CASE NO.: Appeal (crl.) 402 of 2005 PETITIONER: <NAME> & Anr. RESPONDENT: <NAME> & Anr. DATE OF JUDGMENT: 11/03/2005 BENCH: R.C.LAHOTI CJI & B.N.AGRAWAL & HOTOI KHETOHO SEMA & G.P.MATHUR & P.K.BALASUBRAMANYAN JUDGMENT:

JUDGMENT (Arising out of Special Leave Petition (Criminal ) No. 4111/2000) (With Criminal Appeal Nos. 904/1998 & 1069-1070/1998) DELIVERED BY:

G.P.MATHUR, J G. P. MATHUR, J.

1. Leave granted in Special Leave Petition (Crl) No.4111 of 2000.

2. In view of conflict of opinion between two decisions of this Court each rendered by a bench of three learned Judges in <CITATION> 1996 (3) SCC 533 and <CITATION> 1998 (2) SCC 493, regarding interpretation of Section 195(1)(b)(ii) of Code of Criminal Procedure 1973 (for short ' Cr.P.C .'), this appeal has been placed before the present Bench.

3. The facts of the case may be noticed in brief. The appellant nos.1 and 2 are real brothers of <NAME>, while respondent nos.1 and 2 are his widow and son respectively. <NAME> died on 3.6.1993. The appellant no.1 filed Probate Case No.363 of 1993 in <ORG>, Delhi, for being granted probate of the will allegedly executed by <NAME> on 20.1.1993. The petition was contested by the respondents on the ground that the will was forged. On their application the appellant no.1 filed the original will in <ORG> on 10.2.1994. Thereafter, the respondents moved an application under Section 340 . requesting the <ORG> to file a criminal complaint against appellant no.1 as the will set up by him was forged. A reply to the said application was filed on 27.7.1994 but the application has not been disposed of so far. Thereafter, the respondents filed a criminal complaint in May 1996 in the <ORG> of Chief Metropolitan Magistrate, New Delhi, for prosecution of the appellants and their mother Smt. <NAME> under Sections 192 , 193 , 463 , 464 , 465 , 467 , 469 , 471 , 499 and 500  on the ground that the will of <NAME> set up by the appellants is a forged and fictitious document. It is stated in the complaint that though <NAME> was an educated person, but the will bears his thumb impression. He had accounts in <ORG> and <ORG> which he used to operate by putting his signature. Under the will he had completely divested the respondents, who were his widow and son respectively and also a daughter who was spastic and had bequeathed his entire property to his mother and after her death to his brothers and sisters. The appellant no.1 <NAME> was appointed as the sole executor and trustee of the will. Before the learned Metropolitan Magistrate, the complainant examined six witnesses including two persons from the banks who brought the relevant records and deposed that <NAME> used to operate the accounts by putting his signature. The learned Metropolitan Magistrate held that as the question whether the will was a genuine document or a forged one, was an issue before the District Judge in the probate proceedings where the will had been filed, Sections 195 (1)(b)(i) and (ii) Cr.P.C . operated as a bar for taking cognizance of the offences under Sections 192 , 193 , 463 , 464 , 471 , 475 and 476 . The complaint was accordingly dismissed by the order dated 2.5.1998. The respondents thereafter filed a criminal revision against the order of the learned Metropolitan Magistrate, before the Sessions Judge, who, relying upon <CITATION> 1998 (2) SCC 493, held that the bar contained in Section 195 (1)(b)(ii) Cr.P.C . would not apply where forgery of a document was committed before the said document was produced in <ORG>. The revision petition was accordingly allowed and the matter was remanded to the <ORG> of Metropolitan Magistrate for proceeding in accordance with law. The appellants challenged the order passed by the learned Additional Sessions Judge by filing a petition under Section 482 . before Delhi High <ORG>, but the same was dismissed on 15.9.2000 following the law laid down in <NAME>. Feeling aggrieved, the appellants have preferred the present appeal in this <ORG>.

4. Sub-section (1) of Section 195 ., which according to the appellants, creates a bar in taking cognizance on the complaint filed by the respondents, reads as under :

195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. - (1) No Court shall take cognizance

(a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code , or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate ;

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code , namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any <ORG>, or

(ii) of any offence described in Section 463 , or punishable under Section 471 , Section 475 or Section 476 , of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that <ORG>, or of some other <ORG> to which that <ORG> is subordinate.

5. The principal controversy revolves round the interpretation of the expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court" occurring in clause (b)(ii) of sub-section (1) of Section 195 . The appellants place reliance on the following observations made in para 10 of the report in <CITATION> :

"It would thus be clear that for taking cognizance of an offence, the document, the foundation of forgery, if produced before the court or given in evidence, the bar of taking cognizance under Section 195(1)(b)(ii) gets attracted and the criminal court is prohibited from taking cognizance of offence unless a complaint in writing is filed as per the procedure prescribed under Section 340 of the Code by or on behalf of the <ORG>. The object thereby is to preserve purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial process. The bar of Section 195 is to take cognizance of the offence covered thereunder."

to contend that once the document is produced or given in evidence in <ORG>, the taking of cognizance on the basis of private complaint is completely barred.

In <NAME> after analysis of the relevant provisions and noticing a number of earlier decisions (but not <NAME>), the <ORG> recorded its conclusions in paragraphs 11, 12 and 23 which are being reproduced below :

"11. The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis.

12. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the <ORG> and long before its production in the <ORG>, could also be treated as one affecting administration of justice merely because that document later reached the court records.

23. The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court."

6. On a plain reading clause (b)(ii) of sub-section (1) of Section 195 is capable of two interpretations. One possible interpretation is that when an offence described in Section 463 or punishable under Section 471 , Section 475 or Section 476  is alleged to have been committed in respect of a document which is subsequently produced or given in evidence in a proceeding in any <ORG>, a complaint by the <ORG> would be necessary. The other possible interpretation is that when a document has been produced or given in evidence in a proceeding in any <ORG> and thereafter an offence described as aforesaid is committed in respect thereof, a complaint by the <ORG> would be necessary. On this interpretation if the offence as described in the Section is committed prior to production or giving in evidence of the document in <ORG>, no complaint by <ORG> would be necessary and a private complaint would be maintainable. The question which requires consideration is which of the two interpretations should be accepted having regard to the scheme of the Act and object sought to be achieved.

7. Dr. <NAME>, learned senior counsel for the appellants, submitted that the purpose of Section 195 is to bar private prosecution where the cause of justice is sought to be perverted leaving it to the <ORG> itself to uphold its dignity and prestige. If a very restricted interpretation is given to Section 195(1)(b)(ii) ., as held in <NAME>, the protection afforded by the provision will be virtually reduced to a vanishing point, defeating the very object of the enactment. The provision, it is urged, does not completely bar the prosecution of a person who has committed an offence of the type described thereunder, but introduces a safeguard in the sense that he can be so prosecuted only on the complaint of the <ORG> where the document has been produced or given in evidence or of some other <ORG> to which that <ORG> is subordinate. Learned counsel has also submitted that being a penal provision, giving a restricted meaning as held in <NAME>, would not be proper as a person accused of having committed an offence would be deprived of the protection given to him by the legislature. He has also submitted that on the aforesaid view there is a possibility of conflicting findings being recorded by the civil or revenue <ORG> where the document has been produced or given in evidence and that recorded by the criminal <ORG> on the basis of private complaint and therefore an effort should be made to interpret the Section in the manner which avoids such a possibility.

