PETITIONER: UNION OF INDIA & ORS. Vs. RESPONDENT: N.R. BANERJEE & ORS. DATE OF JUDGMENT: 16/12/1996 BENCH: K. RAMASWAMY, G.T. NANAVATI ACT: HEADNOTE: JUDGMENT:

O R D E R Leave granted.

These appeals by special leave arise from the orders of <ORG>, Jabalpur Bench, made on August 14, 1996 in OA Nos.219/95 and 237/96. The controversy involved relates to promotion to the post of Senior General Manager in <ORG> under India Ordinance Factories Services Rules. The question for consideration is; as to when the vacancies in the above posts would arise? The grade and scale of pay for the said post is Rs.3700-8000/-. For the year 1994-95, panel of successful candidates was required to be prepared. According to the appellants, there were no clear vacancies as on April 1994. Four members in the above grade were to retire in that year. Proposal for filling up the ensuing vacancies from <ORG> was sent to the <ORG> on December 22, 1993. The <ORG> had communicated to <ORG> its approval on February 8, 1994. A.C.Rs. of the eligible candidates were approved on August 16, 1994 and the incumbent members joined as members of the Board on August 22, 1994, September 03, 1994, October 6, 1994 and March 1, 1995. Consequently the <ORG> met on March 15, 1995 for selection of Officers to fill up the four vacancies.

On this factual matrix, it is contended for the appellants that the crucial date for the <ORG> meeting for selection should be April or May 1995 for selection of candidates to fill up the vacancies of the year 1994-95. The A.C.Rs. recorded of all the candidates falling within the zone of consideration and approved by the <ORG>, as on March 31, 1994, are required to be looked into and merits adjudged. The <ORG>, therefore, was not right in directing the <ORG> to ignore the A.C.Rs. for the year 1994 and consideration of the candidates eligible by then upto March, 1993. The <ORG> was to be constituted as on April 1, 1994. Resultantly, the direction were given in paragraphs 25 and 28 for consequential action. <NAME>, learned Additional Solicitor General, contends that the view of the <ORG> is not correct in law. As per the procedure, preparation of the panel of candidates for consideration by the <ORG> to fill up the clear vacancies as on April 1994 is necessary. A.C.Rs. are prepared on the basis of the performance during financial year which would be October 1 of the year. In this case, the A.C.Rs. of the incumbents are written on the financial years basis;. It was approved by the <ORG> in March 31, 1995. Therefore, the <ORG> could not have got approved A.C.Rs. before that date, namely, as held by the <ORG> on March 19, 1993. The direction, therefore, that the <ORG> in its proceedings should take into consideration A.C.Rs. of all the eligible candidates as on April, 1993 is incorrect. Though, prima facie, we are impressed with the arguments of <NAME>, on deeper probe and on going through the procedure laid by <ORG>, we find no force in the contention. Preparation of the action Plan for consideration by the <ORG> of the respective claims of the officers within the Zone and thereafter for setting in motion the preparation of panel on year wise basis, is elaborately mentioned. In case of their failure to do so, what further procedure is required to be followed is also indicated in the rules. It thereby manifests the intention of the rue-maker that the appellant-<ORG> should estimate the anticipated vacancies, regular vacancies and also vacancies arising thereafter due to various contingencies and it should also get the A.C.Rs. prepared and approved. it is also made clear that the <ORG> should sit on regular basis to consider the cases of the eligible candidates within the zone of consideration. The object is clear that the <ORG> should keep the panel ready in advance so that the vacancies arising soon thereafter may be filled up from amongst the approved candidates whose names appear in the panel. In that behalf, it is seen that in the guidelines issued by the <ORG> in Part I of clause (49) dealing with Functions and Composition of Departmental promotion Committee etc. necessary guidelines have been enumerated. It envisages that a post is filled upon by promotion where the Recruitment Rules so provide. In making promotions, it should be ensured that suitability of the candidates for promotion is considered in an objective and impartial manner. In other words, the consideration of the candidate is not clouded by any other extraneous considerations like caste, creed, colour, sect, religion or region. In consideration of claims, merit alone should enter into objective and impartial assessments. The object appears to be that the A.C.Rs. be written by competent officer and approved by superior officer objectively and impartially without being influenced by any extraneous and irrelevant consideration, to augment efficiency in public service and to improve competence. For the purpose of selection, <ORG> should be formed in each Ministry/Department/Office, whenever an occasion arises, for promotions/confirmations etc. The D.P.Cs. so constituted shall judge the suitability of officers for:

(a) promotions to selection as well as non-selection posts;

(b) confirmation in their respective grades/posts;

(c) assessment of the work and conduct of probationers for the purpose of determining their suitability for retention in service of their discharge from it or extending their probation; and

(d) consideration of cases of <ORG> servants for crossing the Efficiency Bar.

Rule 2.1 relates to composition of the <ORG> for Group A and Group B Officers. Members included in DPCs should be officers who are at least one step above the posts in which promotion/confirmation is be made as indicated thereunder. This is consistent with the law laid by this Court in <CITATION> . [(1996) 8 Sec 762] wherein it was held that the object of writing the confidential report is two-fold, i.e., to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality and excellence and efficiency of public service. The officer should show objectivity, impartiality and fair assessment without any prejudices whatsoever with the highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. Lest the officers get demoralised which would be deleterious to his efficacy and efficiency of public service, the confidential reports should be written by a superior officer of high rank. There should be another higher officer in rank above the officer who has written confidential report to review such report.

Part II of the guidelines relating to the frequency of meeting of the <ORG> Para 3.1 indicates that the D.P.Cs should be convened at regular annual intervals to draw panels which could be utilised for making promotions against the vacancies occurring during the course of a year. In other words, the life of the penal is one year. For this purpose, it is essential for the concerned appointing authorities to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel, by collecting relevant documents like A.C.Rs., integrity certificates, seniority list etc. for placing before the <ORG>

<ORG>. should be convened every year, if necessary, on fixed date, i.e. 1st of April or May. In the middle of the para, by way of amendment brought on May 13, 1995, it postulates that very often action for holding <ORG> meeting is initiated after the vacancy has arisen. This results in undue delay in filling up of vacancies and causes dissatisfaction among those who are eligible for promotion. It may be indicated that regular meeting of <ORG>. should be held every year for each category of posts so that approved select panel is available in advance for making promotions against vacancies arising every year. Under para 3.2, the requirement of convening annual meetings of the <ORG>. should be dispensed with only after a certificate has been issued by the appointing authority that there are no vacancies to be filled by promotion or no officers are due for confirmation during the year in question. It would, thus, be seen that <ORG>. are required to sit every year, regularly on or before 1st April or 1st May of the year to fill up the vacancies likely to arise in the year for being filled up. The required material should be collected in advance and merit list finalised by the appointing authorities and placed before the <ORG> for consideration. This requirement can be dispensed with only after a certificate is issued by the appointing authority that there are no vacancies to be filed by promotion, or that no officers are due for confirmation, during the year in question.

Part III deals with preparatory action plan for consideration for promotion. Para 4.1 reads as under;

"It is essential that the number of vacancies in respect of which a panel is to be prepared by a <ORG> should be estimated as accurately as possible. For this purpose, the vacancies to be taken into account should be the clear vacancies arising in a post/grade/service due to death, retirement, resignation, regular long term promotion and deputation or from creation of additional posts on a long term. As regards vacancies arising out of deputation, only those cases of deputation for periods exceeding one year should be taken into account, due note, however, being kept also of the number of the deputationists likely to return to the cadre and who have to be provided for. Purely short term vacancies created as a result of officers proceeding on leave, or on deputation for a shorter period, training etc., should not be taken into account for the purpose of preparation of a panel. In cases where there has been delay in holding <ORG>s for a year or more, vacancies should be indicated year- wise separately."

Crucial date for determining eligibility has been dealt with thereunder. By an amendment brought w.e.f. July 19, 1989, it is stated that relevant dates for determining eligibility of the officers for promotion would be, where A.C.Rs. are written calendar yearwise, 1st July of the year and where the A.C.Rs. are written financial yearwise, 1st October of that year. The other details prescribed in Chapter IV are not material for the purpose of this case. Part 6.4.1 deals with preparation of yearwise panels by D.P.C. which reads as under;

"Where for reasons beyond control, the <ORG> could not be held in year(s), even though the vacancies arose during that year (or years), the first <ORG> that meets thereafter should follow the following procedures :

(i) Determine the actual number of regular vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.

(ii) Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.

(iii) Prepare a `Select list' by placing the select list of the earlier year above the one for the next year and so on;

It would, thus, be seen that the authorities are required to anticipate in advance the vacancies for promotion on regular basis including long term deputation posts and additional posts created and then to take the action plan in finalising the A.C.Rs. preparation of the select list and place necessary material before the D.P.C. for consideration of the candidates within the zone of consideration, as are found eligible for the relevant year/years.

<ORG> in the present case was directed to consider the cases of all the eligible candidates within the zone of consideration so that there will not be any heart burning among the eligible persons whose claims have been withheld for consideration for promotion to the higher post. In S.K. Rizvi & Ors. vs. <ORG> [1993 Supp. (3) SCC 575] the mandatory duty of the preparation of the select list of the officers for promotion to <ORG> has been indicated in para 35 of the judgment at page 605 thus: "We, therefore, hold that preparation of the select list every year is mandatory. It would subserve the object of the Act and the rules and afford an equal opportunity to the promotee officers to reach higher echelons of the service. The dereliction of the statutory duty must satisfactorily be accounted for by the State Government concerned and this Court takes serious note of wanton infraction".

