Calcutta High Court (Appellete Side)

Swapan Kumar Sardar & Ors vs The State Of West Bengal & Ors on 18 November, 2019

Author:
Rajasekhar Mantha

Bench:
Rajasekhar Mantha

Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION

Present :

The Hon'ble Justice Rajasekhar Mantha

W.P. No. 20936 (W) of 2014

Swapan Kumar Sardar & Ors.
-Versus-
The State of West Bengal & Ors.

For the petitioners: Mr. Sardar Amjad Ali, Sr. Advocate,
Ms. Sucharita Roy.

For the KMDA: Mr. Partha Sarathi Bose,
Mr. Satyajit Talukdar.

For the State: Mr. Tapan Kumar Mukherjee, ld.A.G.P.
Mr. Somnath Naskar.

Heard on: November 18, 2019.

Judgment on: November 18, 2019.

Rajasekhar Mantha, J.:

The principal challenge in the instant writ petition by the employees of

the Kolkata Metropolitan Development Authority (in short KMDA) is to an order

dated 22nd January, 2014 passed by the KMDA pursuant to a direction of this

Court in W.P. No. 842 of 2011 (
Swapan Kumar Sardar & Ors. - Vs. - The State of

West Bengal & Ors.
).

The fact leading to the claims of the writ petitioners is that they were

originally granted a Career Advancement Scheme (CAS), for the purpose of

improving the administration and service benefits to the direct employees of the
State Government and State controlled bodies. The said Career Advancement

Scheme was allowed in or about the year 1995 on the recommendation of the

concerned Pay Commission not only to the employees of the State Government

but also to employees of the statutory bodies under it.

Subsequently, when the 4th Pay Commission was implemented in or

about the year 2002 an improved benefit of a Modified Career Advancement

Scheme (MCAS) was allowed exclusively to the State Government employees.

It is submitted by the Counsel for the State that although the Pay

Commission was requested to consider the case of employees of statutory bodies

under the control of the State Government, the same was declined.

Before proceeding further with this order, it is necessary to explain the

difference between the original CAS and subsequently introduced MCAS. The

benefit under the original CAS was in the form of an automatic increment and/or

climbing on to the next pay scale available to those employees, who were

stagnating in their existing pay scale could not otherwise progress in their careers

in two intervals i.e. after the completion of ten years of service (first

advancement/jump to the next higher pay scale) and after completion of 20 years

(second advancement).

Pursuant to the recommendation of the 4th Pay Commission, the same

benefit of career advancement (hereinafter called the Modified Career

Advancement Scheme) was given to the employees at three stages, i.e., after eight

years (first movement), after sixteen years (second advancement) and after twenty
one years (third advancement) of completion of their services. This was in

replacement of the original Career Advancement Scheme.

It will not be out of place to mention that both the CAS and MCAS were

allowed based on the similar Schemes allowed to the Central Government

employees.

The arguments of the employees of KMDA are as follows:

(a) There is discrimination on the part of the State in allowing the

benefits of the MCAS to the State Government employees while

denying the same to the employees of statutory bodies under the

State;

(b) A large number of other statutory bodies like Howrah Municipal

Corporation, Shanti Niketan and Sriniketan Development Authority,

Haldia Development Authority and West Bengal Pollution Control

Board etc., have been allowed such benefits. These two of such

organizations are similarly situated as the KMDA and therefore there

is a class between the class and or class legislation created by the

State.

(c) There is apparent contradictions and mindless fallacy in the

impugned order where the Principal Secretary, Urban Development

Department, Government of West Bengal and the Principal Secretary,

Finance Department, Government of West Bengal on one hand said

that they could not grant the MCAS to the KMDA employees in view of

the bar under the 4th Pay Commission but in the same breath
contended that if the funds of the KMDA permitted such benefits, the

same could be availed by the employees of KMDA.