8. <NAME>, learned counsel for the respondents has submitted that the language of the Section is clear and there being no ambiguity therein, the only possible manner in which it can be interpreted is that the complaint by a <ORG> would be necessary when the offences enumerated in the Section are committed at a time when the document has already been produced or given in evidence in <ORG> i.e. when it is in the proceedings of the <ORG>. The provision has to be strictly construed as it creates a bar on the power of the <ORG> to take cognizance of an offence and any provision which ousts the jurisdiction of the <ORG>, which it otherwise possesses, must be strictly construed and cannot be given an enlarged meaning. Since the provision deprives a person who is a victim and is aggrieved by the offences described under Section 463 or punishable under Sections 471 , 475 or 476 IPC to initiate a criminal prosecution by filing a complaint, his interest cannot be overlooked and therefore the provision should not be given an enlarged meaning, but only a restricted meaning should be given. Learned counsel has also submitted that in certain situations where the forgery has been committed at any time prior to the production or giving in evidence of the document in <ORG>, it may not at all be possible for such <ORG> to effectively form an opinion as to whether it is expedient to file a complaint and that may facilitate the escape of a guilty person. <NAME> has also submitted that in <NAME>, the <ORG> has reiterated and has adopted the same view which has been taken in several earlier decisions of this <ORG>, and only in <NAME> a discordant note has been struck which is not correct.

9. The scheme of the statutory provision may now be examined. Broadly, Section 195 . deals with three distinct categories of offences which have been described in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188  which occur in Chapter X of the IPC and the heading of the Chapter is  'Of Contempts Of The Lawful Authority Of Public Servants'. These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI of IPC which is headed as  'Of False Evidence And Offences Against Public Justice'. The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a <ORG> of justice or before a public servant who is bound or authorized by law to receive such declaration, and also to some other offences which have a direct co-relation with the proceedings in a <ORG> of justice ( Sections 205 and 211 ). This being the scheme of two provisions or clauses of Section 195 , viz., that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of justice, the expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in a <ORG>" occurring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the <ORG>. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in <ORG>, does not appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195 . This indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any <ORG>.

10. Section 195(1) mandates a complaint in writing of the <ORG> for taking cognizance of the offences enumerated in clauses (b) (i) and (b)(ii) thereof. Sections 340 and 341 . which occur in Chapter XXVI give the procedure for filing of the complaint and other matters connected therewith. The heading of this Chapter is --'Provisions As To Offences Affecting The Administration Of Justice'. Though, as a general rule, the language employed in a heading cannot be used to give a different effect to clear words of the Section where there cannot be any doubt as to their ordinary meaning, but they are not to be treated as if they were marginal notes or were introduced into the Act merely for the purpose of classifying the enactments. They constitute an important part of the Act itself, and may be read not only as explaining the Sections which immediately follow them, as a preamble to a statute may be looked to explain its enactments, but as affording a better key to the constructions of the Sections which follow them than might be afforded by a mere preamble.(See Craies on Statute Law, 7th Ed. Pages 207, 209). The fact that the procedure for filing a complaint by <ORG> has been provided in Chapter XXVI dealing with offences affecting administration of justice, is a clear pointer of the legislative intent that the offence committed should be of such type which directly affects the administration of justice, viz., which is committed after the document is produced or given in evidence in <ORG>. Any offence committed with respect to a document at a time prior to its production or giving in evidence in <ORG> cannot, strictly speaking, be said to be an offence affecting the administration of justice.

11. It will be useful to refer to some earlier decisions touching the controversy in dispute which were rendered on Section 195 of Code of Criminal Procedure 1908 (for short 'old Code'). Sub-section (1) (c) of Section 195 of Old Code read as under:

" Section 195 (1) No Court shall take cognizance -

(c) Prosecution for certain offences relating to documents given in evidence. -- of any offence described in Section 463 or punishable under Section 471 , Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any <ORG> in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such <ORG>, or of some other <ORG> to which such <ORG> is subordinate"

It may be noticed that language used in Section 195(1)(b)(ii) . is similar to the above provision except that the words "by a party to any proceeding in any <ORG>" occurring therein have been omitted. We will advert to the effect of this omission later on.

12. A Full Bench of <ORG> in <CITATION> AIR 1931 All 443 considered the scope of the aforesaid provision and held, that clause (c) of Section 195 applies only to cases where an offence is committed by a party, as such, to a proceeding to any Court in respect of a document which has been produced or given in evidence in such proceeding. It was held that an offence which has already been committed by a person who does not become a party till, say, 30 years after the commission of the offence, cannot be said to have been committed by a party within the meaning of clause (c). A three Judge Bench of this Court in Patel Lalji Bhai Somabhai vs. The State of Gujarat 1971(2) SCC 376 after examination of the controversy in considerable detail observed that as a general rule the <ORG> consider it expedient in the interest of justice to start prosecutions as contemplated by Section 476 (of the old Code which now corresponds to Section 340 .) only if there is a reasonable foundation for the charge and there is a reasonable likelihood of conviction. The requirement of a finding as to the expediency is understandable in case of an offence alleged to have been committed either in or in relation to a proceeding in that Court in case of offences specified in clause (b) [of the old Code corresponding to clause (b)(i) Cr.P.C .] because of the close nexus between the offence and the proceeding. In case of offences specified in clause (c) they are required to be committed by a party to a proceeding in that Court with respect to a document produced or given in evidence in that Court. The Court approved the view taken by <ORG> in <CITATION> (supra) and held as under in para 7 of the report :

"(i) The underlying purpose of enacting Section 195(1)(b) and (c) Section 476 seems to be to control the temptation on the part of the private parties to start criminal prosecution on frivolous vexations or unsufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court's control because of their direct impact on the judicial process. It is the judicial process or the administration of public justice which is the direct and immediate object or the victim of these offences. As the purity of the proceedings of the court is directly sullied by the crime, the court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party who might ultimately suffer can persuade <ORG> to file complaint.

(ii) the offences about which the court alone is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceeding in that court so that it can without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to be more appropriate to adopt the strict construction of confirming the prohibition contained in Section 195(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceeding in character as such party. The <ORG> could not have intended to extend the prohibition contained in Section 195(1)(c) to the offences mentioned therein, when committed by a party to a proceeding in that court prior to his becoming such party.".

The court clearly rejected any construction being placed on the provision by which a document forged before the commencement of the proceeding in which it may happen to be used in evidence later on, to come within the purview of Section 195 , as that would unreasonably restrict the right to initiate prosecution possessed by a person and recognized by Section 190 .