It would thus be seen that the claims of the candidates eligible have to be considered for promotion objectively and dispassionately, with a sense of achieving many-fold purpose (1) affording an opportunity to an incumbent to improve excellence, honesty, integrity, devotion to public duty; (2) inculcating discipline in service; (3) afford opportunity to every eligible officer within zone of consideration for promotion to higher post or officer; and (4) ensuing that the Committee regularly meets and considers their claim objectively, impartially with high sense of responsibility in accordance with the procedure and finalisation of the list in advance so as to fill up vacancies arising in the year from the approved panel without any undue delay. They are the salutory principles, purpose and the policy behind the above rules and the <ORG> should follow them.

Considered from that perspective, the question arises: whether the view taken by the <ORG> is justified in law? It is true that filling up of the posts are for clear or anticipated vacancies arising in the year. It is settled law that mere inclusion of one's name in the list does not confer any right in him/her to appointment. It is not incumbent that all posts may be filled up. But the authority must act reasonably, fairly and in public interest and omission thereof should not be arbitrary. <CITATION> [(1991) 2 SCR 567], <ORG> had held that inclusion of the name of a candidate in a merit list does not confer any right to be selected unless the relevant recruitment rules so indicate. The <ORG> is under no legal duty to fill up all or any of the vacancies even thought he <ORG> acts in arbitrary manner. <CITATION> . [(1993) Supp. 3 SCC 268] it was held that mere inclusion of one's name in the panel does not confer on him/her any indefeasible right to appointment. It was further held that the purpose of making panel was to finalise the list of eligible candidates for appointment. The preparation of the panel should be to the extent of the notified or anticipated vacancies. Unduly wrong panel should not be operated. <CITATION> . [] it was held that the mere fact that a candidate's name finds a place in the select list as a selected candidate for appointment to a post, does not confer on him/her an indefeasible right to be appointed in such post in the absence of any specific rule entitling him to such appointment. <CITATION> 1986 & Ors. [] it was held that a person who is selected and empanelled does not on account of empanelment alone acquire any indefeasible right to appointment. Empanelment is, at the best, a condition of eligibility for the purposes of appointment and that by itself does not amount to selection or creation of a vested right to appointment unless relevant rules state to the contrary. However, in the light of the above principles and in the light of the clear rules extracted hereinbefore, it is seen that the exercise of preparation of the panels is undertaken well in advance to fill up the clear vacancies of anticipated vacancies. The preparation and finalisation of the yearly panel, unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. If the annual panel could not be prepared for any justifiable reason, yearwise panel of all the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith. <CITATION> [AIR 1987 SC 847], this Court had pointed out with respect to the prescription of the limitation of one year of the waiting list thus.

"The reason underlying the limitation of the period of list for one year is obviously to ensure that other qualified persons are not deprived of their chances of applying for the post in the succeeding year and being selected for appointment."

It is true that the material furnished before us would indicate that action was taken on December 22, 1993 by <ORG> and circulated for action to be taken by the Government and thereafter <ORG> was consulted. Action taken on this material should have been taken much earlier to the date on which it was taken since they knew that four members were due to retire in August, September, October 1994 and March 1995. There were anticipated vacancies likely to arise on permanent basis and promotion to them was to be made on regular basis. In other words, they were all clear vacancies. So they were to be finalised before April 1994 and the confidential reports should have been approved before 31st March 1993 and all eligible candidates within the zone of consideration as on the date of D.P.C. were entitled to be considered. The direction given be the <ORG> referred to above is clearly in accordance with the procedure indicated hereinbefore. Therefore, we do not find that the orders are vitiated by any error of law warranting interference.

The appeals are accordingly dismissed. No costs. Since the <ORG> has given time to constitute the <ORG> and finalise the matter within 45 days, time is extended for 45 days from today. It is needless to mention that all those found eligible are required to be appointed.


1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 10061 OF 2010 [Arising out of SLP [C] No.29901/2010] State of U.P. & Ors. ... Appellants Vs. Jasvir Singh & Ors. ... Respondents ORDER

<NAME> J.

Leave granted. Heard.

2. In regard to acquisition of the lands of respondents under notifications dated 18.8.1981 and 14.11.1981 issued under section 4(1) and section 6 of Land Acquisition Act, 1894 ('Act' for short), the LAO had made an award offering a compensation of Rs.12000/- per acre which was increased to Rs.17000/- per acre by <ORG>, and to Rs.30,000/- per acre by <ORG>. On further appeal by the respondents, this Court by order dated 12.9.2005 set aside the judgment dated 29.1.2004 of <ORG> and remanded the matter to <ORG> for fresh decision on merits in regard to quantum and statutory benefits, in accordance with law. This Court also observed that since the appeals were old, <ORG> will have to take steps to dispose the appeals expeditiously. We are informed that the appeals (FA No.880 of 1993 and FA No.401 of 1998) are still pending consideration by <ORG>.

3. The respondents thereafter filed a writ petition (No.77449 of 2005) seeking a direction for issue of a fresh notification under sections 4 and 6 of the Act, after setting aside the notifications dated 18.8.1981 and 14.11.1981 under sections 4(1) and 6 of the Act. They also sought a direction to the appellant to pay mesne profits and damages with interest, after adjusting the amount under the award already made, from the date of taking possession (19.9.1986) till date of issuance of fresh notification under Section 4(1) of the Act. The respondents thereafter filed two applications for amendment of prayers seeking a direction for determination of market value as on the date of final award after a fresh notification and not with reference to the notification dated 18.8.1991.

4. In the said writ proceedings, <ORG> of <ORG> apparently suggested to the state government that it should settle the claim of the respondents. There was resistance from the state government. This led to series of interim orders by <ORG>. We may refer to them to understand the background in which the impugned order was made. 4.1) We may begin by extracting the directions issued on 19.5.2010.

"The grievance of the petitioners is that possession over the land of the petitioners has been taken over by the respondents authority without authority of law.

This Court had directed to settle the matter outside the Court. In compliance of the Court's order, <ORG> constituted two committees of which first was headed by the Collector of the district concerned, who after determining gave his report and has recommended a rate, which was acceptable to the petitioner. The second committee which was headed by Divisional Commissioner of the division concerned also gave his report and has recommended a rate, which too was acceptable to the petitioner. Thus, it is contended that the rate recommended by both the committees is acceptable to the Petitioner.

We, however, direct <ORG> to take a decision on the report as recommended by both the committee within a period of one month from the date of presentation of a certified copy of this order."

(Emphasis supplied) 4.2) When the matter thereafter came up on 5.7.2010, <ORG> made the following order :

"List/put up on 12.7.2010.

On that day, the Principal Secretary, <ORG>, Govt. of U.P. Lucknow shall appear to show cause as to why our order dated 19.5.2010 has not been complied with by accepting the rates given by the Collector and Divisional Commissioner. An affidavit shall also be filed by him by that date."

(Emphasis supplied) In compliance with the said order, an affidavit was filed on behalf of Principal Secretary, <NAME> explaining that as the District Magistrate and the Commissioner had arrived at the rate on the basis of sale deed dated 25.09.2008 by ignoring the fact that the notification under Section 4(1) of the Land Acquisition Act had been issued on 18.08.1981, the said reports were not accepted by the Government. It was also stated that the State Government has taken a decision to pay compensation for the land at the rate of Rs.30,000/- per acre with solatium and interest, in all Rs.10,99,853-75, and that had been communicated to the Respondents. It may be noted that the District Magistrate had approved the report of the District Land Acquisition Officer dated 17.2.2009 working out the amount due as Rs.29,86,99,086/- (at the rate 84,74,760/- per acre worked out on the basis of a sale deed 25.9.2008 in regard to a small plot measuring 240 sq.m.).

4.3) When the matter came up on 12.7.2010, <ORG> recorded the presence of <NAME>, Principal Secretary, <ORG>, <ORG> Lucknow, and exempted his personal attendance and adjourned the matter by twenty days. When the matter came up on 5.8.2010, the following order was made by <ORG>:

"Upon hearing the learned counsel for the petitioner, Senior Advocate Shri <NAME> and the Advocate General, (it is directed that the) Government shall file an affidavit within two weeks as to why the rate recommended by the Collector has not been accepted.

List after two weeks for further hearing."

4.4) Thereafter the appellant filed an affidavit dated 19.8.2010 submitting that the matter was re-examined and found that the recommendations of District Magistrate as well as of Commissioner were not binding on State Government; that this Court (in <NAME> Vs. State of Haryana - (2010) 4 S.C.C. 532) has held that a writ petition challenging the notifications under Section 4 and 6 of the Land Acquisition Act was not maintainable after lapse of several years; and that therefore the writ petition was liable to be dismissed. The matter again came up on 30.8.2010 and the division bench perused the said affidavit and requested the Advocate General to be available at the next hearing on 7.9.2010. When the matter came up on 22.9.2010, the division bench made the impugned order which is extracted below :

"Upon hearing learned counsel for the parties, we direct the Principal Secretary (<ORG>) and Principal Secretary (Revenue) Govt. of U.P.

Lucknow to appear in person before this Court on the next date fixed in this case to show cause as to why the interest at the rate of 9% be not charged on the delayed payment which has occurred on account of them and the recovery thereof be not made from their personal salary to the extent of 50% each respectively.

List this case for further orders/hearing on 20.10.2010. The copy of this order be sent to the Principal Secretary (<ORG>) and Principal Secretary (Revenue) Govt. of U.P. Lucknow through <ORG> by tomorrow."

