lower scale as mentioned in the letter. Column II referred to the category of teachers and Column III set out the revised grades. Sl.

No. 1 pertains to JBT/JST/JAV etc. Sl. No. 2 pertains to Masters/Mistresses (trained graduates). Sl. No. 3 relates to Lecturers (postgraduates). The NB reads: "The Lecturers will be 2 given one advance increment as soon as they attain professional training." Sl. No. 4 refers to Headmasters/Headmistresses etc.

There is nothing in the said letter to show that the post of Lecturers was included in Appendix `A' to the Punjab Educational Service Rules or that it came to be governed by the said rules. The letter refers merely to revision of scales of pay and does not set out the method of recruitment or conditions of service. There is nothing in the letter to show that the categories of Teachers set out at Sl.

No. 1 and Sl. No. 2 were automatically entitled to become Lecturers or entitled to the scales of pay applicable to the Lecturers.

 

20. It may be mentioned here that there was an earlier letter issued by the Punjab Government on 29-7-1967 revising the pay scales of the teaching personnel of government schools in the State of Punjab w.e.f. 1-11-1966 after consideration of the recommendations made by the Kothari Commission. Though the said letter is not applicable to the Teachers in the present case, reference has been made to the same and reliance has been placed on a decision of this Court in which the said letter was considered.

We will advert to that decision later and it is unnecessary for us to dilate any further on the letter of the Punjab Government dated 29- 7-1967.

 

22. Insofar as the State of Haryana is concerned, one other letter has been placed before us by the counsel for the State Government viz. Letter No. 7/2(I)/90-4 FR-I dated, Chandigarh, 9-3-1990 sent by the Financial Commissioner & Secretary to Government of Haryana, Finance Department to the Commissioner & Secretary to Government of Haryana, Education Department. That letter makes a reference to the circular letter dated 23-7-1957 issued by the Punjab Government to which we have already adverted in detail.

The letter also makes reference to the subsequent letter dated 5-1- 1968 which has also been referred to by us earlier. Reference has been made to subsequent Notification No. GSR- 20/Const./Art/309/89 dated 29-2-1980 by virtue of which the letter dated 5-1-1968 stood inoperative automatically. It is seen from the said letter that the Haryana Government had revised the pay scales further under Notification No. GSR-20/Const./Art/309/87 dated 29- 4-1987 with effect from 1986. Ultimately, the letter clarifies that the teachers in the Education Department in the State of Haryana were not entitled to be placed in the higher scales of pay in terms of para 3 of the Punjab Government letter dated 23-7-1957 or any subsequent letter or notification issued by the Haryana Government 2 referred to therein which had become inoperative. The last sentence in para 6 of the letter reads as follows:

"The Masters/Teachers in the Education Department will be placed in the scales of pay of their respective categories to which they are appointed against the sanctioned posts and mere possessing/acquiring of higher qualifications will not entitle them automatically to claim higher pay scales."

 

23. Thus a perusal of the Educational Service Rules which have been prevailing from 1955 undergoing amendments from time to time and the subsequent government policy letters and circulars show that the Teachers are not entitled to higher scales of pay applicable to the posts of Lecturers automatically on their acquiring postgraduate qualifications or such qualifications as are prescribed for the post of Lecturers. We have already pointed out that the post of Lecturers has throughout been governed by different sets of rules and never by the Punjab Educational Service Class III School Cadre Rules, 1955 or the amendments thereto. Hence, the common question raised in these matters has to be answered in the negative against the Teachers/Masters/Mistresses some of whom are respondents in Civil Appeal No. 4304 of 1990 and the others being petitioners in SLPs and appellants in Civil Appeal No.

2104 of 1998.

 

20. The Court then considered various judgments rendered by this Court and the High Court including Kirpal Singh Bhatia's case, Gurpal Tuli v. State of Punjab 1984 Supp SCC 716, Punjab Higher Qualified Teachers' Union v.

State of Punjab (1988) 2 SCC 407, Baij Nath v. State of Punjab (1996) 8 SCC 516, Chaman Lal's case, Wazir Singh's case, State of Haryana v.

Ravi Bala (1997) 1 SCC 267 and concluded that on acquiring postgraduate qualification or qualifications prescribed for the post of Lecturers, teachers are not automatically entitled to the scales of pay of the Lecturers without being appointed as Lecturers in accordance with the rules.