13. The aforesaid decision was considered in <CITATION> . 1973(1) SCC 564. Here, the accused had obtained sale deed of the property of a widow by setting up of an imposter and thereafter filed a mutation application before the Tehsildar The widow contested the mutation application on the ground that she had never executed the sale deed and thereafter filed a criminal complaint under Sections 465 , 468 and 471  in which the accused were convicted. In appeal, it was contended that the private complaint was barred by virtue of Section 195(1)(c) . and the revenue court alone could have filed the complaint. The court repelled the aforesaid contention after relying upon the ratio of Patel Lalji Bhai vs. State of Gujarat and the private complaint was held to be maintainable. <CITATION> 1974(3) SCC 628, the above noted two decisions were relied upon for holding that provisions of Section 195(1)(c) (old Code) would not be applicable where mutation proceedings were commenced after a will had been forged. <CITATION> 1976(1) SCC 555 Bhagwati, J. (as His Lordship then was), speaking for a three Judge Bench observed that earlier there was divergence of opinion in various <ORG>, but the same was set at rest by this Court in <NAME> (supra) and approved the view taken therein that the words of Section 195(1)(c) clearly meant the offence alleged to have been committed by a party to the proceeding in his character as such party, i.e. after having become a party to the proceeding, and Sections 195(1)(c) , 476 and 476-A (of the old Code) read together indicated beyond doubt that the legislature could not have intended to extend the prohibition contained in Section 195(1)(c) to the offences mentioned in the said Section when committed by a party to a proceeding prior to his becoming such party. Similar view has been taken in <CITATION> 1994(3) Supp SCC 748 where the contention that the absence of a complaint by the revenue court was a bar to taking cognizance by the criminal court in respect of offences under Sections 446 , 468 , 471 read with Section 120-B  which were committed even before the start of the proceedings before the revenue court, was not accepted.

14. Dr. <NAME>, learned senior counsel for the appellants, in support of his contention has placed strong reliance on <CITATION> 1983 (4) SCC 240 which is a decision rendered by a Bench of two learned Judges. In this case, the appellants filed a civil suit for refund of Rs.20,000/- which they claimed to have deposited with the first respondent and for recovery of certain amount. Along with the plaint the appellants produced a receipt for Rs.20,000/- in support of their claim. Thereafter the first respondent filed a criminal complaint against the appellants alleging forgery of his signature on the money receipt and thereby commission of offences punishable under Sections 467 and 471 . The appellants moved <ORG> for quashing of the proceedings on the ground that in absence of a complaint by the court, the prosecution was barred under Section 195(1)(b)(ii) . <ORG> dismissed the petition holding that Section 463 cannot be construed to include Section 467  as well and, therefore, the Magistrate was competent to take cognizance on the complaint. This <ORG> reversed the view taken by <ORG> observing that as Section 463 defines the offence of forgery and Section 467 punishes forgery of a particular category, Section 195(1)(b)(ii) . would be attracted and in the absence of a complaint by the <ORG> the prosecution would not be maintainable. After briefly referring to <NAME> (supra), the <ORG> observed that "not the conclusion but the ratio" of the said case supported the view taken by it. The judgment does not show that applicability of Section 195(1)(b)(ii) was examined with regard to the question as to whether the alleged forged receipt was prepared before or after commencement of the civil suit, nor any such principle has been laid down that the bar would operate even if the forgery was committed prior to commencement of the proceeding in the civil court.

15. The other case which is the sheet-anchor of the argument of learned counsel for the appellants is <CITATION> 1996(3) SCC

533. The facts as stated in paras 1 & 11 of the report show that a criminal complaint was filed by the respondent under Sections 420 , 467 , 468 , 471 read with 120-B IPC alleging that the appellants had conspired and fabricated an agreement dated 26.7.1978 and had forged the signature of Smt. <NAME> and on the basis thereof, they had made a claim to remain in possession of a house. The Magistrate took cognizance of the offence on 27.9.1983. The appellants thereafter filed a civil suit on 9.2.1984 wherein they produced the agreement. It may be noticed that the cognizance by the criminal <ORG> had been taken much before filing of the Civil Suit wherein the agreement had been filed. During the course of discussion, the court not only noticed <NAME> (supra), but also quoted extensively from <NAME> (supra). Reference was then made to <NAME> vs. <ORG> and <CITATION> AIR 1988 SC 419 wherein it has been held that the bar of Section 195 would not apply if the original document had not been produced or given in evidence in <ORG>. Then comes the passage in the judgment (para 10 of the reports) which we have reproduced in the earlier part of our judgment. The observations therein should not be understood as laying down anything contrary to what has been held in <NAME>, but was made in the context that bar contained in Section 195 (1)(b)(ii) would not be attracted unless the original document was filed. It is for this reason that in the very next paragraph, after observing that the cognizance had been taken prior to filing of the civil suit and the original agreement in <ORG>, the view taken by the High <ORG> that the Magistrate could proceed with the trial of the criminal case was upheld and the appeal was dismissed.

16. As mentioned earlier, the words "by a party to any proceeding in any <ORG>" occurring in Section 195 (1)(c) of the old Code have been omitted in Section 195(1)(b)(ii) . Why these words were deleted in the corresponding provision of Code of Criminal Procedure, 1973 will be apparent from the 41st report of <ORG> which said as under in para 15.39 :

"15.39 The purpose of the section is to bar private prosecutions where the course of justice is sought to be perverted leaving to the court itself to uphold its dignity and prestige. On principle there is no reason why the safeguard in clause (c) should not apply to offences committed by witnesses also. Witnesses need as much protection against vexatious prosecutions as parties and the court should have as much control over the acts of witnesses that enter as a component of a judicial proceeding, as over the acts of parties. If, therefore, the provisions of clause (c) are extended to witnesses, the extension would be in conformity with the broad principle which forms the basis of Section 195 ."

Since the object of deletion of the words "by a party to any proceeding in any <ORG>" occurring in Section 195(1)(c) of the old Code is to afford protection to witnesses also, the interpretation placed on the said provision in the earlier decisions would still hold good.

17. Section 190 . provides that a Magistrate may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Section 195 . is a sort of exception to this general provision and creates an embargo upon the power of the <ORG> to take cognizance of certain types of offences enumerated therein. The procedure for filing a complaint by the <ORG> as contemplated by Section 195(1) . is given in Section 340 . and sub-section (1) and (2) thereof are being reproduced below :

340. Procedure in cases mentioned in Section 195 -

(1) When, upon an application made to it in this behalf or otherwise, any <ORG> is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195 , which appears to have been committed in or in relation to a proceeding in that <ORG> or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that <ORG>, such <ORG> may, after such preliminary inquiry, if any, as it thinks necessary, -

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a <ORG> by sub-section (1) in respect of an offence may, in any case where that <ORG> has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the <ORG> to which such former <ORG> is subordinate within the meaning of sub-section (4) of Section 195 .

Section 341 . provides for an appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195 , against the order refusing to make a complaint or against an order directing filing of a complaint and in such appeal the superior Court may direct withdrawal of the complaint or making of the complaint. Sub-section (2) of Section 343 lays down that when it is brought to the notice of a Magistrate to whom a complaint has been made under Section 340 or 341 that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided.

18. In view of the language used in Section 340 . the <ORG> is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b) , as the Section is conditioned by the words "<ORG> is of opinion that it is expedient in the interest of justice." This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the <ORG> may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i)(b) . This expediency will normally be judged by the <ORG> by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in <ORG>, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the <ORG> may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded.

19. There is another consideration which has to be kept in mind. Sub- section (1) of Section 340 . contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the <ORG> and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a <ORG> trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate fora which are time consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2) , whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the <ORG> is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause (b)(ii).

