JUDGMENT <NAME>, J.

1. <ORG>, the third respondent in O. P. (M.V.) No. 774/1981 before <ORG>, Ernakulam is the appellant.

2. On a perusal of the memorandum of appeal it is clear that the grounds urged therein are gounds which can be availed of only by the insured.

3. The counsel for the claimant therefore argued that the appeal was not maintainable. Dilating on this argument the counsel submitted that <ORG> was not entitled to take any defence which is not specified in Sub-section (2) of Section 96 of The Motor Vehicles Act, 1939, for short, The Act . Before we consider this case of the claimant we shall briefly state the arguments advanced by the counsel for the appellant. The counsel submits that the appeal may be treated as one filed on behalf of the insured and that is possible in view of Section 110-C(2A) of Chapter VIII of the Act. Had that not been the position there was no need for the <ORG> to allow the appellant to cross-examine the witnesses 'with permission', the counsel submits. He has a further case that in any event, in view of Clause (2) of the conditions incorporated in the policy, the 'appellant has every right to take up the defence, the insured ordinarily can take in a case like this.

4. We shall now consider the argument based on Section 110-C(2A) . Section 110-C(2A) reads:--

"Where in the course of any inquiry, <ORG> is satisfied that--

(i) there is collusion between the person making the claim and the person against whom the claim is made, or

(ii) the person against whom the claim is made has failed to cbntest the claim, it may, for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made".

This section provides that where in the course of any enquiry <ORG> is either satisfied that there was collusion between the claimant and the person against whom the claim was made or the person against whom the claim was made had failed to contest the claim; then, the <ORG>, for reasons to be recorded in writing, can direct that the insurer who will be liable in respect of the claim shall be impleaded as a party to the proceeding and the insurer so impleaded has the right to contest the claim on all or any of the grounds that are available to the insured.

5. This sub-section would suggest that an order under this section enabling an insurer to contest the claim on all or any of the grounds that are available to the insured, can be passed by the <ORG> only as a sequel to the order directing impleadment of the insurer, he would pass on his being satisfied that either there is collusion between the claimant and the insured or the insured has failed to contest the claim, the counsel representing the con-testing respondents submit. We are not impressed by this argument. This sub-section, in our view, was introduced to safeguard the interests of the insurer which, going by Section 96(2) is not entitled to take any defence which is not specified therein. Apart from Section 96(2) , an insurer had no right to get itself impleaded as a party to the action by the claimant against the insured causing the injury. This right is a statutory right. While conferring this right, Sub-section 2 of Section 96 has imposed certain restrictions in regard to the defences, the insurer can take. The insurer is not entitled to take any defence which is not specified in that sub-section. In short the only method of avoiding the liability provided for under Sub- section 2 is setting up the defences enumerated therein. ( <CITATION> . AIR 1959 SC 1331). The restriction thus imposed on the defences made it impossible for the insurer to contest the claim not properly contested by the insured. The intention of the legislature thus is clear that the sub-section is meant to safeguard the interest of the insurer. The objective of the sub-section could be achieved only if the insurer is allowed to contest the claim on all or any of the grounds available to the insured. However a literal adherence to the words used in the section namely that "an insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest" would result in the insurer who had already been impleaded under Section 96(2) , not getting a chance to contest the claim on all or any of the grounds [available to the insured even if it is established that the insured is hand and glove with the claimant and as such not contesting the claim. A grammatical or literal interpretation of these words, in our view, would lead to manifest absurdity. In such circumstances a construction not quite strictly grammatical or literal can be adopted. (See Craies on Statute Law, 17th Edn., pages 87-88). We therefore are of the view that the insurer who is already a party to the claim petition (having been impleaded under Section 96(2) can also avail of this defence. Such an insurer accordingly can move the <ORG> under this sub-section and obtain the requisite permission to contest the ;claim on all or any of the grounds, the insured would take. If the insurer makes an application in this regard, the <ORG> shall consider the same on merits after notice to the claimant and insured and pass appropriate orders in writing enabling the insurer to contest the claim on the grounds available to |the insured. In the present case there is nothing on record to show that the insurerappellant has obtained such permission from the <ORG> and if that be so the insurer-appellant is not entitled to contest the claim on the grounds that are available only to the, insured. The above argument of the learned counsel therefore is rejected.

6. We, nonetheless are constrained to consider yet another argument of the learned counsel namely, that in any event the appellant is entitled to contest the claim raising the grounds the insured alone can raise, in view of Clause (2) of the conditions incorporated in the policy. Clause (2) reads :--

"No admission offer promise payment or indemnity shall be made or given by or on behalf of the insured without the written consent of the Company which shall be, entitled if it so desires to take over and conduct in the name of the <ORG> the defence or settlement of any claim or to prosecute in the name of the <ORG> for its own benefit any claim for indemnity or damages or otherwise and shall have full discretion in the conduct of any proceedings or in the settlement of any claim and the insured shall give all such information and assistance as the Company may require".

Construing an identical clause, <ORG> of this Court in <ORG> v. <NAME>, (1987) 2 Ker LT 817 no doubt, has observed that the said clause enables the Insurance company to contest the claim on all or any of the grounds, the insured alone could raise, notwithstanding the restrictions imposed by Sub-Section (2) of Section 96 . This observation of <ORG> is based on a decision of <ORG> in <ORG>. <CITATION> , 1974 Acc CJ 234: (AIR 1974 Madras 318). <ORG> while holding so, has made reference to the decision of <ORG> in <CITATION> , AIR 1959 SC 1331, On going through the following observation of this court we are of the view that the above observation is obiter:

"There is some force in this argument of the learned counsel for <ORG>.

