LT-JAN-2013

NEED OF THE HOUR
The year 2012 saw many new developments and happenings in every sphere of the Indian polity.
On 22nd July Mr. Pranab Mukherjee was elected as India's 13th President and on 10th August
Mr. Hamid Ansari was re-elected consecutively the second Vice-President of India after
Dr. Sarvepalli Radhakrishnan.
The corruption in the government and the allied bodies acquired greater dimensions with the
spilling over of the 2G scam to this year as well. On 2nd February the Supreme Court cancelled
all 122 licences given by A. Raja in 2G spectrum scam and on 5th February the Special CBI
court dismissed Subramanian Swamy's petition to prosecute Home Minister P. Chidambaram
in 2G scam. The disclosures by Mr. Arvind Kejriwal on misallocation of land to many public
figures and stashing away of their unaccounted moneys at Geneva; also brought to limelight the
parasite commodities like vegetables; added to the woes of the general public.
The country witnessed internal strife to a great extent due to the outbreak of Mao clashes in the
Kokrajhar area which spread to many parts of India. On the other hand the infamous terrorist,
Ajmal Kasab was finally hanged on 22nd November, 2012.
Internationally, the re-election of Barack Obama to US President ship, brought in more stringent
rules and regulations regarding jobs for expatriates in the US. India displayed a major improvement
in sport by bagging 2 silver and 4 bronze medals.
On the legal front many new developments took place: The Copyright (Amendment) Bill, 2010
('Copyright Bill') was passed by both houses of parliament and now awaits presidential assent
to become effective as law.
"The Judicial Standards and Accountability Bill, 2010" was allowed by a bench of Chief Justice
of India (CJI) Altamas Kabir, justices SS Nijjar and J Chelameswar. The bench stayed a May
2012 Delhi High Court order that suspended a government rule requiring Supreme Court and
High Court Judges to inform the home and external affairs of their foreign trips.
In wake of such proactive and progressive decisions, the common man in India is re-assured
that despite many hurdles and disturbances, the nation is heading in the right direction. The
need of the hour is a corruption-free government and a healthy economy favouring the growth of
all the sectors.
We at LAWTELLER, wish a very Happy New Year 2013 to all our subscribers and readers. Let
us forge this association stronger to a greater degree and be partners in the expansion of legal
awareness in India.
EDITOR

2 LAWTELLER 2013
GENERAL
CANDIDATE CANNOTASK COURT TO RELAX THE
ELIGIBILITY CRITERIA FORADMISSION TOACOURSE
15.12.2007, explained that the College cannot
participate in the admission procedure and cannot
giveconsentfortakingthestudentsfromtheRPMT-
2008 till the College received the clearances from
the MCI.Thereafter, the inspection report in respect
of the College was considered by the Executive
Committee of the MCI on 12.5.2008 and the MCI
decided to recommend to the Government of India
to issue the permission letter for establishment of
the College with an annual intake of 150 students
fortheacademicyear2008-2009.TheGovernment
of India, Ministry of Health and Family Welfare,
however, took a decision not to grant permission
for establishment of the College for the academic
year 2008-2009 and communicated this decision
in its letter dated 4.8.2008 to the Chairman and
Managing Trustee of the Geetanjali Foundation.
Aggrieved, the College filed Writ Petition (C) No.
357 of 2008 before Supreme Court underArticle 32
of the Constitution of India and on 3.9.2008
Supreme Court disposed of the writ petition after
recording the statement of the learned Additional
Solicitor General that the revised orders will be
passed by the Government of India within a week
inrespectoftheCollege.Intheorderdated3.9.2008
disposing of the writ petition of the College,
Supreme Court further observed that the College
may complete the admissions by 30.9.2008 in
accordance with the rules and procedure laid down
for the purpose of admissions. The Government of
India, Ministry of Health and Family Welfare, then
issued a permission letter dated 16.9.2008 for
establishmentoftheCollegewithandannualintake
capacity of 150 students with prospective effect
from the academic year 2008-2009 under Section
10A of the Indian Medical Council Act, 1956. In
this permission letter dated 16.9.2008, it was inter
alia stipulated that the admission process for the
academic year 2008-2009 has to be completed by
the College within the time schedule indicated in
the Regulations on Graduate Medical Education,
1997 made by the MCI.
The College by its letter dated 25.9.2008 requested
THE SECRETARY MEDICAL EDUCATION,
GOVERNMENT of Rajasthan, held a meeting
on 4.12.2007 for the purpose of conducting a
common entrance test for admission to the Medical
and Dental Colleges in the State of Rajasthan for
the academic year 2008-2009. Besides the
Secretary, Medical Education, Government of
Rajasthan, the Registrar, Rajasthan Medical
University of Health Sciences, Jaipur, Professor
AnatomyofMedicalCollege,Jaipur, SpecialOfficer,
Technical Education Department, Government of
Rajasthan, representative from the Federation of
Private Medical and Dental Colleges of Rajasthan,
Jaipur, Managing Director, Geetanjali Medical
College. Udaipur Managing Director, National
Institute of Medical Sciences, Jaipur, were also
present in the meeting. Geetanjali Medical College
and Hospital (the College) was yet to receive its
permission from the Government of India and
affiliation from the Rajasthan University of Medical
Sciences and on 12.12.2007, the Chairman and
ManagingTrusteeoftheGeetanjaliFoundationShri
JagdishPrasadAgarwalgaveawrittenundertaking
that the College will admit the students to the
MBBS course only after getting permission from
the Government of India and after getting affiliation
from the Rajasthan University of Medical Sciences.
Anothermeetingfortheaforesaidpurposewasheld
under the Chairmanship of the Secretary, Medical
Education on 15.12.2007 and at this meeting it
was decided that students will be made available
for 85% of the seats in the medical colleges in the
State of Rajasthan through the Rajasthan Pre-
MedicalTest2008(RPMT-2008),andtheremaining
15% seats of the colleges will constitute NRI quota
which will be filled by the colleges. The
representative of the College did not participate in
the meeting on the ground that inspection of the
College by the Medical Council of India (MCI) was
going on. The Director of the College in his letter
dated 18.12.2007 to the Secretary, Medical
Education, Government of Rajasthan, while
expressing his inability to attend the meeting on

32013 LAWTELLER
the President, Federation of Private Medical and
Dental Colleges of Rajasthan to allot students to
the College by conducting counseling and the
Collegealsoissuedanadvertisementon26.9.2008
inleadingnewspapersinvitingapplicationsfromthe
candidates for admission counseling to the first
year MBBS course for the academic year 2008-
2009 on the basis of PC-PMT/10+2 examination
with minimum 50% marks in Physics, Chemistry
andBiologyasperregulationsoftheMCIandstated
in the advertisement that the last date of receipt of
the applications would be 28.9.2008 and the
candidate will be selected on the basis of merit.
Aftercounseling,outofthe150seatsoftheCollege
in first year MBBS course, 16 seats were filled up
by students from PC-PMT conducted by the
Federation of Private Medical and Dental Colleges
of Rajasthan and 101 seats were filled up from
amongst candidates who had passed the 10+2
examination and 23 seats of the NRI quota were
filled up by the College.
Someofthecandidateswhowereselectedthrough
the RPMT-2008 and placed in the waiting list of
candidates for admission to the MBBS seats in
the medical colleges in the State of Rajasthan filed
eightwritpetitionsbeforetheRajasthanHighCourt,
Jaipur Bench, contending that they were entitled
to be admitted to the seats of the College in the
first year MBBS course on the basis of their merit
in the RPMT-2008 and praying for a direction to the
College to consider and give them admission in
the MBBS course in the College against the 85%
seats of the 150 seats on the basis of their merit in
RPMT-2008 by holding counseling and further
praying that no one should be admitted against
the150seatsfromanysourceotherthantheRPMT-
2008. The learned Single Judge of the High Court,
who heard the writ petitions, initially passed an
interim order on 29.9.2008 directing that ten seats
intheCollegewillbereservedforthewritpetitioners.
The learned Single Judge of the High Court
thereafter passed the final order on 18.3.2009
holding that the RPMT-2008 was conducted in
accordance with Regulation 5 of the Regulations
on Graduate Medical Education, 1997 made by
the MCI (the MCI Regulations) as well as in
accordance with Ordinance 272 (IV) and the policy
of the State Government and the College could not
have admitted candidates to the 85% of the seats
in the MBBS course as per its own choice at the
cost of meritorious students placed in the waiting
list of candidates found successful in the RPMT-
2008.
The learned Single Judge of the High Court thus
allowed the writ petitions and declared that the
admissions made by the College in MBBS course
for the academic year 2008-2009 against 85% of
the seats were illegal and directed the State to
hold counseling from the waiting list of students of
RPMT-2008 and further directed that the writ
petitioners will be given admission as per their merit
position in the waiting list and the process be
completedbeforethecommencementoftheRPMT-
2009.Thefinalorderdated18.3.2009ofthelearned
Single Judge was challenged by the College as
well as the students who were admitted by the
College in Special Appeals before the Division
Bench of the High Court.All these SpecialAppeals
were heard by a Division Bench of the Rajasthan
High Court, Jaipur Bench, but dismissed by a
common order dated 3.9.2009.
Aggrieved, the students who had been admitted
into the college have filed special leave petitions
and that the college has also filed separate special
leave petition. The Supreme Court accepted the
appeals and modified the orders passed by the
High Court. The court directed that the admission
of six students in the MBBS course should not be
disturbed subject to the condition that each of the
six students pay to the State Government Rs. 3
lacsfordevelopmentofinfrastructureofgovernment
medical colleges within a period of three months
failing which they will not be allowed to take the
final examination and their admission will be
cancelled. The Supreme Court also directed that
the College will surrender six seats in the MBBS
coursefortheacademicyear2012-2013totheState
GovernmenttobefilleduponthebasisoftheRPMT
or any other common entrance test conducted by
the State Government of Rajasthan or its agency
for admission to the MBBS Course and the fee
that will be payable by the students admitted to
the six seats will be the same as payable by the
students admitted on the basis of RPMT or another
common entrance test conducted by the State
Government or its agency.

