evolawyer/inlegalbert-sc-ner-silver huggingface dataset:
t '

SECRETARY TO GOVERNMENT OF ANDHRA PRADESH, A

FINANCE AND PLANNING DEPARTMENT AND ORS.

P. ESWAR REDDY AND ORS.

JANUARY 8. 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] ·

Service Law :

Junior LeL:furers in Colleges--Cnmpensatory allowance paid 011 withdraw} of residential attenders discharRing o.fficial work at reidence-Not discharRing official duties during hnUday.\· a11d leave period-Hence not entitled to co1npensatory allowance during the period o.f holidays and leave.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1924-2015 of

IW6.

From the Judgment and Order dated 17.6.91113.8.91 of the Andhra Pradesh Administrative Tribunal at Hyderabad in 0.A. Nos. 21846-21928/90 and R.P. Nos. 19962-70 of 1989.

K. Ram Kumar C. Balasubramaniam, T. V.S.N. Chari and Ms. Asha Nair E for the appellants.

The following Order of the Court was delivered :

Office report dated January 5, 1996 shows that respondent Nos. 1-83, 86- 88, 90 and 93 to 95 have been served. They are not appearing either in person F or through counsel. But though notice on respondent Nos. 84, 85, 89, 92 and 96-105 was sent, their acknowledgements have not been received nor any report in that behalf has been sent. Notice must be deemed to have been served on all the respondents.

Leave granted.

In G.0.M.S. No. 105 dated April 3, 1974 of the Finance & Planning (FR.I. & L) Department, it is stated that the orders issued in 0.0.M.S. No. 1059 dated November Jl, 1971 directing sanction of a maximum compensatory allowance@ Rs. 150 [which was later increased to Rs. 200] to the officers from who1n residential attenders withdrawn are to enable such officers to employ a H 207

·-t

SUPREME COURT REPORTS

[1996] 1 S.C.R.

A person/persons to attend to the needs of the officers in the discharge of official work at his residence. It was subsequently extended to the Senior and Junior , < Lecturers working in the colleges. We are concerned with the Junior Lecturers.

The question arose whether. junior lecturers during holidays and leave period are entitled to the payment of compensatory allowance. There was B difference of opinion among the two-member Bench of the Tribunal and consequently the matter was placed before a third member. Per majority, it was held that they are entitled to the payment of the allowance during the leave or vacation period. It would be seen that the Lecturers would not perform any official duty during holidays. If at all they have performed duty they would C evaluate the examination papers for which they would be paid the amount for evaluating the papers. Under these circumstances, the majority members were not right in concluding that they arc discharging the official duties during the vacation or leave period and they are entitled to the compensatory allowance.

The said decision of the tribunal is accordingly set aside. The appeals are accordingly allowed. No costs.

G.N.

Appeals allowed.
RAMESH CHANDRA TIWAR! AND ANR.

A v.

U.P. AVAS EVAM VIKAS PARISHAD, LUCKNOW AND ORS.

JANUARY 8, 1996

[K. RAMASWAMY AND G.B. PATTANAJK, JJ.] B

Land Acquisition Act, 1894/U.P. Al-vas Evam Vikas Parishad Adhiniyam, "J965: Ss. 6, 28, 32 & 55 rlw. para 2 of the Schedule/S.38-Acquisition initiated under the Adhiniyam-Held S.6 of land Acquisition Act not applicable-Procedure prescribed in Ss. 28 mul 32 as mod(fied by operation C qf S.55 rlw para 2 of the Schedule to the Act applicable-Also held land acquisition (Amendment) Act 68 of 1984 not applicable--Notification issued under S.28 qf the Act and declaration made under S.38 of the Adhiniyam held valid-Claimants entitled to compensation under S.32 of the Act.

Gauri Shankar Gaur & Ors. v. State of U.P. & Ors., [1994] 1 SCC 92 D and U.P. Avas Evam Vikas Parishad, Lucknow v. lata Awasthi, [1995] 3 SCC 573 relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1823of1996.

From the Judgment and Order dated 3.10.85 of the Allahabad High Court E in C.M.W.P. No. 9295 of 1984.

Yogeshwar Prasad, Attorney General, P.K. Bajaj and Ms. Rachna Gupta for the appellants.

Renu George and P.K. Jain for the Respondents.

The following Order of the Court was delivered :

Leave granted.