20. An enlarged interpretation to Section 195(1)(b)(ii) , whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in <ORG>, is capable of great misuse. As pointed out in <NAME>, after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the <ORG>, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would he highly detrimental to the interest of society at large.

21. Judicial notice can be taken of the fact that the <ORG> are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by <NAME> (Third ed.) para 313, the principle has been stated in the following manner :

"The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by <ORG>. Sometimes however, there are overriding reasons for applying such a construction, for example where it appears that <ORG> really intended it or the literal meaning is too strong."

The learned author has referred to <ORG> v. <ORG> (1991) 1 WLR 58 at 71, where it was held as under :

"<ORG> is taken not to intend the carrying out of its enactments to be unworkable or impracticable, so the court will be slow to find in favour of a construction that leads to these consequences. This follows the path taken by judges in developing the common law. ' the common law of England has not always developed on strictly logical lines, and where the logic leads down a path that is beset with practical difficulties the courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of society."

<CITATION> (1979) 2 All ER 91, while interpreting a provision in the Finance Act , 1972, Lord Denning observed that if the literal construction leads to impracticable results, it would be necessary to do little adjustment so as to make the section workable. Therefore, in order that a victim of a crime of forgery, namely, the person aggrieved is able to exercise his right conferred by law to initiate prosecution of the offender, it is necessary to place a restrictive interpretation on clause (b)(ii).

22. Dr. <NAME> has also urged that since we are dealing with a penal provision it should be strictly construed and in support of his proposition he has placed reliance upon a <ORG> decision in <CITATION> , 1955(1) SCR 158, wherein it was held that it is well settled rule of construction of penal statutes that if two possible and reasonable constructions can be put upon a penal provision, the <ORG> must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty and it is not competent for the <ORG> to stretch out the meaning of expression used by the legislature in order to carry out the intention of the legislature. The contention is that since Section 195(1)(b)(ii) affords protection from private prosecution, it should not be given a restrictive interpretation to curtail its scope. We are unable to accept such broad proposition as has been sought to be urged. In Craies on Statute Law (1971 ed.  Chapter 21), the principle regarding penal provisions has been stated as under :

"But penal statutes must never be construed so as to narrow the words of the statute to the exclusion of cases which those words in their ordinary acceptations would comprehend. . But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair commonsense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument."

<CITATION> . 2003 (6) SCC 107 this question was examined in considerable detail and it was held that the principle that a statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case. The Court after referring to <NAME> vs. State of Maharasthra AIR 1976 SC 1929, <CITATION> AIR 1977 SC 435, <CITATION> AIR 1979 SC 1029 and <CITATION> AIR 1980 SC 593 held that the penal provisions should be construed in a manner which will suppress the mischief and advance the object which the legislature had in view.

23. That apart, the section which we are required to interpret is not a penal provision but is part of a procedural law, namely, Code of Criminal Procedure which elaborately gives the procedure for trial of criminal cases. The provision only creates a bar against taking cognizance of an offence in certain specified situations except upon complaint by <ORG>. A penal statute is one upon which an action for penalties can be brought by a public officer or by a person aggrieved and a penal act in its wider sense includes every statute creating an offence against the <ORG>, whatever is the character of the penalty for the offence. The principle that a penal statute should be strictly construed, as projected by the learned counsel for the appellants can, therefore, have no application here.

24. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal <ORG>, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of old Code, the following observations made by a Constitution Bench in <CITATION> AIR 1954 SC 397 give a complete answer to the problem posed :

"(15) As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in <ORG> on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal <ORG> is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one <ORG> binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.

(16) Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.

This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S. 476 . But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."

25. In view of the discussion made above, we are of the opinion that <NAME> has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) . would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis.

26. In the present case, the will has been produced in the <ORG> subsequently. It is nobody's case that any offence as enumerated in Section 195(b)(ii) was committed in respect to the said will after it had been produced or filed in the <ORG> of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) . would not come into play and there is no embargo on the power of the <ORG> to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High <ORG> is perfectly correct and calls for no interference.

27. The appeal is, accordingly, dismissed.

Criminal Appeal No. 904/1998

28. This appeal has been preferred by the complainant against the judgment and order dated 6.2.1998 of <ORG> by which the criminal revision petition preferred by the second respondent <NAME> was allowed and he was acquitted of the charges under Section 467 and 471  on the ground that in view of the bar created by Section 195(1)(b)(ii) ., the learned Magistrate could not have taken cognizance on the police report. According to the case of the prosecution, the sale deed had been forged earlier and thereafter the same was filed in <ORG>. For the reasons already discussed, the appeal is allowed and the judgment of <ORG> is set aside. The criminal revision petition filed by the second respondent shall be heard and decided by <ORG> afresh and in accordance with law.

Criminal Appeal Nos. 1069-1070 of 1998

30. <ORG> in the impugned order dismissed the petition filed by the appellant under Section 482 . relying upon the decision of this Court in <NAME>. In view of the reasons already discussed, the appeals lack merit and are hereby dismissed.


CASE NO.: Appeal (civil) 8003 of 2002 PETITIONER: <ORG> RESPONDENT: <ORG> & Ors. DATE OF JUDGMENT: 03/12/2002 BENCH: CJI, <NAME> & <NAME>. JUDGMENT:

J U D G M E N T WITH Civil Appeal Nos.1539, 1540, 1541 of 2001 and Civil Appeal Nos. 8004-8012 2002 [Arising out of SLP (C) Nos.1636-1644 of 2001] S.B. SINHA, J :

Leave granted in special leave petitions.

This batch of appeals arising out of common Judgment and Order of the Gujarat High Court at Ahmedabad in SCA Nos. 10108/94, 4427/92, 4733/92, 4847/92, 3537/95, 8882/99, 8888/99, 6461/96 and 6519/98 involving the question as regard to interpretation of Sections 20 and 21 of the Gujarat Town Planning and Urban Development Act, 1976 (for brevity, hereinafter referred to as the 'Said Act'), were taken up for hearing together and are being disposed of by this common judgment.

The basic fact of the matter is not in dispute.

The State of Gujarat in exercise of its power conferred upon it under Section 20 of the said Act reserved certain areas of which the respondents herein amongst others are the owners On or about 3.3.1986 a development plan was finally published in terms of the provisions of the said Act, and the period of 10 years therefrom lapsed on 2.3.1996. A revised Development plan however came into being on 20th February, 1996. It is not in dispute that respondents who claim ownership of the lands in question issued notices in terms of sub-section 2 of Section 20 of the said Act, asking <ORG> to acquire the properties in terms thereof.

The short question which arises for consideration in these matters is as to whether by reason of inaction on the part of the <ORG> and its authorities under the Town Planning Act to acquire the lands for a period of more than 10 years, in terms of the provisions of Lan ection 20 of the Act and on their failure to do so the reservation/designation in respect of land in question would lapse.

Per contra the contention of the Appellant was that the provisions of Section 20(2) of the Act although enables service of notice by land owners for acquisition within six moths from the expiry of 10 years from the date of final development plan but the same would not come into operation when the final development plan is in the process of revision under Section 21 of the said Act read with sub-section 1 of Section 20 thereof.