4 LAWTELLER 2013
The operative part of the judgement read as
under :
The College is a private unaided professional
institution and it has been held by this Court in
T.M.A. Pai Foundation (supra) that a private
unaided professional institution has a
fundamental right under Article 19(1)(g) of the
Constitution of India to establish and administer
an educational institution and such right will
include the right to admit students into the
institution.
TTTTTTT
In the absence of a consensual arrangement
between the College and the State Government,
the College was not under any legal obligation to
admit students to 85% of the MBBS seats in the
academic years 2008-2009.
TTTTTTT
TheobservationsinT.M.A.PaiFoundation(supra)
make it clear that students seeking admission
to a professional institution were required to be
treated fairly and preferences were not to be
shown to less meritorious but more influential
students and greater emphasis was required to
be laid on the merit of the students seeking
admission. It has been further made clear that
merit is to be determined for admission to
professional colleges, by either the marks that
the student obtains at the qualifying examination,
or by a common entrance test conducted by the
institution, or in the case of professional colleges,
by government agencies.
TTTTTTT
In P.A. Inamdar (supra), this Court has taken the
view that all institutions imparting same or similar
professional education can join together for
holding a common entrance test satisfying the
triple tests of the admission procedure being fair,
transparent and non-exploitative.
TTTTTTT
The stand of the College, however, is that the
College had published an advertisement dated
26.9.2008 inviting applications from all the eligible
candidateswhohadpassedthe10+2examination
with minimum 50% marks in Physics, Chemistry
and Biology individually in all the subjects and
having English as compulsory subject for
admission to its MBBS course and in response
to such advertisement, students had applied and
selection of students was done on the basis of
their merits. It is however, not disputed that the
candidates, who had applied in response to the
advertisement, had not passed the 10+2
examination from the same board or university
but from different boards and universities. If that
be so, the merit of the candidates who had applied
in response to the advertisement could not be
evaluated by a uniform standard and could only
be evaluated by a competitive entrance
examination of all these students who had applied
pursuant to the advertisement of the College. It
is not the case of the College that any competitive
entrance examination of all the students, who had
applied pursuant to the advertisement, was held
by the College to determine their comparative
merit. Hence, the principle of merit as the basis
for selection for admission in the professional
courses laid down by this Court in T.M.A. Pai
Foundation (supra) and as explained in P.A.
Inamdar(supra)hasnotbeenfollowed.Thus,even
as per the law laid down by this Court in T.M.A.
Pai Foundation and P.A. Inamdar (supra), the
College has not been able to establish that the
admissions of 117 students to its MBBS course
for the academic year 2008-2009 were within its
right under Article 19(1)(g) of the Constitution.
TTTTTTT
Moreover, the College was bound to follow the
MCI Regulations while making the admissions
to the MBBS seats. The permission letter dated
16.9.2009 stipulated that the admission process
for the academic year 2008-2009 has to be
completed within the time schedule indicated in
the MCI Regulations. Hence, even if the College
was required to complete the admission process
by 30.9.2008, it could not violate the MCI
Regulations on the ground that it had to complete
the admission process by 30.9.2008.
TTTTTTT
It will be clear from the provisions of Regulation
5 quoted above that the selection of students to
medical college is to be based solely on merit of
the candidate and for determination of the merit,
the criteria laid down in Clauses (1), (2), (3) and
(4) will apply. Clause (2) of Regulation 5 on which
the MCI relied upon clearly states that in States
havingmorethanoneUniversity/Board/Examining

52013 LAWTELLER
Body conducting the qualifying examination a
competitive entrance examination should be held
so as to achieve a uniform evaluation as there
may be variation of standards at qualifying
examinations conducted by different agencies.
It is not the case of the College that all students
who applied pursuant to the advertisement had
passed 10+2 Examinations conducted by one
and the same University/Board/Examining Body.
Hence, the merit of the students who had applied
pursuant to the advertisement of the College had
to be uniformly evaluated by a competitive
entrance examination, but no such competitive
entrance examination had been held by the
College between all the candidates who had
applied pursuant to the advertisement. Therefore,
there was a clear violation of Clause (2) of
Regulation 5 of the MCI Regulations in admitting
the 101 students to the MBBS Course for the
academic year 2008-2009 by the College.
TTTTTTT
The College must suffer some penalty as a
deterrent measure so that it does not repeat such
violation of the MCI Regulations in future.
Moreover, if no punitive order is passed, other
colleges may be encouraged to violate the MCI
Regulations with impunity. There were 117
admissions contrary to the provisions of clause
(2) of Regulation 5 of the MCI Regulations. The
learned Single Judge of the High Court had
directed ten seats to be kept vacant for the
academic year 2008-2009 and we are told that
those ten seats kept vacant have not been filled
up and the College has not received any fees for
the ten seats. Excluding these ten seats in a
phased manner, not more than ten seats in each
academic year beginning from the academic year
2012-2013. These 107 seats will be surrendered
to the State Government and the State
Government will fill up these 107 seats on the
basis of merit as determined in the RPMT or any
other common entrance test conducted by the
State Government or its agency for admissions
to Government Medical Colleges and the fees of
the candidates who are admitted to the 107 seats
will be the same as fixed for the Government
Medical Colleges.
TTTTTTT
The 117 students, who were admitted to the
MBBS course, may not be at fault, but they are
beneficiaries of violation of clause (2) of
Regulation 5 of the MCI Regulations by the
College.TheyhavegotadmissionintotheCollege
without any proper evaluation of their merit vis-à-
vis the other students who had applied but had
not been admitted in a competitive entrance
examination. We have held in Priya Gupta v. State
of Chhattisgarh & Ors. (supra) that beneficiaries
of admissions made contrary to the MCI
Regulations must pay some amount for
development of infrastructure in the medical
college of the government as a condition for
allowing them to continue their MBBS studies by
our orders under Article 142 of the Constitution.
We, therefore, hold that each of the 117 students
who have been admitted in the MBBS seats in
the College will pay Rs. 3 lacs to the State
Government on account of their admission in
violation of clause (2) of Regulation 5 of the MCI
Regulations and the total amount received by the
State Government from the 117 students will be
spent for improvement of infrastructure and
laboratories in the Government Medical Colleges
of the State and for no other purpose.
TTTTTTT
We do think that we can hold that because of
the order dated 26.5.2009 passed by the learned
Single Judge of the High Court in S.B. Civil Writ
Petition Nos. 13419 of 2008, 10350 of 2008 and
11165 of 2008, which had attained finality, the
MCI could not have issued the order dated
4.2.2010 discharging the six students from the
MBBS Course on the ground that they had not
been selected in the RPMT-2008 and that their
admissions were in breach of the provisions of
clause (2) of Regulation 5 of the MCI Regulations.
TTTTTTT
We cannot also accept the contention of the
appellants that the College could admit students
on the basis of marks obtained by them in the
qualifying examinations under Clause (1) of
Regulation 5 of the MCI Regulations. The College
has relied upon the letter dated 16.9.2009 of the
Secretary of the MCI clarifying that for the purpose
of completing the admissions within the time
schedule fixed by the Court as in the case of
Mirdul Dhar and Another vs. Union of India and
Others (supra), i.e., 30th September of the year,

6 LAWTELLER 2013
the admission to the MBBS course could be done
on the basis of marks secured in 10+2
Examination, as provided in Regulation 5(1) of
the MCI Regulations. But a reading of Regulation
5(1) of the MCI Regulations quoted above would
show that this provision applies only in a State
where one university or board or examining body
conducts the qualifying examination, in which
case, the marks obtained at such qualifying
examination may be taken into consideration. In
the State of Rajasthan, there are more than one
university/board/examining bodies conducting
qualifying examination and therefore Regulation
5(1) of the MCI Regulations does not apply. As
the State of Rajasthan has more than one
University/Board/Examining Bodies conducting
qualifying examinations, clause (2) of Regulation
5 of the MCI Regulations, which provides that a
competitive entrance examination will have to be
held so as to achieve a uniform evaluation, will
apply. The College, therefore was bound to hold
a competitive entrance examination in
accordance with clause (2) of Regulation 5 of the
MCI Regulations or enter into a consensual
arrangement with the State Government to admit
students on the basis of the Competitive Entrance
ExaminationconductedbytheStateGovernment.
This is exactly what the College has done. It had
entered into a consensual arrangement with the
State Government to admit students on the basis
of merit as determined in the RPMT-2008. The
clarification in the letter dated 16.9.2009 of the
Secretary of the MCI that for the purpose of
admissions within the time schedule fixed by this
Court, admission can also be made on the basis
of marks secured in the 10+2 Examination as
providedinRegulation5(1)oftheMCIRegulations
is not in accord with the fact situation in State of
Rajasthan. The admission of the six students by
the College to its MBBS Course on 30.9.2008
was, therefore, in breach of clause (2) of
Regulation 5 of the MCI Regulations.
TTTTTTT
The violation of clause (2) of Regulation 5 of the
MCI Regulations is by the College. The case of
the MCI is not that the six students were not
eligible for admission to the MBBS Course in
accordance with the eligibility criteria laid down
in Regulation 4 of the MCI Regulations, but that
they have not been selected in the RPMT-2008,
which was the competitive entrance examination
conducted in accordance with clause (2) of
Regulation 5 of the MCI Regulations. Moreover
the six students had got admission to the MBBS
course not on the basis of their merit determined
in the RPMT-2008 in accordance with clause (2)
of Regulation 5 of the MCI Regulations, but on
the basis of their marks in the 10+2 and thus
they were beneficiaries of the violation of clause
(2) of Regulation 5 of the MCI Regulations.
TTTTTTT
We invoke our powers under Article 142 of the
Constitution and direct that he admission of the
6 students in the MBBS Course will not be
disturbed subject to the condition that each of
the 6 students pay to the State Government Rs.
3 lacs for development of infrastructure of
government medical colleges within a period of
three months from today failing which they will
not be allowed to take the final MBBS
examinations and their admission will be
cancelled. Considering however the fact that the
College has violated the provisions of clause (2)
of Regulation 5 of the MCI Regulations as a
deterrent measure to prevent similar breach of
the MCI Regulations in future, we direct that the
College will surrender six seats in the MBBS
course for the academic year 2012-2013 to the
State Government to be filled up on the basis of
the RPMT or any other common entrance test
conducted by the State Government of Rajasthan
or its agency for admission to the MBBS Course
and the fee that will be payable by the students
admitted to the six seats will be the same as are
payable by the students admitted on the basis
of RPMT or another common entrance test
conducted by the State Government or its agency.
TTTTTTT
Authorities relied upon : 2010 (10) SCC 233,
2005 (13) SCC 704, 1987 (4) SC 29, 1986 (2)
SCC 667, 1986 (Suppl.) SCC 740.
Reference : Supreme Court. Rajan Purohit &
Ors. v. Rajasthan University of Health Science &
Ors., civil appeal nos. 8142-8144 of 2011.
—————

72013 LAWTELLER
GENERAL
CAUSE OF ACTION IN TWO SETS OF SUITS BEING
SAME, BAR OF ORDER 2 RULE 2 APPLIES
the plaintiff that in respect of the same suit
property it had earlier filed suit Nos. C.S. 831
and 833 of 2005 seeking the relief of permanent
injunction. As the time for performance of the
agreements of sale had not elapsed when C.S.
No. 831 and 833 of 2005 were instituted and the
plaintiff was "under the bonafide belief that the
defendants would perform the agreement" the
relief of specific performance was not claimed in
the aforesaid suits. However, inspite of a legal
notice issued to the defendants on 24.2.2006,
the sale deeds had not been executed by the
defendant the latter suits i.e. O.S. Nos. 202 and
203 were instituted.
While the matter was so situated the defendant
in both the suits i.e. the present petitioner, moved
the Madras High Court by filing two separate
applications under Article 227 of the Constitution
to strike off the plaints in O.S. Nos. 202 and 203
of 2007 on the ground that the provisions
contained in Order II Rule 2 of the Civil Procedure
Code, 1908 (CPC) is a bar to the maintainability
of both the suits. Before the High Court the
defendant had contended that the cause of action
for both sets of suits were the same, namely,
the refusal or reluctance of the defendant to
execute the sale deeds in terms of the
agreements dated 27.7.2005. Therefore at the
time of filing of the first set of suits i.e. C.S. Nos.
831 and 833 of 2005, it was open for the plaintiff
to claim the relief of specific performance. The
plaintiff did not seek the said relief nor was leave
granted by the Madras High Court. In such
circumstances, according to the defendant-
petitioner, the suit filed by the plaintiff for specific
performance i.e. O.S. Nos. 202 and 203 were
barred under the provisions of Order II Rules 2
(3) of the CPC.
The High Court, on consideration of the cases of
the parties before it, took the view that on the
date of filing of C.S. Nos. 831 and 833 of 2005
the time stipulated in the agreements between
THE RESPONDENTS IN THE TWO
APPEALS, FILED CIVIL suit no. 831 of 2005
and 833 of 2005 before the Madras High Court
seeking a decree of permanent injunction
restraining the appellant (defendant) from
alienating, encumbering or dealing with the plaint
schedule properties to any other third party other
than the plaintiff. The aforesaid relief was claimed
on the basis of two agreements of sale entered
into by the plaintiffs and the defendant both on
27.7.2005 in respect of two different parcels of
immovable property consisting of land and
superstructures built on plot No. 65 (old No. 43)
and plot No. 66 (old No. 42), Second Main Road,
Ambattur Industrial Estate, Chennai. In each of
the aforesaid suits the plaintiff had stated that
under the agreements of sale different amounts
were paid to the defendants, yet, on the pretext
that restrictions on the alienation of the suit land
were likely to be issued by the Central Excise
Department on account of pending revenue
demands, the defendants were attempting to
frustrate the agreements in question. In the suits
filed by the plaintiff it was also stated that as the
period of six months fixed for execution of the
sale deeds under the agreements in question
was not yet over, the plaintiff is not claiming
specific performance of the agreements. The
plaintiffs, accordingly, sought leave of the court
to omit to claim the relief of specific performance
with liberty to sue for the said relief at a later
point of time, if necessary. The two suits in
question, i.e. C.S. Nos. 831 and 833 of 2005
were filed by the plaintiff on 28.8.2005 and
9.9.2005 respectively.
Thereafter on 29.5.2007, O.S. Nos. 202 and 203
were filed by the plaintiff in the Court of the District
Judge, Tiruvallur seeking a decree against the
defendant for execution and registration of the
sale deeds in respect of the same property and
for delivery of possession thereof to the plaintiff.
In the aforesaid latter suits it was mentioned by