(Emphasis supplied)

5. Aggrieved by the said order dated 22.9.2010 directing the Principal Secretary (Finance) and Principal Secretary (Revenue) of the Government of U.P., to appear in person and the direction to show cause as to why interest at the rate of 9% per annum shall not be charged and the same be recovered from their personal salary to the extent of 50% each on the payments allegedly delayed by them, the <ORG> has filed this appeal by special leave, raising the following questions :

(a) Whether <ORG> while hearing a writ petition challenging a land acquisition can force <ORG> to settle the matter outside the Court?

(b) Whether <ORG> was justified in calling the senior officers of the state government and directing them to settle the matter, when the writ petition filed by Respondents is being resisted by the state government (by contending that the writ petition itself was not maintainable as it purported to challenge the land acquisition proceedings 24 years after the issuance of notifications under Sections 4 and 6 of the Act and 19 years after taking of the possession)?

(c) Whether <ORG> was justified in repeatedly directing the senior officers of the rank of Secretaries to Government to be present in court, when the state government refused to settle the matter, and pressurize them to settle the disputed claim, by threatening to recover the entire interest from their salaries?

6. The fact that the issue relating to increase of compensation is pending in appeals before <ORG> in pursuance of the order of remand by this Court, is not in dispute. The quantum of compensation will have to be decided in those appeals and not in a writ petition. As on date, there is no order either in the appeal or the writ petition determining any amount (other than what was awarded by <ORG>) as due to the respondents.

The contention and prayer of the respondents in the writ petition that fresh notifications should be issued regarding the acquisitions and the compensation should be determined with reference to the current rates as on the date of such fresh notification and not as on 18.8.1981, is a matter that is yet to be decided in the writ petition. As both the writ petition and the appeals are pending, it cannot be said that there is any delay on the part of the state government or its officers in effecting payment of compensation. The delay at present is in fact on account of the pendency of the matters before <ORG>. If <ORG> was of the view that the matter was getting unnecessarily delayed, or that any injustice had been caused to the land owners, it ought to have heard the writ petition finally and decided the dispute on merits instead of listing the matter on several days and asking different senior officers of the state government to be present and virtually intimidate them to agree for a settlement by paying compensation at current market value instead of with reference to 18.8.1981. The procedure and method adopted by <ORG> of <ORG>, to say the least, is improper and requires to be deprecated.

7. It is a matter of concern that there is a growing trend among a few Judges of <ORG> to routinely and frequently require the presence, in court, of senior officers of the government and local and other authorities, including officers of the level of Secretaries, for perceived non-compliance with its suggestions or to seek insignificant clarifications. The power of <ORG> under Article 226 is no doubt very wide. It can issue to any person or authority or government, directions, orders, writs for enforcement of fundamental rights or for any other purpose. <ORG> has the power to summon or require the personal presence of any officer, to assist the court to render justice or arrive at a proper decision. But there are well settled norms and procedures for exercise of such power.

8. This court has repeatedly noticed that the real power of courts is not in passing decrees and orders, nor in punishing offenders and contemnors, nor in summoning the presence of senior officers, but in the trust, faith and confidence of the common man in the judiciary. Such trust and confidence should not be frittered away by unnecessary and unwarranted show or exercise of power. Greater the power, greater should be the responsibility in exercising such power. The normal procedure in writ petitions is to hear the parties through their counsel who are instructed in the matter, and decide them by examining the pleadings/affidavit/evidence/documents/material. Where the court seeks any information about the compliance with any of its directions, it is furnished by affidavits or reports supported by relevant documents. Requiring the presence of the senior officers of the government in court should be as a last resort, in rare and exceptional cases, where such presence is absolutely necessary, as for example, where it is necessary to seek assistance in explaining complex policy or technical issues, which the counsel is not able to explain properly. The court may also require personal attendance of the officers, where it finds that any officer is deliberately or with ulterior motives withholding any specific information required by the court which he is legally bound to provide or has misrepresented or suppressed the correct position.

9. Where the <ORG> has a definite policy or taken a specific stand and that has been clearly explained by way of affidavit, the court should not attempt to impose a contrary view by way of suggestions or proposals for settlement. A court can of course express its views and issue directions through its reasoned orders, subject to limitations in regard to interference in matters of policy. But it should not, and in fact, it cannot attempt to impose its views by asking an unwilling party to settle on the terms suggested by it. At all events the courts should avoid directing the senior officers to be present in court to settle the grievances of individual litigants for whom the court may have sympathy. The court should realize that the state has its own priorities, policies and compulsions which may result in a particular stand. Merely because the court does not like such a stand, it cannot summon or call the senior officers time and again to court or issue threatening show cause notices. The senior officers of the government are in-charge of the administration of the <ORG>, have their own busy schedules. The court should desist from calling them for all and sundry matters, as that would amount to abuse of judicial power. Courts should guard against such transgressions in the exercise of power. Our above observations do not of course apply to summoning of contemnors in contempt jurisdiction.

10. We have made the above observations rather reluctantly. Our observations should not be construed as restricting or limiting the exercise of the extraordinary jurisdiction of <ORG> under Article 226 of the Constitution of India. The observations are intended to be guidance for self- regulation and self-restriction by courts. It became necessary as we have noticed that the learned Presiding Judge of the Bench has been frequently making such orders directing senior officers of the Government to be present and settle claims. It is a coincidence that another case where a similar procedure was adopted by the learned Presiding Judge of the bench, came up before us today - <ORG>, Nainital vs. <NAME> (CA No.10087-10090 of 2010 decided on 26.11.2010). We have no doubt that the learned Judge bona fide believes that by requiring the presence of senior officers, he could expedite matters and render effective justice. But it is not sufficient that the object of the Judge is noble or bonafide. The process of achieving the object should be just and proper, without exceeding the well recognised norms of judicial propriety.

11. In this context we may refer to the following observations of this court in <CITATION> - 2007 (14) SCC 94 :

"A large number of cases have come up before this Court where we find that learned Judges of various <ORG> have been summoning the Chief Secretary, Secretaries to the Government (Central and state), Directors General of Police, Director-<ORG> or <ORG> or other senior officials of the Government. There is no doubt that <ORG> has power to summon these officials, but in our opinion that should be done in very rare and exceptional cases when there are compelling circumstances to do so. Such summoning orders should not be passed lightly or as a routine or at the top of a hat.

Judges should have modesty and humility. They should realize that summoning a senior official, except in some very rare and exceptional situation, and that too for compelling reasons, is counterproductive and may also involve heavy expenses and valuable time of the official concerned. The judiciary must have respect for the executive and the legislature. Judges should realize that officials like the Chief Secretary, Secretary to Government, Commissioners, District Magistrates, senior police officials, etc. are extremely busy persons who are often working from morning till night."

12. On the facts and circumstances, the interim directions of <ORG> of <ORG>, issued while dealing with a writ petition challenging the acquisition, requiring the Principal Secretary (PWD), Principal Secretary (Finance) or Principal Secretary (Revenue) to be present on different dates, are improper and are liable to be interfered.

13. We, therefore, set aside the impugned order of <ORG> and request <ORG> to dispose of the pending appeal expeditiously on merits. To avoid any impression of bias or prejudice, we request the Hon'ble Chief Justice of <ORG> to assign the matter to some other bench. All questions are left open.

............................J.

(<NAME>) New Delhi; ............................J. November 26, 2010. (<NAME>)


IN THE HIGH COURT OF <ORG> PRESENT: THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE FRIDAY,THE 19TH DAY OF DECEMBER 2014/28TH AGRAHAYANA, 1936 WP(C).No. 34797 of 2014 (Y) ---------------------------------------- PETITIONER(S): ----------------------- <NAME>, AGED 65 YEARS, S/O.SANKUNNI NAIR, MARAMMAKALATHIL, THEKKUMMURI POST, KARALMANNA AMSOM, CHERPALASSERY VILLAGE, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. <NAME> RESPONDENT(S): ------------------------- THE VILLAGE OFFICER, CHERPALASSERY VILLAGE, CHERPALASSERY, PALAKKAD DISTRICT - 679 503. BY SENIOR GOVERNMENT PLEADER SMT.ANITHA RAVINDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: msv/ WP(C).No. 34797 of 2014 (Y) --------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P-1: TRUE COPY OF THE REGISTERED SALE DEED NO.3064/1987 IN FAVOUR OF THE PETITIONER. EXT.P-2: TRUE COPY OF THE BASIC TAX RECEIPT ISSUED TO THE PETITIONER DATED 26.12.1989. EXT.P-3: TRUE COPY OF THE BASIC TAX RECEIPT DATED 23.5.2011 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXT.P-4: TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE RESPONDENT DATED 14.5.2014 RESPONDENT(S)' EXHIBITS: ----------------------------------------- NIL //TRUE COPY// P.S.TO JUDGE Msv/ A.MUHAMED MUSTAQUE, J. ***************************************************** W.P.(C) No.34797 of 2014 ***************************************************** Dated this the 19th day of December, 2014 JUDGMENT

The petitioner approached the respondent by Ext.P4 for accepting basic tax and to issue a possession certificate.

In view of the above, there shall be a direction to the respondent to consider and take appropriate decision on Ext.P4 within a period of four weeks.

The writ petition is disposed of as above.

Sd/-

<NAME>, JUDGE ln


PETITIONER: <NAME> Vs. RESPONDENT: STATE OF U.P. & ORS. DATE OF JUDGMENT: 25/04/2000 BENCH: D.P.Wadhwa, S.S.Ahmad JUDGMENT:

<NAME>, J.