<ORG> upon taking into consideration the provisions of the said Act and upon consideration of the rival contentions raised therein came to the conclusion that issuance of a draft revised plan by itself does not put an embargo on the application of sub-Section (2) of Section 20 of the Said Act.

The appellants were represented by Mr. <NAME>, Solicitor General and Mr. <NAME>, learned senior counsel appearing for <ORG> and Mr. <NAME> for <ORG>. The contention of the learned counsel for the appellant was that having regard to the scope and purport of the said Act, <ORG> must be held to have erred in so far as it failed to take into consideration that the objects of an integrated, incorporated and interdependent development plan, cannot be fully achieved within a period of 10 years and in that view of the matter when steps are taken for revision of the final development plan, the period specified in sub-section (2) of Section 20 would get automatically extended. Strong reliance in this behalf has been placed on <CITATION> , [(1968) 1 SCR 274], <CITATION> . []; <CITATION> . [].

On the other hand, the submissions of learned counsel for the respondents led by Mr. <NAME> the learned senior counsel is that in the event the interpretation of the provisions of Sections 20 and 21 as suggested by the learned counsel for the appellant is accepted, the same would render sub-section 2 of Section 20 otiose and redundant. According to learned counsel the right of an owner of the land cannot be kept under suspension for a long time and the period of 10 years specified by the legislature must be held to be a reasonable one, and thus by no stretch of imagination only by taking recourse to the provisions of Section 21 of the said Act, the period specified therein can be extended. Strong reliance in support of the said contention has been placed on <CITATION> . [(1988) Supp. SCC 55].

Mr. <NAME> would urge that the expression 'so far as may be' occurring in Section 21 of the Act must be given a proper meaning and thus in the event the interpretation of the provisions put-forth by the learned counsel for the appellant is accepted, the same will lead to an anomalous and absurd situation; which was not contemplated by the <ORG>.

Reliance in this connection has been placed in <CITATION> . [].

Before we advert to the rival contentions, as noticed hereinbefore, we may look to the relevant provision of the said Act.

The preamble suggests that the said Act was enacted to consolidate and amend the law relating to making and execution of development plans and town planning schemes in the State of Gujarat. It is not in dispute that the said Act came into force with effect from 1.2.1978 in terms of an appropriate notification issued in this behalf under sub-section (3) of Section 1 thereof .

Section 2 of the said Act contains definition clause. 'Development Plan' has been defined in Section 2(x) to mean a plan for development or redevelopment or improvement of a development area.

Section 3, postulates issuance of a notification by <ORG> specifying a development area.

In term of Section 4 of the said Act, <ORG> by issuing a notification is empowered to exclude the whole or part of a development area from the operation thereof. Section 5 provides for constitution of Area Development Authorities consisting of two Nominees of the <ORG> and <ORG> as specified therein. The State <ORG> in terms of Section 6 of the Act is empowered to designate any Local Authority functioning in the development area as an Area Development Authority in State. The State <ORG> has been conferred with the powers, which amongst others, include preparation of Development Plan, Town Planning Schemes and to control the development activities in terms of Section 7 of the Act. Section 9 provides that not later than three years after the declaration of such area as a development area or within such time as <ORG>, may from time to time, extend, the authority shall prepare and submit to <ORG> a draft development plan for the whole or any part of the development area". The State <ORG> on the failure of development authority to prepare such a plan is required to do so within a period of three years thereafter. A draft development plan has to be kept open for public inspection in terms of Section 10. Section 12 provides for the contents of draft development plan, the relevant portions whereof read as under:-

"Contents of draft development plan :

(1) A draft development plan shall generally indicate the manner in which the use of land in the area covered by it shall be regulated and also indicate the manner in which the development therein shall be carried out.

(2) In particular, it shall provide, so far as may be necessary, for all or any of the following matters, namely :-

(a) xxxx

(b) proposals for the reservation of land for public purposes, such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment, public assembly, museums, art galleries, religious buildings, playgrounds, stadium, open spaces, dairies and for such other purposes as may, from time to time, be specified by <ORG>;

(c) xxxx

(d) transport and communications, such as roads, highways, parkways, railways, waterways, canals and airport, including their extension and development.

(e) xxxx

(f) reservation of land for community facilities and services;

(g) xxxx

(h) xxxx

(i) xxxx

(j) xxxx

(k) proposals for the reservation of land for the purpose of Union, any <ORG>, local authority or any other authority or body established by or under any law for the time being in force;

(l) xxxx

(m) xxxx

(n) provision for preventing or removing pollution of water or air caused by the discharge of waste or other means as a result of the use of land;

(o) such other proposals for public or other purposes as may from time to time be approved by the area development authority or as may be directed by <ORG> in this behalf."

Section 13 specifies publication of draft development plan for the purpose of inviting suggestions and objections from public and affected parties, which are required to be considered in terms of Section 14 thereof. Necessary modifications may be made therein as provided under Section 15. A modified draft plan prepared in terms of Section 15 is required to be submitted to <ORG> for sanction, which in exercise of it power under Section 17 of the Act may grant the same with further notifications as deemed necessary, after publishing the same again inviting suggestions and shall be notified in the official gazette.

In terms of sub clause (d) of sub-section (1) of Section 17, the sanction accorded to the draft development plan by <ORG> shall be notified in the Official Gazette, and on such sanction, it shall be called "the final development plan" which shall come into force from a date to be notified, but the same shall be not earlier than one month from the date of publication of such sanction. Sub-section (2) of Section 17 requires <ORG> to take certain precautions with regard to the reservation of land for specific purposes mentioned in Section 12, but only on the satisfaction that the land, so reserved, is likely to be acquired within ten years from the publication of final development plan.

Sub-section (2) of Section 17 reads as under :-

"17(2) Where the draft development plan submitted by an area development authority or, as the case may be, the authorized officer contains any proposals for the reservation of any land for a purpose specified in clause (b) or clause (n) or clause (o) of sub-section (2) of Section 12 and such land does not vest in the area development authority, <ORG> shall not include the said reservation in the development plan, unless it is satisfied that such authority would acquire the land, whether by agreement or compulsory acquisition, within ten years from the date on which the final development plan comes into force."

Under Section 18, <ORG> has been empowered even to amend the final development plan, by extending or reducing its area. Under Section 19, <ORG> is empowered to vary the final development plan, but, only after inviting suggestions and objections in the manner laid down therein. Section 20 provides for acquisition of land designated or reserved for specified purposes mentioned in Section 12. As the said provision is material for this case, the same is reproduced hereunder :-

" Section 20 Acquisition of land :

(1) The area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause (k), clause (n) or clause (o) of sub-section (2) of Section 12 , may acquire the land either by agreement or under the provisions of the Land Acquisition Act , 1894.

(2) If the land referred to in sub-section (1) is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceedings under the Land Acquisition Act , 1894, are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice the land is not acquired or no steps are commenced for its acquisition, the designation of land as aforesaid shall be deemed to have lapsed."

Section 21 of the Act provides for the revision of development plan and reads as under :-

" Section 21 . Revision of development plan :

At least once in ten years from the date on which a final development plan comes into force, <ORG> shall revise the development plan after carrying out, if necessary, a fresh survey and the provisions of Sections 9 to 20 , shall, so far as may be, apply to such revision."

