REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1919 of 2010 Anversinh @ Kiransinh Fatesinh Zala ..... Appellant(s) VERSUS State of Gujarat .....Respondent(s) JUDGMENT Surya Kant, J: This criminal appeal has been heard through video conferencing. The appellantAnversinh impugns the judgment pronounced by the High Court of Gujarat dated 28.07.2009 by which his conviction under Section 376 of the Indian Penal Code, 1860 (“IPC”) was overturned, but the charge of kidnapping under Sections 363 and 366 of IPC was upheld and consequential sentence of rigorous imprisonment of five years was maintained. FACTS 2. The complainant  Kiransinh Jalamsinh (PW1) when came back Signature Not Verified from work on the night of 14.05.1998, he was informed by his wife Digitally signed by Vishal Anand Date: 2021.01.13 14:27:22 IST Reason: that their eldest sixteenyearold daughter (PW3; hereinafter, Page | 1 “prosecutrix”) had not returned home. Educated till Class VII, the prosecutrix worked as a maid; sweeping and mopping a few hours every noon and evening. The complainantfather made enquiries at her workplace where he learnt from a watchman that his daughter hadn’t come for her second shift and that she was last seen coming out of the vacant Bungalow No. 4 of the Ramjani Society with the appellant. It was learnt upon enquiry that the appellant had left for his home in Surpur with the prosecutrix. The complainant rushed to the appellant’s home with his uncle and brotherinlaw but could not trace the prosecutrix’s whereabouts. After returning to Ahmedabad, a police complaint was registered on 16.05.1998. The police were able to locate both the appellant and the prosecutrix to a farm near Modasa, from where they were brought back to Ahmedabad on 21.05.1998. After medical examination and seizure of her clothes, the prosecutrix was reunited with her family. 3. The prosecution examined eight witnesses and adduced twelve documents in order to prove their case that the minor prosecutrix was forcibly taken by the appellant with the intention of marriage and later subjected to sexual intercourse against her will. The prosecutrix’s father (PW1) corroborated the version of events noted above and testified that his daughter who was aged around 15 years had been taken from his custody without his consent. He additionally deposed Page | 2 that he was informed by the prosecutrix’s friend, Rekha, that she had communicated a message from a boy to the prosecutrix asking her to come to ‘Sardarnagar’. PW2, an assistant teacher at the prosecutrix’s primary school, brought the school records and testified that her date of birth at the time of admission was recorded as 08.02.1982. The prosecutrix (PW3) identified the appellant and deposed that she had been caught by him on her way to work and was forcibly taken in an autorickshaw to a nearby bus stand from where she was transported by bus to the appellant’s village. She further claimed to have repeatedly been raped and pressurised into performing marriage with the appellant. The prosecutrix nevertheless admitted during cross examination to being in love with the appellant, having had consensual sexual intercourse with him on a prior date and also having met him outside her home on previous occasions. It further emerged that during her alleged kidnapping, she was seated with other passengers on the back seat of the autorickshaw whereas the appellant was on the front seat. She admitted to spending a week at the appellant’s village where both went to work together and were living akin to husband and wife. PW4 and PW6 who were panch witnesses to the recording of the FIR, physical condition of the prosecutrix and seizure of the prosecutrix’s clothes, both turned hostile and discarded the prosecution’s version. PW5, being a Doctor Page | 3 at the Civil Hospital, proved the medical record and injury certificates showing that the prosecutrix had indeed been subjected to sexual intercourse. Finally, PW7, was the police officer who registered the FIR and PW8 deposed being the Investigating Officer of the case. 4. It is pertinent to mention that the Investigating Officer (PW8) admitted in his crossexamination that there was no reference to Rekha’s statement in the FIR; that the prosecutrix had not stated that the appellant caught her on way to work and that she had been forcefully abducted, or that her modesty was outraged. Instead, PW8 disclosed that the prosecutrix in her statement under Section 161 of the Code of Criminal Procedure, 1973 (“CrPC”) claimed to know the appellant for a month prior to the occurrence, and of having a regular physical relationship in a damaged bungalow near her place of work. After they were caught by the guard while coming out of such bungalow, they had run away to Surpur where they started labour work on the farm of one Bhikabhai to earn a livelihood and cohabit as husband and wife. Besides these oral depositions, the prosecution also produced documents in the form of birth certificate, medical papers, FSL report, police and other records. 5. At the stage of recording statement under Section 313 of the CrPC on 01.11.2002, the appellant stated his age as 23 years and claimed to be innocent. The legal aid counsel, engaged from the Page | 4 defence side, controverted the prosecution’s imputations and resultant conclusions. A parallel version was projected wherein both appellant and the prosecutrix were allegedly in love and had consensual physical relations since long before the date of the incident. It was claimed that the prosecutrix had run away solely and completely on her own accord; and had wished to marry the appellant without any enticement on his side. A catena of case laws was cited to show that neither charges of kidnapping nor rape were made out in such cases of love affairs. 6. The learned Additional Sessions Judge vide his order dated 16.12.2002 held that the testimony of the prosecutrix unequivocally established that she had been raped three to four times by the appellant, thus meriting his conviction under Section 376 of IPC. It was further observed that although there was a love affair but considering the fact that the prosecutrix was 16 years, 3 months and 6 days old at the time of occurrence and was thus minor, her consent was wholly irrelevant for the charge of kidnapping. In light of the prosecutrix’s claim of forcible abduction and discovery along with the appellant, it was also held that the appellant had enticed and lured the minor girl with the intention to have intercourse and marriage, and thus all the ingredients of Sections 363 and 366 of IPC were well established. Considering the serious nature of the offence, the trial Page | 5 Court awarded sentence of oneyear rigorous imprisonment and fine of Rs 1,000 (or simple imprisonment of two months in lieu thereof) for offence under Section 363; five years rigorous imprisonment and fine of Rs 5,000 (or simple imprisonment of three months in lieu thereof) for offence under Section 366; and ten years rigorous imprisonment and fine of Rs 10,000 (or simple imprisonment of six months in lieu thereof) for offence under Section 376 of IPC. 7. The appellant assailed his conviction before the High Court claiming that the parties were in love owing to which the prosecutrix had left her parents’ home and gone with him at her own free will. Additionally, she never raised any protest or alarm despite numerous opportunities to do so and thus none of the constituents of ‘kidnapping’ or ‘rape’ was established. 8. The High Court in its order under appeal observed that the factum of the prosecutrix being in love with the accused having been established beyond any doubt coupled with the fact that they used to meet frequently, the appellant could not be held guilty of committing ‘rape’ and his consequential conviction and sentence under Section 376 IPC was set aside. However, there being no evidence suggesting that the prosecutrix had consented to be taken from her parents’ lawful custody and given her undisputable minority, the appellant’s conviction under Sections 363 and 366 of IPC was sustained. Page | 6 CONTENTIONS OF PARTIES 9. The appellant being aggrieved by his conviction under the charge of kidnapping has approached this Court reasserting his innocence. Learned counsel for the appellant highlighted that the High Court has acknowledged that there was a love affair, frequent meetings, and consensual relationship between the parties, which merited the appellant’s acquittal under Section 376 IPC. But in the very same breath, the High Court has also held that the prosecutrix did not willingly leave her parents’ custody and had not consented to be taken for marriage. These two findings were canvassed as being mutually contradictory. Reliance was placed on the judgment of this Court in S. Varadarajan v. State of Madras,1 to drive home the point that voluntary abandonment of home by a minor girl would not amount to kidnapping, and that in the absence of some active involvement, the appellant could not be said to have ‘taken’ or ‘enticed’ the prosecutrix. 