The controversy raised in this case is squarely covered by the Judgment of this Court in Gauri Shankar Gaur & Ors. v. State of U.P. & Ors., [1994] I SCC 92 wherein this Court had held that the provision of Section 6 of the Land Acquisition Act, 1894 had no application to the acquisition initiated under U.P.

Awas Evam Vikas Parishad Adhiniyam, 1965 and the procedure prescribed in Sections 28 and 32, as modified by operation of Section 55 read with para 2 of the Schedule would be applicable. Consequently, the Land Acquisition (Amend-

SUPREME COURT REPORTS

[1996] I S.C.R.

A ment) Act 68 of 1984 had no application. The above view was reiterated by this Court in U.P. Avas Evam Vikas Parishad, Lucknow v. Lala Awasthi, [1995] 3 SCC 573. Consequently, the notification issued under Section 28 and declaration made under Section 38 of the Adhiniyam are valid in law. The procedure prescribed under the Adhiniyam should prevail. The Amendment Act 68 of

B 1984 does not apply to the acquisition under the Adhiniyarn. However, in view of the Judgment in Gauri Shankar's case (supra), the claimants would be entitled to the compensation determined with reference to the date of declaration under Section 32 of the Act for the reasons mentioned therein.

The appeal is accordingly disposed of.

G.N.

Appeal disposed of.
A.J. JOSEPH A v. '

UNION OF INDIA AND ORS.

JANUARY 8, 1996

[ K. RAMASWAMY AND G.B. PATTANAIK, JJ.] B

Service Law :

Civil Services-Fundamental Rule 9(25) clause 7(iii)--Higher scale of Pay-Head Compounder posted at Andaman & Nicobar Island-Claim c negatived by Government and upheld by the Tribunal-Held: claim not well founded-However Special pay mi par with other employees working inAndman & Nicobar as provided under the fundamental rule be paid to all eligible persons including the claiinant Head Compounder.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1909 of 1996.

D '

From the Judgment and Order dated 11.3.87 of the Central Administrative Tribunal, Calcutta in 0.A. No. 12/A & N of 1987.

Ms. Lily Thomas for the Appellant.

A.N. Jayaram, Additional Solicitor General, D.S. Mehra, A.S. Rawat and E Ms. A. Subhashini for the Respondents.

The following Order of the Court was delivered : "' Leave granted.

This appeal is filed against the order of the Central Administrative F

Tribunal, Calcutta Bench dated march 11, 1987 made in ND OANo. 12/A&N/

87. The appellant claimed higher scale of pay as Head Compounder. Though the Health Department in Andaman & Nicobar Island had recommended to consider case fOr grant of special pay, the Government after elaborate consideration in proceedings dt. April 21, 1976 considered that question of G prescribing any higher scale of pay for the post of Head Compounder in .-, Andaman & Nicobar Island does not arise."The Tribunal has held that this being a policy decision, the Tribunal cannot give the direction to prescribe the higher scale of pay to the Head Compounder.

Ms. Lily Thomas, the learned counsel appearing for the appellant relying H 213

SUPREME COURT REPORTS [1996] l S.C.R.

upon Fundamental Rule 9(25) Clause ?(iii) contendd that the appellant is entitled to the special pay on her with others which is being denied to the appellant. Shri A.N. Jayaram, the learned Additional Soldtor General appearing for the respondents stated that this grievance was not rr.ade by the appellant at any point of time. As a fact all those who are working in Andaman & Nicobar Island, as per the Fundamental Rules, are being paid Ardaman special pay and the appellant is not discriminated on that account. Accepting the contention of the counsel for the respondents, we are of the considered view that the grievance of the appellant is not well founded. It is needless to mention that whatever direction that have been given by the Government oflndia under the Fundamental Rules for payment of special pay to the employees \\ orking in Andaman & Nicobar Island, they are entitled for the same and accodingly such special pay be paid to aH the eligible persons including the appell.mt.

The appeal is dismissed with the above observa:ions.

G.N.

Appeal dismissed.
KRISHNA KUMAR AGRAWAL AND ORS.

JAi KUMAR JAIN AND ANR.

JANUARY 2, 1996

K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Unauthorised Construction--Demolition of-Only the offending wall and not the entire building--Directions issued.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1544 of 1996.

From the Judgment and Order dated 2.3.95 of the Patna High Court in Second Appeal No. 292 of 1991.

Ajit Kr. Sinha, Pradeep Ranjan, S.S. Mishra and Santosh Kumar for the Appellants.