It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and words by words. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity, or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant.

True meaning of a provision of law has to be determined on the basis of what provides by its clear language, with due regard to the scheme of law.

Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute.

It is also well settled that a beneficient provision of legislation must be liberally construed so as to fulfill the statutory purpose and not to frustrate it.

An owner of a property, subject to reasonable restrictions which may be imposed by the <ORG>, is entitled to enjoy the property in any manner he likes. A right to use a property in a particular manner or in other words a restriction imposed on user thereof except in the mode and manner laid down under statute would not be presumed.

In Legislation and Interpretation by <NAME>, at page 479, it is stated :

"We ought not to assume without the clearest language that the legislature intends to destroy common law rights. The presumption is that the legislature intends not to interfere with any legal rights or any legitimate expectations of any person whatsoever. Rights, whether private or public, cannot be taken away or hampered by implication from the language employed in a statute, unless the legislature clearly and distinctly authorises the doing of a thing which is physically inconsistent with the continuance of an existing right. In order to take away the right it is not sufficient to show that the thing sanctioned in the Act, it done, will of a sheer physical necessity, put an end to that right; it must also be shown that the legislature has authorised the thing to be done at all events, and irrespective of its possible interference with existing rights. An Act should be so interpreted as in no respect to interfere with or prejudice a clear private right or title unless that, private right or title is taken away per directum"

By reason of the provision of the said Act, a reasonable restriction, has been imposed upon the owner on the user of his property. In terms of Section 12 of the said Act, town planning is contemplated through preparation of draft development plan which contains not only proposals for designating certain area for residential, industrial, commercial, agricultural or recreational purposes but also for the purposes for maintaining environment and ecological balance by setting up zoological gardens, green belts, natural reserves and sanctuaries . In terms of such development plan reservation of certain land for public use is also provided. From the relevant provisions of the said Act, as noticed hereinbefore, it is absolutely clear that in terms thereof <ORG> is made the ultimate authority to publish a development plan, inter alia, providing for designation or reservation of the land. <ORG> while arriving at its conclusion as regards public interest involved in the matter is required to arrive at its satisfaction on objective basis as provided in terms of sub-section (2) of Section 17 to the effect that the lands in respect whereof reservation is proposed to be made can be acquired for the fulfillment of the object therefor either by agreement or compulsory acquisition within the period specified therein. It has not been disputed before us nor is it necessary to consider in the facts and circumstances of this case as to whether establishment of the educational institutions or universities would be covered by the provisions of sub-section (2) of Section 12 thereof?

Sections 20 and 21 of the said Act are required to be read conjunctively with Sections 12 and 17 . We may notice that clause (k) of sub-section (2) of Section 12 does not find mention in sub-section (2) of Section 17 as regards proposed reservation for the <ORG> and other statutory authorities but clauses (n) and (b) of sub-section (2) of Section 12 are specifically mentioned in Section 20 . In Section 20 , provisions of clauses (b), (d), (f), (k) and (o) of sub-section (2) of Section 12 have specifically been mentioned. <ORG> has proceeded on the basis that the words 'designation' or 'reservation' are interchangeable for the purpose of the Act. The said finding of <ORG> is not in question.

Whereas in terms of Sections 12 and 17 of the said Act, the reservation and designation have been provided, sub-section (1) of Section 20 thereof only enables the authorities to acquire the land designated or reserved for the purpose specifically mentioned in clauses (b) and (n) of sub-section (2) of Section 12 as also other clauses specified therefor either by acquisition or agreement or in terms of the provisions of the Land Acquisition Act . Sub-section (1) of Section 20 is merely an enabling provision.

Sub-section (2) of Section 20 , however, carves out an exception to the exercise of powers by the State as regards acquisition of the land for the purpose of carrying out the development of the area in the manner provided for therein; a bare reading whereof leaves no manner of doubt that in the event the land referred to under sub-section (1) of Section 20 thereof is not acquired or proceedings under the Land Acquisition Act are not commenced and further in the event an owner or a person interested in the land serves a notice in the manner specified therein, certain consequences ensue, namely, the designation of the land shall be deemed to have lapsed. A legal fiction, therefore, has been created in the said provision.

The purpose and object of creating a legal fiction in the statute is well- known. When a legal fiction is created, it must be given its full effect. In <ORG> v. <ORG>, [(1951) 2 All.E.R 587], Lord <NAME>, J. stated the law in the following terms:-

"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

The said principle has been reiterated by this Court in M. Venugopal v. Divisional Manager, <ORG>, Machilipatnam, A.P. & Anr. [(1994) 2 SCC 323]. See also <CITATION> .etc., [], <CITATION> .,[(1995) Supp. 2 SCC 498], <CITATION> . District Magistrate, Allahabad, U.P. & Ors. [] and <NAME> etc. v. Hon'ble Speaker, <ORG>, Madras & Anr. [].

The relevant provisions of the Act are absolutely clear, unambiguous and implicit. A plain meaning of the said provisions, in our considered view, would lead to only one conclusion, namely, that in the event a notice is issued by the owner of the land or other person interested therein asking the authority to acquire the land upon expiry of the period specified therein viz. ten years from the date of issuance of final development plan and in the event pursuant to or in furtherance thereof no action for acquisition thereof is taken, the designation shall lapse.

This Court in <ORG> case (supra), in no uncertain terms while construing the provisions of Section 127 of the Maharashtra Regional and Town Planning Act, 1966 held the period of ten years as reasonable in the following words :-

"While the contention of learned counsel appearing for the appellant that the words 'six months from the date of service of such notice' in Section 127 of the Act were not susceptible of a literal construction, must be accepted, it must be borne in mind that the period of six months provided by Section 127 upon the expiry of which the reservation of the land under a Development Plan lapses, is a valuable safeguard to the citizen against arbitrary and irrational executive action. Section 127 of the Act is a fetter upon the power of eminent domain. By enacting Section 127 the legislature has struck a balance between the competing claims of the interests of the general public as regards the rights of an individual."

It was observed that :

" The Act lays down the principles of fixation by providing first, by the proviso to Section 126(2) that no such declaration under sub-section (2) shall be made after the expiry of three years from the date of publication of the draft regional plan, development plan or any other plan, secondly, by enacting sub- section (4) of Section 126 that if a declaration is not made within the period referred to in sub-section (2), <ORG> may make a fresh declaration but, in that event, the market value of the land shall be the market value at the date of the declaration under Section 6 and not the market value at the date of the notification under Section 4 , and thirdly, by Section 127 that if any land reserved, allotted or designated for any purpose in any development plan is not acquired by agreement within 10 years from the date on which a final regional plan or development plan comes into force or if proceedings for the acquisition of such land under the Land Acquisition Act are not commenced within such period, such land shall be deemed to be released from such reservation, allotment or designation and become available to the owner for the purpose of development on the failure of <ORG> to initiate any steps for its acquisition within a period of six months from the date of service of a notice by the owner or any person interested in the land. It cannot be doubted that a period of 10 years is long enough., The <ORG> or <ORG> must take recourse to acquisition with some amount of promptitude in order that the compensation paid to the expropriated owner bears a just relation to the real value of the land as otherwise, the compensation paid for the acquisition would be wholly illusory. Such fetter on statutory powers is in the interest of the general public and the conditions subject to which they can be exercised must be strictly followed."