2

21. In our view, the doubts and confusion created due to the judgment in Chaman Lal's case on the entitlement of the teachers to automatically get particular pay scale prescribed for higher post have been clarified by the judgments in Wazir Singh's case and Kamal Singh Saharawat's case and in view of the latter decisions, the respondents' claim for grant of advance increments in terms of Memo dated 1.9.1960 issued by the Government of Punjab cannot be accepted.

 

22. Before concluding, we consider it necessary to observe that while deciding the writ petitions filed by the respondents, the High Court neither adverted to the reasons assigned by the Director for rejecting the respondents' claim for advance increments nor any fault was found with order dated 30.7.1998. The High Court also failed to notice that the writ petitions were filed not only by the Masters/Mistresses, but also by other categories of teachers i.e., Lecturers, Language Teachers, Physical Training Instructors etc. who could not, by any stretch of imagination, lay claim for advance increments in terms of Memo dated 1.9.1960 issued by the Government of Punjab which was confined to the Masters only. Therefore, on this ground also the direction given by the High Court for grant of advance increments to the respondents cannot be sustained.

 

23. In the result, the appeals are allowed. The impugned orders are set aside and the writ petitions filed by the respondents before the High Court are 2 dismissed. However, it is made clear that this order shall not be made a ground to deny the benefit, if any, admissible to the respondents or any one of them in terms of the policy contained in letter dated 20.6.1977. Rather, the State Government and the concerned authorities should suo motu undertake appropriate exercise for grant of benefit of that policy to the respondents and other similarly situated persons, pass appropriate orders and pay monetary benefits to the concerned teachers within six months from the date of production/receipt of copy of this judgment. Needless to say that such benefit shall not be admissible to the teachers who may have improved their qualifications on or after 20.12.1982 i.e., the date on which the policy contained in letter dated 20.6.1977 was withdrawn.

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

(R.V. RAVEENDRAN) ...................................J.

(G.S. SINGHVI) New Delhi;

Dated: January 05, 2010.

STATE OF KARNATAKA & ANR v. G R NADAGOUDA (DEAD) BY LRS & ANR. [2010] INSC 9 (5 January 2010)

Judgement

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos.2547-2548 OF 1998 STATE OF KARNATAKA & ANR. ....APPELLANTS VERSUS GOPAL RAMACHANDRA NADAGOUDA (D) BY LRs. & ANR. ....

 

TARUN CHATTERJEE,J.

 

1. This is an old litigation carried on by the State of Karnataka and the dispute centers around a long history of sixty years. But it is unnecessary for this Court, as rightly pointed out by the High Court in the impugned Judgment, to recount the various developments and the manner in which the present position has arisen as now it is confined within a very narrow ambit. From the arguments advanced by Mr. Sanjay R. Hegde, learned 1 counsel appearing on behalf of State of Karnataka, the appellant herein, we only need to consider the penultimate directions in the impugned order.

Accordingly, for the proper disposal of the present appeals, that portion of the impugned Judgment of the High Court may be reproduced as under :- "The State authorities are accordingly directed to deposit the amount in question in the trial Court within an outer limit of three months from today. The petitioners would undoubtedly be required to pay the requisite court fees on the amount in question, but the trial Court will have to take note of the fact that under normal circumstances, the Court fee is payable on the date when the suit is filed or in those of the cases, where for any reason, the Court fee is directed to be paid when the decree is passed, then, it is these two dates that have been taken into consideration. In this case, the suit was filed in the year 1955, the decree came to be passed in the year 1957 and it is therefore, on the basis of Court fees that would have been payable as on that date, that the petitioners would be liable. The Trial Court shall accordingly this factor into account. It shall be open to the petitioners to either tender the Court fee separately or to pray to the trial Court to adjust the same while 2 releasing the payments to them. It is made clear however, that if the State commits any default in depositing the amounts within the prescribed period of time, which I have deliberately kept sufficiently long, that in the event of any such default, the State shall be liable to pay interest quantified at the rate of 15% p.a. to the petitioners from the date of this order namely, 15.11.1996 upto the date on which the amount is actually tendered in Court." (Emphasis supplied)

2. Before us, the only submission that was raised by Mr. Sanjay R. Hegde, learned counsel appearing for the State of Karnataka is whether the judgment of the High Court directing the State to pay interest at the rate of 15 per cent per annum to the respondents from the date of its order i.e. 15th of November, 1996 up to the date on which the amount was actually tendered in the Court, was justified.