KMDA similar to the Haldia Development Authority and the Shanti

Niketan and Sriniketan Development Authority are constituted and function

under the provisions of the "
West Bengal Town and Country (Planning and

Development) Act, 1979
".
Section 19
of the said Act stipulates that the following

persons shall comprise of the governing body of the KMDA -

"19. Composition of the 1[Kolkata] Metropolitan Development
Authority
(1) The 1[Kolkata] Metropolitan Development Authority shall
consist of the following members:--

(a) the Chief Minister of the State of West Bengal or any
person nominated by him shall be the Chairman, and a
Minister of the State of West Bengal to be nominated by the
Chief Minister shall be the Vice-Chairman:

Provided that when there is no Council of Ministers
functioning in the State of West Bengal, the State
Government shall nominate such persons, as it may think
fit, to be the two members and the Chairman and Vice-
Chairman respectively of the 1 [Kolkata] Metropolitan
Development Authority;

(b) the Chief Executive Officer of the 1[Kolkata] Metropolitan
Development Authority, ex officio;

(c) not more than three officers of the rank of Secretary to the
State Government to be nominated by the State Government;
and 2

(d) not more than five persons to be nominated by the State
Government of whom--

(i) two shall be Councillors or Aldermen of the 1[Kolkata]
Municipal Corporation;

(ii) one shall be a Councillor or Alderman of the Howrah
Municipal Corporation;

(iii) two shall be Commissioners of any municipality within
the 1 [Kolkata] Metropolitan Area:

Provided that when an order of supersession of the 1
[Kolkata] Municipal Corporation or the Howrah Municipal
Corporation or the municipality, as the case may be, has
been made and is in force, it shall be competent for the State
Government to nominate, in place of the Councillors or
Aldermen or Commissioners, as the case may be, such
persons as have experience in or knowledge of
administration of local self-government to be members of the
1 [Kolkata] Metropolitan Development Authority:

Provided further that on the revocation of the order of
supersession as aforesaid, the members nominated under
the first proviso shall, notwithstanding that the term of office
of such members has not expired, cease to hold office and
the vacancies shall be filled up in accordance with the
provisions of clause (d).

(2) The Vice-Chairman shall discharge such functions and
exercise such powers as may be delegated to him by the
Chairman and shall, during the absence of the Chairman,
perform the functions and exercise the powers of the
Chairman.

(3) The members referred to in clause (d) of sub-section (1)
shall hold office for a term of three years from the date of
their nomination by the State Government and shall receive
such allowances for attending the meetings of the 1 [Kolkata]
Metropolitan Development Authority or any committee
thereof, as may be prescribed: 3
[Provided that every such member, on ceasing to be a
Councillor or Alderman of the 1 [Kolkata] Municipal
Corporation or the Howrah Municipal Corporation or
Commissioner of a municipality within the 1 [Kolkata]
Metropolitan Area, as the case may be, shall,
notwithstanding that the term of office of such member has
not expired, cease to hold office and the vacancy shall be
filled up in accordance with the provisions of clause (d) of
sub-section (1).]
(4) No act or proceeding of the 1 [Kolkata] Metropolitan
Development Authority shall be deemed to be invalid merely
by reason of any vacancy in, or defect, initial or subsequent,
in the constitution of that Authority"

The finance, accounts and audit of the KMDA are required to be governed

by
Sections 107
to
of the aforesaid Act of 1979.
Section 107
,
&
stipulates as follows:

"107. (1) Every Planning Authority or Development Authority
(other than the [Kolkata] Metropolitan Development
Authority) shall have and maintain its own fund to which
shall be credited-

(a) all moneys received by the said Authority from the
State Government by way of grants, loans, advances or
otherwise;

(b) all development charges or other charges or fees
received by the said Authority under this Act or rules or
regulations made thereunder : and

(c) all moneys received by the said Authority from any
other source.

(2) Every such Authority may keep in current account in any
branch of the State Bank of India or any other Bank
approved by the State Government in this behalf, such
portion of its fund as may be prescribed and any money in
excess of the said sum shall be invested in such manner as
may be approved by the State Government.

108. Fund of the 1 [Kolkata] Metropolitan Development
Authority
(1) There shall be a fund for the 1[Kolkata]
Metropolitan Development Authority to which shall be
credited--

(a) such moneys as may be paid to it by the State
Government under the Taxes on Entry of Goods into 1
[Kolkata] Metropolitan Area Act, 1972;

(b) all moneys borrowed by it;

(c) such other moneys as may be received by it from
the State Government or from any other authority or source.