It is true that Section 21 of the Act imposes a statutory obligation on the part of the <ORG> and the appropriate authorities to revise the development plan and for the said purpose Sections 9 to 20 'so far as may be' would be applicable thereto, but thereby the rights of the owners in terms of sub-section (2) of Section 20 are not taken away.

The question, however, is as to whether only because the provision of Section 20 has been referred to therein; would it mean that thereby the <ORG> contemplated that the time of ten years specified by the <ORG> for the purpose of acquisition of the land would get automatically extended? The answer to the said question must be rendered in the negative. Following the principle of interpretation that all words must be given its full effect, we must also give full effect to the words "so far as may be" applied to such revision.

The said words indicate the intention of the <ORG> to the effect that by providing revision of final development plan from time to time and at least once in ten years, only the procedure or preparation thereof as provided therein, is required to be followed. Such procedural requirements must be followed so far as it is reasonably possible. Section 21 of the Act, in our opinion, does not and cannot mean that the substantial right conferred upon the owner of the land or the person interested therein shall be taken away. It is not and cannot be the intention of the <ORG> that what is given by one hand should be taken away by the other.

Section 21 does not envisage that despite the fact that in terms of sub-section (2) of Section 20 , the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. Section 20 does not manifest a legislative intent to curtail or take away the right acquired by a land-owner under Section 22 of getting the land defreezed. In the event the submission of the learned Solicitor General is accepted the same would completely render the provisions of Section 20(2) otiose and redundant.

Sub-section (1) of Section 20 , as noticed hereinbefore, provides for an enabling provision in terms whereof the <ORG> become entitled to acquire the land either by agreement or taking recourse to the provisions of the Land Acquisition Act . If by reason of a revised plan, any other area is sought to be brought within the purview of the development plan, evidently in relation thereto the <ORG> will be entitled to exercise its jurisdiction under sub-section (1) of Section 20 but it will bear repetition to state that the same would not confer any other or further power upon the <ORG> to get the duration of designation of land, which has been lapsed, extended. What is contemplated under Section 21 is to meet the changed situation and contingencies which might not have been contemplated while preparing the first final development plan. The power of the <ORG> enumerated under sub-section (1) of Section 20 does not become ipso facto applicable in the event of issuance of a revised plan as the said provision has been specifically mentioned therein so that the <ORG> may use the same power in a changed situation.

The statutory interdict of use and enjoyment of the property must be strictly construed. It is well-settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The <ORG> and other authorities while acting under the said Act are only creature of statute. They must act within the four-corners thereof.

There is another aspect of the matter which cannot be lost sight of. Despite statutory lapse of designation of the land, the State is not denuded of its power of eminent domain under the general law, namely, Land Acquisition Act in the event an exigency arises therefor.

We are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the Statutory authorities within such specified time is expressly provided, it must be held to be imperative.

In <NAME>, Statutory Construction, 3rd edition, Vol.3 at p.102 the law is stated as follows :-

".unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of time must be considered a limitation of the power of the Officer."

At p.107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non-compliance with the provision. At p.111 it is stated as follows :

"As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive."

[See also Crawford on Statutory Construction , Article 269 at p.535].

In <NAME> v. State of Bombay [AIR 1952 SC 181], it was held as under :-

"Generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the <ORG>, it has been the practice of the courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done."

In Craies on Statute Law VIII Edn. at page 262, it is stated thus :-

"It is the duty of courts of justice to try to get at the real intention of the <ORG> by carefully attending to the whole scope of the statute to be construedThat is each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory."

In the aforementioned backdrop, we may usefully refer to the decision of this Court in The Land Acquisition Officer, <ORG>, Bangalore's case (supra) wherein it has been stated :-

"There was some argument on the meaning of the words "so far as they are applicable", used in Section 27 of the Bangalore Act. These words cannot be changed into "in so far as they are specifically mentioned" with regard to the procedure in the Acquisition Act . On the other hand, the obvious intention, in using these words, was to exclude only those provisions of the Acquisition Act which become inapplicable because of any special procedure prescribed by the Bangalore Act (e.g. Section 16 ) corresponding with that found in the Acquisition Act (e.g. Section 4(1) ). These words bring in or make applicable, so far as this is reasonably possible, general provisions such as Section 23(1) of the Acquisition Act. They cannot be reasonably construed to exclude the application of any general provisions of the Acquisition Act . They amount to laying down the principle that what is not either expressly, or , by a necessary implication, excluded must be applied. It is surprising to find misconstruction of what did not appear to us to be reasonably open to more than one interpretation."

We may at this juncture usefully quote the words of <NAME> : "It is sometimes more important to emphasize the obvious than to elucidate the obscure". (See the Interpretation and Application of Statutes by <NAME> at page 7).

The decision of this Court in <NAME> case (supra), whereupon the learned counsel for the Appellant strongly relied upon, may in the aforementioned backdrop, be considered. In that case, the vires of the provisions of Sections 9, 10, 11, 12 and 13 of the Bombay Town Planning Act, 1954 were in question. Although the constitutionality of Section 17 of the Act was also questioned before this Court, at the hearing the same was given up. The Court specifically noticed so stating :-

"Towards the end of the hearing counsel for the petitioners submitted that s.17 of the Act might be left out of consideration for the purpose of these petitions and learned counsel for the respondents were agreeable to this course. We, therefore, do not express our views about the validity or otherwise of this section."

In that case the rights of the owners accrued to them having regard to the inaction on the part of the <ORG> and other authorities despite rights to the owners of land as envisaged under sub-section (2) of Section 20 of the Act were not in question. Section 17 of the Act was in pari materia with Section 21 of the said Act. The scheme of the provisions of the Bombay Act as regards designation or reservation of land for ten years and further right of revision after every ten years was considered having regard to the challenges made therein that thereby the <ORG> was conferred with a power which was unreasonable and thus violative of Articles 14 and 19(1) of the Constitution of India.

The observations made by this <ORG> should be understood in that context. In that case the rival contention as regards interpretation of the statute was not the subject-matter of the consideration of the Constitution Bench.

The scheme of the Act was noticed thus :-

"The idea behind this sub-section is that if any land is to be set apart for public purposes such as parks etc. mentioned in cl.(b) of s. 7 or any other public purpose which might be approved by a local authority or directed by <ORG> in terms of cl. (e) of s. 7 , <ORG> must examine whether it would be possible for the local authority to be able to acquire such land by private agreement or compulsory purchase within a period of ten years. This acts as a check on the local authority making too ambitious proposals for designating lands for public purposes which they may never have the means to fulfil. It is obvious that the local authority must be given a reasonable time for the purpose and the legislature thought that a period of ten years was a sufficient one. S.11(1) empowers the local authority to acquire any land designated in the development plan for a purpose specified in cls. (b), (c),(d) or (e) of s. 7 either by agreement or under the Land Acquisition Act .