Leave granted. What is "motive"; what is "foundation"; what is the difference between the two; these are questions which are said to be still as baffling as they were when <NAME>, J. in <NAME> vs. <ORG> of Punjab, (1974) 2 SCC 831 = 1975 (1) SCR 814 = AIR 1974 SC 2192, observed as under : "Again, could it be that if you summarily pack off a probationer, the order is judicially unscrutable and immune? If you conscientiously seek to satisfy yourself about allegations by some sort of enquiry you get caught in the coils of law, however, harmlessly the order may be phrased. And so, this sphinx-complex has had to give way in later cases. In some cases the rule of guidance has been stated to be `the substance of the matter' and the `foundation' of the order. When does `motive' trespass into `foundation'? When do we lift the veil of `form' to touch the `substance'? When the <ORG> says so. These `Freudian' frontiers obviously fail in the work-a-day world." But, as we shall presently see, the law, on account of recent judgments concerning the services of a probationer, is fairly well-settled and there is no cause for being confounded or bewildered. The perplexity which, at one time, surrounded the torrid question involved in this case has yielded to the clarity of reasons propounded by this <ORG> from time to time in recent times to which a reference shall be made during the course of this discussion. The appellant was recruited on 1.10.1985 as a Constable in <ORG>, U.P. under the U.P. Pradeshik Armed Constabulary Act, 1948. He completed his training on 6th of September, 1986 and was, thereafter, placed on probation for a period of two years. He completed his period of probation on 5th of September, 1988 but a year later, on 19th of July, 1989, his services were terminated by a simple notice in terms of Rule 3 of the U.P. Temporary <ORG> Servants (Termination of Service) Rules, 1975. The order of termination was challenged by the appellant before <ORG> which, by its judgment dated 18.1.1993, allowed the claim petition and set aside the order dated 19.7.1989 by which the services of the appellant were terminated. Respondents 1 and 2, thereafter, approached the High <ORG> through a Writ Petition which was allowed on 27th of November, 1997 and the judgment passed by the <ORG> was set aside. Learned counsel for the appellant has contended that the order by which the services of the appellant were terminated, though innocuous apparently, was, in fact, punitive in nature. The appellant, it is contended, could not have been removed from service without holding a regular departmental enquiry. It is further contended that the courts including the <ORG> constituted under the U.P. Public Services (<ORG>) Act, 1976 have full jurisdiction to go behind the order to find out whether it was an order of termination simpliciter or it was an order passed by way of punishment. It is pointed out that this aspect of the matter was considered by the <ORG> which, on the basis of the facts set out in the counter-affidavit filed on behalf of the respondents as also the entire service record of the appellant which was produced before it, came to the conclusion that the order was punitive in nature. This finding, it is contended, could not have been disturbed by the High <ORG> in a Writ Petition under Article 226 of the Constitution. Learned counsel for the respondents has, on the contrary, contended that the appellant was a temporary employee and, therefore, his services could be terminated at any time by giving him a month's notice in terms of U.P. Temporary <ORG> Servants (Termination of Service) Rules, 1975. In the Counter-Affidavit filed before the <ORG> before which the order dated 19.7.1989 (termination order) was challenged by the appellant, it was, inter alia, stated that on 24th of June, 1989 while camping at Ghat Varanasi for Flood Relief Training, a quarrel had taken place between two Constables as a result of which Constable <NAME> used filthy and unparliamentary language against Constable <NAME>. He also caused injuries to Constable <NAME> by kicks and fists. He was joined by Constable <NAME>. Other Constables also joined the fray. A preliminary enquiry was conducted by <NAME>, Assistant Commandant, P.A.C. and a few constables including the appellant were found guilty of indiscipline and misbehaviour and it was for this reason that the services of the appellant were terminated. The respondents admitted in the counter- affidavit that there was no adverse material against the appellant before the incident in question. The original records which were produced before the <ORG> and were scrutinised by it indicated that the order by which the services of the appellant were terminated was passed on account of his alleged involvement in the quarrel between the constables at the Ghat Varanasi Camp. The <ORG> has found as under:- "The preliminary enquiry file No.Ja-2/89 relating to the petitioner and other constables of 34th Bn. P.A.C. Varanasi from page 21/34 to 22/33 dated 26.6.89 shows that the enquiry was conducted by Sri <NAME>, Assistant Commandant, 34th Bn. P.A.C. Varanasi and in the preliminary enquiry report he concluded at pages 21/34 to 22/37 that the petitioner along with others had indulged in a misconduct of hurling blows and used filthy language to the superior officers of the Department and he was found guilty along with others for the said misconduct and misbehaviour. Thereafter on internal page 6 the impugned order of termination dated 19.7.89 was passed in respect of the petitioner and on the same day he was served the copy of the order." It was in view of the above finding that the termination order was held to be punitive in nature and was consequently set aside by the <ORG> but the High <ORG> relying upon the decision of this <ORG> in <CITATION> ,  = 1991 (1) SCR 29, quashed the order of the <ORG>. The first contention of the learned counsel for the appellant is about the status of the appellant. Learned counsel has contended that the appellant could not have been legally removed from service, except by way of disciplinary action in accordance with the requirements of Article 311(2) of the Constitution. It is contended that after completion of the period of probation, the appellant had acquired `permanent' status and, therefore, his services could not have been terminated by a mere notice or a month's pay in lieu thereof. This argument cannot be accepted. An assertion that on completion of the period of probation the appellant had acquired `permanent' status is based on a misreading of the provisions of Para 541 of <ORG> Regulations, relevant portion of which is quoted below : "541. (1) Recruits will be on probation for a period of two years, except that -- (a) those recruited directly in <ORG> or <ORG> will be on probation for three years, and (b) those transferred to <ORG> will be governed by the directions contained in paragraph 84 of the Police Regulations. If during the period of probation their conduct and work have been satisfactory and they are approved by the Deputy Inspector General of Police at the end of the period of probation for service in the force the Superintendent of Police will confirm them in their appointment." A perusal of the above provision would indicate that the period of probation is two years. The Regulation is silent as to the maximum period beyond which the period of probation cannot be extended. In the absence of this prohibition, even if the appellant completed two years of probationary period successfully and without any blemish, his period of probation shall be treated to have been extended as a `permanent' status can be acquired only by means of a specific order of confirmation. This <ORG> in <CITATION> (1968) 3 SCR 1 = AIR 1968 SC 1210 ruled out the proposition of automatic confirmation on completion of the period of probation. This <ORG> ruled that the `permanent' status can be acquired only by a specific order confirming the employee on the post held by him on probation. To the same effect is the decision in <NAME> vs. <ORG>  = 1980 (1) SCR 487 = AIR 1980 SC 57. <CITATION>  = 1991 (2) SCR 320 = AIR 1991 SC 1402, the same principles were reiterated. In view of the above, the contention that the appellant had acquired `permanent' status cannot be accepted. His status was that of a probationer. Now, it is well-settled that the temporary <ORG> servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be terminated at any time by giving them a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The courts can, therefore, lift the veil of an innocuously worded order to look at the real face of the order and to find out whether it is as innocent as worded. (See: <CITATION> , AIR 1958 SC 36 = 1958 SCR 828). It was explained in this decision that inefficiency, negligence or misconduct may have been the factors for inducing the <ORG> to terminate the services of a temporary employee under the terms of the contract or under the statutory Service Rules regulating the terms and conditions of service which, to put it differently, may have been the motive for terminating the services but the motive by itself does not make the order punitive unless the order was "founded" on those factors or other disqualifications. Following the decision of <NAME> case (supra), this <ORG> in <CITATION> , AIR 1960 SC 689, held that if the services of a probationer are terminated on the basis of an enquiry into the allegations of misconduct and inefficiency, the order would be punitive. It was pointed out that in the case of a probationer, it is always open to the <ORG> to hold an enquiry merely to assess the merits of the employee to find out whether he was fit to be retained in service and confirmed. In another case relating to a probationer, namely, in <CITATION> , 1961 (1) SCR 606 = AIR 1961 SC 177, where the services were governed by Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules which provided that where the services of a probationer were intended to be terminated either during the period of probation or at the end of that period for any fault or on account of his unsuitability, he would be apprised of the grounds of unsuitability and would also be afforded an opportunity to show-cause against it before orders are passed against him, it was held that the termination order would not become punitive merely because of an antecedent enquiry but the real object or purpose of the enquiry had to be found out whether it was held merely to assess the general unsuitability of the employee or it was held into charges of misconduct or inefficiency etc. <CITATION> , AIR 1963 SC 1552 = 1964 (2) SCR 135, which again was a case relating to a probationer, it was held that on account of Rule 55-B of the Civil Services (Classification, Control and Appeal) Rules if the enquiry was held for the limited purpose of finding out whether the employee was fit to be retained or not, the said enquiry would not make the order punitive as the enquiry could not be related to any misconduct of the employee. This view was reiterated in <CITATION> , AIR 1964 SC 449. <CITATION> , AIR 1963 SC 531 = 1963 Supp.(3) SCR 716, the order by which the services of the employee were terminated was an order simpliciter in nature, which was innocuously worded, but it was held by this <ORG> that the form of the order was not decisive and the <ORG> could go behind that order to find out whether it was founded upon the misconduct of the employee. These cases, namely, <CITATION> AIR 1960 SC 689; <CITATION> (1961) 1 SCR 606 = AIR 1961 SC 177; <CITATION> (1963) Supp. (3) SCR 716 = AIR 1963 SC 531; and <CITATION> AIR 1964 SC 449 were considered by this <ORG> in <CITATION> (1964) 5 SCR 190 = AIR 1964 SC 1854 where the services of the appellant, who was a temporary employee, were terminated by giving him a simple notice specifying therein that the services would stand terminated with effect from the date mentioned therein. But, before the termination of his services, he was called upon to explain certain irregularities and was also asked to submit his explanation, but no regular departmental enquriy was held. It was held that since no punitive action was taken against the appellant, there was no question of the applicability of Article 311(2) of the Constitution. In another significant decision in <CITATION> (1968) 3 SCR 234 = AIR 1968 SC 1089 where the respondent, who was officiating in <ORG> (Executive Branch) was reverted to his substantive post in <ORG> after issuing him a charge sheet to which a reply was submitted by the respondent but the disciplinary enquiry was not proceeded with, and an order of reversion was passed, it was held that the order could not be treated to have been passed by way of punishment. The <ORG> laid down the following propositions : "1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Art. 311 of the Constitution. 2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. 3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant. 4. An order of termination of service is unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Art. 311 of the Constitution. 5. If there be a full-scale departmental enquiry envisaged by Art. 311 , i.e. an Enquiry Officer is appointed, a charge-sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article." These principles as also the principle laid down in <NAME>'s case (supra) were reiterated by this <ORG> in <CITATION> ; <CITATION>  = 1971 (2) SCR 191 = AIR 1971 SC 1011; <CITATION> . (1974) 3 SCR 754 = AIR 1974 SC 1317 =  and it was laid down that in order to attract the provisions of Article 311(2) it has to be seen whether the misconduct or negligence was a mere motive for the order of reversion or termination or whether it was the very foundation of that order. It was again reiterated that the form of the order was not conclusive of its true nature and the <ORG> has to examine the entirety of circumstances preceding or attendant on the order of termination. To the same effect is the decision of this <ORG> in <CITATION>  = 1974 (2) SCR 335 = AIR 1974 SC 423, which related to reversion and in which reliance was placed on two earlier decisions in <CITATION> AIR 1962 SC 8 = 1962 (1) SCR 886 and <CITATION> AIR 1962 SC 794 = 1962 Supp. (2) SCR 92. It was, however, laid down that if the order visits the employee with penal consequences, the order would be punitive. It was for this reason that the order of reversion in that case was held to be bad. In the same year, came the <ORG> decision of this <ORG> in <NAME> vs. <ORG> of Punjab  = AIR 1974 SC 2192 = 1975 (1) SCR 814, in which "Motive" and "Foundation" theory was reiterated and it was laid down that the question whether an order terminating the services of a temporary employee or a probationer was by way of punishment or not would depend on the facts and circumstances of each case. The form of the order, it was observed, was not conclusive and an innocuously worded order, terminating the services of a temporary employee or a probationer may, in the facts of the case, be found to have been passed on account of serious and grave misconduct in utter violation of Article 311(2) of the Constitution. This decision was followed in <CITATION> AIR 1975 SC 1096 =  and the termination order, regarding which a concurrent finding of fact was recorded by the trial court, the lower appellate court and also by the High <ORG> in second appeal that it was punitive in nature, was held to be bad. While the judicial pronouncements stood at that stage, the entire case law was reviewed by this <ORG> in <CITATION> AIR 1976 SC 2547 =  = 1977 (1) SCR 462, in which it was contended that the legal and Constitutional position with regard to an order of termination was not settled as there were conflicting decisions of this <ORG> on that question. This contention was not accepted and on a review of the entire case law, including the Seven- Judge Bench decision in <NAME>'s case (supra), it was laid down that the <ORG> has consistently held that the "motive", in passing an order of termination or reversion, operating in the minds of the <ORG>. was not a relevant factor for determining whether the order was passed by way of punishment. What was determinative of the true nature of the order was not its exterior form but the "foundation" on which it was based. If misconduct or negligence was the foundation of the order of termination, or for that matter, reversion, the order would be punitive in nature. The <ORG> also referred to the decision in <CITATION>  = AIR 1976 SC 1766 = 1976 (3) SCR 540, in which it was observed as under : "We think that the principles involved in applying Article 311(2) having been sufficiently explained in <NAME> case (AIR 1974 SC 2192) (supra) it should no longer be possible to urge that <NAME> case (supra) could give rise to some misapprehension of the law. Indeed, we do not think that the principles of law declared and applied so often have really changed. But the application of the same law to the different circumstances and facts of various cases which have come up to this <ORG> could create the impression sometimes that there is some conflict between different decisions of this <ORG>. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts." ( Emphasis supplied ) Termination simpliciter of a temporary <ORG>. servant on the ground of unsuitability does not attract the provisions of Article 16 , nor is the protection under Article 311(2) of the Constitution available to a temporary <ORG>. servant unless the termination involved "stigma", was the dictum laid down by this <ORG> in <CITATION>  = AIR 1981 SC 965 = (1981) 3 SCR 165. <CITATION>  = (1980) 1 LLJ 137 = 1980 (2) SCR 146 = AIR 1980 SC 1896, it was laid down that a <ORG> or <ORG> is entitled to find out the true nature of the termination order, namely, whether it is punitive or not. In this regard, the form of the order will not be decisive and the <ORG> can lift the veil to see the true nature of the order. The <ORG> observed that the substance, not semblance, governs the decision. The <ORG> further observed that what was decisive was the plain reason for the discharge and not the strategy of a non-enquiry. If the basis was not the misconduct, the order could be saved. The <ORG> further observed that the mere fact that after being satisfied of the guilt the <ORG>. abandons the enquiry and proceeds to terminate the services by a simple order, would not be the relevant factor in considering the true nature of the order. Given an alleged misconduct and a live nexus between it and the termination of service, the conclusion would be "dismissal" even if full benefits, as on simple termination, are given and non-injurious terminology is used. The tests for determining whether termination was a termination simpliciter or by way of punishment laid down in earlier decisions were reiterated in <CITATION> .)  = (1980) 2 LLJ 155 = 1980 (3) SCR 603 = AIR 1980 SC 1242 and <CITATION> .  = (1980) 2 LLJ 161 = (1980) LIC 747. The latter was a case of termination simpliciter on account of the drive launched by the Inspector General of Police for weeding out Police Officers who were unsuitable or unfit to be continued in service. On the facts and circumstances of that case, it was held that the question whether the appellant, who was a temporary servant, should be retained in service, directly arose during the drive launched to weed out unsuitable officers and it was for this reason that the termination order was upheld, particularly as there was nothing to show that the termination order was made by way of punishment. In another decision which, incidentally, again is <CITATION> .  = AIR 1985 SC 84 = (1985) 2 SCR 1, the <ORG> held that where the services of a temporary <ORG>. servant are terminated on the ground that his reputation for corruption makes him unsuitable for retention in the service, the <ORG>, or for that matter, any statutory employer, must take great care when proceeding to terminate a career on the ground of unsuitability, to ensure that its order is founded on definable material, objectively assessed and relevant to the ground on which the termination is effected. It was observed that the <ORG> will view with great disfavour any attempt to circumvent the requirement of Article 311(2).  <CITATION>  = 1984 (2) SCR 453 = AIR 1984 SC 636, it was found on a consideration of the entire record that the real foundation for the order of discharge of the appellant- probationer was the alleged act of misconduct. This, it was observed, made the impugned order punitive in nature and was, therefore, held to be bad. <NAME> vs. <ORG> of U.P. & Ors. (1988) 2 LLJ 99 was a case of a temporary Constable in <ORG> whose services were terminated by an apparently innocuous order. On scrutiny it was found that the services were terminated on account of his alleged participation in activities of unrecognised <ORG>. The termination order, therefore, was held to be bad as having been passed without following the procedure prescribed under Article 311(2) of the Constitution. <CITATION> . 1987 Supp. SCC 739 = AIR 1987 SC 2408 = 1988 (1) SCR 501, it was held that for finding out the effect of the order of termination, the concept of "motive" and "foundation" has to be kept in mind. It was further observed that no strait-jacket test can be laid down to distinguish the two, namely, the `motive' and the `foundation'. Whether motive has become the foundation has to be decided by the <ORG> with reference to the facts of a given case. It was also observed that `motive' and `foundation' are certainly two points of one line - ordinarily apart but when they come together, `motive' gets transformed and merged into `foundation'. It was also observed that since in regard to a temporary employee or an officiating employee an assessment of the service is necessary, merely because the <ORG> proceeds to make an assessment and records its views, it would not be available to be utilised to make the order of termination, following such assessment, punitive in character. It was observed by this <ORG> that in the relationship of master and servant there is a moral obligation to act fairly. There should be an assessment of the work of the employee and if any defect is noted in his working, the employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiency, indifference or indiscretion may be with the employee by inadvertance and not by incapacity to work. Timely communication of the assessment of work in such cases may put the employee on the right track. Without any such communication, it was observed, it would be arbitrary to give a movement order to the employee on the ground of unsuitability. <CITATION>  = 1991 (1) SCR 29, which has been relied upon by the High <ORG> in the impugned judgment, it was held that merely because a preliminary enquiry was held against a temporary <ORG>. servant, would not be a ground to hold that an order, otherwise innocuous on the face of it, by which the services were terminated, was punitive in nature. The decision in <CITATION> .  = 1985 (2) SCR 1 = AIR 1985 SC 84 was held to be per incuriam as in that case, <NAME>'s case (supra) was not considered, but the <ORG> did observe that if on an overall assessment of the work and conduct of the employee the authority competent in that behalf to terminate the service, is satisfied that on account of the employee's general unsuitability and inefficiency or misconduct it would not be in the public interest to retain him in service, it may either terminate the services by an innocuous order or may proceed to take punitive action by holding a regular departmental enquiry. The <ORG>, however, emphasised that the termination has to be in accordance with the terms and conditions of service regulated by relevant rules. <CITATION> 1998 (8) SC 585 = , which related to a probationer, the whole legal position was reviewed by Brother M. <NAME>, J., in an illuminating and research- oriented judgment and after considering various decisions including the decision in <NAME> case (supra) and a still later decision in <CITATION>  = 1994 (3) Scale 12, so as to trace the development of law relating to this aspect of service jurisprudence, laid down that there has not been any conflict of opinion inter se various judgments including those laying down the "Motive" and "Foundation" theory. It was held that the question whether the order by which the services were terminated was innocuous or punitive in nature had to be decided on the facts of each case after considering the relevant facts in the light of the surrounding circumstances. Benefit and protection of Article 311(2) of the Constitution is available not only to temporary servants but also to a probationer and the court in an appropriate case would be justified in lifting the veil to find out the true nature of the order by which the services were terminated. The whole case law is thus based on the peculiar facts of each individual case and it is wrong to say that decisions have been swinging like a pendulam; right, the order is valid; left, the order is punitive. It was urged before this <ORG>, more than once including in <NAME> case (supra) that there was a conflict of decisions on the question of order being a simple termination order or a punitive order, but every time the <ORG> rejected the contention and held that the apparent conflict was on account of different facts of different cases requiring the principles already laid down by this <ORG> in various decisions to be applied to a different situation. But the concept of "motive" and "foundation" was always kept in view. The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an enquiry is held and it is on the basis of that enquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive". "Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action. If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary enquiry. Applying these principles to the facts of the present case, it will be noticed that the appellant, who was recruited as a Constable in the <ORG>, U.P., had successfully completed his training and had also completed two years of probationary period without any blemish. Even after the completion of the period of probation under Para 541 of <ORG> Regulations, he continued in service in that capacity. The incident in question, namely, the quarrel was between two other Constables in which the appellant, to begin with, was not involved. When the quarrel was joined by few more Constables on either side, then an enquiry was held to find out the involvement of the constables in that quarrel in which filthy language was also used. It was through this enquiry that appellant's involvement was found established. The termination was founded on the report of the preliminary enquiry as the employer had not held the preliminary enquiry to find out whether the appellant was suitable for further retention in service or for confirmation as he had already completed the period of probation quite a few years ago but was held to find out his involvement. In this situation, particularly when it is admitted by the respondent that the performance of the appellant throughout was unblemished, the order was definitely punitive in character as it was founded on the allegations of misconduct. There is another aspect of the matter. Para 541 of <ORG> Regulations provides as under : "541. (1) Recruits will be on probation for a period of two years, except that -- (a) those recruited directly in <ORG> or <ORG> will be on probation for three years, and (b) those transferred to <ORG> will be governed by the directions contained in paragraph 84 of the Police Regulations. If during the period of probation their conduct and work have been satisfactory and they are approved by the Deputy Inspector General of Police at the end of the period of probation for service in the force the Superintendent of Police will confirm them in their appointment. (2) In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer he may dispense with his services. Before, however, this is done the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show cause as to why he should not be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge. (3) Every order passed by a Superintendent under sub-paragraph (2) above shall, subject to the control of the Deputy Inspector General, be final." Where, therefore, the services of a probationer are proposed to be terminated and a particular procedure is prescribed by the Regulations for that purpose, then the termination has to be brought about in that manner. The probationer-constable has to be informed of the grounds on which his services are proposed to be terminated and he is required to explain his position. The reply is to be considered by the Superintendent of Police so that if the reply is found to be convincing, he may not be deprived of his services. If this procedure is followed and the services are terminated thereafter, it would not amount to a punitive action. The rule being mandatory in nature, compliance thereof would not alter the nature of the order passed against the probationer. This aspect was considered by this <ORG> in two decisions, namely, <CITATION> (1961) 1 SCR 606 (supra) and <CITATION> (1964) 2 SCR 135 (supra) in terms of Rule 55-B of the Civil Services (Classification, Control & Appeal) Rules, which, in all respects, is akin to Para 541 of <ORG> Regulations quoted above. Relevant portion of Rule 55-B which was extracted in the case of <CITATION> (supra) is quoted below : "Where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment." Immediately after quoting the Rule, the <ORG> observed: "Notice to show cause whether the employment of the respondent should be terminated was, by Rule 55 B made obligatory." The <ORG>, after considering that the <ORG> had complied with the requirements of Rule 55-B came to the conclusion that the order of termination of services of the probationer was not punitive in nature. <CITATION> (supra), the <ORG>, while considering the provisions of Rule 55-B, observed as under : "Therefore in a case covered by r.55-B all that is required is that the defects noticed in the work which make a probationer unsuitable for retention in the service should be pointed out to him and he should be given an opportunity to show cause against the notice, enabling him to give an explanation as to the faults pointed out to him and show any reason why the proposal to terminate his services because of his unsuitability should not be given effect to. If such an opportunity is given to a probationer and his explanation in reply thereto is given due consideration, there is in our opinion sufficient compliance of r.55-B. Generally speaking the purpose of a notice under r.55-B is to ascertain, after considering the explanation which a probationer may give, whether he should be retained or not and in such a case it would be sufficient compliance with that rule if the grounds on which the probationer is considered unsuitable for retention are communicated to him and any explanation given by him with respect to those ground is duly considered before an order is passed." ( Emphasis supplied ) In two other cases, namely, <CITATION> (supra) and <NAME> vs. <ORG> of Punjab (supra), the question of termination of services of a probationer was considered and it was laid down that the form of the order was not conclusive and the court could go behind the order to find out the real foundation of that order. <CITATION> 1998 (8) SC 585, which has been decided by Brother <NAME>, J., was also a case where the services of a probationer were terminated. As we have already seen above, there has been total non-compliance with the provisions of Para 541 of <ORG> Regulations and services of the appellant were terminated without ever issuing him any notice intimating the grounds on which his services were proposed to be terminated nor was his explanation ever obtained. The services were terminated because he was found involved in a quarrel between two other Police Constables. For the reasons stated above, the appeal is allowed, the impugned judgment passed by the High <ORG> is set aside and that of the U.P. Public Services <ORG> is restored, but without any order as to costs.