(2) The 1 [Kolkata] Metropolitan Development Authority
shall maintain a sinking fund for the repayment of money
borrowed by it, and shall every year deposit into the said
fund such moneys as may be paid to it by the State
Government under the Taxes on Entry of Goods into 1
[Kolkata] Metropolitan Area Act, 1972.

(3) The money paid into the sinking fund shall be
invested in such manner and in such securities as may be
prescribed.

(4) The sinking fund or any part thereof shall be
applied in, or towards, the discharge of the loan or part
thereof for which such fund was created, and until such loan
or part thereof is wholly discharged, the money standing to
the credit of the fund shall be applied for no other purpose.

109 - Grants and advances by State Government
The State Government may make such grants, advances and
loans to any Planning Authority or Development Authority
(including the 1 [Kolkata] Metropolitan Development
Authority) as it may deem necessary for the performance of
the functions under this Act and all such grants, loans and
advances made shall be on such terms and conditions as the
State Government may determine."

The sources of fund of KMDA are set out in
Section 108
. In addition

thereto,
Section 109
of the Act of 1979 stipulates that the State Government

may make such grants and advances and loans to any planning authority or

development authority including the KMDA as it may deem necessary for the

performance of the functions under the Act. It is further stipulated that all such

grants, loans and advances made, shall be on such terms and conditions as the

State Government may determined.

To address the first argument raised on behalf of the petitioners that

there is discrimination between the facilities granted to the direct employees of

the State Government and those employees of statutory bodies, it is now well

settled that the same do not stand on the similar footing. Employees of statutory

bodies are governed not only by the act under which they are constituted but

also have independent bye-laws, Rules and Regulations not only governing their

functions but also the terms and conditions of the service of their employees.

The first argument advanced on behalf of the petitioners, therefore, has

to be answered in negative.

The second argument raised is that the employees of the some

development authorities similarly situated like KMDA is also governed under the

aforesaid Act of 1979 yet have been granted such benefits and the employees of

KMDA have been denied the benefits of MCAS.

The impugned order addresses this issue by first contending that such

authorities and other organizations like Haldia Development Authority, West

Bengal Pollution Control Board and Howrah Improvement Trust and West

Bengal Housing Board have granted the benefits of MCAS since they have funds

of their own in this regard and the KMDA does not.

Article 14
permits reasonable classification but does not permit class

legislation. The equal protection of laws guaranteed by
Article 14
does not mean

that all laws must be general in character. It does not mean that the same laws

should apply to all persons. It does not attainment or circumstances in the same

position. The varying needs of different classes of persons often requires

separate treatment. From the very nature of society there should be different

laws in different places and the legitimate controls the policy and enacts laws in

the best interest of the safety and security of the state. In fact identical

treatment in unequal circumstances would amount to inequality. So a

reasonable classification is only not permitted but is necessary if society is to

progress.

Thus what
Article 14
forbids is class-legislation but it does not forbid

reasonable classification. The classification however must not be "arbitrary

,artificial or evasive" but must be based on some real and substantial bearing a

just and reasonable relation to the object sought to be achieved by the

legislation.
Article 14
applies where equals are treated differently without any

reasonable basis. But where equals and unequals are treated differently,
Article
does not apply. Class legislation is that which makes an improper
discrimination by conferring particular privileges upon a class of persons

arbitrarily selected from a large number of persons all of whom stand in the

same relation to the privilege granted that between whom and the persons not so

favored no reasonable distinction or substantial difference can be found

justifying the inclusion of one and the exclusion of the other from such privilege.

Reference may be made to the decision of the Supreme Court in the following

cases.