8 LAWTELLER 2013
the parties for execution of the sale deeds had
not expired. Therefore, the cause of action to
seek the relief of specific performance had not
matured. According to the High Court it is only
after filing of the aforesaid suits and on failure of
the defendants to execute the sale deeds
pursuant to the legal notice dated 24.2.2006 that
the cause of action to seek the aforesaid relief of
specific performance had accrued. The High
Court, accordingly, took the view that the
provisions of Order II Rule 2 (3) of the CPC were
not attracted to render the subsequent suits filed
by the plaintiff i.e. O.S. Nos. 202 and 203 non-
maintainable. The High Court also took the view
that the provisions of Order II Rule 2(3) of the
CPC would render a subsequent suit not
maintainable, only, if the earlier suit has been
decreed and the said provisions of the CPC will
not apply if the first suit remains pending. In
arriving at the aforesaid conclusion the learned
Single Judge of the High Court considered himself
to be bound by the decision of a Division Bench
of the same High Court in the case of R.
Vimalchand and M. Ratanchand v. Ramalingam,
T. Srinivasalu & T. Venkatesaperumal [2002 (3)
MLJ page 177]. The High Court also held that
though the application filed by the defendant
under Article 227 of the Constitution was not
maintainable as the defendant had the remedy
of approaching the learned trial court under Order
VII Rule 11 of the CPC, yet, in view of the elaborate
discussions that have been made and findings
and conclusions recorded it would be appropriate
to decide the issues raised on merits.
Against the judgement of the High Court special
leave petition was filed. The Supreme Court
accepted the appeals, set aside the judgement
and order 6.10.2009 was passed by the High
Court of Madras in C.R.P.PD No. 3758 and 3759
of 2007. Consequently, the Supreme Court struck
off the plaint in O.S. Nos. 202 and 203 of 2007
on the file of the District Judge, Thiruvallur.
under :
In the instant case though leave to sue for the
relief of specific performance at a later stage was
claimed by the plaintiff in C.S. Nos. 831 and 833
of 2005, admittedly, no such leave was granted
by the Court.
TTTTTTT
A reading of the plaints filed in C.S. Nos. 831
and 833 of 2005 show clear averments to the
effect that after execution of the agreements of
sale dated 27.7.2005 the plaintiff received a letter
dated 1.8.2005 from the defendant conveying the
information that the Central Excise Department
was contemplating issuance of a notice
restrainingalienationoftheproperty.Theadvance
amounts paid by the plaintiff to the defendant by
cheques were also returned. According to the
plaintiff it was surprised by the aforesaid stand
of the defendant who had earlier represented that
it had clear and marketable title to the property.
The plaintiff, seriously doubted the claim made
by the defendant regarding the proceedings
initiated by the Central Excise Department. In
the plaint it was averred by the plaintiff that the
defendant is "finding an excuse to cancel the sale
agreement and sell the property to some other
third party." In the aforesaid paragraph of the
plaint, it was further stated that "in this
background, the plaintiff submits that the
defendantisattemptingtofrustratetheagreement
entered into between the parties."
TTTTTTT
On the dates when C.S. Nos. 831 and 833 of
2005 were instituted, namely 28.8.2005 and
9.9.2005, the plaintiff itself had claimed that facts
and events have occurred which entitled it to
contend that the defendant had no intention to
honour the agreements dated 27.7.2005. In the
aforesaid situation it was open for the plaintiff to
incorporate the relief of permanent injunction that
formed the subject matter of above two suits.
The foundation for the relief of permanent
injunction claimed in the two suits furnished a
complete cause of action to the plaintiff in C.S.
Nos. 831 and 833 to also sue for the relief was
omitted and no leave in this regard was obtained
or granted by the Court.
TTTTTTT
A suit claiming a relief to which the plaintiff may
become entitled at a subsequent point of time,
though may be termed as premature, yet, can
not per se be dismissed to be presented on a

92013 LAWTELLER
future date. There is no universal rule to the above
effect inasmuch as "the question of a suit being
prematuredoesnotgototherootofthejurisdiction
of the Court" as held by this Court in Vithalbhai
(P) Ltd. v. Union Bank of India (supra). There is
no provision in the Specific Relief Act, 1963
requiring a plaintiff claiming the relief of specific
performance to wait for expiry of the due date for
performanceoftheagreementinasituationwhere
the defendant may have made his intentions clear
by his overt acts.
TTTTTTT
Order II Rule 2 of the CPC seeks to avoid
multiplicity of litigations on same cause of action.
If that is the true object of the law, on which we
do not entertain any doubt, the same would too
stand fully subserved by holding that the
provisions of Order II Rule 2 of the CPC will apply
only if the first suit is disposed of and not in a
situation where the second suit has been filed
during the pendency of the first suit. Rather, Order
II Rule 2 of the CPC will apply to both the
aforesaid situations.
TTTTTTT
Authorities relied upon : 2002 (3) MLJ page
177, AIR 1964 SC 1810, AIR 1954 BOM 125,
1894 ILR (16)AII 165.
Reference : Supreme Court. M/s Virgo
Industries (Eng.) P. Ltd. v. M/s. Venturetech
Solutions P. Ltd., civil appeal no. 6372 of 2012
(from the Judgement and Order dated 6.10.2009
of the Hon'ble High Court of Judicature at Madras
in C.R.P.PD No. 3758 of 2007).
—————
SERVICE
WIDOW RECEIVED PROVIDENT FUND, CLAIM
FOR FAMILY PENSION DENIED
RAJASTHAN ROADWAYS UNION (THE
RESPONDENT) raised a claim on behalf of
thewidowoflateHariSinghforfamilypensionunder
the Scheme before the State Government. The
StateGovernmentreferredthemattertotheLabour
and Industrial Tribunal, Jaipur (Tribunal) for
adjudication of the claim. The Tribunal, after
examining the Scheme, took the view that the
employee was not informed of his right to exercise
the option under the Scheme, consequently,
allowed the application and gave a direction to the
appellant-Corporation to disburse family pension
to the widow of Hari Singh, who was working as a
Driver in the service of the Corporation.
The appellant-Corporation took up the matter
before the High Court of Judicature of Rajasthan
at Jaipur Bench by filing S.B. Civil Writ Petition
No. 2099 of 1999, which was dismissed by the
learned Single Judge and, later, confirmed by the
Division Bench as well as vide its judgement
dated 29.6.11 in D.B. Civil Special Appeal (Writ)
No. 960 of 2011.
accepted the appeal, set aside the award of the
Tribunal as well as judgement of learned single
Judge and the Division Bench of the High Court.
under :
When we read the notification dated 9.4.1971
issued by the Regional Provident Fund
Commissioner along with the communication
letter dated 30.7.1971 issued by the appellant-
corporation, it is evident that the Regional
Provident Fund Commissioner as well as
appellant-Corporation had informed all the
departments/unions, as well as employees
working under the Corporation to exercise their
necessary option if they wanted to get the benefit
of the Family Pension. Facts would indicate that
several employees at that time had opted and
few of them did not opt for that, since they were
interested to get provident fund under the CPF
Scheme and not the family pension under the
Scheme, after the death of the employee. We
have no reason to think that the employees were
unaware of the notification issued by the Regional
Provident Fund Commissioner as well as the

10 LAWTELLER 2013
Corporation Facts would also indicate that the
wife of Hari Singh had already received the entire
provident fund amount and, since Hari Singh had
not opted under the Scheme. However, after nine
years, respondent Union is raising a dispute
which, in our view, in absolutely untenable. The
Tribunal as well as Courts below have committed
a grave error in not properly appreciating the facts
of the case and rendered a perverse finding which
necessarily calls for interference.
Reference : Supreme Court. Rajasthan State
Road Transport Corporation v. President,
Rajasthan Roadways Union & Another, civil
appeal no. 6639 of 2012.
—————
BUSINESS
FINANCERS TOLD TO OFFER AFRESH
BENEFITS OF OTS
ORISSASTATE FINANCIALCORPORATION
(OSFC) 2ND respondent herein, disbursed
a term loan of Rs. 51,27,200/- and loan in lieu of
subsidy of Rs. 23.30 lakhs to 1st respondent (M/s
Hotel Torrento Ltd.) for establishing a hotel project
at Janugarji, Balasore in the State of Odisha. The
project was jointly financed by OSFC and IPICOL,
for which 1st respondent had entered into a loan
agreement and mortgaged the title deeds and
extended a registered lease deed dated 8.2.1988.
Lease was valid for a period of 25 years with a
renewable clause. There was default in repayment
of the loan amount, which led OSFC issuing a
demand notice to 1st respondent on 7.2.1991,
followed by a recall notice dated 30.11.1991. The
respondent was also served with a show cause
notice dated 16.12.1994 followed by recall notices
dated 4.1.1995 and 13.3.1996.
1st respondent then filed a Writ Application No.
2513of1996on20.3.1996beforetheHighCourtof
Orissa to quash the recall notice dated 13.3.1996
and for rehabilitation. The High Court disposed of
that writ application with a direction to respondents
2 and 5 (OSFC & IPICOL) to consider the request
of 1st respondent for rehabilitation package. On
9.3.2006, an OTS scheme was introduced by
OSFC and 1st respondent applied for settlement
of its loan account under that scheme. On
18.3.2006, the benefit of the scheme was extended
to 1st respondent by OSFC and agreed in principle
to settle the term loan account on payment of Rs.
1,16,21,200/- on or before 18.4.2006, subject to
certain terms and conditions which were as follows:
1. The settlement amount shall either be
paid in one lump sum on or before Dt.
18.4.06 (within 30 days of this settlement
order)with3%discountonthesettlement
amount.
OR
Installments as per the sequence
mentionedbelow:
a) Up front payment of Rs. 23,61,400.00
(Rupees twenty three lakh sixty one
thousand four hundred only) (i.e. 25% of
settlementamountlessinitialdeposit)shall
be paid along with the acceptance letter
(formatenclosedherewith)onorbeforeDt.
16.4.06,within30days.
b) The balance settlement amount of Rs.
87,15,900.00 (75%) shall be paid on or
beforeDt.15.6.06.
2. Any other expenses chargeable/
incurred/debited in the loan accounts
towardsmisc.expensesonL/Awitheffect
fromDt.11.7.05(dateofapplication)tillthe
final settlement of loan accounts shall be
paid by you along with the settlement
amount.
3.Itmaybenotedthat(NDC)canonlybe
issuedinyourfavourafterliquidationofall
theloansavailed.
4. You shall have to submit the consent/
decree/permission/withdrawal order
(whereverapplicable)beforeissueofNoDue
Certificate(NDC).
Incaseoffailureofpaymentoftheaforesaid

