ivil Appeal Nos
1909 10 of 1989
From the Judgment and Order dated 241987 of the Del hi High Court in CCP Nos 82 and 176 of 1986
WITH CIVIL APPEAL NO
19 11 OF 1989
From the Judgment and Order dated 241987 of the Del hi High Court in CCP No 82 of 1986 in CW No 44 of 1975 
K Parasaran Attorney General KK Venugopal F section Nariman Gopal Subramaniam CVS Rao P Parmeshwara n CS Vaidyanathan SR Bhat SR Setia GD Gupta Ash ok K Mahajan and section Ravinder Bhat for the appearing parties
The Judgment of the Court was delivered by DUTT J
Special leave granted in all these matter section Heard learned Counsel for the parties
The dispute between the direct recruits and the Emergency 16 Commissioned Officers ECOs in the Central Reserve Poli ce Force CRPF over the question of seniority has been goi ng on for a long time
The Delhi High Court has ultimatel y held in favour of the ECOs and by the impugned judgment t he High Court has directed the implementation of its decisi on regarding seniority and grant of consequential benefits to the ECOs
As per the judgment of the High Court the 37 dire ct recruits who are now holding the posts of Commandants th at is to say 22 as Commandants Selection Grade and 15 as Commandants NonSelection Grade by virtue of the upgrad a tion of 88 posts of Commandants Non Selection Grade wi ll have to be reverted
The direct recruits feel aggrieved by the impugned judgment of the High Court and it is contend ed on their behalf that as they were not parties in the co n tempt proceedings in which the impugned judgment of the Hi gh Court has been passed it is not binding on them and th at the matter should be remanded to the High Court so as to give them an opportunity of being heard
If these conte n tions of the direct recruits are accepted there will be further delay
It may be mentioned that this is the second time th at the matter has come to this Court
It is the desire of t he parties that the dispute should be amicably settled an d pursuant to that desire the parties including the Union of India had from time to time given their respective sugge s tions regarding the terms of settlement
Unfortunately t he suggestions or the proposed terms of settlement were n ot accepted by one party or the other
The terms that we re suggested by the Union of India were not acceptable to t he ECOs and those of the ECOs were not acceptable to the dire ct recruits
It is gratifying to state that at the last heating bo th the direct recruits and the ECOs came with an agreed ter ms of settlement
The hearing was adjourned so as to enable t he Union of India to consider the terms of settlement as agre ed to by the direct recruits and the ECOs
Mr Gopal Subramaniam the learned Counsel appearing on behalf of the Union of India states that although the Uni on of India is also of the view that the dispute between t he parties should be resolved amicably yet the said agre ed terms of settlement were not acceptable to it and it has in lieu of the same made two alternative suggestions for se t tlement
Copies of the alternative suggestions have be en produced before us by Mr Subramaniam
Neither of the alte r na 17 tive suggestions is however acceptable to the ECOs
We have considered the respective terms of settlement as put forward by the parties including the said two altern a tive suggestions
CRPF is a sensitive police force and the re should not be any dispute and differences among the membe rs of such force
It is the duty of the Government to mainta in peace and harmony in the force by trying to resolve a ny dispute among the members of the force in public interest
After considering the facts and circumstances of t he case including the impugned judgment of the High Court a nd the terms of settlement as agreed to by the direct recrui ts and the ECOs and also the alternative suggestions of t he Union of India we are of the view that the terms of settl e ment as agreed to by the direct recruits and the ECO s appear to be fair and reasonable and do not involve a ny additional financial liability of the Union of India f or placing the 35 ECOs in the posts of Commandants Selecti on Grade with effect from the date they were promoted as Commandants Non Selection Grade as provided in the agre ed terms of settlement
On an examination of the two altern a tive suggestions made on behalf of the Union of India we are of the view that they do not redress the grievances of the ECOs
In our opinion while it may be desirable that t he present position of the direct recruits should be protecte d the giving of such protection should not be to the prejudi ce of the ECOs
In the circumstances in order to establish peace a nd amity between the contending parties and for ends of ju s tice we direct that in modification of the impugned jud g ment of the High Court the appeals be disposed of in a c cordance with the terms of settlement as agreed to by t he direct recruits and the ECOs as follows 1
The Union of India shall withdraw the order viz ord er No F21O86 Estt CRPF PP IV dated 1861986 with immed i ate effect
The order providing for upgradation of 88 pos ts of Assistant Commandant 2nd in command to the post of Commandants Non Selection Grade shall thus stand rescin d ed
The DPC 1986 and all consequential orders regardi ng promotion against upgraded posts shall also stand revoked
To protect the 37 direct recruits who were holdi ng posts of Commandants the Union of India shall create 37 supernumerary posts of Commandants 22 as Commandant Selec 18 tion Grade and 15 as Commandant Non Selection Grade whi ch shall be held by the 37 direct recruits who were holding t he said posts on the date of judgment dated 291985 passed by the High Court of Delhi
The vacancies of 13 posts occurring in the year 19 86 of Commandant Non Selection Grade shall be filled afre sh by means of a DPC