In the case of
D.S. Nakara v. Union Of India
reported in 1983 AIR 130,

1983 SCR (2) 165, the Supreme Court contended as follows:

"The Government issued an office memorandum announcing a
liberalized pension scheme for retired government servants but
made it applicable to those who had retired after 31 March 1979.
The Supreme Court held that the fixing of the cut off date to be
discriminatory as violating
Article 14.
The division of pensioners
into two classes on the basis of the date of retirement was not
based on any rational principle because a difference of two days in
the matter of retirement could have a traumatic effect on the
pensioner. Such a classification held to be arbitrary and
unprincipled as there was no acceptable or persuasive reason in its
favour. The said classification had no rational nexus with the
object sought to achieve."

In the case of
Madhu Limaye v. Supdt. Tihar Jail Delhi
, reported in

1975 AIR 1505, 1975 SCR (3) 582, the Supreme Court contended as follows:

"There were Indian and Europian Prisoners. Both were treated
differently. Europian gets better diet. Court held that difference
between Indian and Europian prisoners in the matter of treatment
and diet violates right to equality under
Article 14
of Indian
prisoners. They all are prisoners they must treat equally."

It was also contended that no prior permission of the State Government

was taken before extending such benefit in view of the denial of MCAS to non

State Government employees under the 4th Pay Commission.

While the argument has made in the impugned order by two responsible

Principal Secretaries of State Government, who are the Senior IAS Officers,

appears to be ex facie contradictory and self-defeating, Counsel for the State

would rely upon the fact that merely because an error is committed in the case

of certain bodies, this similar erroneous benefit cannot be derived by the

employees of the KMDA.

This Court refers to the doctrine of negative equality evolved in the

following cases.

In the case of
Union of India v. International Trading Co.
, reported in

(2003) 5 SCC 437 at page 444, Para 13, the Supreme Court held as

follows:

"13. What remains now to be considered, is the effect of
permission granted to the thirty two vessels. As highlighted by
learned counsel for the appellants, even if it is accepted that there
was any improper permission, that may render such permissions
vulnerable so far as the thirty two vessels are concerned, but it
cannot come to the aid of the respondents. It is not necessary to
deal with that aspect because two wrongs do not make one right. A
party cannot claim that since something wrong has been done in
another case direction should be given for doing another wrong. It
would not be setting a wrong right, but would be perpetuating
another wrong. In such matters there is no discrimination involved.
The concept of equal treatment on the logic of
Article 14
of the
Constitution of India (in short "the Constitution") cannot be
pressed into service in such cases. What the concept of equal
treatment presupposes is existence of similar legal foothold. It does
not countenance repetition of a wrong action to bring both wrongs
on a par. Even if hypothetically it is accepted that a wrong has
been committed in some other cases by introducing a concept of
negative equality the respondents cannot strengthen their case.
They have to establish strength of their case on some other basis
and not by claiming negative equality."

(emphasis added)

In the case of M/S Vedanta Aluminium Limited vs Union of India

(RVWPET No.218 of 2011) at Paragraph 17, the Orissa High Court held

as follows:

"17. Even assuming for the sake of argument that any benefit was
extended to a similarly situated Company, namely, Jindal Power
Limited under the Office Memorandum dated 16.11.2010, the
petitioner has no legal right to claim similar benefit for the reason
that there is no concept of negative equality.

A party cannot claim that if something wrong has been done in any
case, similar direction should be given for doing the wrong again.
No illegality should be allowed to perpetuate under the shelter
of
Article 14
of the Constitution.
Article 14
does not envisage
for negative equality, and no one can be permitted to take benefit
of negative equality."

(emphasis added)

It is now well settled that the negative equality is not permitted under

Article 14
of the Constitution of India. The doctrine of negative equality has

already explained by the Hon'ble Supreme Court of India in the above cited

cases is that no body can claim benefit from a wrongful gain made by similarly

situated persons.