112013 LAWTELLER
amountwithinthestipulateddates,theone
timesettlementofduesconsideredinyour
favour including relief and concession
thereonshallbewithdrawnwithoutfurther
referencetoyou.
IPICOL also approved the request for OTS at Rs.
45 lacs with waiver of Rs. 1,88,21,099 subject to
certaintermsandconditions,whichwereasfollows:
(a)TheOTSamountisRs.45lacs(Rupees
forty-five lacs only) and the resultant
sacrifice(s) by way of waiver is Rs.
1,88,21,099(Rupeesonecroretwelvelakhs
seventeenthousandfivehundredtwenty
nineonlyonaccountoffundedinterestand
Rs.76,03,570/-(Rupeesseventysixlakhs
threethousandfivehundredseventyonly)
onaccountofoverdueinterest.
(b)TheOTSamountshallbepaidwithina
periodof1yearfromthedateofthisletter
aspertheschedulegivenbelow:
Rs. 6,75,000 towards 25% of upfront
payment (including initial payment made
by you) within 30 days and balance 75%
amounting to Rs. 33,75,000/- within a
periodof1yearin4quarterlyinstallments,
carrying simple interest @ 14% p.a. on
reducingbalance.
(c)TheaboveOTSissubjecttocancellation,
ifitisfoundthatyouhaveprovidedincorrect
details and information or suppression of
anymaterialfactsforgettingthesanction
of OTS. The decision of IPICOL is final in
thisregard.
(d) In case of non payment, IPICOL shall
havetherightofrequital.
The Supreme Court notice that despite of waiver of
Rs. 2,26,85,800 and Rs. 1,88,21,099 by OSFC
and IPICOL respectively, 1st respondent did not
comply with the terms and conditions of the OTS
scheme, consequently, OSFC and IPICOL
informed 1st respondent that they had withdrawn
OTSoffer.
TheSupremeCourtfinds,on31.3.2007,yetanother
OTS scheme of 2007 was launched by OSFC and,
again, an offer was made to 1st respondent to avail
of the benefit of that scheme, OSFC, on 4.10.2007,
requested 1st respondent to pay the settlement
amount of Rs. 1,16,21,200 with delayed payment
of interest within 10 days. 1st respondent did not
comply with that request as well, consequently,
OSFC, on 28.12.2007, withdrew the offer and
advised 1st respondent to pay the entire dues as
per the agreement, failing which 1st respondent
was informed that recovery proceedings would be
initiated for realization of the dues. Later, OSFC
sent a demand notice dated 22.8.2008 stating that
the total loan outstanding as on 31.12.2007 was
Rs. 4,52,94,691 and 1st respondent was called
upon to pay the amount, failing which it was
informed the recovery proceedings would be
initiated.
1st respondent then, on 10.9.2008, filed a Writ
Petition No. 13376 of 2008 before the Orissa High
Court to quash the demand notice dated 22.8.2008
and for a direction to consider its claim under the
OTSscheme.On31.10.2008,OSFChad,however,
issued a notice recalling the entire amount along
with interest and informed 1st respondent that in
case of failure to make payment, further action
would be taken under Section 29 of the State
Financial CorporationAct (SFCAct). Writ Petition
came up for hearing before the Orissa High Court
on 4.12.2008, and the Court directed OSFC to
maintain status-quo and on 7.4.2010, the Court
passedanad-interimorderdirecting1strespondent
to inform as to whether they were willing to deposit
the amount of Rs. 1 Crore for consideration of their
claimunderOTS.On26.11.2008,IPICOLalsomade
a request to OSFC to initiate proceedings under
Section 29 of SFCAct and to take over the assets
of the unit.
Writ Petition No. 13376 of 2008 came up for final
hearing on 21.4.2010, and the Court enquired
whether 1st respondent was willing to pay Rs. 1
Crore, as suggested by the Court on 4.12.2008.
The Court was informed that a petition had been
filed on 21.4.2010 along with a bank draft of Rs.
17,50,000 drawn in favour of the Registrar, Orissa
High Court. 1st respondent had also made a
request to the Court for time up to 26.2.2010 so as
topaytheamountofRs.1Crore.TheCourtordered
the return of the draft to the 1st respondent since
the amount was due to both OSFC and IPICOL.
The Court was informed by OSFC that 1st
respondent had not availed of the earlier proposal
for OTS and no new OTS scheme was available,

12 LAWTELLER 2013
still the Court passed the following order:
ThelearnedcounselfortheCorporations
submits that the earlier proposal for one-
time settlement had been considered by
boththeCorporationsandthematterhad
beensettled.Butthepetitionerdidnotpay
theamountforwhichithadtobecancelled
and,atpresentthereisnoschemeforone-
time settlement.
Be that as it may, the Petitioner having
defaultedinpaymentofthehugeamount
wedisposeofthewritpetitiondirectingthat
the petitioner may deposit a sum of Rs.
50,00,000/-(Rupeesfiftylakhs)eachbefore
eachofthetwoCorporationsby20.6.2010
andapplicationsshallbefiledbeforeboth
theCorporationforsettlementofthedues.
If any such application is filed the same
shallbeconsideredonitsownmeritbyboth
theCorporationseitherseparatelyorjointly
providedthereisanyschemeavailablefor
suchsettlementbytheCorporations.
Intheevent,thePetitionerfailstodeposit
the aforesaid amount by 20.6.2010, both
theCorporationsshallbeatlibertytotake
suchactionaspermissibleunderlawunder
theStateFinancialCorporationAct.
1st respondent did not comply with even the above
mentioned order, OSFC then issued a registered
notice dated 8.7.2010 to 1st respondent pointing
that since it had failed to comply with the above
mentioned order of the Court, OSFC would be at
liability to initiate proceeding under the SFC Act.
The 1st respondent was, therefore, asked to
liquidate the entire outstanding amount as on
30.6.2010, failing which 1st respondent was
informedthatOSFCwouldbeinitiatingactionunder
Section 29 of SFC Act. Later, OSFC issued a
seizure order dated 2.8.2010 of the property and
that order was executed on 15.9.2010 and the
possession of the unit was taken over "as is where
is" basis.
OSFC, during seizure, got prepared a valuation
report dated 17.9.2010 from its panel value. Based
upon that valuation report, offset price of the unit
was fixed at Rs. 1,75,45,000. Later, the sale notice
was published in the Daily newspapers,Aamaj and
the New Indian Express on 18.9.2010. On
21.9.2010, again, OSFC issued a notice to 1st
respondent to clear the outstanding dues with upto
date interest of Rs. 6,18,62,238/- collected upto
30.6.2010 before Default-cum-DisposalAdvisory
Committee (DDAC) on 29.9.2010 so also to get
the assets released. 1st respondent was informed
of the sale notice published in the daily newspapers
requesting to clear up the dues before the DDAC
meeting scheduled to be held on 29.9.2010. 1st
respondent was also informed that in that event of
non-payment of dues, it could still match or better
the highest bid price. 1st respondent, however, did
not take any steps to clear the outstanding dues,
but preferred a Review Petition No. 99 of 2010 for
reviewingtheorderpassedbytheOrissaHighCourt
on 21.4.2010 in Writ Petition No. 13376 of 2008.
TheCourtrejectedthereviewpetitionon22.9.2010.
The Court, after noticing that 1st respondent had
not deposited any amount in pursuance to its order
dated 21.4.2010, held as follows:
Apartfromtheabove,fromtheconductof
thepetitioner,wefindthatthepetitionerdid
notpayanyamountwhentheaccountwas
settledundertheschemeearlierandwaited
foranotherdemandnotice.Eveninthewrit
petitionthoughthepetitionerwasdirected
to deposit Rs. 50,00,000/- (Rupees fifty
lakhs)eachwiththetwoCorporations,the
samewasnotcompliedwith.Incourseof
hearingofthisreviewpetition,thepetitioner
hasofferedonlyRs.40,00,000/-(Rupees
forty lakhs) to be deposited with the two
Corporationsagainsttheoutstandingdues
ofmorethansevencrore.Weare,therefore,
oftheviewthatthepetitionerhasnointention
to clear the dues of the two Corporations
whichhadfinancedforestablishingahotel.
In the meantime possession of the said
hotel has been taken by OSFC under
section29oftheStateFinancialCorporation
Actandthesamehasbeenadvertisedfor
sale.Thesalenotice,acopywhereofwas
producedbeforeusshowsthattheloanee
can appear before the DDAC on the date
fixed i.e. 29th of September, 2010 for the
purposeofgettingreleasetheseizedasset.
1strespondentthensubmittedaproposaltoDDAC,
which was considered by DDAC on 29.9.2010 and

132013 LAWTELLER
theorderwascommunicatedtothe1strespondent.
DDAC, in pursuance to the auction notification in
the newspapers, received altogether 9 bids and,
after negotiations with the auctioneers, the offer of
the appellant was found to be the highest at Rs.
774 lacs, which was accordingly accepted OSFC
delivered the possession of the land, building and
machinery/furniture and fixture to the appellant vide
possession letter dated 11.10.2010.
1strespondent,asalreadystated,thenapproached
the Orissa High Court and filed the present writ
petitionNo.17711of2010toquashthecancellation
of the OTS dated 28.12.2007, sale letter dated
1.10.2010 and also for other consequential reliefs,
which were granted by the Division Bench of the
Orissa High Court, the operative portion of which
reads as follows:
For the reasons stated supra the writ
petitionisallowed.Ruleissued.Theletters
dated 28.12.2007 and 1.10.2010
(Annexure-5 & Annexure-8 series)
canceling the proposal for OTS and
rejecting the representation dated
29.9.2010, the public sale notice dated
19.9.2010 (Annexure-6), the sale letter
dated1.10.2010(Annexure-8series),the
sale agreement dated 11.10.2010
(Annexure-A/5)andtheallegeddeliveryof
possession are hereby quashed. The
Orissa State Financial Corporation and
IPICOLaredirectedtoplacefreshdemand
withthepetitioner,withinfourweeksfrom
thedateofreceiptofthisorder,withregard
to the amount of OTS offered in the
communications dated 18.3.2006 and
3.4.2006 of the OSFC and IPICOL along
with interest at the rate of 9% on the said
amountfromthedatetillthedateofpayment
or at the rate of interest, stipulated under
theOTSScheme,2007incaseofsimilarly
placedpersons.Thepetitionerisdirected
tomakepaymentwithinsixweeksthereof.
Thereafterthepossessionoftheproperty
shallbedeliveredtothepetitionerwithina
reasonable time. If the petitioner fails to
deposittheamount,asdirected,theOSFC
andIPICOLareatlibertytoproceedinthe
matterinaccordancewithlaw.
AgainstthejudgementoftheDivisionBenchspecial
accepted both the appeals and set aside the
judgement of the Division Bench of Orissa High
Court.
under :
The above mentioned facts had considerable
bearing for rendering a just and proper judgement
in writ petition No. 17711 of 2010, but those vital
facts were completely overlooked by the Division
Bench and it had also ignored the binding
judgement of the coordinate Bench rendered in
writ petition No. 13376 of 2008 and the order
passed in Review Petition No. 99 of 2010 and
the steps taken by the Corporations as permitted
by the Division Bench.
TTTTTTT
In this case, Corporation had issued the recall
notice dated 8.7.2010 with a request to pay the
entire outstanding dues within 30 days otherwise,
failing which, it was stated that action under
section 29 of SFC Act would be initiated against
the 1st respondent. Seizure order was issued by
the Corporation and the entire assets of the unit
were taken over under Section 29 of the Act on
15.9.2010 which was after the expiry of 30 days
from the date of notice dated 8.7.2010.
TTTTTTT
The procedure laid down under Section 29 of SFC
Act has been followed by the Corporations. The
independent valuer submitted his report on
17.9.2010 and the off-set price of the unit was
fixed after getting it valued by an independent
valuer. It was based upon the valuation report
that the off-set price of the unit was fixed at Rs.
1,77,45,000/- on 17.9.2010. Sale notice was
published in the News Papers on 18.9.2010 and
the auction was conducted on 29.9.2010. In our
view, the High Court has committed an error in
holding that off-set price of property was not
valued before the conduct of auction and that
there was no due publication of auction. The
Corporation before putting the appellant in
possessionagainissuedanoticedated21.9.2010
to 1st respondent enquiring whether he would
match the offer. 1st Respondent did not avail of