S.C. Gupta, Jatinder K. Bhatia Sunil K. Jain, Advs. for the Respondents.

The following Order of the Court was delivered:

Leave granted.

We have heard the counsel for the parties. This Court issued notice confining to the question as indicated in our order dated August 21, 1995 which reads thus:

"It is contended for the petitioners that interpreting the operative part of the decree of the trial court, namely,

"It is, accordingly declared that the defendants ha_ve absolutely no right to close the windows and ventilators in the northern wall of the plaintiffs house and he interfere with the same in any way causing diminution in the light and air to which the plaintiffs are entitled to and have been enjoying as of contractual right consequently they are directed to remove the walls or any other restructure made adjacent to the northern wall of the plaintiffs house within two months failing which the plaintiffs shall have right to get the same removed in due process of law in the interest of finally of the dispute it is hereby made cle":r that the defendants shall be at liberty to raise their wall

SUPREME COURT REPORTS

(1996] I S.C.R.

after leaving a set back of 3 feet from the northern w_all of plaintiffs so as to enable to later to enjoy the light and air in terms of the sale deed of the year 1921."

even the construction made in the year 1947-48 upto the first floor is also sought to be removed by wrong interpretation sought to be put upon the decree. It is contended that in fact the defendants construction was latter in point of time though the petitioners had not objected. Therefore, the respondents now cannot object and claim demolition of the even existing structure except the one which is constructed in the year 1982-83. Issue notice on this limited question."

The learned counsel for the respondents has placed before us a photograph in which it is seen that there exists a double-storeyed building and besides that the offending wall was constructed. The said wall is now found to have been constructed recently as found by the trial Court and affirmed by the appellate, as well as the High Court. In view of the above finding, the apprehension of the appellants that existing double'storeyed building would be demolished in execution of decree of the trial Court is unfounded. What is to be demolished is the construction unauthorisedly made by the appellants as found by the _Commissioner who was examined as PW-8 whose report is Ex. I and the field Book II A.

The appeal is accordingly disposed of with the above directions. No costs.

G.N.

Appeal disposed of.
MIS NATIONAL ALUMINIUM CO. LTD.

RAJ KISHORE @ SAHU JENA AND ANR.

JANUARY 9, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Larul Acquisition Act, I 894 :

Compensation and other benefits-Held, convered by earlier decisior>- Party being benefiicary entitled to be impleaded in the pending proceedings

bfore the Sub-Judge.

UP. Avas Evam Vikas Parisad v. Gyan Devi (Dead) by Lrs. & Ors., JT

(1994) 7 SC 304, held applicable.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2239 of 1996.

From the Judgment and Order dated 11.3.93 of the Orissa High Court in C.R. No. 72 of 1992.

Ashok Kr. Gupta for the Appellant.

E Ms. Kirti Misra for the Respondents

The f?llowing Order of the Court was delivered :

Leave granted.

Though notice was served on the respondents, no one has appeared for the first respondent-claimant. The controversy is no longer res-integra. They are covered by the judgment of this Court in UP. Avas Evam Vikas Parishad

v. Gyan Devi (Dead) by Lrs. & Ors., JT (1994) 7 SC 304. In that view, the appellant being beneficiary is entitled to be impleaded as a party in the pending proceedings in the court of Subordinate Judge, Angul.

The appeal is accordingly allowed. No costs.

G.N.

Appeal allowed.
KERALA FINANCIAL CORPORATION ETC.

COMMISSIONER OF INCOME TAX, KERALA

JANUARY 11, 1996

[KULDIP SINGH AND B.L. HANSARIA, JJ.)

Income-tax Act, 1961 :

Bad debts-Observation regarding refund of tax made in the main judgment at paras 9 to I 5 deleted-On the advances being written off steps ' could be taken by the assessee in accordance with the relevant provisions relating to bad debts.

State Bank of Travancore v. Commissioner of Income Tax, [1986) 2 SCC 11=158 ITR 102, referred to and explained.

CIVIL APPELLATE JURISDICTION : I.A. Nos. I to 6.

Civil Appeal Nos. 4636 to 4641 of 1994.

From the Judgment and Order dated 24.10.84 of the Kerala High Court in l.T.R. C. Nos. 279 and 280 of 1979.

J. Ramamurthy, B.B. Ahuja, R. Satish and B.K. Prasad for the Appellants.

P.S. Poti and N. Sudhakaran for the Respondent.

The Order of the Court was delivered by

HANSARIA, J.