While this Court may have sympathy for the writ petitioners in this

regard, the conduct of the State Government in failing to monitor the activities

and functions of those other statutory bodies cannot be but deprecated. It is

expected that remedial measures shall be taken by the State in respect of the
Statutory bodies. This Court is not free from doubt that they are more favorite

statutory body/employees in the State than the employees of the KMDA

The only argument advanced on behalf of the State that needs to be dealt

with by this Court is in terms of
Section 139
of the aforesaid 1972 Act.
Section
of the aforesaid Act of 1979 stipulates as follows:

"
Section 139
- Power to make regulations
Any Planning Authority or Development Authority may, with the
previous approval of the State Government, make regulations
consistent with this Act and the rules made thereunder, to
carry out the purposes of this Act and without prejudice to the
generality of this power such regulations may provide for,--

(a) the time and place of holding and procedure to be followed
in meetings of the Planning Authority, Development Authority
and Advisory Committee, and the number of members
necessary to form a quorum therein;

(b) the powers and duties of the officers and employees of the
Planning Authority and Development Authority;

(c) the salaries, allowances and conditions of service of its
officers and employees;

(d) the terms and conditions for the continuance of use of any
land used otherwise than in conformity with a development
plan; and

(e) any other matter which has to be or may be prescribed by
rules."

Sub-Section (C) of
Section 139
clearly indicates that the power to frame

regulations for the purpose of governing the salaries, allowances and conditions

of service of its officers and employees is vested in the KMDA but the same has to

be made in consultation with the State Government.

Mr. Ali, learned Senior Advocate appearing for the writ petitioners, relies

upon
Section 29
by saying that when the State Government is already in majority

in the governing body of KMDA the consent of the State Government is to an idle

formality and that once the Board of KMDA passes a salary that is empowered to
frame regulation governing the salaries and emoluments to its employee, and if

the same including the MCAS such regulations and/or rules must have deemed

approval of the State Government.

This Court seizes some force in such argument but is reminded of the

well settled principle that there is no estoppel against the law. The aforesaid

principle applies not only in the context of
Section 139(6)
read with
Section 29
of

the aforesaid 1972 Act but also in the context of the denial by the 4th Pay

Commission Authorities of MCAS to the persons similarly placed like the

petitioner, i.e., employees of the statutory bodies albeit under the control of the

State Government.

The following Supreme Court ruling resonate the principle of "no estoppel

against the law":

In the case of
Dunlop India Ltd vs Union Of India And Ors
, reported in

1977 AIR 597, 1976 SCR (2) 98, the Supreme Court held as follows:

"At one stage Mr. Sanghi pointed out that in certain Bills of Entry
of Dunlop India Limited, their Agents, Messrs Mackinnon.
Mackenzie & Co., Private Ltd., gave the I.T.C. item No. 87 with
regard to the imported V.P. Latex. This according to Mr. Sanghi
clearly shows how the appellants themselves have understood the
matter. There is, however, no estoppel in law against a party in a
taxation matter. In order to clear the goods for the customs, the
appellants' Agents may have given the classification in accordance
with the wishes of the authorities or they may even be under some
misapprehension. But when law allows them the right to ask for
refund on a proper appraisement and which they actually applied
for, we do not attach any significance to this aspect of the matter
pointed out by counsel. The question is of General importance and
must be decided on its merits."

(emphasis added)
In the case of
Jalandhar Improvement Trust vs Sampuran

Singh
, reported in 1347, JT 1999 (2) SC 598, (1999) 122 PLR 295,

1999 (2) SCALE 415, (1999) 3 SCC 494, the Supreme Court held as

follows:

"13. The High Court as well as the lower appellate court also relied
upon the fact that the Trust had made similar preferential
allotments as local displaced person in favour of other persons.
Therefore, the courts below came to the conclusion that even the
plaintiffs-respondents were entitled to such allotment. In our
opinion, before coming to this conclusion the courts below should
have first decided the question whether the allotment in favour of
those persons was within the scope of the Rules applicable. If it
was not within the scope of the Rules then even those allotments in
favour of other persons will not create a right in the respondents to
claim equality with them; may be, if the allotments were made
wrongly in favour of those persons, the same may become liable for
cancellation, if permissible in law, but that will not create an
enforceable right on the respondents to claim similar wrongful
allotments in their favour. In our opinion, even this ground relied
upon by the High Court as well as the lower appellate court is
unsustainable. The courts below next relied upon the fact that in
regard to some of the respondents, the Trust itself at a point of
time made allotments and accepted initial deposits towards the
consideration of the plot which was subsequently cancelled. Based
on those facts, the courts below held that the Trust having once
allotted the plots and having collected part of the consideration, it
could not have cancelled the allotments, probably basing the
respondents' case on the principle of promissory estoppel. Here the
courts below have failed to notice the legal principle that there is
no estoppel against law. The allotment of plots by the Trust is
controlled by the statutory Rules. Any allotment contrary to those
Rules will be against the law. Since the allotments made in favour
of some of the respondents was based on wrong application of the
reservation made for "local displaced person" those allotments were
contrary to law. Hence, the principle of
promissory/equitable estoppel cannot be invoked to protect such
illegal allotments. In the said view of the matter, we are unable to
sustain the judgments and decrees impugned in these appeals."