10. In contrast, learned State Counsel supported the impugned judgment of conviction. He emphasised on the concurrent findings of the Courts below read with the plain language of the Statute (IPC) and reiterated that consent of a girl below 18 years could be no excuse in a case of ‘kidnapping’ within the meaning of Section 361 IPC. ANALYSIS (1965) 1 SCR 243. Page | 7 I. Whether a consensual affair can be a defence against the charge of kidnapping a minor? 11. Having given our thoughtful consideration to the rival submissions, it appears to us that although worded succinctly, the impugned judgment does not err in appreciating the law on kidnapping. It would be beneficial to extract the relevant parts of Sections 361 and 366 of IPC which define ‘Kidnapping from Lawful Guardianship’ and consequential punishment. These provisions read as follows: “361. Kidnapping from lawful guardianship.—Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.—The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person. xxx 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.—Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term Page | 8 which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid].” 12. A perusal of Section 361 of IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child’s minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such ‘enticement’ need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. 2 However, mere recovery of a missing minor from the custody of a stranger would not ipsofacto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home as happened in the cases of King Emperor v. Gokaran3 and Emperor v. Abdur Rahman4. 13. Adverting to the facts of the present case, the appellant has unintentionally admitted his culpability. Besides the victim being recovered from his custody, the appellant admits to having established Thakorlal D Vadgama v. State of Gujarat, (1973) 2 SCC 413, ¶ 10. AIR 1921 Oudh 226. AIR 1916 All 210. Page | 9 sexual intercourse and of having an intention to marry her. Although the victim’s deposition that she was forcefully removed from the custody of her parents might possibly be a belated improvement but the testimonies of numerous witnesses make out a clear case of enticement. The evidence on record further unequivocally suggests that the appellant induced the prosecutrix to reach at a designated place to accompany him. 14. Behind all the chaff of legalese, the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age. 15. A bare perusal of the relevant legal provisions, as extracted above, show that consent of the minor is immaterial for purposes of Section 361 of IPC. Indeed, as borne out through various other provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. 5 Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians. Therefore, a minor girl’s infatuation Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359, ¶ 15. Page | 10 with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping. 16. Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted. 17. The ratio of S. Varadarajan (supra), although attractive at first glance, does little to aid the appellant’s case. On facts, the case is distinguishable as it was restricted to an instance of “taking” and not “enticement”. Further, this Court in S. Varadarajan (supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused. 18. Unfortunately, it has not been the appellant’s case that he had no active role to play in the occurrence. Rather the eyewitnesses have Page | 11 testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully. 19. It is apparent that instead of being a valid defence, the appellant’s vociferous arguments are merely a justification which although evokes our sympathy, but can’t change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC. II. Whether the punishment awarded is just, and ought there be leniency given the unique circumstances? 20. Having held so, we feel that there are many factors which may not be relevant to determine the guilt but must be seen with a Page | 12 humane approach at the stage of sentencing. The opinion of this Court in State of Madhya Pradesh v. Surendra Singh6 on the need for proportionality during sentencing must be reemphasised. This Court viewed that: “13. We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society.” [emphasis supplied] 21. True it is that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. It would thus depend upon the facts and circumstances of each case whether a superior Court should interfere with, and resultantly enhance or reduce the (2015) 1 SCC 222. Page | 13 sentence. Applying such considerations to the peculiar facts and findings returned in the case in hand, we are of the considered opinion that the quantum of sentence awarded to the appellant deserves to be revisited. 22. We say so for the following reasons: first, it is apparent that no force had been used in the act of kidnapping. There was no pre planning, use of any weapon or any vulgar motive. Although the offence as defined under Section 359 and 361 of IPC has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing. 23. Second, although not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked. As mentioned earlier, the appellant was at the precipice of majority himself. He was no older than about eighteen or nineteen years at the time of the offence and admittedly it was a case of a love affair. His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively. 24. Third, owing to a protracted trial and delays at different levels, more than twentytwo years have passed since the incident. Both the victim and the appellant are now in their forties; are productive members of society and have settled down in life with their respective Page | 14 spouses and families. It, therefore, might not further the ends of justice to relegate the appellant back to jail at this stage. 25. Fourth, the present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low. 26. Fifth, unlike in the cases of State of Haryana v. Raja Ram7 and Thakorlal D. Vadgama v. State of Gujarat 8, there is no grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power; if not for the age of the prosecutrix, the two could have been happily married and cohabiting today. Indeed, the present instance is an offence: mala prohibita, and not mala in se. Accordingly, a more equitable sentence ought to be awarded. 27. Given these multiple unique circumstances, we are of the opinion that the sentence of five years’ rigorous imprisonment awarded by the Courts below, is disproportionate to the facts of the this case. The concerns of both the society and the victim can be (1973) 1 SCC 544. (1973) 2 SCC 413. Page | 15 respected, and the twin principles of deterrence and correction would be served by reducing the appellant’s sentence to the period of incarceration already undergone by him. CONCLUSION 28. In light of the above discussion, we are of the view that the prosecution has established the appellant’s guilt beyond reasonable doubt and that no case of acquittal under Sections 363 and 366 of the IPC is made out. However, the quantum of sentence is reduced to the period of imprisonment already undergone. The appeal is, therefore, partly allowed in the above terms and the appellant is consequently set free. The bail bonds are discharged. …………………………….. J. (N.V. RAMANA) .…………………………… J. (S. ABDUL NAZEER) ..…………………………...J. (SURYA KANT) NEW DELHI DATED : 12.01.2021 Page | 16


[REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3767 OF 2010 THE STATE OF BIHAR & ORS. …APPELLANT(S) VERSUS ARBIND JEE …RESPONDENT(S) J U D G M E N T Hrishikesh Roy, J. 1. This appeal is directed against the judgment and order dated 29.9.2008 of the Patna High Court in LPA No. 245 of 2008. 2. The father of the respondent was working as a Home guard and after he died in harness, the respondent applied for Signature Not Verified compassionate Digitally signed by Rajni Mukhi appointment. The concerned Committee Date: 2021.09.28 13:32:22 IST Reason: recommended the respondent and others whereafter the order dated 20.11.1985 was issued by the Commandant, Bihar Home Guard forwarding the name of the respondent as one of the persons shortlisted for appointment on compassionate basis. The appointment was conditional upon physical fitness certificate issued by the Civil Surgeon and it was made clear that appointment of the enlisted persons will be effective only after due satisfaction of their capability, educational qualification etc. 3. The recommended persons appeared in the Home Guard Headquarter as directed, but the respondent was denied appointment as he was found deficient in the physical standards. Thus aggrieved, the respondent moved and obtained relief from the Patna High Court for appointment in Class IV post. As the respondent was shortlisted for the post of Adhinayak Lipik, he challenged the High Court order through SLP(C) No. 6437 of 1993. The resultant Civil Appeal No. 220 of 1996 was allowed by the Supreme Court with the following direction:- “….We, therefore, allow this appeal and direct the respondents to appoint the appellant to the post of ‘Adhinayak Lipik’ in the Homeguard Department, State of Bihar within one month from the date of communication of this order.” 