These applications are by the respondent (revenue) in the afore noted G

"T; i appeals, which were disposed of by judgment dated May 12, 1994. It has been averred in these petitions that what was held in paras 9 to 15 of the judgment is not consistent with what was decided by the majority in State Bank ofTravancore v. Commissioner of Income Tax, [1986] 2 SCC 11 (158 !TR 102), which view was followed while disposing of the appeals. This H

SCPREME COURT REPORTS

[I996] I S.C.R.

A stand has been taken because what the majority had held in the aforesaid case was that in cases of 'sticky advances' what could really be done is that on the

assessee writing off the advances, the same would become bad debt and could be so dealt by the assessee as permitted by the relevant section of the Income Tax Act. In aforesaid paras, however, it came to be stated that on the advances B become bad debts, refund of tax paid on the interest could be claimed by the assessee in accordance with law. It is apparent that the majority in State Bank of Travancore had not said so. This is not disputed by Shri Poli who had appeared for the appellants.

It is accordingly stated that the observation made relating to refund of C tax in the aforesaid paragraphs of the judgment would stand deleted. Instead, we state on the advances being written off, steps could be taken by the assessee in accordance with the provisions of the Income Tax Act reiatable to bad debts.

D The applications are disposed of with these observations.

G.N.

Applications are disposed of. '
STATE OF JAMMU AND KASHMIR

DR. ASHOK KUMAR GUPTA AND ORS.

JANUARY 11, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Service Law :

J&K Medical Educational (Gazetted) Services Recruitment Rules, 1979:

G.O. No. 517-HME of 1987dated19.10.1987-PromotionalScheme- Promotion as Assistallf Professors-Lecturers appointed ad-hoc with 7 years as on March 31, 1987 eligible under the scheme-Single Judge of High Court giving the benefit to those who had not completed 7 years service-Appeal to Division Bench-Delay not condone~Explanation for delay needs to be considered and condoneatter remitted to High Court for fresh disposal.

Judicial Notice :

Delay in filing appeals by government departments-Taking of judicial notice-Held : R4usal to condone the delay feeds public injustice-Need for condoning the delay.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2067 of 1993.

From the Judgment and Order dated 25.3.92 of the Jammu & Kashmir High Court in LP.A. (SW) No. 91 of 1991.

G.M. Kawoosa and Ashok Mathur for the Appellants.

The following Order of the Court was delivered :

Though the respondents have been served, no one is appearing either in person or through counsel.

Leave granted.

The learned single Judge allowed the Writ Petition on the ground that

the lecturers were appointed on regular basis and satisfied the qualifications prescribed in J & K Medical Education (Gazetted) Services Recruittoent Rules, 1979 and were appointed to time bound promotion by virtue of H

SUPREME COURT REPORTS [1996] l S.C.R.

A Government order No. 517-HME of 1987 dated 19.10.1987. The said order indicates that excluding the time during which they had worked against ad hoc appointment, if they had completed 7 years as on March 31, 1987, they would be designated on time bound promotional scheme as Assistant Professors in the scale of Rs. 2350-4050 w.e.f. 1.4.1987. The respondents had

B not completed 7 years' regular service as on that date. Yet learned single Judge had given the benefit of the above G.O. There was a delay of about 3 months in filing the appeal to the Division Be0ch. The Division Bench of the High Court was not inclined to condone the delay on the ground that proper explanation had not been given. We have considered the reasoning of the learned judges. On the facts and circumstances, we think that the C explanation given for the delay in filing the appeal is proper. It is notorious and court would take judicial notice that no one would take responsibility for the delay and in the process of leisurely consultations between different departments or at different levels in the same department the limitation to file the appeal gets barred. Refusal to condone the delay feeds public D injustice and a premium for lethargy and encourages mischief. Applying the pragmatic approach, the explanation for the delay needs to be considered and the cause of justice advanced and consideration angulated and accordingly, considered from that perspective the delay gets condoned. The matter is remitted to the High Court for fresh disposal on merits according to law.

E The appeal is allowed. No costs.

G.N.

Appeal allowed.

---=-
UNION OF INDIA AND ORS.

SMT. SATYAWATI AND ORS.

JANUARY 12, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Requisitioning and Acquisition of Immovable Property Act. 1952/rules:

S.8( I )(b )!Rule 9( I Hwartl--No action taken by claimants in commu- C nicating the objections .for not alcepting the award within the prescribed time-Hence omission to appoint Arbitrator not vitiated by error of lal-V-Where arbitrator appointed and award given parties to rise the rnlltentions before the High Court--Held : No imeiference called for by Supreme Court at this star, e.