Under sub-s. (2) of s. 11 the provisions of the Land Acquisition Act of 1894 as amended by the Schedule to the Act are to apply to all such acquisitions. The Schedule to the Act shows that s. 23 of the Land Acquisition Act is to stand amended for the acquisition under this Act with regard to the compensation to be awarded. In fact it is for the benefit of the person whose land is acquired, as he can get the market value of the land at the date of the publication of the declaration under s. 6 of the Land Acquisition Act in place of s.4. Sub-s.(3) provides that if the designated land is not acquired by agreement within ten years from the date specified under sub-s. (3) of s. 10 or if proceedings under the Land Acquisition Act are not commenced within such period, the owner or any person interested in the land may serve notice to the local authority and if within six months from the date of such notice the land is not acquired or no steps as aforesaid are commenced for its acquisition, the designation shall be deemed to have lapsed. This provision again is for the benefit of the owner of the land for unless the land is acquired or steps taken in that behalf within the fixed limits of time, he ceases to be bound by the designation of his land as given in the development plan."

(Emphasis Supplied) What was emphasised in that case is unreasonableness of Section 17 of the Act which, as indicated hereinbefore, was not pressed at a later stage. This Court had no occasion to consider the conflicting rights of the parties under sub-section (3) of Section 10 vis--vis Section 17 of the Bombay Act. What was considered and upheld by the Court was the contention that by taking the recourse to Section 17 more than once acquisition might be held up indefinitely from generation to generation.

As the facts of the present case stand absolutely on a different footing and this <ORG> in <NAME> case (supra) was not called upon to answer the same, the same cannot be said to be an authority for the proposition that by reason of Section 21 of the Act, the designation of the land although lapsed in terms of Section 20 , the same would get automatically extended or revised once a revised plan is made. This <ORG> in <NAME> case merely held that the land which is reserved for ten years can be subjected to further reservation for any period till it is actually required for its town planning activities leading to revision of development plans from time to time. Therein, this <ORG> did not negate the right of owners. Such a right of the land-owners, as noticed hereinbefore, has been specifically acknowledged. Nowhere it was stated that valuable right conferred on a land-owner of getting his land reserved by serving notice would be defeated or taken away merely because a revised development plan was in the offing.

The question raised in the said case, thus, was absolutely different. It is interesting to note that the law of the land was considered therein, as it then stood by observing :-

"No one can be heard to say that the local authority after making up its mind to acquire land for a public purpose must do so within as short a period of time as possible. It would not be reasonable to place such a restriction on the power of the local authority which is out to create better living conditions for millions of people in a vast area."

However, we may notice that the <ORG> amended the Land Acquisition Act , 1984 in terms whereof, inter alia, Section 11A was inserted. In the Objects and Reasons of the said Act, it was stated :-

"With the enormous expansion of the <ORG>'s role in promoting public welfare and economic development since independence, acquisition of land for public purposes, industrialization, building of institutions, etc., has become far more numerous than ever before. While this is inevitable, promotion of public purpose has to be balanced with the rights of the individual whose land is acquired, thereby often depriving him of his means of livelihood. Again, acquisition of land for private enterprises ought not to be placed on the same footing as acquisition for the <ORG> or for an enterprise under it. The individual and institutions who are unavoidably to be deprived of their property rights in land need to be adequately compensated for the loss keeping in view the sacrifice they have to make for the larger interests of the community. The pendency of acquisition proceedings for long period often causes hardship to the affected parties and renders unrealistic the scale of compensation offered to them."

The decision in <ORG> case (supra), in our opinion, has again no application to the fact of the present case. The fact of the matter therein was completely different. The Gujarat Planning and Urban Development Act, 1976, which is now in operation in the State of Gujarat, came into force from 30th November, 1978, prior to which the Bombay Town Planning Act, 1954 was applicable to the State of Gujarat. Prior to coming into force of the Gujarat Act, <ORG> submitted the development plan on 15th January, 1976 which came to be sanctioned by the State Government on 12th August, 1983. It was held by this Court that the draft development plan submitted by the <ORG> on 15th January, 1976, could not have been sanctioned under the provisions of the Gujarat Act on 12th August, 1983 ignoring the fact that meanwhile a comprehensive draft development plan had been prepared and submitted by the <ORG> on 23rd July, 1981 which also came to be sanctioned on 2nd November, 1986 and which included the areas covered by the earlier illegally sanctioned plan on 12th August, 1983. In the aforementioned peculiar facts, the question arose as to from which date the period of ten years had to be reckoned for application of Section 20(2) of the Act. This Court answered the aforementioned question in the following terms :-

"As in the present case the only question which is to be answered is as to with effect from which date 10 years period shall be counted, it has to be decided as to which date shall be deemed to be the date of coming into force of the final development plan, so far the area within the <ORG> is concerned. The notification dated 2.11.1987, had been issued by <ORG> covering the area notified on 12.8.1983, several years before, the issuance of notices by the writ petitioners. The notification dated 2.11.1987, was neither questioned by the writ petitioners-respondents nor could have been questioned, according to us. When power has been vested in the appellant to prepare a draft development plan and there being no bar to include in the said draft development plan even area, for which an earlier draft development plan had already been sanctioned, then the draft development plan which was sanctioned and notified on 2.11.1987, shall be deemed to be the final development plan within the meaning of Section 20 of the Gujarat Town Planning Act. As such the period of 10 years has to be calculated and counted with reference to 3.12.1987, the date when such final development was to come into force."

Yet again the decision of this Court in <NAME>'s case (supra) has no application to the fact of this matter. The question which arose for consideration therein was as to whether in terms of the provisions of the Land Acquisition Act any actual physical possession is required to be obtained or merely taking the possession specified therein would serve the purpose.

Having regard to the provision of the said Act, we are of the opinion that the decisions cited by the learned Solicitor General have no application in the instant case.

A decision, as is well-known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well-settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. [ <CITATION> . [AIR 2002 Delhi 458], <ORG> (NCT of Delhi) v. <NAME> [AIR 2002 SC 3088], <CITATION> 2002 (1) SC 482] and Dr. <NAME> etc. v. Director of Income Tax (Investigation) & Ors. [(2002) 257 ITR 123].

For the aforementioned reasons, we are in agreement with the findings of <ORG>.

Before parting with the case, we may notice that Mr. <NAME> appearing on behalf of <ORG> in C.A. No.1540 of 2002 submitted that various other contentions had also been raised before <ORG>. We are not prepared to go into the said contentions inasmuch assuming the same to be correct, the remedy of the appellants would lie in filing appropriate application for review before <ORG>. Incidentally, we may notice that even in the special leave petition no substantial question of law in this behalf has been raised nor any affidavit has been affirmed by the learned advocate who had appeared before <ORG> or by any officer of the appellant who was present in court that certain other submissions were made before <ORG> which were not taken into consideration. <CITATION> . [AIR 1982 SC 1249], this Court observed :-

"When we drew the attention of the learned Attorney General to the concession made before <ORG>, <NAME>, who appeared for the State of Maharashtra before <ORG> and led the arguments for the respondents there and who appeared for <NAME> before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in <ORG>. We are afraid that we cannot launch into an inquiry as to what transpired in <ORG>. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". (Per Lord <NAME> in <NAME> v.

<NAME>, AIR 1926 PC 136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the <ORG> or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges, who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord <NAME> in Madhusudan v. <NAME>, AIR 1917 PC 30).

That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and <ORG> may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment."

For the aforementioned reasons , there is no merit in these appeals which are dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.