rights are dismissed. There shall be no order as to costs.


1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 29th DAY OF NOVEMBER 2013 BEFORE THE HON'BLE MR. JUSTICE A S BOPANNA W.P.No.48465/2013 (GM-POLICE) BETWEEN: LORD BALAJI RECREATION ASSOCIATION NO. 11/10, NEW NO. 30/11 3RD CROSS, KEMPEGOWDA CIRCLE GANDHINAGAR, BANGALORE-560053 BY ITS SECRETARY <NAME> AGED ABOUT 52 YEARS S/O LATE CHIKKAHANUMAIAH RESIDENT OF NO. 54/1 HOSPITAL ROAD, BALEPET CROSS BANGALORE-560053 ... PETITIONER (BY SMT. BHAGEERATHI L, ADV. FOR SRI MOHD USMAN SHAIKH) AND: 1. THE HOME SECRETARY OFFICE OF THE HOME SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA, BENGALURU-01. 2. THE COMMISSIONER OF POLICE OFFICE OF THE COMMISSIONER OF POLICE, NO.1, INFANTRY ROAD BENGALURU-560001. 3. JOINT COMMISSIONER OF POLICE LAW AND ORDER OFFICE OF THE JOINT COMMISSIONER OF POLICE NO.1, INFANTRY ROAD BENGALURU-560001. 2 4. JOINT COMMISSIONER OF POLICE, CRIME OFFICE OF THE JOINT COMMISSIONER OF POLICE NO.1, INFANTRY ROAD BENGALURU-560001. 5. DEPUTY COMMISSIONER OF POLICE OFFICE OF THE DEPUTY COMMISSIONER OF POLICE CENTRAL CRIME BRANCH N T PET CIRCLE, BANGALORE. 6. INSPECTOR OF POLICE CHICKPET POLICE STATION CHICKPET, BENGALURU-560053. 7. INSPECTOR OF POLICE UPPERPET POLICE STATION, MAJESTIC DHANAWANTARI ROAD BANGALORE-560053 ... RESPONDENTS (BY <NAME> PATIL, HCGP.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO DIRECT THE RESPONDENTS NOT TO INSIST UPON THE PETITIONER TO OBATAIN LICENSE UNDE "THE LICENSING & CONTROL OF PLACES OF PUBLIC AMUSESMENT ORDER 1970" TO RUN THEIR RECREATIONAL ACTIVITIES & TO COMPLY WITH THE GOVT. ORDER DT.12.9.13 VIDE ANN-A & DIRECT THE RESPONDENTS TO NOT TO INTERFERE WITH THE RECREATIONAL ACTIVITIES CARRIED BY THE PETITIONER ASSOCIATION AT THE SCHEDULE PREMISES. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING : ORDER

Learned Government Advocate to accept notice for respondents No.1 to 6. He is permitted to file memo of appearance in four weeks.

2. The petitioner is before this Court seeking for a direction to respondents No.2 to 6 herein not to insist upon the petitioner-Club to obtain the licence for the cultural activities carried on by the petitioner in the club premises as per the legal requirements.

3. The petitioner claims to be a recreational club wherein the members of the club are permitted to play games of recreation such as rummy, carrom, chess etc. It is therefore the contention that no unlawful activity is being carried on in the said premises. The grievance of the petitioner is that the respondents are insisting on the petitioner to secure licence despite the same does not require a licence. The petitioner is therefore before this Court.