 

3. In view of the aforesaid stand taken by the learned counsel appearing for the 3 appellants, we need not go into the facts of these appeals in detail nor are we concerned with any other ground except the ground mentioned earlier.

On behalf of the appellants, Mr. Hegde contended that in view of the nature of the claim and in view of the fact that the State of Karnataka had diligently pursued these litigations all through, it was improper on the part of the High Court to hold that the State was liable to pay interest at the rate of 15% P.A. as the said rate of interest if accepted and if the State is directed to pay it to the respondents, would have the effect of nearly tripling the decretal amount. Accordingly, it was submitted that the rate of interest may be modified to 6% P.A.

 

4. On the question of rate of interest, we have also heard Mr. S.K. Kulkarni, learned counsel appearing for the respondents, who duly contested the submission of Mr. Hegde. According 4 to him, the High Court in its discretion was fully justified in granting interest at the rate of 15% P.A. from the date mentioned in the impugned judgment. It was further submitted by Mr.

Kulkarni, learned counsel appearing on behalf of the respondent, that the entire litigation carried on by the State against the respondent was fictitious and therefore, it was justified for the High Court to award interest at the rate mentioned above. Mr. Kulkarni further submitted that in view of the admitted facts of the present case, the question of reducing the interest from 15% to 6% does not arise at all. Accordingly, he submitted that the appeals shall be dismissed with exemplary costs in favour of the respondents.

 

5. Having heard the learned counsel appearing for the parties and after going through the impugned judgment and the directions to the State to pay interest at the rate of 15% P.A.

5 w.e.f. 15th of November, 1996, we are of the view that the impugned judgment of the High Court may be modified to the extent that the respondents be paid interest at the rate of 10 per cent per annum and not 15 per cent from the date mentioned in the impugned judgment of the High Court. Accordingly, we dispose of these appeals with the above modification and we further direct that in the event, the amount, as directed above, is not paid by the State within six months from the date of supply of a copy of this order to it by the respondents, the State shall be liable to pay interest at the rate of 15 per cent per annum as directed by the High Court.

 

6. With this modification, these appeals are disposed of with no order as to costs.

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

[TARUN CHATTERJEE] 6 NEW DELHI ..................J.

ASSISTANT COMMERCIAL TAXES OFFICER v. M/S WIPRO LTD. [2010] INSC 100 (5 January 2010)

Judgement

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.16 OF 2010 (Arising out of S.L.P. (C) No.3329 of 2008) Assistant Commercial Taxes Officer ...Appellant(s) Versus M/s. WIPRO Limited ...Respondent(s) O R D E R Leave granted.

None appears for the respondent, though served.

The impugned order has been passed without considering the two judgements of this Court in the cases of Guljag Industries vs. Commercial Taxes Officer, reported in 2007 (7) S.C.C.269 and Assistant Commercial Taxes Officer vs. Bajaj Electricals Limited, reported in 2009 (1) S.C.C. 308. In the circumstances, impugned order is set aside and the matter is remitted to the High Court for de novo consideration in the light of the afore-stated judgements of this Court.

The civil appeal, accordingly, stands disposed of.

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

[S.H. KAPADIA] ......................J.

[AFTAB ALAM] New Delhi, January 05, 2010.

 

ASSTT.COMMNR. TAXES OFFICER, BHARATPUR v. KANTA PRASAD SHARMA [2010] INSC 101 (5 January 2010)

Judgement

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.15 OF 2010 (Arising out of S.L.P. (C) No.8253 of 2008) Assistant Comm. Taxes Officer, Bharatpur ...Appellant(s) Versus Kanta Prasad Sharma ...Respondent(s) O R D E R Leave granted.

None appears for the respondent, though served.

The impugned order has been passed without considering the two judgements of this Court in the cases of Guljag Industries vs. Commercial Taxes Officer, reported in 2007 (7) S.C.C.269 and Assistant Commercial Taxes Officer vs. Bajaj Electricals Limited, reported in 2009 (1) S.C.C. 308. In the circumstances, impugned order is set aside and the matter is remitted to the High Court for de novo consideration in the light of the afore-stated judgements of this Court.

The civil appeal, accordingly, stands disposed of.

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

[S.H. KAPADIA] ......................J.

[AFTAB ALAM] New Delhi, January 05, 2010.