14 LAWTELLER 2013
that opportunity as well. It is under such
circumstances that sale letter dated 1.10.2010
was issued to the appellant with a copy to all the
Directors/Promoters/Guarantors of 1st
respondent company. The appellant paid the
balance consideration of Rs. 5,65,20,000 on
11.10.2010 and the Sale Memo was extended on
that date and the property was also delivered.
TTTTTTT
We find no illegality in the procedure adopted by
the Corporation, since 1st respondent had failed
to comply with the directions issued by the co-
ordinate Bench of the Orissa High Court in writ
petition No. 13376 of 2008, which gave liberty to
the Corporations to proceed in accordance with
Section 29 of SFC Act. We are of the view that
the Division Bench of the High Court had
overlooked those vital facts as well as the binding
judgement of a co-ordinate Bench in writ petition
No. 13376 of 2008 and had wrongly reopened a
lis and issued wrong and illegal directions.
TTTTTTT
Reference : Supreme Court. M/s Micro Hotel
P. Ltd. v. M/s Hotel Torrento Limited & Ors., civil
appeal no. 6347 of 2012 [from the Judgement
and Order dated 25.10.2011 of the Hon'ble High
Court of Orissa at Cuttack in Writ Petition (Civil)
No. 17711 of 2010].
—————
GENERAL
MERE ACT OF HOLDING LEGS, CANNOT BE
NULCTED WITH THE OFFENCE OF MURDER
RAJENDRA MAHADEO LOKHARE (PW1)
THE COMPLAINANT, Kishore Mahadeo
Lokhare-(original Accused No. 1) and Sanjay
Mahadeo Lokhare @ Sanju (since deceased) are
bothers and were residing at Room No. 11,
Gangabhaiya Chawl, near K.V.K. High School,
Sainath Nagar Road, Ghatkopar (W), Bombay,
Suresh Sakharam Nangare-(originalAccused No.
3) is the friend of A-1 and Surekha Mahadeo
Lokhare (PW-2) is the wife of A-1.
Kishore Mahadeo Lokhare (A-1) was addicted
to ganja and liquor and used to ill-treat his wife-
Surekha (PW-2) and other members of the family
including his younger brother-Sanjay Mahadeo
Lokhare-the deceased. Due to the said behaviour,
all the family members except Kishore Mahadeo
Lokhare shifted to Punjab Chawl, Near Tata
Fission Pipe Line, Mulund (W), Bombay. Surekha
(PW-2) was very loving and affectionate to
Sanjay-the deceased and was used to take care
of him as a mother as he was suffering from
deformity due to typhoid and had also lost his
speech. Sanjay was also having love and affection
as a son towards Surekha (PW-2) and he used
to intervene whenever his elder brother assaulted
his wife-Surekha and children. On this account,
Kishore developed enmity against Sanjay and
wanted to get rid of him.
On 2.3.1995, Kishore Mahadeo Lokhare came
to the house of Rajendra Mahadeo Lokhare (PW-
1) and persuaded him to send Sanjay to his house
at Ghatkopar on the pretext of performing some
Pooja. On the same day, in the afternoon, Sanjay
left for his elder brother's home informing that he
will return the same night but he did not return.
On 3.3.1995, at about 9.30 pm, Rajendra
Mahadeo Lokhare (PW-1) visited his elder
brother's house in search of Sanjay but he
returned after finding that Kishore was present
there.
On the very same day, i.e., on 3.3.1995, between
10.30 pm to 11.00 pm, PW-1 was informed by
two residents of Ghatkopar at his residence that
his younger brother-Sanjay has expired due to
burn injuries. PW-1 lodged an FIR against his
elder brother-Kishore Mahadeo Lokhare at
Ghatkopar Police Station which was registered
as CR No. 76/1995.
After investigation, the police filed chargesheet
against 3 persons, namely, Kishore Mahadeo
Lokhare, Shabbir Fariyad Khan and Suresh
Sakharam Nangare for their involvement in the
death of Sanjay Mahadeo Lokhare. The case was
omitted to the Court of Sessions and numbered

152013 LAWTELLER
as Sessions Case No. 816 of 1995 and charges
were framed against the accused persons under
Sections 302 and 201 read with Section 34 of
the Indian Penal Code, 1860 (the IPC).
During trial before the Court of Sessions, Shabbir
Fariyad Khan turned approver and by impugned
judgement and order dated 15.10.1998, the
Additional Sessions Judge convicted Kishore
Mahadeo Lokhare and Suresh Sakharam
Nangare (original accused Nos. 1 and 3
respectively) under Section 302 read with Section
34 of IPC and sentenced them to suffer rigorous
imprisonment (RI) for life. The accused persons
were also convicted under Section 201 read with
Section 34 IPC and sentenced to suffer rigorous
imprisonment (RI) for 3 years each alongwith a
fine of Rs. 2,000/- each, in default, to further
undergo RI for 6 months each and the sentences
were to run concurrently.
Being aggrieved, Suresh Sakharam Nangare
preferred CriminalAppeal No. 865 of 2001 before
the High Court. By impugned judgement dated
4.8.2006, the Division Bench of the High Court
dismissed the appeal and confirmed the
conviction and sentence passed by theAdditional
Sessions Judge, Greater Bombay.
accepted the appeal, by holding that the
prosecution failed to establish the guilt insofar
as the present appellant is concerned, the
appellant was ordered to be released forthwith.
under :
Nobody has implicated the present appellant
except the statements made by PW-5 and PW-
7 (the approver). We are satisfied that absolutely
there is no material from the side of the
prosecution to show that the present appellant
had any common intention to eliminate the
deceased, who was physically disabled. The only
adverse thing against the present appellant is that
he used to associate with A-1 for smoking Ganja.
In the absence of common intention, we are of
the view that convicting the appellant with the aid
of Section 34 IPC cannot be sustained.
TTTTTTT
Apply Section 34, apart from the fact that there
should be two or more accused, two factors must
be established: (i) common intention, and (ii)
participation of accused in the commission of an
offence. It further makes clear that if common
intention is proved but no overt act is attributed
to the individual accused, Section 34 will be
attracted as essentially it involves vicarious
liability but if participation of the accused in the
crime is proved and common intention is absent,
Section 34 cannot be invoked. In other words, it
requires a pre-arranged plan and pre-supposes
prior concert, therefore, there must be prior
meeting of minds.
TTTTTTT
It was a burnt body, averagely nourished with
presence of rigor mortis is muscles. His tongue
was protruding outside and surface wounds and
injuries were 100% superficial to deep burns. In
the opinion of doctor PW10, the cause of the
death was due to 100% burns injuries. He also
issued the post-mortem certificate which is Exh.
21 wherein he opined that the death occurred due
to 100% burns and not because of assault. The
categorical evidence and the opinion of PW-10
for the cause of the death of Sanjay make it clear
that the appellant herein - original Accused No. 3
has nothing to do with the same since the
evidence brought in shows that it was Kishore
Mahadeo Lokhare-(original Accused No. 1) who
took Sanjay to the other room where he burnt
him to death. This important aspect has not been
considered by the trial Court as well as by the
High Court.
TTTTTTT
On appreciation of the entire material, we have
already concluded that the present appellant had
no role in the criminal conspiracy and no motive
to kill the deceased.
TTTTTTT
The evidence led in clearly implicates Kishore
Mahadeo Lokhare-(original Accused No. 1) in all
aspects including motive and the manner of
causing death by lighting fire. Apart from all the
evidence led in by the prosecution, the above
position is clear from the evidence of the Doctor
(PW-10)-who conducted the post mortem and his
opinion for the cause of the death. Merely

16 LAWTELLER 2013
because the approver (PW-7) has stated that
based on the direction of Kishore Mahadeo
Lokhare (original Accused No. 1), the present
appellant (original Accused No. 3) caught hold of
the legs of the deceased, in the absence of any
motive or intention, mere act of holding his legs
that too at the end of the event when original
Accused No. 1 throttled his neck by sitting on
his abdomen, the appellant (original Accused No.
3) cannot be mulcted with the offence of murder
with the aid of Section 34 of IPC, particularly,
when the medical evidence for the cause of death
is otherwise, namely, due to 100% burns.
TTTTTTT
Reference : Supreme Court. Suresh Sakharam
Nangare v. The State of Maharashtra, criminal
appeal no. 1606 of 2008.
—————
GENERAL
FREEDOM CAN BE TAKEN AWAY, ONLY WITH
DUE SANCTION OF LAW
AN FIR WAS LODGED BYASH MOHAMMAD
(THE appellant) on 29.5.2011 alleging that
while he was going to his in-laws' place in village
Samadia, P.S. Patwai along with Bihari Lal near
canal of Milk Road from Patwai which leads to
Samdia Khurd, two persons came on a
motorcycle and after inquiring about the identity
of Bihari Lal told him that they had been asked
by Lalla Babu @ Shiv Raj Singh to compel him
to accompany them. As there was resistance,
they threatened to kill him and eventually made
Bihari Lal sit in between them on the Hero Honda
motorcycle and fled towards Patwai. The incident
was witnessed by Munish and Rajbir. In quite
promptitude the appellant went to the Patwai
Police Station, District Rampur and lodged the
FIR as a consequence of which crime No. 770 of
2011 was registered for offences punishable under
Section 364 and 506 of the IPC. On the basis of
the FIR the criminal law was set in motion and
the accused was arrested and taken into custody.
The accused Shiv Raj Singh @ Lalla Babu
preferred bailApplication No. 1268 of 2011 which
came to be dealt by the learned Additional
Sessions Judge, Rampur who taking note of the
allegations in the FIR and the stand put forth in
oppugnation by the prosecution as well as the
victim observed as follows:
I have perused the case diary. While
confirminghisabduction,victimBihariLal
hasstatedunderSection164Cr.P.C.that
the abductors took him to the accused.
Applicant-accused and his accomplices
kept him confined in a room for about 8
days and they also used to assault him
and threaten for life.As per the victim, he
escapedfromtheircaptivityafterabout8
days of abduction under the pretext of
nature's call/time. Munish and Rajbir
reported as eye-witnesses in the First
Information Report stated before the
Investigating Officer that the abductors
had stated at the time of abduction that
the applicant-accused Lalla Babu has
send them to mend you.
Thereafter, taking note of the fact that the accused
is a history-sheeter and involved in number of
cases rejected the application for bail.
Being unsuccessful to secure bail from the court
of Session, the accused preferred a Bail
Application No. 28461 of 2011 before the High
Court under Section 439 of the Code. The High
Court though took note of the statement made
under Section 164 CrPC that name of Shiv Raj
Singh @ Lalla Babu had figured as allegations
were made against him to that effect that victim
Bihari Lal was taken by the kidnappers to him,
yet observed that he only sat there and offended
Bihari Lal. The High Court only mentioned the
fact that the accused has a criminal history and
is involved in number of cases but considering
the factum that he has been in custody since
30.9.2011 directed his enlargement on bail on
certain conditions, namely, the accused shall