(emphasis added)
In the case of
Bennett Coleman & Co. (P) Ltd vs Punya Priya Das

Gupta
, reported in 1970 AIR 426, 1970 SCR (1) 181, the Supreme

Court held as follows:

"The respondent thereafter applied to the Delhi Administration and
the latter, as aforesaid, referred his claim to the Labour Court for
adjudication. In his statement of claim before the Labour Court, the
respondent claimed that the monthly wages payable to him were Rs.
700 basic, Rs. 497 as dearness allowance, Rs. 200 conveyance
allowance and Rs. 50 being the estimated value of the benefit of a
free telephone and newspapers, aggregating Rs. 1,447 per month.
He claimed gratuity computable on the basis of Rs. 1,447 as being
his monthly wages, Rs. 1,447 as compensation for the month's
leave, in all, Rs. 6,000.34 P. He did not deduct from the said claim
the said amount of Rs. 2,810.47 P. as he had not encashed the
cheque given to him against the receipt dated November 21, 1963.
The company in its written statement denied the claim relying on the
said receipt and further denied that the car allowance and the
monetary value for the free telephone and newspapers could be
included in the wages payable to the respondent either as due to
him or for calculating gratuity. Before the Labour Court the
company did not dispute the value of the benefit of the free
telephone and newspapers estimated by the respondent, but it
raised the question whether the said value and the car allowance
formed part of the respondent's wages and whether the amount of
gratuity payable to him could be ascertained on the footing of their
being part of his wages. The Labour Court held that there was no
evidence that the car allowance was not payable to the respondent
while he was on leave as was the case in respect of another working
journalist, C. V. Vishwanath, whose claim also the Labour Court
was trying along with that of the respondent. The Labour Court
found this difference a significant one and held that the car
allowance had to be taken as part of the wages. The Labour Court
also held that the car allowance and the free telephone and
newspapers were an allowance and an amenity respectively falling
under the definition L 12 Sup CI/69-13 of
s. 2 (rr)
of the Industrial
Disputes Act, 1947, both forming the component parts of monthly
wages payable to the respondent,. As regards the leave, the
respondent was undoubtedly entitled to 30 days leave. But the
company's plea was, firstly, that its rules did not permit
compensation for such leave and secondly, that it was set off against
the period of notice which the respondent was required to give. No
rules, however, were produced to show that they contained any
provision disallowing such compensation. As regards the notice
period of one month, the Labour Court held that as the resignation
dated October 8, 1963 was accepted with effect from October 21,
1963 there was compliance of 13 days only and therefore the
management was not liable to pay for the balance of 17 days leave.
The Labour Court rejected the company's plea that the receipt given
by the respondent in full settlement of all his claims estopped him
from making these claims on the ground that as these items were
claimable under the Act there could be no estoppel against law. In
the result, the Labour Court held that the respondent was entitled to
claim car allowance at Rs. 200 per month, Rs. 50 per month for
telephone and news- papers and compensation for 13 days leave,
that the first two were parts of his wages, that his monthly
remuneration was, therefore, Rs. 1,447 and gratuity equivalent to 51
months wages would have to be calculated on the basis of Rs. 1,447
being his wages per month and directed the company to pay on the
aforesaid calculations Rs. 2,002 over and above Rs. 2,810.47 P. for
which the company had issued the said cheque."