D Union of India & Ors. v. Mumha & Ors., JT (1995) 8 SC 289,

followed.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2364, 2361- 62, 2365-66, 2363, 2367-78 of 1996.

From the Judgment and Order dated 20.11.87 of the Punjab & Haryana High Court in L.P.A. Nos. 755, 836-47, 879-83 and 927 in C.W.P. Nos. 6884- 89, 6911-14, 6801, 6802, 6883, 5546, 5550, 6082, 6080, 5547 and 5549 of 1986.

F V.C. Mahajan, Ms. Shashi Kiran, Ms. Anil Katiyar and P. Parmeshwaran for the Appellants.

S. M. Sarin, P.N. Puri, Sanjay Sarin and Ashok Mathur for the Respondents.

G The following Order of the Court was delivered :

Leave granted.

Mr. Sanjay Sarin, learned counsel appearing for the respondents has brought to our notice that pursuant to the directions of the High Court, H arbitrator had already been appointed and he gave his award. Against the

U.0.1. v. SMT. SATYAWATI 465

award, appeals have been filed in the High Court and they are pending.

A Under these circumstances, it is open Lo the appellants to raise all the contentions raised in these appeals, in the High Court and the High Court would deal with and dispose them of according to law. Accordingly, we do not think that these are cases for our interference at this stage . .

The appeals are accordingly dismissed. No costs.

; C.A. Nos. 2364, 2365-66 & 2367-78 f 1996 (@ SLP Nm. 5774, 5777-78 & 5781-92)

Leave granted.

The controversy raised in these cases is squarely covered by the judgment of this Courl in Union of India & Ors. v. Munsha & Ors., JT

(1995) 8 SC 289. Following the judgment, we are constrained to hold that since no action has been taken by the claimants in communicating the

" objections for not accepting the award within the time prescribed under the D law; it must be deemed that they have accepted the award. Consequently, the omission to appoint the arbitrator under Section 8(1 )(b) of the Requisition

• >

and Acquisition of Immovable Property Act, 1952 read with Rule 9 (1) of the Rules made under that Act, is not vitiated by any error of law. The High Court, therefore, was not right . by directing in the impugned order the E appointment of an arbitrator .

The appeals are allowed. The order of the High Court in the respective writ petitions is set aside. No costs.

G.N.

Appeals allowed.
R.C. CHAWLA

STATE OF HARYANA AND ORS.

JANUARY 12, 1996

[K. RAMASWAMY AND G.B. PATTANAJK, JI.]

Housing :

Haryana Urban Developmenl Authorit)~Allotment of residential C pre1nises-Used .for co1nmercial purpose de.fvin!{ c:ondition~· of allotment-Ordered to comp(v with the cnnditiom~HUDA at liberty lo

verfv--{f it is satf3:fiel that conimercial u.\e is stopped it shall withdraw the resu1nption order.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2343 of D 1996.

From the Judgment and Order dated 25.1.90 of the Punjab & Haryana High Court in C.W.P .. No. 5576 of 1988.

S.K. Bagga and Ms. S. Bagga for the Appellant.

I.S. Goyal and Ms. lndu Malhotra for the Respondents.

The following Order of the Court was delivered :

Leave granted.

As per the orders of this Court passed earlier, if the appellant wants to avail of the allotment, he necessarily has to comply with the conditions of allotment . Consequently, he cannot use allotted residential premises for commercial purpose. The appellant has filed an affidavit verified on January 4, 1996 stating, among other things, thus :

"Thal as per the order of Honourable Supreme Court of India, I have got the conunercial use of my house stopped w.e.f. 2.1.96.

The above statement is true to the best of my knowledge."

H The learned counsel for the respondents states that he does not have

R.C. CHAWLA v. STATE 467

any inforn1ation as to what was the action taken by the authorities in that A

behalf. Sri S.K. Bagga, the learned counsel has shown to the learned counsel

for the respondents that the statement also was communicated to the HUDA and the respondents. The respondents are at liberty to verify whether the

appellant had stopp6d use of the premises for commercial use w.e.f. January

2, 1996 and on being so satisfied, they are directed to withdraw the B impugned resumption order.

The appeal is accordingly disposed of. No costs.

G.N.

Appeal disposed of.