4. Following the above direction of the Supreme Court, the respondent was appointed on 27.2.1996 by the order No. 108 of 1996 dated 10.2.1996 issued by the Commandant of the Bihar Home Guard Bn., Patna. Six years after joining service, an application was made on 10.9.2002 by the respondent claiming seniority from 5.12.1985 but the authorities rejected the claim on 20.11.2002 on the ground that the respondent was appointed on 27.2.1996 on direction of the Supreme Court and that he was not borne in service as on 5.12.1985. The rejection order was then challenged and the Patna High Court in the respondent’s CWJC no. 6683/2003 directed the authority to consider the respondent’s seniority from 5.12.1985. 5. The above order passed by the learned Single Judge was challenged by the State and the Division Bench on 29.9.2008 while dismissing the LPA no. 245 of 2008 noted that the respondent was denied appointment, (as proposed on 20.11.1985), on the ground that he did not conform to the physical standards applicable to a Constable and eventually the Supreme Court directed appointment of the respondent as Adhinayak Lipik in the Home Guard Department. Therefore, the appointment should relate back to the date of the initial order on 20.11.1985. With this observation, the State’s LPA was dismissed by the order impugned in this appeal. 6. We have heard Mr. Abhinav Mukerji, learned counsel appearing for the appellants. The respondent is represented by Mr. Satvik Misra, learned counsel. 7. The issue to be answered here is whether the respondent is entitled to claim seniority in service from a retrospective date i.e. 20.11.1985 as was ordered by the High Court or whether he is entitled for seniority from the date he entered service. 8. It is important to bear in mind that the order No. 1169/1985, whereby the respondent along with few others were shortlisted for compassionate appointment, did not materialize and was in fact refused for the respondent as he failed to meet the physical standards. Eventually, following the direction issued by this Court on 2.1.1996 to appoint the respondent within one month from the date of communication of the Supreme Court’s order, the respondent was appointed on 10.2.1996. The respondent joined service without demur and made no claim for any retrospective effect to his appointment, until addressing the representation on 10.9.2002, to claim seniority from 5.12.1985. 9. In the previous round before this Court, the respondent was concerned about securing appointment as Adhinayak Lipik and direction was issued to appoint him, specifying the time limit of one month. But there was no direction for allowing retrospective benefit to the appointee. In such circumstances, the High Court in our view should not have travelled beyond the order passed by this Court to hold in favour of the respondent that his seniority should be counted from 5.12.1985 although he entered service a decade later only on 10.2.1996. Moreover, the respondent even after entering service did not immediately claim the benefit of retrospective appointment, and only on 10.9.2002 he applied to the Commandant to claim seniority from 5.12.1985 which claim was however rejected by the Authority on 20.11.2002. 10. As earlier noted, the respondent entered service only on 10.2.1996 and yet under the impugned judgment, the High Court directed counting of his seniority from 20.11.1985 when he was not borne in service. The jurisprudence in the field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted. 11. To challenge the conferment of retrospective seniority, the learned counsel for the appellant has cited Shitla Prasad Shukla vs. State of UP and Ors.1 where this court speaking through Justice M. P. Thakkar rightly held that: “10. ……The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the Court will not overturn the determination unless it would be unfair not to do so…” 1 (1986)(Supp.) SCC 185 12. The principles enunciated in Shitla Prasad Shukla (supra) are applicable to the case at hand. The compassionate appointment of the respondent is not being questioned here but importantly he is claiming seniority benefit for 10 years without working for a single day during that period. In other words, precedence is being claimed over other regular employees who have entered service between 1985 to 1996. In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous. Such view was expressed in many cases and most recently in Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan and Ors. 2. Justice Dr. D. Y. Chandrachud speaking for the Court opined as under:- “41. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct 2 (2019) 16 SCC 28 Recruit Class II Engineering Officers’ Association v State of Maharashtra3. The principle was reiterated by this Court in State of Bihar v Akhouri Sachindra Nath4 and State of Uttaranchal v Dinesh Kumar Sharma.5” 13. The learned counsel for respondent relies on C. Jayachandran vs. State of Kerala6, to argue for retrospective seniority. The bench speaking through Justice Hemant Gupta in the context of a diligent litigant observed that: “41 ……..The appellant has submitted the representation on 11-4-2012 i.e. within 1 year and 2 months of his joining and submitted reminder on 18-9-2014. It is the High Court which has taken time to take a final call on the representation of the appellant and other direct recruits. The appellant was prosecuting his grievances in a legitimate manner of redressal of grievances. Therefore, it cannot be said that the claim of the appellant was delayed as he has not claimed the date of appointment as 30-3-2009. The appellant having been factually appointed vide communication dated 22-12-2010, he could not assume or claim to assume charge prior to such offer of appointment. The appellant has to be granted notional seniority from the date the other candidates were appointed in pursuance of the same select list prepared on the basis of the common appointment process.” 3 (1990) 2 SCC 715. 4 1991 Supp. (1) SCC 334. 5 (2007) 1 SCC 683. 6 (2020) 5 SCC 230 As can be seen from the above extracted passage, the benefit of notional seniority was claimed within 1 year from date of actual appointment. This was also a case where the contesting parties were recruited through a common competitive process. But the present is not a case of recruitment by selection and is a compassionate appointment made on this court’s order. The court’s direction to the State was to appoint within 1 month without specifying that the appointment should have a retrospective effect. The respondent never raised any claim for relating his appointment to an earlier date from this Court. Post appointment, he never raised any grievance within reasonable time, for fixing his date of appointment as 20.11.1985. Six years later, only on 10.9.2002, he made a representation and the same was rejected with the observation that on 1.8.1985, the respondent was yet to enter service. Proceeding with these facts, it is clearly discernible that the respondent has slept over his rights, and never earlier pointedly addressed his present claim either to the Supreme Court (in the earlier round) or to the State, soon after his appointment. Moreover, his was a compassionate appointment without any element of competitive recruitment where the similarly recruited has stolen a march over him. Therefore, the ratio in C. Jayachandran (supra) will be of no assistance to the respondent as that case is distinguishable on facts. 14. The records here reflects that the State have faithfully implemented the direction issued by this Court and appointed the respondent. Moreover, the action of the authorities in determination of the respondent’s seniority from the date of entering service is found to be consistent with the applicable laws. There could be individual cases where a bunch of applicants are recruited through a common competitive process but for one reason or another, one of them is left out while others get appointed. When the denial of analogous appointment is founded to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual. However, the present is not a case of that category. 15. Supported by our above discussion, we are of the considered opinion that the High Court was in error in granting retrospective seniority to the respondent. The appeal is accordingly allowed and the impugned orders passed by the High Court are set aside and quashed. With this order the case is disposed of leaving the parties to bear their own cost. ………………………………………………………J. [R. SUBHASH REDDY] ………………………………………………………J. [HRISHIKESH ROY] NEW DELHI SEPTEMBER 28, 2021


REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3203 OF 2008 [Arising out of SLP (Civil) No. 568 of 2007] Babulal Badriprasad Varma ...Appellant Versus Surat Municipal Corporation & Ors. ...Respondents JUDGMENT S.B. SINHA, J : 1. Leave granted. 2. Interpretation and/ or application of the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (for short "the Act") and the Rules framed thereunder known as the Gujarat Town Planning and Urban Development Rules, 1979 (for short "the Rules") is in question in this appeal which arises out of a judgment and order dated 27.12.2006 passed by a Division Bench of the High Court of Gujarat at Ahmedabad in Letters Patent Appeal No. 1611 of 2006 arising out of a judgment and order dated 23.11.2006 passed by a learned Single Judge of the said Court in SCA No. 7092 of 2001. 3. Before embarking upon the issue involved in this appeal, we may notice the admitted fact of the matter. The Government of Gujarat in exercise of its power conferred upon it under Section 65 of the Act made a scheme in respect of the town of Umra, Surat on 1.06.1999. Plot Nos. 17/7 and 17/8 were owned by Respondent No. 4 herein. Appellant was a tenant under the said respondent in respect of Plot No. 17/8 admeasuring 1067 sq.m. He used to run a business of marble and stone therein. A road widening project was proposed in terms of the said scheme. Notices therefor were issued both to the appellant as also the respondent no. 4. Appellant objected thereto. He, however, did not pursue his case in regard to the proposal for widening of the road. For the said public purpose, viz., widening of the road, 867 sq. m. of land was taken over leaving only 200 sq. m. of land. With a view to give effect to the provisions of the Act and the Rules framed thereunder, proceedings were initiated for allotment of the said land in terms of the Act. 20% of the land was taken over without payment of any compensation. In respect of the proceedings initiated for the purpose of re-allotment of the land, despite a public notice, the appellant did not file any objection. He did not take any part in the proceedings therefor. Respondent No. 4 was allotted a final plot bearing No. 157 and the said 200 sq. m. of land of plot No. 17/8 has merged in final plot No. 165 owned by the respondent No. 3. The Scheme was notified in the year 1999. Respondent No. 1 herein which is the statutory agency in terms of the Act for the purpose of implementation of the Scheme issued a notice under Section 67 of the Act upon the respondent no. 4 on or about 15.01.2000. As he did not respond thereto, a notice under Section 68 of the Act was served on him on 31.03.2000 stating: "As per the said approved preliminary scheme the plot No. 157 is allotted to you. And, its pole demarcations were done by the town planning officer at site. The said Final Plot/ Original Plot is allotted in lieu of your No. 17/7, 17/8 paiki land. And, the said land is now vested in the Municipal Corporation from 1.7.1999, and is of the ownership of the Municipal Corporation. Thereafter the notice below section 67 for the change in occupation was issued on 15.1.2000 to you. In spite of this you have not handed over the possession. Therefore, as per the Gujarat Town Planning and Urban Development Rules, 1979 rule 33 the undersigned in exercise of powers conferred below section 68(1) and 8(2) of the Bombay Provincial Municipalities Act and below the section 68 notice under the Gujarat Town Planning and Urban Development Act this is to inform you that as shown in the sketch on the reverse the premises marked should be vacated within 7 days from receipt of the notice and had over the possession to the Surat Municipal Corporation. If you fail to do so then on completion of the stipulated time limit as per the Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 the said land and the occupation on the same will be summarily evicted and your occupation will be removed and if you obstruct/ interfere on it after taking away the possession you trespass then as provided under Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 the action as per the section 188 of the Indian Penal Code will be initiated against you before the Criminal Court, pleased take note of the same." 5. The validity and/ or legality of the said notice was questioned by the appellant by filing a writ petition in the High Court of Gujarat inter alia contending that the purported final allotment of plot No. 165 in favour of the respondent no. 3 and allotment of final plot No. 157 in favour of the respondent no. 4 were made without issuing any notice as envisaged under Sections 52 and 53 of the Act. In the said writ petition, it was prayed: "8. On the facts and circumstances mentioned herein above, the Petitioner prays to your Lordships that: (A) Be pleased to issue writ of Mandamus or writ in the nature of Mandamus or appropriate writ, order or direction, quashing and setting aside the impugned action of acquiring and demolishing the structures available on the land in question, i.e., Original Plot No. 17/A - R.S. No. 17/P, situated at Umra, Surat." 6. A learned Single Judge of the High Court dismissed the said writ petition inter alia opining that the interest of landlord and tenant being common and in absence of any inter se dispute between them even if any portion of the land which remained in possession of the tenant was included in the Scheme, the proper remedy would be to claim compensation to that extent, holding: "18. It appears that in the said decision, the Apex Court while considering the scheme on the touch- stone of the mandatory procedure to be followed by the authority under the Bombay Town Planning Rules, has given directions to provide alternative accommodation based on the earlier decision in case of Jaswantsingh Mathurasingh and upheld the scheme. Such is not the issue in the present case nor there is any complaint by the tenant that any special notice was not served or that the mandatory procedure for finalization of the scheme is not followed. Further, it appears that if the interest of the landlord and of the tenant is common and in absence of any inter se dispute between the landlord and tenant, even if any portion of the land which is in possession of the tenant is included in the scheme, the proper remedy for the tenant would be to claim for compensation to that extent and if such compensation is not received by him, he may resort to proper remedy available for recovery of the compensation to the extent of the area in his occupation. At least on ground that the tenant is in occupation, it would not be a case for interference with the scheme which is sanctioned and made a part of the statute. Suffice it to say that the tenant will be at liberty to resort to appropriate proceedings against the landlord for the inter se rights and also for entitlement of the compensation. But if the area of original plot no. 17/8 is included in the final scheme and in exchange of the original plot held by Keshav Gramini of 17/8 and 17/7, the final plot is already allotted and as observed earlier it was even otherwise in the ownership of the original holder and it is only on account of inter se dispute the other persons are lawfully occupying the land, the tenant cannot insist that his landlord must be allotted the land of final plot no. 157 simultaneously, when he is to be evicted or deprived of the portion of the land of original plot no. 17/8. Therefore, in my view considering the peculiar facts and circumstances of the present case, the decision of the Apex Court in case of Mansukhlal (supra) cannot be made applicable to the present case." 7. A Division Bench of the High Court dismissed an intra-court appeal preferred thereagainst. 8. Mr. U.U. Lalit, learned senior counsel appearing on behalf of the appellant, in support of this appeal, inter alia would submit: (i) The provisions of Sections 52 and 81 being imperative in character, no acquisition of land is permissible without service of any notice upon the persons interested which would include a tenant in occupation and carrying on business thereon. (ii) A tenant having regard to the provisions of the Transfer of Property Act or otherwise having an interest in the property cannot be deprived therefrom without following the procedure established by law and without initiation of any proceedings for acquisition of land. (iii) The tenant's interest being distinct and separate could not have been held to be merged with the interest of the landlord, either for the purpose of allotment of a final plot or otherwise in favour of the landlord. (iv) Appellant having a right over the remaining 200 sq. m. of the land of original plot No. 17/8 should be allowed to continue thereupon and final allotment made in favour of the respondent no. 3 to that extent should be cancelled. Mr. Lalit in support of his contention strongly relied upon a decision of this Court in Mansukhlal Jadavji Darji and Others v. Ahmedabad Municipal Corporation and Others [(1992) 1 SCC 384] and Jaswantsingh Mathurasingh and Another v. Ahmedabad Municipal Corporation and Others [1992 Supp (1) SCC 5]. 9. Mr. Prashant G. Desai, learned counsel appearing on behalf of the respondent no. 1, on the other hand, would submit: (i) Public notices having been issued in terms of the Rule 26 of the Rules, an objection which would nullify the Scheme cannot be entertained at this stage. (ii) Respondent No. 1 Corporation merely being interested in the implementation of the Scheme is entitled to obtain vacant possession from him so as to enable it to deliver it to the respondent No. 3 in whose favour plot No. 165 has been finally allotted. (iii) The Scheme in terms of Sub-section (3) of Section 65 of the Act having become a part of the Act, validity thereof cannot be questioned at this stage as modification of the Scheme, if any, will have to undergo the entire process once over again which is not contemplated under the Act. 10. The Act was enacted to consolidate and amend the law relating to the making and execution of development plans and town planning schemes in the State of Gujarat. 