(emphasis added)

In the case of
C. Beepathumma And Ors. vs V.S.

Kadambolithaya And Ors.
, reported in AIR 1965 SC 241, 1964 5 SCR

836, the Supreme Court held as follows:

"18. Mr. S. T. Desai learned counsel for the appellants admits that
the mortgagors had not lost their right to the properties comprised
in Ex. P-2 and that Ex. P-2 incorporated Ex. P-1. Exs. P-63 and P-
63(a) were filed to establish the connection which, in view of the
admission, it is not necessary to set forth here. He also admits that
he cannot make out case under
Art. 134
of the
Indian Limitation
Act
. He contends that the doctrine of election is but a species of
estoppel and there can be no estoppel against law especially
against the
Limitation Act
, because of
s. 3
of that Act. He relies
upon a decision of the Madras High Court reported in
Sitarama
Chetty and Anr. v. Krishnaswami Chetty
[(1915) I.L.R. Mad., 38,

374.] where White C.J. quoting a passage from Mr. Mitra's book on
the Law of Limitation, observes that an agreement by a person
against whom a cause of action has arisen, that he would not take
advantage of the statute, cannot affect its operation on the original
cause of action, unless such agreement amounts to an
acknowledgment of liability which the statute recognises as an
exception to the rule. Mr. Desai also relies upon
Govardhan Das v.
Dau Dayal
[(1932) I.L.R. 54 All. 573.] for the proposition that no
one can contract himself out of the statute of limitation, nor can
estoppel be pleaded against a statutory bar of limitation. Some
other cases cited by him are not in point and need not be
mentioned. On the basis of these cases, Mr. Desai contends that
unless Exs. P-2 and P-2(a) can be pleaded as an acknowledgment
limitation cannot be saved in respect of Kunhi Pakki's share and
the suit itself must be dismissed under
s. 3
of the Limitation Act.
He contends that the equitable doctrine of election does not apply
to the present case, because the documents on which reliance is
placed refer not to the 1/4th share of Kunhi Pakki but to the
3/16th share of Cheriamma which Kunhi Pakki subsequently
obtained. He states that the latter conclusion is inescapable if Exs.
P-59, P-60 and P-61 are read together. He submits that in these
documents Kunhi Pakki no doubt connected the 3/16th share with
Exs. P-2 and P-2(a) but treated his own 1/4th share separately."

In the case of
State Of Rajasthan And Anr vs Surendra Mohnot

And Ors
(Civil Appeal Nos. 5860-5861 of 2014) reported in (2014) 14

SCC 77 at Paragraph 17 the Supreme Court held as follows:

"17. It is well settled in law that there can be
no estoppel against law. Consent given in a court that a
controversy is covered by a judgment which has no applicability
whatsoever and pertains to a different field, cannot estopp the
party from raising the point that the same was erroneously
cited."

(emphasis added)

In the case of
Rajendra Jha vs Presiding Officer, Labour
Court,

reported in 1984 AIR 1696, 1985 SCR (1) 544, the Supreme Court held

as follows:

"In order to get over these difficulties, it is urged by the appellant
that there can be no estoppel against law and therefore, it is open
to him to argue even at this stage that the Labour Court ought not
to have passed the particular order. In support of this contention
reliance is placed by the appellant on two judgments of this Court.

In
Chitturi Subbanna v. Kudapapa Subbanna
, it was held by the
majority that pure questions of law, not dependent on the
determination of any questions of fact, should be allowed to be
raised for the first time even at later stages of a litigation."

(emphasis added)

It is, however, made clear that in the event the petitioners or the KMDA

Authorities duly represented by the State Government, approach the next

available Pay Commission for granting of MCAS benefits to employees of

statutory corporation and other authorities similarly situated like the petitioners,

the MCAS Authorities will do so in accordance with law and bearing in mind the

principles enshrined in
Article 14
of the Constitution of India.

In view of the aforesaid, this Court is unable to grant any benefit to the

petitioners and hence the writ petition does not succeed and is disposed of

without any order.

There will be, however, no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the

parties upon compliance of all formalities.

(Rajasekhar Mantha, J.)