The DPC shall make promotions in accordance with rules and shall operate upon the revis ed seniority list prepared by the Department pursuant to t he judgment of the High Court dated 291985 affirmed by th is Court on 2111986
The subsequent vacancies in the years 1987 and 19 88 for the posts of Commandants Non Selection Grade shall be filled in accordance with rules and the promotions shall be made through DPC in accordance with lawRules
The Union of India shall review the DPC of 1985 f or the posts of Commandants and such review shall be complet ed as early as possible
Further 35 ECOs who have already been promoted as Commandant Non Selection Grade till today will hold t he posts of Commandant Selection Grade from the date th ey were promoted as Commandant Non Selection Grade with t he condition that they will not be paid any salary for the po st of Commandant Selection Grade till their turn comes f or promotion to Commandant Selection Grade against regul ar vacancies as per the seniority list
Each party to bear hisits own costs
YL Appeals di s posed of


Summary:
The respondent filed a suit in the Court of Civil Judge praying that he be declared the sole and real owner of the suit house and that the appellant be permanently restrained from transferring the suit house
The trial court decreed the suit accordingly
The appellant filed an appeal before the Additional District Judge who dismissed the same agreeing with the findings of the trial court that the respondent had paid the price and purchased the house benami in the name of the appellant and therefore the appellant had no right to create an equitable mortgage or to transfer the suit house
The appellant s second appeal was also dismissed by the High Court
Hence the appeal by special leave by the appellant
During the pendency of the appeal the 622 Benami Transactions Prohibition Act 1988 came into force
It was contended on behalf of the appellant that the respondent and the appellant had been living as man and wife and out of affection for the appellant the respondent had purchased the suit house in the appellant s name for Rs8000 for which the appellant had contributed Rs2000 and therefore the courts below had erred in holding that the suit house was not gifted by the respondent to the appellant but was held benami in her name and that even if it was so held benami the subsequent legislation namely the Benami Transactions Prohibition Act 1988 had put a complete bar to the respondent s suit against the appellants in respect of the suit house
On behalf of the respondent it was submitted that the issues on gift and benami have been concluded by concurrent findings of fact of the courts below and that the respond ent s right to the benami suit house having already become final it would not be affected by the subsequent Act
On the questions a whether the concurrent findings of fact of the courts below should be interfered with or not b whether despite the decree in favour of the respondent the suit or action would be affected by the subsequent legislation namely the Benami Transactions Prohibition Act 1988 and its predecessor Ordinance c whether on a proper construction the legislature may be said to have expressed its intention of retrospective applicability of the legislation and d whether there was a suit present between the respondent and the appellant on the date of the law coming into force Allowing the appeal this Court HELD 11 A retrospective operation is not to be given to a statute so as the impair existing right or obligation otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment
The presumption against retro spective operation is strong in cases in which the statute if operated retrospectively would prejudicially affect vested rights or the illegality of the past transactions or impair contracts or impose new duty or attach new disability in respect of past transactions or consideration already passed
However a statute is not properly called a retro spective statute because a part of the requisites for its action is drawn from a time antecedent to its passing
633H 634A C 623 12 Every law that takes away or impairs rights vested agreeably to existing laws is retrospective and is general ly unjust and may be oppressive
But laws made justly and for the benefit of individuals and the community as a whole may relate to time antecedent to their commencement
The presumption against retrospectivity may in such cases be rebutted by necessary implication from the language employed in the statute
It cannot be said to be an invariable rule that a statute could not be retrospective unless so ex pressed in the very terms of the section which has to be construed
The question is whether on a proper construction the legislature may be said to have so expressed its inten tion
634C E 13 Before applying a statute retrospectively the court has to be satisfied that the statute is in fact retrospec tive
The Courts must also look at the general scope and purview of the statute and at the remedy sought to be ap plied and consider what was the former state of law and what the legislation contemplated
634A B Craise on Statute Law 7th ed
referred to
14 Where a particular enactment or amendment is the result of the recommendation of the Law Commission of India it may be permissible to refer to the relevant report
What importance can be given to it will depend on the facts and circumstances of the case
However the court has to inter pret the language used in the Act and when the language is clear and unambiguous it must be given effect to
Law Commission s Report may be referred to as external aid to construction of the provisions
631C 633D Santa Singh vs State of Punjab 1977 1 SCR 229referred to