11. It is not necessary for us to delve deep into the statutory scheme. Suffice it to say that Chapter IV of the Act deals with control of development and use of land included in the development plans. Chapter V of the Act provides for town planning schemes. Section 40 of the Act empowers the appropriate authority to make one or more schemes. A declaration of intention to make a scheme is to be notified whereafter a draft scheme may be published. Section 45 provides for reconstitution of the plots, sub-section (2) whereof inter alia enables allotment of a final plot from an original plot by transfer of any adjoining lands. Section 52 contemplates issuance of a notice in a prescribed manner and in the prescribed form. 12. Section 52 of the Act provides for the contents of preliminary and final scheme. It inter alia provides for giving of a notice by the Town Planning Officer as follows: "(1) In a preliminary scheme, the Town Planning Officer shall,- (i) after giving notice in the prescribed manner and in the prescribed form to the persons affected by the scheme, define and demarcate the areas allotted to, or reserved for, any public purpose, or for a purpose of the appropriate authority and the final plots; (ii) after giving notice as aforesaid, determine in a case in which a final plot is to be allotted to persons in ownership in common, the shares of such persons;" Further, Sub-section (3) of Section 65, Sections 67 and 68 of the Act read as under: "65 - Power of Government to sanction or refuse to sanction the scheme and effect of sanction - (3) On and After the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in this Act. 67 - Effect of preliminary scheme On the day on which the preliminary scheme comes into force- (a) all lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vest absolutely in the appropriate authority free from all encumbrances; (b) all rights in the original plots which have been re-constituted into final plots shall determine and the final plots shall become subject to the rights settled by the Town Planning Officer. 68 - Power of appropriate authority to evict summarily On and after the date on which a preliminary scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme shall, in accordance with the prescribed procedure, be summarily evicted by the appropriate authority." 13. Rules 26(1), 26(3) and 33 of the Rules read as under: "26. Procedure to be followed by Town Planning Officer under section 51 and under sub-section (1) of section 52 - (1) For the purpose of preparing the preliminary scheme and final scheme the Town Planning Officer shall give notice in Form H of the date on which he will commence his duties and shall state the time, as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a Town Planning Scheme shall be entitled under section 82 to make a claim before him. Such notice shall be published in the Official Gazette and in one or more Gujarati newspapers circulated within the area of the appropriate authority and shall be pasted in prominent places at or near the areas comprised in the scheme and at the office of the Town Planning Officer. (3) The Town Planning Officer shall, before proceeding to deal with the matters specified in section 52, publish a notice in Form H in the Official Gazette and in one or more Gujarati newspapers circulating within the area of the appropriate authority. Such notice shall specify the matters which are proposed to be decided by the Town Planning Officer and State that all persons who are interested in the plots or are affected by any of the matters specified in the notice shall communicate in writing their objections to the Town Planning Officer within a period of twenty days from the publication of notice in the Official Gazette. Such notice shall also be posted at the officer of the Town Planning Officer and of the appropriate authority and the substance of such notice shall be pasted at convenient places in the said locality. 33. Procedure for eviction under Section 68. - (1) For eviction under section 68, the appropriate authority shall follow the following procedure, viz.: (a) The appropriate authority shall in the first instance serve a notice upon a person to be evicted requiring him, within such reasonable time as may be specified in the notice, to vacate the land. (b) If the person to be evicted fails to comply with the requirement of the notice, the appropriate authority shall depute any Officer or Servant to remove him. (c) If the person to be evicted resists or obstructs the officer or Servant deputed under clause (b) or if he re-occupies the land after eviction, the appropriate authority shall prosecute him under section 188 of the Indian Penal Code." 14. Before embarking upon the rival contentions, we may also notice that the provisions of the Bombay Town Planning Rules, 1955 (for short "the Bombay Rules") are in pari materia with `the Rules'. Rule 21 of the Bombay Rules provides for the Procedure to be followed by the Town Planning Officer. It makes it obligatory on the part of the officer to give notice of the date on which he will commence his duties and shall state therein the time, within which the owner of any property or rights which is injuriously affected by the making of the town planning scheme shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in prominent places at or near the area comprised in the scheme and at the office of the Town Planning Officer. Sub-Rule (3) of Rule 21 of the Bombay Rules provides for serving of a Special notice of at least three clear days' upon the person interested in any plot or in any particular area comprised in the scheme, before the Town Planning Officer proceeds to deal in detail with the portion of the scheme relating thereto. Sub-Rule (4) makes it imperative upon the Town Planning Officer to "give all persons affected by any particular (sic) of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations, if any". Sub-Rule (5) provides for recording a brief minute setting out the points at issue and the necessary particulars if during the proceedings, it appears to the Town Planning Officer that there are conflicting claims or any difference of opinion with regard to any part of the scheme. 15. Rules 26 of the Rules do not contemplate service of individual notice. It prescribes service of notice in Form H. A copy of the notice in the said Form is kept at the office of the Town Planning Officer during office hours. Any person affected by the proposal of the Town Planning Scheme is entitled to inspect the Scheme in the office where arrangements for explaining the scheme proposals are made. It furthermore provides that any person entitled to claim damages in terms of Section 82 of the Act should communicate the details of his claim to the Town Planning Officer. Section 81 of the Act enables the State to transfer of right from original to final plot or extinction of such right. A Town Planning Scheme, therefore, envisages calling for objection from the persons concerned for three purposes: (i) in regard to draft scheme; (ii) lodging of any claim for payment of compensation; (iii) participation in the matter of allotment of final plots. 16. We may, however, notice that Rule 21 of the Bombay Rules provides for notice under Sub-rule (3) thereof and a reasonable opportunity of hearing under Sub-Rule (5) thereof. Sub-rule (3) of Rule 21 of the Bombay Rules provides for issuance of a special notice upon the person interested in any plot or in any particular plot comprised in the Scheme. 17. We may also take notice of the decision of this Court in Mansukhlal Jadavji Darji (supra) wherein this Court opined that Sub-rule (3) of Rule 21 of the Bombay Rules was mandatory in nature, subject, of course, to the condition that on the crucial date, viz., when the Town Planning Scheme is notified in the official gazette, he, whether an owner or tenant or sub-tenant, must be in possession of the property. 18. In Jaswantsingh Mathurasingh (supra), it was reiterated that a tenant or a sub-tenant is a person interested and is entitled to notice. In that context, it was held: "8. The question is whether the tenant or a sub- tenant is a person interested and is entitled to notice. It is obvious that under Section 105 of Transfer of Property Act, a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub-tenant is entitled to remain in possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law. Therefore, a tenant or a sub-tenant in possession of a tenement in the Town Planning Scheme is a person interested within the meaning of Rules 21(3) and (4) of the Rules. But he must be in possession of the property on the crucial date i.e. when the Town Planning Scheme is notified in the official Gazette. Every owner or tenant or a sub-tenant, in possession on that date alone shall be entitled to a notice and opportunity." 19. Rule 21(3), however, of the Bombay Rules has been amended in tune with Rule 26 of the Rules. Amended rules are in pari materia with Rule 26 of the Rules. 20. Appellant was a tenant in respect of plot No. 17/8. Plot No. 17/7 was not a plot contiguous thereto. They were separated not only by a road but also by various other plots. 21. It is also not in dispute that the appellant filed an objection in regard to the draft scheme but did not eventually pursue the same. The draft scheme was approved. 