172013 LAWTELLER
report at the police station concerned on the first
day of each English Calendar month, shall not
commit any offence similar to the offence which
he is accused of, and shall not directly or
indirectly make any inducement, threat or
promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing
such facts to the court or to any police officer.
leave petition was filed. The Supreme Court set
aside the order passed by the High Court and
the bail bonds of the accused were cancelled.
under :
The High Court, in toto, has ignored the criminal
antecedents of the accused. In the case at hand,
as the prosecution case unfolds, the accused
did not want anyone to speak against his
activities. He had sent two persons to kidnap
Bihari Lal, who remained in confinement for eight
days. The victim was tortured. True it is,
sometimes allegations are made that a guardian
has kidnapped a child or a boy in love has
kidnapped a girl. But kidnapping for ransom or
for revenge or to spread terror or to establish
authority are in a different realm altogether.
TTTTTTT
There should have been proper analysis of the
criminal antecedents. Imposition of conditions is
subsequent to the order admitting an accused to
bail. The question should be posed whether the
accused deserves to be enlarged on bail or not
and only thereafter issue of imposing conditions
would arise.
TTTTTTT
In the present case the victim had been
kidnapped under threat, confined and abused.
The sole reason for kidnapping is because the
victim had shown some courage to speak against
the accused. This may be the purpose for
sustaining of authority in the area by the accused
and his criminal antecedents, speak eloquently
in that regard. In his plea for bail the accused
hadstatedthatsuchoffenceshadbeenregistered
because of political motivations but the range of
offence and their alleged years of occurrence do
not lend prima facie acceptance to the same.
Thus, in the present case his criminal
antecedents could not have been totally ignored.
TTTTTTT
In the present context the period of custody of
seven months melts into insignificance. Granting
of bail is a matter of discretion for the High Court
and this Court is slow to interfere with such orders.
But regard being had given to the antecedents of
the accused which is also a factor to be taken
into consideration as per the pronouncements of
this Court and the nature of the crime committed
and the confinement of the victim for eight days,
we are disposed to interfere with the order
impugned.
TTTTTTT
When we state that the accused is a history-
sheeter we may not be understood to have said
that a history-sheeter is never entitled to bail.
But, it is a significant factor to be taken note of
regard being had given to the nature of crime in
respect of which he has been booked.
TTTTTTT
Period of custody is a relevant factor but
simultaneously the totality of circumstances and
the criminal antecedents are also to be weighed.
They are to be weighed in the scale of collective
cry and desire. The societal concern has to be
kept in view in juxtaposition of individual liberty.
Regard being had given to the said parameter we
are inclined to think that the social concern in
the case at hand deserves to be given priority
over lifting the restriction of liberty of the accused.
TTTTTTT
What has weighed with the High Court is that the
accused had spent seven months in custody.
That may be one of the factors but that cannot
be the whole and the sole factor in every case. It
depends upon the nature of the offence, the
manner in which it is committed and its impact
on the society.
TTTTTTT
Authorities relied upon : AIR 1980 SC 856,
1989 (23) QBD 598, 606.
Reference : Supreme Court. Ash Mohammad
v. Shiv Raj Singh @ Lalla Babu & Anr., criminal
appeal no. 1456 of 2012 (from the Judgement
and Order dated 26.4.2012 of the High Court of
Judicature at Allahabad in Crl. Misc. Bail
Application No. 28461 of 2011).
—————

18 LAWTELLER 2013
LAW FORYOU
DOUBLEJEOPARDY
In order to attract the provisions ofArticle 20(2) of
the Constitution i.e. doctrine of autrefois acquit or
Section 300, Cr. P.C. or Section 71, IPC or S. 26
of General ClausesAct, ingredients of the offences
in the earlier case as well as in the latter case
must be he same and not different. The test to
ascertain whether the two offences are the same,
is not identity of the allegations but the identity of
the ingredients of the offence. Motive for
committing offence cannot be termed as ingredient
of offences to determine the issue. The plea of
autrefois acquit is not proved unless it is shown
that the judgement of acquittal in the previous
charge necessarily involves an acquittal of the
latter charge.
Reference : SC. Sangeetaben
MahendrabhaiPatelv. StateofGujarat&
Anr.,criminalappealno.645of2012.
DIRECTORSOFCOMPANYCANNOT
BEPROSECUTEDALONE
Section 141 of Negotiable Instruments Act (26of
1881) is concerned with the offences by the
company. It makes the other persons vicariously
liable for commission of an offence on the part of
the company. The vicarious liability gets attracted
when the condition precedent under Section 141
namely, offence by company stands satisfied. The
power of punishment is vested in the legislature
and that is absolute in S. 141 which clearly speaks
of commission of offence by the company. The
liability created is penal and thus warrants strict
construction. It cannot therefore be said that the
expression "as well as" in S. 141 brings in the
company as well as the Director and/or other
officers who are responsible for the acts of the
company within its tentacles and, therefore, a
prosecution against the Directors or other officers
is tenable even if the company is not arraigned as
an accused. The words "as well as" have to be
understood in the context. Applying the doctrine
of strict construction, it is clear that commission
of offence by the company is an express condition
precedent to attract the vicarious liability of others.
Thus, it is absolutely clear that when the company
can be prosecuted, then only the persons
mentioned in the other categories could be
vicariously liable for the offence subject to the
averments in the petition and proof thereof. It
necessarily follows that for maintaining the
prosecution under S. 141 of theAct, arraigning of
a company as an accused is imperative only then
the other categories of offenders can be brought
in the dragnet on the touchstone of vicarious
liability as the same has been stipulated in the
provision itself.
Reference : SC. Aneeta Hada v. M/s.
Godfather Travels & Tours Pvt. Ltd.,
criminal appeal no. 838 with 842 of 2008
with1483and1484of2009.
LIABILITY OF INSURER SUBSISTS
TILLCANCELLATIONOFPOLICY
When the policy of insurance is issued by an
authorized insurer on receipt of cheque towards
payment of premium and such cheque is returned
dishonoured, the liability of authorized insurer to
indemnify third parties in respect of the liability
which that policy covered subsists and it has to
satisfy award of compensation by reason of the
provisions of Sections 147(5) and 149(1) of the
M.V. Act unless the policy of insurance is
cancelled by the authorized insurer and intimation
of such cancellation has reached the insured
before the accident. In other words, where the
policy of insurance is issued by an unauthorized
insurer to cover a vehicle on receipt of the cheque
paid towards premium and the cheque gets
dishonoured and before the accident of the vehicle
occurs, such insurance company cancels the
policy of insurance and sends intimation thereof
to the owner, the insurance company's liability to
indemnify the third parties which that policy
covered ceases and the insurance company is
not liable to satisfy awards of compensation in
respect thereof.
Reference : SC. United India Insurance
Co. Ltd. v. Laxmama & Ors., civil appeal
no.3589of2012[arisingoutofS.L.P. (C)
No.23511of2009].

192013 LAWTELLER
RULE OF ESTOPPEL ONLY
PREVENTS ACCEPTANCE OF
EVIDENCE TO DISTURB FINDING
ALREADYRECORDED
Where an issue of fact has been tried by a
competent Court on an earlier occasion and a
finding has been recorded in favour of the accused,
such a finding would constitute an estoppel or
res judicata against the prosecution, not as a bar
to the trial and conviction of the accused for a
different or distinct offence, but as precluding the
acceptance/reception of evidence to disturb the
finding of fact when the accused is tried
subsequently for a different offence. This rule is
distinct from the doctrine of double jeopardy as it
does not prevent the trial of any offence but only
precludes the evidence being led to prove a fact
in issue as regards which evidence has already
been led and a specific finding has been recorded
at an earlier criminal trial. Thus, the rule relates
only to the admissibility of evidence which is
designed to upset a finding of fact recorded by a
competent Court in a previous trial on a factual
issue.
Reference : SC. Sangeetaben
MahendrabhaiPatelv. StateofGujarat&
Anr.,criminalappealno.645of2012.
QUANTUMOFCOMPENSATIONAND
HEADSFORPAYMENT
In determining the quantum of compensation
payable to the victims of accident, who are
disabled either permanently or temporarily, efforts
should always be made to award adequate
compensation not only for the physical injury and
treatment, but also for the loss of earning and
inability to lead a normal life and enjoy amenities,
which would have been enjoyed but for the
disability caused due to the accident. The amount
awardedunder theheadoflossofearningcapacity
is distinct and do not overlap with the amount
awarded for pain., suffering and loss of enjoyment
of life or the amount awarded for medical
expenses.
Reference : SC. Kavita v. Deepak and
Ors.,civilappealno.5945of2012[arising
outofS.L.P.(C)No.7396of2011].
EVERY MEMBER OF UNLAWFUL
ASSEMBLYVICARIOUSLYLIABLE
Section 149 IPC creates a constructive or vicarious
liability of the members of unlawful assembly for
the unlawful acts committed pursuant to the
common object by any other member of that
assembly. This principle ropes in every member
of the assembly to be guilty of an offence where
the offence is committed by any member of that
assembly in prosecution of common object of that
assembly, or such members or assembly knew
that offence is likely to be committed in
prosecution of that object. The factum of causing
injury or not causing injury would not be relevant,
where accused is sought to be roped in with the
aid of Section 149 IPC. The relevant question to
be examined by the Court is whether the accused
was a member of an unlawful assembly and not
whether he actually took active part in the crime
or not.
Reference : SC. Krishnappa & Ors. v.
State of Karnataka by Babaleshwara
PoliceStation,criminalappealno.984of
2010with1147of2012[arisingoutofS.L.P.
(Crl.)No.5830of2012].
PRINCIPLESGOVERNINGJUDICIAL
REVIEW IN CONTRACTUAL
MATTERS
Following principles govern judicial review in
contractual matters:
(a)The basic requirement ofArticle 14 is
fairness in action by the State, and non-
arbitrariness in essence and substance
istheheartbeatoffairplay.Theseactions
areamenabletothejudicialreviewonlyto
the extent that the State must act validly
for a discernible reason and not
whimsicallyforanyulteriorpurpose.Ifthe
State acts within the bounds of
reasonableness,itwouldbelegitimateto
take into consideration the national
priorities;
(b) Fixation of a value of the tender is
entirelywithinthepurviewoftheexecutive
andCourtshardlyhaveanyroletoplayin
thisprocessexceptforstrikingdownsuch