4. Having heard the learned counsel appearing for the parties, it is to be noticed that several matters of the like nature have arisen before this Court and this Court has consistently taken the view that in respect of the present nature of activities in a recreational club, the same does not require licence. Hence, the respondents are not justified in insisting on the same. However, the respondents would have the liberty of monitoring the activities of the club and taking action only if there are any illegal activities carried on in the premises.

5. In that view of the matter, the petition is disposed of, with a direction to the respondents not to insist on the petitioner to secure a licence in respect of the activities stated to have been carried on by the petitioner. However, it is made clear that the respondents would be entitled to monitor the activities and take action, if the petitioner indulges in any illegal activities in the club premises.

With the above observations, the petition stands disposed of. No order as to costs.

Sd/-

JUDGE hrp/bms


<NAME>, J.

1. Crl.R.C. No. 48 of 2008 is filed challenging the order passed by the learned Judicial Magistrate No. 6, Salem in Crl. M.P. No. 5231 of 2007 dated 31.12.2007 and Crl.R.C. No. 148 of 2008 is filed challenging the order dated 11.1.2008 passed by the very same learned Judicial Magistrate in CRL.M.P. No. 176 of 2008.

2. The first petitioner is the husband, second petitioner is the mother-in-law and the third petitioner is sister-in-law of the respondent. Invoking the provision under Section 23(2) of Protection of Women from Domestic Violence Act , 2005, the respondent sought for an ex-parte residence order in Crl.M.P. No. 5231 of 2007.

3. In the affidavit filed by the respondent, she has stated that she was driven away from the matrimonial home and has been living without any food, cloth and shelter. She has further alleged in the said affidavit that she was driven away in the mid of night by beating her and as a result of which she did not have a roof to decide. Therefore, she has sought for an ex-parte residence order to be implemented by <ORG>.

4. The learned Judicial Magistrate having adverted to the aforesaid allegations found in the affidavit in the background of the materials produced along with the main petition passed residence order in absentia of the petitioners herein. The said order is under challenge in Crl.R.C. No. 48 of 2008.

5. The respondent thereafter filed a petition in C.M.P. No. 176 of 2008 invoking the provision under Section 31 of the Protection of Women from Domestic Violence Act , 2005 seeking to enforce the order already passed in Crl.M.P. No. 5231 of 2007 alleging therein that the petitioners have locked the premises dishonoring the residence order passed by the learned Judicial Magistrate. The learned Judicial Magistrate having heard both sides passed an order on 11.1.2008 directing the police to break open the lock and give protection to the respondent herein to reside in the house. The said order is under challenge in Crl.R.C. No. 148 of 2008.

6. The learned Counsel appearing for the petitioners would vehemently submit that the subject house is neither the rental house nor the own house of the first petitioner herein. Therefore the subject house does not fall under the definition "shared household" found in Section 2(s) of the Protection of Women from Domestic Violence Act , 2005. It is his further submission that the petitioners are prepared to provide alternate accommodation as contemplated under Section 19(f) of the Act by shouldering the responsibility of paying rent therefor. He contends that a Divorce petition filed by the first petitioner herein is pending adjudication. He would further submit that the learned Judicial Magistrate has not expressed his satisfaction based on the averment found in the affidavit filed by the respondent that the application did disclose a prima facie case of commission of an act of domestic violence or the likelihood of the commission of the said act. Therefore, the order passed bereft of any satisfaction expressed by the learned Judicial Magistrate is unsustainable. As regards the other order passed by the learned Judicial Magistrate to break open the lock in the subject house with the assistance of the police, he would submit that there is no specific provision under the Act to pass such an order passed by the learned Judicial Magistrate. It is his further submission that when the main application was posted on 21.1.2008 for counter, the interim application in Crl.M.P. No. 176 of 2008 was taken up hurriedly on 11.1.2008 and the same was disposed. The learned Judicial Magistrate should have waited till the petitioners herein file a counter in the main application for the disposal of the interim application filed by the respondent seeking break open. In view of the above, the impugned order is not sustainable, he would submit.

7. The learned Counsel appearing for the respondent would contend that the first petitioner was the owner of the subject premises where both the first petitioner and the respondent resided as husband and wife. But, after the matrimonial dispute had arisen between the parties, the first petitioner has chosen to alienate the property in the name of the second petitioner on 20.4.2006. Even otherwise, the learned Counsel appearing for the respondent would submit that the house of the second petitioner, which is in the permissible occupation of the first petitioner along with her wife shall be treated as 'shared household'. He would further submit that the pendency of the Divorce Application has nothing to do with the protection order under the Protection of Women from Domestic Violence Act , 2005. Though the order does not specifically state that the learned Judicial Magistrate was satisfied with the averment found in the affidavit, the details graphically given by the learned Judicial Magistrate about the concrete allegations made in the application would go to show that the learned Judicial Magistrate having been satisfied passed the residence order. The suggestion emanated from the petitioners that they are prepared to offer alternate accommodation can be decided during the disposal of the main application filed by the respondent. As regards the other petition filed for breaking open of the lock in the premises, the learned Counsel for the respondent would contend that the learned Judicial Magistrate is empowered under Section 19(7) of the Act to give suitable direction to the officer incharge of the Police Station to assist the Court in the implementation of the protection order if any passed by the Court. Therefore, there is nothing wrong in the direction given by the learned Judicial Magistrate to break open the lock to accommodate the wife in the house where she last resided. The application seeking to break open the lock cannot be kept in abeyance till the petitioners herein file a counter leisurely in the main application. The merit or the otherwise of the interim application filed seeking to break open the lock will have to be decided expeditiously without waiting for any counter in the main petition. The learned Judicial Magistrate has rightly passed the order considering the urgency of the matter, he would further submit before this Court.

8. <ORG> in <CITATION> has held that 'shared household' means only the house belonging to or taken on rent by the husband or house which belongs to the joint family in which the husband is one of the members. It has also been observed therein that the property exclusively owned by the mother of the husband cannot be called 'shared household', as per the definition found in Section 2(s) of the Protection of Women from Domestic Violence Act , 2005. In the above case, it is found that wife had chosen to file a Suit seeking bare injunction restraining her husband and his mother from dispossessing the wife from the property in question. On facts, it is observed that the husband of the respondent therein had already shifted his residence to a flat in Ghaziabad before ever the litigation between the parties started. In such circumstances, <ORG> has held that the place where the wife alone was residing cannot be termed as a matrimonial home.

9. But, in this case even before the litigation started, it is reported that both of them had resided in the subject house, which is now in the name of the second petitioner. Further, it is brought to the notice of this Court that after the dispute had arisen between the parties, the first petitioner, who was the original owner of the property alienated the same in favour of his mother, the second petitioner herein. Therefore, factually, the aforesaid ratio laid down by <ORG> can be distinguished. If the contention of the petitioners is accepted, every husband will simply alienate his property in favour of somebody else after the dispute has arisen and would take a stand that the house where they last resided is not a shared household and therefore the wife is not entitled to seek for residence right in the shared household.

10. As rightly pointed out by the learned Counsel for the respondent, the pendency of the Divorce petition at the instance of the first petitioner has nothing to do with the interim orders sought for by the respondent invoking the provisions under the Protection of Women from Domestic Violence Act , 2005. The reliefs provided under the aforesaid Special Act will have to be granted in genuine cases, even during the pendency of the Matrimonial Case between the parties before the forum concerned.

11. On a careful perusal of the impugned order passed by the learned Judicial Magistrate in Crl.M.P. No. 176 of 2008, it is found that the learned Judicial Magistrate has graphically described the various domestic violence alleged in the affidavit filed by the respondent herein. He has also observed that he had an occasion to go through the entire materials filed in the main petition. As rightly pointed out by the learned Counsel appearing for the petitioners, the learned Judicial Magistrate has not observed in the order impugned that he was satisfied that the application prima facie disclosed that the petitioners were committing an act of domestic violence. In this context, the learned Counsel for the petitioners cited an authority in <CITATION> , rep.by Revenue Inspector, Kinathukadavu and Ors. , wherein this <ORG> dealing with the criminal proceedings under Section 145 of the Code of Criminal Procedure observed that any preliminary order passed under Section 145(1) of the Code of Criminal Procedure without specifically stating the grounds of his satisfaction would amount to non-compliance of the provision under Section 145(1) of the Code of Criminal Procedure.

12. Section 145(1) of the Code of Criminal Procedure provides that the learned Judicial Magistrate should not only be satisfied with the grounds set up that the dispute likely to cause a breach of peace exists concerning any land or water, but shall also state specifically the grounds of being so satisfied. Under such circumstances, this <ORG> in the aforesaid authority has observed that the preliminary order passed under Section 145(1) of the Code of Criminal Procedure without stating the grounds of his satisfaction would amount to non-compliance of the provision under Section 145(1) of the Code of Criminal Procedure.

13. Under Section 23(2) of the Protection of Women from Domestic Violence Act , 2005, the learned Magistrate has to pass a protection order, when he is satisfied that the application prima facie discloses that the respondent is committing or has committed an act of domestic violence or that there is likelihood of commission of such domestic violence before ever he passes an ex-parte order on the basis of an affidavit filed by the wife.

14. What is important is the materials which formed a basis for the satisfaction of the learned Judicial Magistrate before passing an ex-parte order will have to be considered by the Court and not the parrot like repetition of the provision to the effect that he was satisfied based on the averments found in the application. In this case it is found that the various averments found in the application clearly disclose the commission of the act of domestic violence and the same has been incorporated in the order impugned. The absence of the phrase "Magistrate is satisfied" need not be found incorporated in the order passed under Section 23(2) of the Act. If the material analysed by the learned Judicial Magistrate discloses the allegation of commission of an act of violence, he is well within his powers to pass protection order under Section 23(2) of the Act.