867 sq. m. of land had been acquired for public purpose out of the said plot No. 17/8. While the proceedings relating to allotment of final plot were in progress, he even did not file any objection thereto. If he intended to claim any interest in a portion of plot No. 17/8 either for the purpose of obtaining compensation for acquisition of a part of the land or to continue to have possession over 200 sq. m. of land in plot No. 17/8, it was obligatory on his part to take part in the proceedings. Whether irrespective of Rule 26 of the Rules which prescribes for issuance of a general public notice, any special notice upon the appellant was required to be served by the State or by the authority, in our opinion, cannot be gone into by us in these proceedings for the first time. Validity of Rule 26 of the Rules had never been questioned. It had also not been contended that the said Rule is ultra vires Section 52 of the Act. 22. A person interested in continuing to keep possession over a property and/ or a part of the amount of compensation must lay his claim before the appropriate authority at the appropriate stage. If in absence of any such claim filed by the appellant, the authorities have proceeded to finalise allotment of final plot in favour of the respondent Nos. 3 and 4 herein, it is too late in the day to contend that the entire scheme should be re-opened. We would consider the effect of Sub-section (3) of Section 65 of the Act a little later, but, we may at this juncture notice that the respondent No. 3 in whose favour plot No. 165 has been allotted which includes 200 sq. m. of land purported to be in possession of the appellant had nothing to do with the dispute between the appellant and his landlord the respondent no. 4. Respondent No. 4 was in possession of a contiguous plot. Respondent No. 4 was owner of both plot Nos. 17/7 and 17/8. He was, therefore, in his own right entitled to final allotment of some plot. 23. We would, however, assume that it was obligatory on the part of the State to serve a special notice upon the appellant. The question, however, would be : what would be the consequence of non-compliance thereof vis-`- vis the conduct of the appellant himself? 24. A person may waive a right either expressly or by necessary implication. He may in a given case disentitle himself from obtaining an equitable relief particularly when he allows a thing to come to an irreversible situation. 25. Different statutes provide for different manner of service of notice. The Bangalore Development Authority Act, 1976 provides that every person whose name appears in the assessment list or land revenue records shall be served with notice. [See Sureshchandra C. Mehta v. State of Karnataka and Others 1994 Supp (2) SCC 511] In West Bengal Housing Board etc. v. Brijendra Prasad Gupta and Others, etc. [AIR 1997 SC 2745], it was opined that the authority is not required to make a roaming enquiry as to who is the person entitled to notice. 26. We have referred to the said decisions only to show that the requirements in regard to the manner of service of notice varies from statute to statute and there exists a difference between the Bombay Rules and the Rules. 27. We are, however, not unmindful of the fact that a statute of town planning ex facie is not a statute for acquisition of a property. An owner of a plot is asked to part therewith only for providing for better facilities of which he would also be a beneficiary. Every step taken by the State does not involve application of the doctrine of eminent domain. In this case, the appellant did not oppose the draft scheme. It accepted that the State had a right to do so. Existence of a public purpose and increase in the valuation of the property was admitted. There exists a distinction in the action of the planning authority as regards vesting of a property in it and one so as to enable it to create a third party interest vis-`- vis for the purpose of re-allotment thereof. In the former case, the vesting of the land may be held to be an act of acquisition, whereas in the latter, it would be distribution of certain benefits having regard to the purpose sought to be achieved by a statute involving town planning. It was on that legal principle, this Court in State of Gujarat v. Shantilal Mangaldas & Ors. [1969 (3) SCR 341], opined that when a development is made, the owner of the property gets much more than what would have he got, if the same remained undeveloped in the process as by reason thereof he gets the benefit of living in a developed town having good town planning. 28. Section 67 of the Act provides that all lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vest absolutely in the appropriate authority free from all encumbrances with effect from the date on which the preliminary scheme comes into force. What would be the quantum of payment of compensation therefor is also provided in Section 82 of the Act. It is in the aforementioned situation, a claim is to be made before the authority whenever a notice in Form H is published. If a claim is not filed, the person, who is said to be injuriously affected, does so at its own peril. Had such a claim been filed, the authority before making final allotment could have considered the competing claims wherefor a large number of factors were required to be taken into consideration, viz., the location of the land, the area of the land, the nature of right, etc. 29. When a statute makes an elaborate provision as regards the formalities required to be undergone at every stage by the local authority, the State Government and other authorities concerned in preparing and making the final Town Planning Scheme, the same should be considered to be exhaustively. [See Maneklal Chhotalal & Ors. v. M.G. Makwana & Ors. [(1967) 3 SCR 65] In Maneklal Chhotalal (supra), it was held: "49. Therefore, having due regard to the substantive and procedural aspects, we are satisfied that the Act imposes only reasonable restrictions, in which case, it is saved under Article 19(5) of the Constitution. The considerations referred to above will also show that the grievance of the petitioners that Article 14 is violated, is also not acceptable." [See also Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr. 2008 (4) SCALE 278] 30. We are, however, not oblivious that in a given situation, a question may also arise as to whether the restrictions imposed by a statute are reasonable or not. 31. It is not a case where the State by its acts of omissions and commissions was unjustly enriching itself. It was a dispute between two private parties as regards the right to obtain final allotment; the principles underlying the same are not in dispute. What is in dispute is the distribution of quantum thereof between two competing claimants, viz., landlord and tenant. We do not mean to say that under no circumstances the appellant was entitled to allotment of a portion of the property or mandatory compensation in lieu thereof from the landlord. But, we intend to emphasise that he has lost his right to enforce the same in a public law forum. He has no enforceable claim against the State at this juncture. He may pursue his claim only against the respondent No. 4 in an appropriate proceedings wherein for certain purposes the State or the authorities may also be impleaded as a party. Even if he had a claim he would be deemed to have waived the same for the reasons stated hereinafter. 32. It is not in dispute that: (a) Appellant although filed an objection with regard to the draft scheme, did not choose to pursue it. (b) He did not file objections for re-allotment and did not participate in the proceedings following acquisition instituted by the authorities under the Act. In view of the above, the issue is whether it was open to him to assert his purported right to special notice in respect of the final allotment in the instant case given the fact that he did not pursue his objections to the draft scheme and subsequently did not object/participate during the proceedings for re-allotment. 33. It has been noticed by us hereinbefore that under Rule 26 of the Rules applicable in the instant case, as distinguished from the Bombay Rules (wherein special notice is required), no special notice is mandatorily required to be served. Assuming, however, that it was obligatory for the State to issue notice to the appellant, the question is whether the principle of waiver precludes him from claiming equitable relief in this case due to his earlier conduct which allowed the entire process of acquisition and allotment to become final. We are of the opinion that even if he had any such right, he waived the same. In Halsbury's Laws of England, Volume 16(2), 4th edition, para 907, it is stated: "The expression `waiver' may, in law, bear different meanings. The primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example whether or not to exercise a contractual right... Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular knowledge on the part of the person making the representation, and the estoppel may be suspensory only... Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it" As early as 1957, the concept of waiver was articulated in a case involving the late assertion of a claim regarding improper constitution of a Tribunal in Manak Lal v. Dr. Prem Chand [AIR 1957 SC 425] in the following terms: "It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection. As Sir Johan Romilly M. R. has observed in Vyvyan v. Vyvyan [(1861) 30 Beav. 65, 74; 54 E.R. 813, 817] "waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim". In The Director of Inspection of Income Tax (Investigation), New Delhi and Another v. Pooran Mal & Sons and Another [(1975) 4 SCC 568] the issue was regarding waiver of benefits under a statute of limitation. It was stated: "13. We may in this connection refer to the decision in Wilson v. McIntosh. In that case an applicant to bring lands under the Real Property Act filed his case in court under Section 21, more than three months after a caveat had been lodged, and thereafter obtained an order that the caveator should file her case, which she accordingly did. It was held that he had thereby waived his right to have the caveat set aside as lapsed under Section 23. The Privy Council held that the limitation of time contained in Section 23 was introduced for the benefit of the applicant, to enable him to obtain a speedy determination of his right to have the land brought under the provisions of the Act and that it was competent for the applicant to waive the limit of the three months, and that he did waive it by stating a case and applying for and obtaining an order upon the appellant to state her case both, which steps assumed and proceeded on the assumption of the continued existence of the caveat. They referred with approval to the decision in Phillips v. Martin where the Chief Justice said: "Here there is abundant evidence of waiver, and it is quite clear that a man may by his conduct waive a provision of an Act of Parliament intended for his benefit. The caveator was not brought into Court in any way until the caveat had lapsed. And now the applicant, after all these proceedings have been taken by him, after doubtless much expense has been incurred on the part of the caveator, and after lying by and hoping to get a judgment of the Court in his favour, asks the Court to do that which but for some reasons known to himself he might have asked the Court to do before any other step in the proceedings had been taken. I think he is altogether too late. It is to my mind a clear principle of equity, and I have no doubt there are abundant authorities on the point, that equity will interfere to prevent the machinery of an Act of Parliament being used by a person to defeat equities which he has himself raised, and to get rid of a waiver created by his own acts." The legal principle emerging from these decisions is also stated in Craies on Statute Law (6th Edn.) at page 369 as follows: "As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court." [emphasis supplied] Applying the above principles to the present case, it must be held that the benefit of notice provided under the Act and Rules being for the benefit of the Appellant in which no public interests are involved, he has waived the same. 34. Significantly, a similar conclusion was reached in the case of Krishna Bahadur v. Purna Theatre [(2004) 8 SCC 229], though the principle was stated far more precisely, in the following terms: "9. The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. 10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct." [Emphasis supplied] [See also Bank of India v. O.P. Swarnakar (2003) 2 SCC 721] 35. In Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel and Ors. [2006 (8) SCALE 631], this Court observed: "The matter may be considered from another angle. If the first respondent has expressly waived his right on the trade mark registered in the name of the appellant-Company, could he claim the said right indirectly? The answer to the said question must be rendered in the negative. It is well-settled that what cannot be done directly cannot be done indirectly. The term 'Waiver' has been described in the following words: "Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted upon it is sufficient consideration It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration. [See 16 Halsbury's Laws (4th edn) para 1471] " In this view of the matter, it may safely be stated that the appellant, through his conduct, has waived his right to an equitable remedy in the instant case. Such conduct precludes and operates as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the scheme in question has attained finality following as a result of the appellant's inaction. 36. Mr. Lalit submits that his client is ready and willing to pay some reasonable amount to the respondent No. 3 in whose favour plot No. 165 has been finally allotted. Issuance of any such direction, in our opinion, is legally impermissible. 37. We, therefore, are of the opinion that in this case, no relief can be granted to the appellant. He may, however, take recourse to such remedy which is available with him in law including one by filing a suit or making a representation before the State. 38. For the reasons aforementioned, the appeal is dismissed. No costs. ...............................J. [S.B. Sinha] ................................J. [V.S. Sirpurkar] New Delhi; May 02, 2008


REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No.2592 of 2022 (Arising out of Special Leave Petition (C) No.20047 of 2017) MRS. UMADEVI NAMBIAR ...APPELLANT(S) VERSUS THAMARASSERI ROMAN CATHOLIC DIOCESE REP BY ITS PROCURATOR DEVSSIA’S SON REV. FATHER JOSEPH KAPPIL ...RESPONDENT(S) JUDGMENT V. Ramasubramanian 1. Their suit for partition having been decreed by the trial Court but reversed by the High Court in a regular first appeal, the plaintiffs have come up with the above appeal. Signature Not Verified 2. Digitally signed by Jayant Kumar Arora Date: 2022.04.02 We have heard Shri Dushyant A. Dave, learned senior counsel 12:06:46 IST Reason: for the appellant and Shri Thomas P. Joseph, learned counsel for the respondent. 3. The suit schedule property originally belonged to one Ullattukandiyil Sankunni. After his death, the property devolved upon his two daughters, one of whom is the appellant herein. The appellant herein executed a general Power of Attorney on 21.07.1971, registered as Document No.35 of 1971, in favour of her sister Smt. Ranee Sidhan. However, the said power was cancelled on 31.01.1985. But in the meantime, the appellant’s sister was found to have executed four different documents in favour of certain third parties, assigning/releasing some properties. Therefore, the appellant first filed a suit in O.S.No.16 of 1986 followed by another suit in O.S.No.27 of 1988 against the assignees/releasees. Though a preliminary decree was passed in the second suit on 7.01.1989, the appellant came to know later that the assignees/releasees had sold the property to the respondent herein. 4. Therefore, the appellant filed yet another suit in O.S No.130 of 1989, seeking partition and separate possession of her half share in the suit property. The trial Court granted a preliminary decree in favour of the appellant. However, the regular appeal filed by the respondent herein was allowed by a Division Bench of the High Court by the judgment and decree impugned in this appeal. Therefore, the appellant has come up with the above appeal. 5. At the outset, it should be stated that the respondent herein did not dispute the fact that the suit schedule property originally belonged to the father of the appellant and her sister and that the appellant and her sister were entitled to equal shares in the property. But the respondent contested the suit on the grounds inter alia (i) that in view of two prior suits for partition, namely, O.S. No.16 of 1986 and O.S.No.27 of 1988, the suit was barred under Order II Rule 2 of CPC; (ii) that the general Power of Attorney executed by the appellant in favour of her sister, authorized the agent to sign all documents and present them for registration; (iii) that by virtue of the said power, the appellant’s sister transferred the suit schedule properly to four persons, for the purpose of discharging the debts incurred in the family business; (iv) that those transferees, in turn, sold the property to the respondent herein for a valuable consideration; (v) that though the appellant was earlier residing in England, she came back to India and was staying in a house just 1 km. away from the plaint schedule property; (vi) that the appellant was therefore aware of all the transfers including the transfer in favour of the respondent and the development made by the respondent over the suit property; (vii) that, therefore, the appellant is guilty of acquiescence; and (viii) that the respondent has actually developed a commercial complex on the suit property and hence entitled at least to the value of improvements, in the event of a decree being passed. 