20 LAWTELLER 2013
action of the executive as is proved to be
arbitrary or unreasonable. If the
governmentactsinconformitywithcertain
healthy standards and norms such as
awardingofcontractsbyinvitingtenders,
in those circumstances, the interference
by Courts is very limited;
(c)Inthematterofformulatingconditions
of a tender document and awarding
contract,greaterlatitudeisrequiredtobe
conceded to the State authorities unless
the action of tendering authority is found
to be malicious and a misuse of its
statutorypowers,interferencebyCourts
isnotwarranted.
(d)Certainpreconditionsorqualifications
fortendershavetobelaiddowntoensure
that the contractor has the capacity and
theresourcestosuccessfullyexecutethe
work;and
(e) If the State or its instrumentalities act
reasonably, fairly and in public interest in
awardingcontract,hereagain,interference
byCourtisveryrestrictivesincenoperson
can claim fundamental right to carry on
businesswiththeGovernment.
Reference : SC. M/s Michigan Rubber
(India) Ltd. v. State of Karnataka & Ors.,
civilappealno.5898of2012[arisingoutof
S.L.P.(C)NO.25802of2008.
IMPLEADMENTOFPARTIES
The broad principles which should govern disposal
of an application for impleadment are:
1. The Court can, at any stage of the
proceedings, either on an application
made by the parties or otherwise, direct
impleadmentofanypersonasparty,who
ought to have been joined as plaintiff or
defeandantorwhosepresencebeforethe
Court is necessary for effective and
complete adjudication of the issues
involvedinthesuit.
2. A necessary party is the person who
oughttobejoinedaspartytothesuitand
in whose absence an effective decree
cannotbepassedbyCourt.
3. A proper party is a person whose
presence would enable the Court to
completely, effectively and properly
adjudicate upon all matters and issues,
thoughhemaynotbeapersoninfavourof
or against whom a decree is to be made.
4.Ifapersonisnotfoundtobeaproperor
necessaryparty,theCourtdoesnothave
the jurisdiction to order his impleadment
againstthewishesoftheplaintiff.
5. In a suit for specific performance, the
Court can order impleadment of a
purchaserwhoseconductisabove-board,
andwhofilesapplicationforbeingjoined
as party within reasonable time of his
acquiring knowledge about the pending
litigation.
6. However, if the applicant is guilty of
contumacious conduct or is beneficiary
of a clandestine transaction or a
transactionmadebytheownerofthesuit
property in violation of the restraint order
passed by the Court or the application is
undulydelayedthentheCourtwillbefuly
justified in declining the prayer for
impleadment.
Reference:SC.BhagwatiDevelopersPvt.
Ltd.v.ToshApartmentsPvt.Ltd.andOrs.,
civil appeal nos. 5918 with 5917 of 2012
[arising out of S.L.P. (C) Nos. 11501 with
17156of2009].
RECOVERY CANNOT BE LIMITED
ONLY TO CASES OF FRAUD OR
MISREPRESENTATION
Any amount paid/received without authority of law
can always be recovered barring few exceptions
of extreme hardships but not as a matter of right.
In such situations law implies an obligation on
the payee to repay the money, otherwise it would
amount to unjust enrichment. Recovery of excess
paid public money cannot be limited only to cases
of fraud or misrepresentation. Concept of fraud or
misrepresentation is not applicable to such
situation. Excess payment made to teachers/
principles due to wrong pay fixation is liable to be
recovered. Moreso when there was clear
stipulation in the fixation order that in case of
wrong/irregular fixation the institution in which the

212013 LAWTELLER
employee works would be responsible for recovery
of over payment made.
Reference:SC.ChandiPrasadUniyaland
Ors.v.StateofUttarakhandandOrs.,civil
appealno.5899of2012[@SpecialLeave
Petition(C)No.30858of2011].
ACCUSEDCANNOTBECONVICTED
ONMORALCONSIDERATIONS
If the view taken by the trial Court is a reasonable
possible view, the High Court cannot set it aside
and substitute it by its own view merely because
that view is also possible on the facts of the case.
The High Court has to bear in mind that
presumption of innocence of an accused is
strengthened by his acquittal and unless there
are strong and compelling circumstances which
rebut that presumption and conclusively establish
the guilt of the accused, the order of acquittal
cannot be set aside. Unless the order of acquittal
is perverse, totally against the weight of evidence
and rendered in complete breach of settled
principles underlying criminal jurisprudence, no
interference is called for with it. Crime may be
heinous, morally repulsive and extremely
shocking, but moral considerations cannot be a
substitute for legal evidence and the accused
cannot be convicted on moral considerations.
Reference : SC. K. Venkateshwarlu v.
StateofAndhraPradesh,criminalappeal
no.500of2011.
EVIDENCEOFCHILDWITNESS
A child witness, by reason of his tender age, is a
pliable witness. He can be tutored easily either
by threat, coercion or inducement. Therefore, the
Court must be satisfied that the attendant
circumstances do not show that the child was
acting under the influence of someone or was
under a threat or coercion. Evidence of a child
witness can be relied upon if the Court, with its
expertise and ability to evaluate the evidence,
comes to the conclusion that the child is not
tutored and his evidence has a ring of truth. It is
safe and prudent to look for corroboration for
evidence of a child witness from the other evidence
on record, because while giving evidence a child
may give scope to his imagination and exaggerate
his version or may develop cold feet and not tell
the truth or may repeat what he has been asked
to say not knowing the consequences of his
deposition in the Court. Careful evaluation of the
evidence of a child witness in the background and
context of other evidence on record is a must
before the Court decide to rely upon it.
Reference : SC. K. Venkateshwarlu v.
StateofAndhraPradesh,criminalappeal
no.500of2011.
SPEED DOES NOT ALWAYS
DETERMINE RASHESS AND
NEGLIGENCE
Rash and negligent driving has to be examined in
light of the facts and circumstances of a given case.
It is a fact incapable of being construed or seen in
isolation. It must be examined in light of the
attendant circumstances. A person who drives a
vehicle on the road is liable to be held responsible
for the act as well as for the result. It may not be
always possible to determine with reference to the
speed of a vehicle whether a person was driving
rashly and negligently. Both these acts presuppose
an abnormal conduct. Even when one is driving a
vehicle at a slow speed but recklessly and
negligently, it would amount to 'rash and negligent
driving'withinthemeaningofthelanguageofSection
279 IPC. That is why the legislature in its wisdom
has used the words 'manner so rash or negligent
as to endanger human life'. The preliminary
conditions, thus, are that (a) it is the manner in
which the vehicle is driven; (b) it be driven either
rashly or negligently; and (c) such rash or negligent
driving should be such as to endanger human life.
Another parameter, applied is of 'reasonable care'
in determining the question of negligence or
contributorynegligence.Thedoctrineofreasonable
care imposes an obligation or a duty upon a person
to care for the pedestrian on the road and this duty
attainsahigherdegreewhenthepedestrianhappen
to be children of tender years. It is axiomatic to
say that while driving a vehicle on a public way,
there is an implicit duty cast on the drivers to see
that their driving does not endanger the life of the
rightusersoftheroad,maybeeithervehicularusers
or pedestrians. They are expected to take sufficient
caretoavoiddangertoothers.Stillanotherprinciple

22 LAWTELLER 2013
that is pressed in aid by the Courts in such cases
is the doctrine of res ipsa loquitur. This doctrine
serves two purposes one that an accident may by
its nature be more consistent with its being caused
by negligence for which the opposite party is
responsible than by any other causes and that in
such a case, the mere fact of the accident is prima
facie evidence of such negligence. Secondly, it is
to avoid hardship in cases where the claimant is
able to prove the accident but cannot prove how
the accident occurred.
Reference : SC. Ravi Kapur v. State of
Rajasthan, criminal appeal no. 1838 of
2009.
A JUDGE, LIKE CAESAR'S WIFE
MUSTBEABOVESUSPICION
JudicialserviceisnotanordinaryGovernmentservice
and the Judge is not employee as such. Judges
hold the public office, their function is one of the
essential functions of the State. In discharge of their
functionsandduties,theJudgesrepresenttheState.
The office that a Judge holds is an office of public
trust. A Judge must be a person of impeccable
integrityandunimpeachableindependence.Hemust
be honest to the core with high moral values. When
alitigantentersthecourtroom,hemustfeelsecured
that the Judge before whom his matter has come,
woulddeliverjusticeimpartiallyanduninfluencedby
anyconsideration.Thestandardofconductexpected
of a Judge is much higher than an ordinary man.
This is no excuse that since the standards in the
society have fallen the Judges who are drawn from
the society cannot be expected to have high
standards and ethical firmness required of a Judge.
AJudge,likeCaesar'swife,mustbeabovesuspicion.
The credibility of the judicial system is dependent
upon the Judges who man it. For a democracy to
thrive and rule of law to survive, justice system and
the judicial process have to be strong and every
Judge must discharge his judicial functions with
integrity, impartiality and intellectual honesty.
Reference : SC. R,C. Chandel v. High
CourtofM.P.&Anr.,civilappealno.5790
of2012[arisingoutofS.L.P.(C)No.1884
of2007].
APPLICATION FOR
COMPASSIONATEAPPOINTMENT,
NEED NOT BE IN PRESCRIBED
FORMAT
In an application for compassionate appointment
what is important is the substance of the
application and not the form. If the application in
substance conveyed the request for a
compassionate appointment and provide the
information which the manager required for
considering the request, the very fact that the
information was not in a given format would not
have been a good reason to turn down the request.
When the authority concerned did not reject the
application on the ground that the same was not
in the prescribed format or that the application
was deficient in disclosing information that was
essential for consideration of the prayer for a
compassionate appointment it could to be set up
as a ground for rejection of the prayer of applicant
by the beneficiary of the appointment made in
derogation of the right of applicant.
Reference : SC. Shreejith L. v. Deputy
Director (Education), Kerala & Ors., civil
appealnos.4848,4852,4851,4854,4853,
4849,4850of2012[arisingoutofSLP(C)
7556 of 2008 with 4954, 33421 of 2009,
4467,31908,6607-6608of2011].
ooooooo
QUOTE from COURT
Be you never so high, the law is above you.Be you never so high, the law is above you.Be you never so high, the law is above you.Be you never so high, the law is above you.Be you never so high, the law is above you.
—THOMAS FULLER—THOMAS FULLER—THOMAS FULLER—THOMAS FULLER—THOMAS FULLER

232013 LAWTELLER
GENERAL
ARTICLE 14 FORBIDS CLASS LEGISLATION, BUT
PROTECTS REASONABLE CLASSIFICATION
It is contended that keeping in view the powers,
functions and jurisdiction that the Chief/State
Information Commissioner and/or the Information
Commissioners exercise undisputedly, including
the penal jurisdiction, there is a certain requirement
oflegalacumenandexpertiseforattainingtheends
of justice, particularly, under the provisions of the
Act of 2005. On this premise, the petitioner had
questioned the constitutional validity of sub-
Sections(5)and(6)ofSection12andsub-Sections
(5) and (6) of Section 15 of the Act of 2005. These
provisions primarily deal with the eligibility criteria
for appointment to the posts of Chief Information
Commissioners and Information Commissioners,
both at the Central and the State levels.
The Supreme Court while partially allowing the writ
petition issued following directions:
1.Thewritpetitionispartlyallowed.
2. The provisions of Sections 12(5) and
15(5) of the Act of 2005 are held to be
constitutionallyvalid,butwiththeriderthat,
to give it a meaningful and purposive
interpretation,itisnecessaryfortheCourt
to'readinto'theseprovisionssomeaspects
withoutwhichtheseprovisionsarebound
tooffendthedoctrineofequality.Thus,we
hold and declare that the expression
'knowledgeandexperience'appearingin
theseprovisionswouldmeanandinclude
a basic degree in the respective field and
theexperiencegainedthereafter.Further,
withoutanyperadventureandveritably,we
statethatappointmentsoflegallyqualified,
judiciallytrainedandexperiencedpersons
wouldcertainlymanifestinmoreeffective
serving of the ends of justice as well as
ensuringbetteradmissionofjusticebythe
Commission. It would render the
adjudicatoryprocesswhichinvolvescritical
legalquestionsandnuancesoflaw,more
adherenttojusticeandshallenhancethe
public confidence in the working of the
NAMIT SHARMA A PUBLIC SPIRITED
CITIZEN APPROACHED Supreme Court
under Article 32 of the Constitution stating that
though the Right to Information Act, 2005 (Act of
2005)isanimportanttoolinthehandsofanycitizen
to keep checks and balances on the working of
thepublicservants,yetthecriterionforappointment
of the persons who are to adjudicate the disputes
under this Act are too vague, general, ultra vires
the Constitution and contrary to the established
principles of law laid down by a plenthora of
judgements of Supreme Court. It is the stand of
the petitioner that the persons who are appointed
to discharge judicial or quasi-judicial functions or
powersundertheActof2005oughttohaveajudicial
approach, experience, knowledge and expertise.
Limitation has to be read into the competence of
the legislature to prescribe the eligibility for
appointment of judicial or quasi-judicial bodies like
the Chief Information Commissioner, Information
Commissioners and the corresponding posts in the
States, respectively. The legislative power should
be exercised in a manner which is in consonance
with the constitutional principles and guarantees.
Complete lack of judicial expertise in the
Commission may render the decision making
process impracticable, inflexible and in given
cases, contrary to law. The availability of expertise
of judicial members in the Commission would
facilitate the decision-making to be more practical,
effectiveandmeaningful,besidesgivingsemblance
of justice being done. The provision of eligibility
criteria which does not even lay down any
qualificationsforappointmenttotherespectiveposts
under theAct of 2005 would be unconstitutional, in
terms of the judgements of Supreme Court in the
cases of Union of India v. Madras BarAssociation
[(2010) 11 SCC 1]; Pareena Swarup v. Union of
India; L. Chandra Kumar v. Union of India [(1997) 3
SCC 261]; R.K. Jain v. Union of India [(1993) 4
SCC 119]; S.P. Sampath Kumar v. Union of India
[(1987) 1 SCC 124].