15. Of course, the learned Judicial Magistrate is empowered to consider the suggestion emanated from the husband to provide alternate accommodation as contemplated under Section 19(f) of the Act, while passing a final order in the main application. It is after all an order passed ex-parte on the strength of the averment found in the affidavit filed by the aggrieved wife. Such a suggestion can be seriously considered by the Judicial Magistrate during the final disposal of the main application. In view of the above, the Court finds that the learned Judicial Magistrate has rightly passed the protection order. The said order does not suffer from any illegality or impropriety. Therefore, the question of setting aside the said order does not arise.

16. Coming to the order passed by the learned Judicial Magistrate giving a direction to the police authority concerned to break open the lock and give protection to the respondent to reside in the subject house, the Court finds that the learned Judicial Magistrate has ample power under Section 19(7) of the Act to give any order to the officer incharge to assist him in the implementation of the protection order. The interim residence order is one of the protection orders. Of course, the said provision does not specifically state that the learned Judicial Magistrate may direct the officer incharge to break open the lock. To give effect to the protection order passed ex-parte, the learned Judicial Magistrate will have to necessarily pass an order break open the lock by the police. If the submission made on the side of the petitioners that the learned Judicial Magistrate is not empowered to give any order to break open the lock is accepted, then in all cases, the husband will lock the house and walk off and thereby depriving the wife from enjoying the protection order passed under the Act. The Court finds that the aforesaid submission is against the spirit of the object and scheme of the benevolent Special Act .

17. The impugned order would reflect that the application seeking to break open the lock was filed on 9.1.2008 and the order thereon was passed on 11.1.2008. Of course, the impugned order would reveal that the main application was posted to 21.1.2008 for the counter on the side of the petitioners herein. The respondent cannot be made to wait and loiter in the street till the petitioners herein file their counter in the main application. On account of some urgency which has arisen, the interim applications are filed by the wife seeking protection order and also seeking assistance to implement the protection order. Therefore, the submission made by the learned Counsel for the petitioners that the learned Judicial Magistrate should have waited till the counter is filed by the petitioners herein in the main application, is found not sustainable. It is a case where the petitioners also were heard before ever an order was passed.

18. Of course, some comment is made by the learned Counsel for the petitioners that the learned Judicial Magistrate was pleased to pass an order at 8.30 p.m. on 11.1.2008. The Court is all praise for the learned Judicial Magistrate for passing the order at 8.30 p.m. without minding the time, considering the emergency in the application filed by the respondent. As otherwise the wife should take shelter only in the platform. There is nothing wrong in passing an order at 8.30 p.m., that too after hearing both sides. The Court finds that the order to break open the lock has been passed only after weighing the merits of the application. There is no impropriety or illegality in the said order. Therefore, both the Criminal Revision Cases fail and they stand dismissed. Consequently, the connected Miscellaneous Petitions are also dismissed.


1 S.A. No. 1887 Of 2005 25.2.2014

<NAME>, learned counsel for appellant. Heard on admission.

This is defendant's second appeal directed against judgment and decree dated 4.4.2005 passed by First Additional District Judge, <NAME> in civil Appeal No. 31A/2003, affirming the judgment and decree dated 28.10.2003 in Civil Suit No. 53 A/ 2002 by First Civil Judge Class II, <NAME>.

Action for declaration and permanent injunction was brought by plaintiff in respect of property bearing Khasra No. 485 area 2 hectare, Khasra No. 487 area 5.40 hectares, P.C. No. 126, situated at Bichia, district Mandla on the plea that suit land was owned by <NAME> brother of Plaintiff's husband's father who received in partition. <NAME> was issueless and vide Will dated 15.4.1983 bequeathed the property in the name of his nephew, <NAME>, husband of plaintiff No. 1. Defendants denied the claim. They denied the execution of will and stated the suit property was in joint possession and was partitioned by <NAME>, Bichiya by his order dated 15.2.2002 and accordingly the defendants counter claimed for 4.05 hectare of Khasra No. 485/1.

<ORG> framed following issues:

1& D;k oknh okn xzLr Hkwfe [0ua0 485] 487] jdok Øe'k% 2 gSDVs;j 5-40 gS0 Hkwfe ds Lokeh ,oa vkf/kiR;/kkjh gS \ 2& D;k mijksDr okn xzLr Hkwfe ij izfroknh Ø0&1 yxk;r 3 okn xzLr Hkwfe esa O;o/kku djus dk iz;kl fd;s \ 3& D;k izfroknh Ø0&1 yxk;r 3 uk;c rglhynkj fcfN;ka }kjk caVokjk izd0& 02 ¼v½ &27&2000&2001 vkns'k fn- 15-2-02 ds vk/kkj ij dCtk izkIr djus dk vf/kdkjh gS \ 4& lgk;rk ,oa O;; \ <ORG> on a finding that the Will (Ex. P/2) being duly proved to have been executed by <NAME> and that <NAME> and <NAME> were having equal share in the property. And the property which came to the share of <NAME> his son <NAME> (husband of plaintiff No. 1) and his daughters, defendant Nos. 1, 2 and 3 were having equal shares, i.e., 1/4th each, partly decreed the suit holding plaintiffs entitled for declaration over 1.250 hectare of Khasra No. 485 and 3.375 hectare of Khasra No. 487. Consequently, the counter claim by the defendants was decreed to the extent that they would be entitled for possession over .750 hectare of Khasra No. 485 and 2.025 hectares of Khasra No. 487.

The findings arrived at by the trial court have been affirmed by <ORG> in an appeal preferred by the defendants as would be evident from paragraph 10 of the impugned judgment and decree dated 4.4.2005.

Though an interference in the concurrent finding arrived at by both the court is being sought on the basis of the orders of partition passed by <NAME>; however, taking into consideration that the findings by both the <ORG> are based on material evidence on record, as would give rise to any substantial question of law.

Consequently, appeal is dismissed in limine. No costs.

(SANJAY YADAV) JUDGE <NAME>


IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE <NAME> THURSDAY, THE 3RD DAY OF JANUARY 2013/13TH POUSHA 1934 WP(C).No. 31258 of 2012 (F) --------------------------- PETITIONER(S): ----------------------------- <ORG>, REPRESENTED BY MR.MURALIKRISHNAN,AGED 39 YEARS, SR.EXECUTIVE- FINANCE & ACCOUNTS HAVING THEIR REGISTERED OFFICE AT SY-347, <ORG>,PUTHUVYPEEN,OCHANTHURUTHU, ERNALUKAM. BY ADVS.SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENT(S): ------------------------------ THE ASSISTANT COMMISSIONER WORKS CONTRACT AND LUXURY TAXES,COMMERCIAL TAXES, ERNAKULAM- 682 015. BY SR GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.31258/2012 APPENDIX PETITIONER(S) EXHIBITS EXT.P1: A TRUE COPY OF THE CERTICATE OF REGISTRATION. EXT.P2: A TRUE COPY OF THE CERTTICATE ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT DATED 29/07/11. EXT.P3: A TRUE COPY OF THE PRINT RETURN FOR THE ASSESSMENT YEAR 2010-2011 OF THE RETURNS SUBMITTED TO THE KERALA COMMERCIAL TAXES DEPARTMENT. EXT.P4: A TRUE COPY OF FORM NO.43 DATED 21/2/2011. EXT.P5: A TRUE COPY OF FORM NO.43 DATED 31/03/2011. EXT.P6: A TRUE COPY OF THE NOTICE UNDER SECTION 25(1)KVAT DATED 19TH OCTOBER 2012. EXT.P7: THE TRUE COPY OF THE ORDER DATED 28/11/12 ISSUED BY THE RESPONDENT FOR THE ASSESSMENT OF THE YEAR 2010-2011. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.S.TO.JUDGE sts <NAME>, J. -------------------------------------------------- W.P.(C) NO.31258 OF 2012(F) -------------------------------------------------- Dated this the 3rd day of January, 2013 J U D G M E N T

Petitioner is a dealer under the KVAT Act. In this Writ Petition they are challenging Ext.P7, an order under Section 25 (1) of the Act. Prior to the issuance of Ext.P7, Ext.P6 notice was issued by the respondent calling for objections. However, that notice was addressed to Smt,. <NAME>, who is stated to be one of the Directors of the petitioner. According to the petitioner, since the addressee of Ext.P6 was on leave, that cover remained unattended and therefore they could not file any reply to Ext.P6 resulting in the ex-parte decision evidenced by Ext.P7. It is in these circumstances the petitioner has filed this writ petition.

2. Admittedly, petitioner is the dealer registered under the Act and Ext.P6 notice was issued to one of its Directors. In such circumstances, I cannot find fault with the respondents for not having responded to the notice. Be that as it may, fact remains WPC.No. 31258/2012 that Ext.P7 order was passed without giving the petitioner an opportunity to file their reply or an opportunity of hearing and by this order, liability of more than Rs.1 crore is also sought to be fastened on the petitioner. In such circumstances I am inclined to think that fairness requires that the petitioner should be given an opportunity to file their objections to Ext.P6.

With this in mind, I dispose of the writ petition quashing Ext.P7. I direct that within two weeks from today, petitioner shall file their reply to Ext.P6 notice. Thereafter the petitioner should appear for hearing before respondent on 23.1.2013. Thereupon the respondent will hear the petitioner and pass fresh orders in the matter.

Petitioner shall produce a copy of the judgment along with a copy of the writ petition before the respondent for compliance.

(<NAME>) JUDGE vi/