6. The trial Court framed as many as 23 issues for consideration in the suit. The objection on the basis of Order II Rule 2 of CPC was rejected by the trial Court on the ground that the appellant’s sister had committed a fraud and that the cause of action for the present suit was different from the cause of action for the previous suits. The contention that the appellant was guilty of acquiescence was rejected by the trial Court on a factual finding that the appellant was not aware of the transfer. On an examination of the recitals contained in the Power of Attorney, the trial Court came to the conclusion that the document did not confer any power to sell the property and that, therefore, the appellant’s sister was not entitled to alienate the property. Since the original alienations made in 1981 and 1982 by the appellant’s sister were null and void on account of lack of express power to sell, the subsequent sale made by those alienees in favour of the respondent herein was also held to be invalid. On the basis of these findings, the trial Court decreed the suit, as prayed for. 7. While reversing Judgment and decree of the trial Court, the High Court held: (i) that the failure of the appellant to seek the relief of setting aside the documents of transfer and/or recovery of possession of the property was fatal to her case; (ii) that though the principle behind Order II Rule 2 CPC may not be applicable to suits for partition, the appellant must be held to have had constructive notice of the alienations made by her sister, in view of Section 3 of the Transfer of Property Act, 1882 (hereinafter referred to as “the Act”); (iii) that once constructive notice is attributed to the appellant, any relief for cancellation of the documents of alienation would have already become time barred, by the time the Power of Attorney was cancelled; (iv) that since the deed of general Power of Attorney filed as Exhibit A1 did not contain any express power to sell the suit property, the transferee cannot be held to have exercised ‘reasonable care’ as required by the proviso to Section 41 of the Transfer of Property Act, 1882; and (v) that despite this fact, the appellant was not entitled to a decree for partition, in view of her failure to seek the cancellation of the alienations, in spite of having constructive notice of the alienations. 8. As could be seen from the judgments of the trial Court and the High Court, the deed of general Power of Attorney executed by the appellant in favour of her sister on 21.07.1971, did not specifically contain any power of sale. Therefore, the trial Court as well as the High Court held in no uncertain terms that the appellant’s sister was not competent to sell the property to the predecessorin interest of the respondent. However, the learned counsel appearing for the respondent argued, (i) that while construing a document, all punctuation marks should be given due weightage; (ii) that the deed of Power of Attorney was drafted by a doyen of the Bar; (iii) that Clause 22 of the deed of Power of Attorney conferred upon the agent, the power to execute and register all documents; (iv) that the power to execute a document and present the same for registration, should be understood to mean the power to execute documents requiring registration in the light of Section 49 of the Registration Act, 1908; and (v) that, therefore, a bonafide purchaser like the respondent should not be made to suffer. 9. But we do not agree with the above submissions of the learned counsel for the respondent. It remains a plain and simple fact that the deed of Power of Attorney executed by the appellant on 21.07.1971 in favour of her sister contained provisions empowering the agent: (i) to grant leases under Clause 15; (ii) to make borrowals if and when necessary with or without security, and to execute and if necessary, register all documents in connection therewith, under Clause 20; and (iii) to sign in her own name, documents for and on behalf of the appellant and present them for registration, under Clause 22. But there was no clause in the deed authorizing and empowering the agent to sell the property. The argument that the deed was drafted by a doyen of the Bar, is an argument not in favour of the respondent. This is for the reason that the draftsman has chosen to include, (i) an express power to lease out the property; and (ii) an express power to execute any document offering the property as security for any borrowal, but not an express power to sell the property. Therefore, the draftsman appears to have had clear instructions and he carried out those instructions faithfully. The power to sell is not to be inferred from a document of Power of Attorney. The trial Court as well as the High Court were ad idem on the finding that the document did not confer any power of sale. 10. In fact the High Court rejected even the refuge sought by the respondent under Section 41 of the Transfer of Property Act which reads as follows: “Transfer by ostensible owner. Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.” 11. The High Court has held and in our view rightly so, that if the respondent had exercised reasonable care as required by the proviso to Section 41, they could have easily found out that there was no power of sale. 12. Unfortunately after finding (i) that the Power of Attorney did not contain authorization to sell; and (ii) that the respondent cannot claim the benefit of Section 41 of the Act, the High Court fell into an error in attributing constructive notice to the appellant in terms of Section 3 of the Act. The relevant interpretation clause in Section 3 of the Act reads as follows: “Interpretation Clause xxxx xxx xxxx “a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation IWhere any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one subdistrict, or where the registered instrument has been registered under subsection (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any SubRegistrar within whose subdistrict any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated: Provided that (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908) and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act. Explanation II.Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III.A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.” 13. Two things are important for the above interpretation clause to come into effect. They are: (i) wilful abstention from an enquiry or search; and (ii) gross negligence. Explanation I and Explanation II under the above interpretation clause are applicable to the person acquiring an immovable property, the transaction relating to which is required by law to be effected by a registered instrument. The High Court has turned the above interpretation clause upside down and held the Principal in relation to a deed of Power of Attorney, to have had constructive notice in terms of Section 3, of a sale effected by the agent. 14. The reasoning given by the High Court for holding that the appellant ought to have challenged the alienations, is that the appellant was out of possession. Here again, the High Court failed to appreciate that the possession of an agent under a deed of Power of Attorney is also the possession of the Principal and that any unauthorized sale made by the agent will not tantamount to the Principal parting with possession. 15. It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co sharer are still entitled to sustain the alienation to the extent of the share of the cosharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations. 16. The learned counsel for respondent relied upon the decision of this Court in Delhi Development Authority vs. Durga Chand Kaushish1, in support of his argument about the rule of interpretation to be adopted while construing Exhibit A1, the deed of general Power of Attorney. He also relied upon the Judgment of this Court in Syed Abdul Khader vs. Rami Reddy and Others2 for driving home the question as to how the deed of Power of Attorney should be construed. 17. We do not know how the ratio laid down in the aforesaid 1 (1973) 2 SCC 825 2 (1979) 2 SCC 601 decisions could be applied to the advantage of the respondent. As a matter of plain and simple fact, Exhibit A1, deed of Power of Attorney did not contain a clause authorizing the agent to sell the property though it contained two express provisions, one for leasing out the property and another for executing necessary documents if a security had to be offered for any borrowal made by the agent. Therefore, by convoluted logic, punctuation marks cannot be made to convey a power of sale. Even the very decision relied upon by the learned counsel for the respondent, makes it clear that ordinarily a Power of Attorney is to be construed strictly by the Court. Neither Ramanatha Aiyar’s Law Lexicon nor Section 49 of the Registration Act can amplify or magnify the clauses contained in the deed of Power of Attorney. 18. As held by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust3 the document should expressly authorize the agent, (i) to execute a sale deed; (ii) to present it for registration; and (iii) to admit execution before the Registering Authority. 3 (2012) 8 SCC 706 19. It is a fundamental principle of the law of transfer of property that “no one can confer a better title than what he himself has” (Nemo dat quod non habet). The appellant’s sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation. 20. Therefore, the appeal is allowed, the impugned judgment of the High Court is set aside and the Judgment and preliminary decree passed by the trial Court are restored. There will be no order as to costs. …..…………....................J. (Hemant Gupta) .…..………......................J (V. Ramasubramanian) APRIL 1, 2022 NEW DELHI.