24 LAWTELLER 2013
Commission. This is the obvious
interpretation of the language of these
provisions and, in fact, is the essence
thereof.
3.Asopposedtodeclaringtheprovisions
ofSection12(6)and15(6)unconstitutional,
wewouldprefertoreadtheseprovisionsas
havingeffect'post-appointment'.Inother
words,cessation/terminationofholdingof
officeofprofit,pursuinganyprofessionor
carrying any business is a condition
precedenttotheappointmentofaperson
as Chief Information Commissioner or
InformationCommissionerattheCentreor
Statelevels.
4. There is an absolute necessity for the
legislature to reword or amend the
provisionsofSection12(5),12(6)and15(5),
15(6)oftheAct.Weobserveandhopethat
theseprovisionswouldbeamendedatthe
earliest by the legislature to avoid any
ambiguity or impracticability to avoid any
ambiguity or impracticability and to make
it in consonance with the constitutional
mandates.
5. We also direct that the Central
Government and/or the competent
authority shall frame all practice and
procedurerelatedrulestomakeworkingof
theInformationCommissionseffectiveand
in consonance with the basic rule of law.
Suchrulesshouldbeframedwithparticular
reference to Section 27 and 28 of theAct
withinaperiodofsixmonthsfromtoday.
6. We are of the considered view that it is
anunquestionablepropositionoflawthat
the Commission is a 'judicial tribunal'
performingfunctionsof'judicial'aswellas
'quasi-judicial' nature and having the
trappingsofaCourt.Itisanimportantcog
andispartofthecourtattachedsystemof
administrationofjustice,unlikeaministerial
tribunal which is more influenced and
controlled and performs functions akin to
themachineryofadministration.
7.Itwillbejust,fairandproperthatthefirst
appellateauthority(i.e.theseniorofficers
to be nominated in terms of Section 5 of
theAct of 2005) preferably should be the
persons possessing a degree in law or
havingadequateknowledgeandexperience
inthefieldoflaw.
8. The Information Commissions at the
respectivelevelsshallhenceforthworkin
Benches of two members each. One of
them being a 'judicial member', while the
other an 'expert member'. The judicial
membershouldbeapersonpossessinga
degree in law, having a judicially trained
mindandexperienceinperformingjudicial
functions.Alawofficeroralawyermayalso
beeligibleprovidedheisapersonwhohas
practicedlawatleastforaperiodoftwenty
yearsasonthedateoftheadvertisement.
Suchlawyershouldalsohaveexperience
in social work. We are of the considered
view that the competent authority should
preferapersonwhoisorhasbeenaJudge
of the High Court for appointment as
Information Commissioner. Chief
InformationCommissionerattheCentreor
Statelevelshallonlybeapersonwhoisor
hasbeenaChiefJusticeoftheHighCourt
oraJudgeoftheSupremeCourtofIndia.
9.Theappointmentofthejudicialmembers
to any of these posts shall be made 'in
consultation'withtheChiefJusticeofIndia
andChiefJusticesoftheHighCourtsofthe
respectiveStates, as the case may be.
10. The appointment of the Information
Commissioners at both levels should be
made from amongst the persons
empanelled by the DoPT in the case of
Centre and the concerned Ministry in the
case of a State. The panel has to be
preparedupondueadvertisementandona
rationalbasisasafore-recorded.
11.ThepanelsopreparedbytheDoPTor
theconcernedMinistryoughttobeplaced
before the High-powered Committee in
terms of Section 12(3), for final
recommendationtothePresidentofIndia.
NeedlesstorepeatthattheHighPowered
Committee at the Centre and the State
levels is expected to adopt a fair and
transparentmethodofrecommendingthe

252013 LAWTELLER
names for appointment to the competent
authority.
12. The selection process should be
commencedatleastthreemonthspriorto
theoccurrenceofvacancy.
13. This judgement shall have effect only
prospectively.
14.UndertheschemeoftheActof2005,it
isclearthattheordersoftheCommissions
aresubjecttojudicialreviewbeforetheHigh
CourtandthenbeforetheSupremeCourt
of India. In terms of Article 141 of the
Constitution, the judgements of the
SupremeCourtarelawofthelandandare
bindingonallcourtsandtribunals.Thus,it
is abundantly clear that the Information
Commission is bound by the law of
precedence, i.e., judgements of the High
Court and the Supreme Court of India. In
order to maintain judicial discipline and
consistency in the functioning of the
Commission, we direct that the
Commissionshallgiveappropriateattention
tothedoctrineofprecedenceandshallnot
overlook the judgements of the courts
dealing with the subject and principles
applicable,inagivencase.
under :
In determining the constitutionality or validity of
a constitutional provision, the court must weigh
the real impact and effect thereof, on the
fundamental rights. The Court would not allow the
legislature to overlook a constitutional provision
by employing indirect methods.
TTTTTTT
Traditionality, this Court had provided very limited
grounds on which an enacted law could be
declared unconstitutional. They were legislative
competence, violation of Part III of the
Constitution and reasonableness of the law. The
first two were definite in their scope and
application while the cases falling in the third
category remained in a state of uncertainty.
TTTTTTT
No prejudice needs to be proved in cases where
breach of fundamental rights is claimed. Violation
of a fundamental right itself renders the impugned
action void.
TTTTTTT
The Court should examine the provision of the
statute in light of the provisions of the Constitution
(e.g. Part III), regardless of how it is actually
administered or is capable of being administered.
TTTTTTT
In order to examine the constitutionality or
otherwise of a statute or any of its provisions,
one of the most relevant considerations is the
object and reasons as well as the legislative
history of the statute. It would help the court in
arriving at a more objective and justful approach.
It would be necessary for the Court to examine
the reasons of enactment of a particular provision
so as to find out its ultimate impact vis-à-vis the
constitutional provisions.
TTTTTTT
Most significant canon of determination of
constitutionality is that the courts would be
reluctant to declare a law invalid or ultra vires on
account of unconstitutionality. The courts would
accept an interpretation which would be in favour
of the constitutionality, than an approach which
would render the law unconstitutional. Declaring
the law unconstitutional is one of the last resorts
taken by the courts. The courts would preferably
put into service the principle of 'reading down' or
'reading into' the provision to make it effective,
workable and ensure the attainment of the object
of the Act.
TTTTTTT
The provisions of Section 12(5) do not discuss
the basic qualification needed, but refer to two
components: (a) persons of eminence in public
life; and (b) with wide knowledge and experience
in the fields stated in the provision. The provision,
thus, does not suffer from the infirmity of providing
no criteria resulting in the introduction of the
element of arbitrariness or discrimination. The
provisions require the persons to be of eminence
and with knowledge in the stated fields. The
vagueness in the expression 'social service',
'mass media' or 'administration and governance'
does not introduce the element of discrimination
in the provision. The persons from these various
walks of life are considered eligible for
appointment to the post of Chief Information

26 LAWTELLER 2013
Commissioner and Information Commissioners
in the respective Information Commissions. This
gives a wide zone of consideration and this
alleged vagueness can always be clarified by the
appropriate government.
TTTTTTT
Sub-Section (6) of Section 12 does have an
element of uncertainty and indefiniteness. It is
difficult to say what the person eligible under the
provision should be doing and for what period.
The section does not specify any such period.
The exclusion is too vague, while inclusion is
uncertain. It creates a situation of confusion which
could not have been the intent of law. It is also
not clear as to what classification the framers of
the Act intended to lay down. The classification
does not appear to have any nexus with the object
of the Act. There is no intelligible differentia to
support such classification. If we read the
language of Sections 12(5) and 12(6) together,
the provisions under sub-Section (6) appear to
be in conflict with those under sub-Section (5)
Sub-Section (5) requires the person to have
eminence in public life and wide knowledge and
experience in the specified field. On the contrary,
sub-Section (6) requires that the person should
not hold any office of profit, be connected with
any political party or carry on any business or
pursue any profession. The object of sub-Section
(5) stands partly frustrated by the language of
sub-Section (6). In other words, sub-Section (6)
lacks clarify, reasonable classification and has
no nexus to the object of the Act of 2005 and if
construed on its plain language, it would result in
defeating the provisions of sub-Section (5) of
Section 12 to some extent.
TTTTTTT
Section 12(6) does not speak of the class of
eligible persons, but practically debars all persons
from being appointed to the post of Chief
Information Commissioner or Information
Commissioners at the Centre and State levels,
respectively.
TTTTTTT
We would prefer to interpret the provisions of
Section 12(6) as applicable post appointment
rather than pre-appointment of the Chief
Information Commissioner and Information
Commissioners. In other words, these
disqualifications will only come into play once a
person is appointed as Chief Information
Commissioner/Information Commissioner at any
level and he will cease to hold any office of profit
or carry any business or pursue any profession
that he did prior to such appointment. It is thus
implicit in this provision that a person cannot hold
any of the posts simultaneous to his appointment
asChiefInformationCommissionerorInformation
Commissioner. In fact, cessation of his previous
appointment, business or profession is a
condition precedent to the commencement of his
appointment as Chief Information Commissioner
or Information Commissioner.
TTTTTTT
The legislature in its wisdom has chosen not to
provideanyspecificqualification,buthasprimarily
prescribed'wideknowledgeandexperience'inthe
cited subjects as the criteria for selection. It is
not for the courts to spell out what ought to be
the qualifications or experience for appointment
to a particular post. Suffice it is to say, that if the
legislature itself provides 'knowledge and
experience' as the basic criteria of eligibility for
appointment, this per se, would not attract the
rigors of Article 14 of the Constitution. On a
reasonable and purposive interpretation, it will be
appropriatetointerpretandreadintoSection12(5)
that the 'knowledge and experience' in a particular
subject would be deemed to include the basic
qualification in that subject. We would prefer such
an approach than to hold it to be violative of Article
14 of the Constitution. Section 12(5) has inbuilt
guidelines to the effect that knowledge and
experience, being two distinct concepts, should
be construed in their correct perspective. This
would include the basic qualification as well as
an experience in the respective field, both being
the pre-requisites for this section. We are unable
to find that the provisions of Section 12(5) suffer
from the vice of arbitrariness or discrimination.
However, without hesitation, we would hasten to
addthatcertainrequirementsoflawandprocedure
would have to be read into this provision to sustain
its constitutionality.
TTTTTTT
It is a settled principle of law, as stated earlier,
thatcourtswouldgenerallyadoptaninterpretation
which is favourable to and tilts towards the

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