In the instant case the Law Commission was of the view that the legislation replacing the Benanti Transactions Prohibition of Right to Recover Property Ordinance 1988 should be retroactive in operation and that no locus peni tentia need be given to the persons who had entered in the benami transactions in the past
633B 21 When an Act is declaratory in nature the presump tion against retrospectivity is not applicable
Acts of this kind only declare
A statute in effect declaring the benami transactions to be unenforceable belongs to this type
636A B 22 The Parliament has jurisdiction to pass a declaratory legisla 624 tion
As a result of the provisions of the Benami Transac tions Prohibition Act 1988 all properties held benami at the moment of the Act coming into force may be affected irrespective of their beginning duration and origin
This will be so even if the legislation is not retrospective but only retroactive
633E F 23 The expression any property held benami in section 4 of the Act is not limited to any particular time date or duration
Once the property iS found to have been held benami no suit claim or action to enforce any right in respect thereof shall lie and the real owner is bereft of any defence against the person in whose name the property is held or any other person
In its sweep section 4 envisages past benami transactions also within its retroactivity
In this sense the Act is both a penal and a disqualifying statute
In Case of a qualifying or disqualifying statute it may be necessarily retroactive
635E H 24 The presumption against taking away vested right will not apply in this case inasmuch as under law it is the benamidar in whose name the property stands and law only enabled the real owner to recover the property from him which right has now been ceased by the Act
In one sense there was a right to recover or resist in the real owner against the benamidar
Ubi jus ibi remedium
When there is a right there is a remedy
Where the remedy is barred the right is rendered unenforceable
In this sense it is a disabling statute
All the real owners are equally affected by the disability provision irrespective of the time of creation of the right
A right is a legally protected inter est
The real owner s right was hitherto protected and the Act has resulted in removal of that protection
636B C 25 When the law nullifies the defences available to the real owner in recovering the benami property from the benam idar the law must apply irrespective of the time of the benami transactions
The expression shall lie in section 41 and shall be allowed in section 42 are prospective and shall apply to present future stages and future suits claims or actions only
636D 3
The hearing of appeal under the procedural law of India is in the nature of re hearing and therefore in moulding the relief to be granted in a case on appeal the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against
Consequently the appellate court is competent to take into account legislative changes since the decision under appeal was given and its powers are not confined only to see whether the 625 lower court s decision was correct according to the law as it stood at the time when its decision was given
636F G Once the decree of the High Court has been appealed against the matter became sub judice again and therefore the Supreme Court had seisin of the whole case though for certain purposes eg execution the decree was regarded as final and the courts below retained jurisdiction in that regard
636G H Lachmeshwar vs Keshwar Lal AIR 1941 FC 5 Shyabud dinsab vs The Gadag Betgeri Municipal Borough   The King vs The General Commissioner of income Tax  Mukharjee Official Receiver vs Ramratan Kaur
1935 LR 63 IA 47 Dayawati vs Inderjit   Mohanlal Jain vs
His Highness Maharaja Shri Man Singh 1962 1 SCR 702 and Amerjit Kaur vs Pritam Singh relied upon
Nand Kishore Marwah vs Samundri Devi 1987 4 SCC 382 distinguished
Ordinarily this Court in an appeal will not inter fere with a finding of fact which is not shown to be per verse or based on no evidence
But where there are material irregularities affecting the said finding or where the court feels that justice had failed and the finding is likely to result in unduly excessive hardship this Court cannot decline to interfere merely on the ground that the finding in question is finding of fact
627E H 628A Babu vs Dy
Director AIR 1982 SC 756 Prasad vs Govindaswamy   Dhanlibhai vs State of Gujarat   Ganga Bishan vs Jay Narayan AIR 1986 SC
441 Udaychand Disst vs Saihal Sen AIR 1988 SC 367 and Ram Singh vs Ajay Chawla AIR 1988 SC 514 relied upon
In the instant case the concurrent findings of the courts below are based on reasonable appreciation of evi dence on record and therefore can in no way be said to be perverse or unreasonable
The High Court has analysed the facts and correctly applied the tests to determine whether the transaction was benami or not
Therefore there is no justification in tile appeal under article 136 of the Constitu tion for interference with the concurrent findings of fact
629A C However in view of the pendency of the appeal before the Supreme Court and consequently the suit filed by the respondent on 626 the date of coming into force of section 4 of the Benami Transac tions Prohibition Act 1988 which nullified the defences available to the real owner in recovering the benami proper ty from the benamidar and since the law was applicable irrespective of the time of the benami transactions the respondent s suit or action for recovering the suit house held benami by the appellant cannot be decreed
636D E No doubt nobody should suffer for an act of the Court but delay in disposal of an appeal cannot be termed an action of the court
Hence the maxim actus curiae nemenim gravabit is not applicable in this case
637F G The decree passed by the lower courts is therefore annihilated and the suit filed by the respondent is dis missed
637G