However, we do not go into that question since we feel that the decision reported in <CITATION> , AIR 1959 SC 1331, may not be applicable to the case in hand".

In our view the decision of <ORG> does not lend support to the view taken by <ORG> which provides the basis for the above observation of <ORG>. A reference in this connection to the following observations of <ORG> in <ORG> case, is profitable (at p. 1335):--

"There is another ground on which the learned Solicitor-General supported the contention that all defences are open to an insurer excepting those taken away by Sub-section (3). He said that before the Act came into force, an injured person had no right of recourse to the insurer and that it was Section 96(1) that made the judgment obtained by the injured person against the assured binding on the insurer and gave him a right against the insurer. He then said that that being so, it is only fair that a person sought to be made bound by a judgment should be entitled to resist his liability under it by all defences which he can in law advance against the passing of it. Again, we find the contention wholly unacceptable. The Statute has no doubt created a liability in the insurer to the injured person but the statute has also expressly confined the right to avoid that liability to certain grounds specified in it. It is not for us to add to those grounds and therefore to the statute for reasons of hardship .. . ".

<ORG> thereafter stated as follows (at p. 1335):--

"We are furthermore not convinced that the statute causes any hardship. First, the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured and if he does so, all defences open to the assured can then be urged by him and there is no other defence that he claims to be entitled to urge. He can thus avoid all hardship if any, by providing for a right to defend the action in the name of the assured and this he has full liberty to do".

<ORG> made the above observation (underlined portion of the excerpt) at a time when Section 110-C(2A) was not there. Whatever that be, the positive declaration of <ORG> namely "the Statute has no doubt created a liability in the insurer to the injured person but the statute has also expressly confined the right to avoid that liability to certain grounds specified in it. It is not for us to add to those grounds and therefore to the statute for reasons of hardship" disentitles the appellant to rely on Clause (2) of the Insurance policy, and contend for the position that the said clause reserves its right to contest the claim on all or any of the grounds that are available to the insured. Sub-section 2A of Section I10-C, as construed by us, entitled the insurer to contest the claim on all or any of the grounds available to the insured provided the <ORG> grants the requisite permission in terms of the said subsection to the insurer to take up the said defence, There is another aspect that should be borne in mind while considering this question and it is this: The policy issued by the insurer is a policy of insurance in respect of Third-party risk, arising out of the use of motor vehicles, such as complies with the requirements of Chapter VIII of the Act and includes unless the context requires otherwise, a cover note. The policy therefore should be one that complies with the requirements Chapter VIII of the Act. That means any clause or condition in the policy can have force only subject to the provisions contained in Chapter VIII of the Act. Clause 2 of the policy extracted above therefore should be read and understood in the light of Sub-section 2A of Section 110-C. This clause, to the extent to which it runs counter to the above subsection is liable to be ignored. It therefore follows that an insurer with the permission of the <ORG> alone can contest the claim on all or any of the grounds, the insured can raise against the claim.

In the light of what is stated above we are of the view that the appeal is not maintainable.

The appeal fails. Accordingly the same is dismissed. No costs.


REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.6228-6229 OF 2002 <ORG> ...Appellant Versus <NAME> and others ...Respondents JUDGMENT

<NAME> J :

1. As all the cases involve similar questions of fact and law, they were taken up for hearing together and are being disposed of by this common judgment.

2. We may, however notice the fact of the matter involved in Civil Appeal Nos.6228-6229 of 2002.

Appellant is <ORG> (<ORG>). It is engaged in the business of generation of electricity. It, for the purpose of setting up of a Thermal Power Station at Village Sarna in the District of Ghaziabad in the State of Uttar Pradesh, submitted a proposal to the State of Uttar Pradesh for acquisition of lands situated in Village Dadri, Tehsil Ghaziabad, District Ghaziabad.

3. Pursuant or in furtherance of the said request, a Notification was issued in terms of Section 4 of the Land Acquisition Act, 1894 (for short `the Act') notifying the intention of <ORG> to acquire 105 Bighas 2 Biswas and 16 Biswanis (equivalent to 65.7125 acres) of lands situated at the aforementioned village. It was published in <ORG> on 8th September, 1984

4. On the premise that generation of electricity was extremely urgent and National Capital Region faced acute shortage of electricity, the emergency provisions contained in Sections 17(1) and 17(4) of the Act were invoked. A declaration in terms of Section 6 of the Act was issued on 26th September, 1984. As the provisions of sub-section (4) of Section 17 of the Act were applied, notices were issued on 27th October, 1984 under Section 9 of the Act to the claimants for payment of compensation in respect of the acquired land.

5. However, admittedly prior to taking over possession of land under the emergency powers, the Collector disbursed 80% of the amount of compensation determined in terms of Section 17(3A) of the Act. A possession certificate was issued by the Collector on 16th January, 1984, which reads as under :-

" POSSESSION CERTIFICATE LAND PERMANENT REQUIRED FOR THE PLANNED Industrial Construction of NTPC Plant, District Ghaziabad through <ORG>, Ghaziabad Certified that I on behalf of the Collector, Ghaziabad have on this day the 16.11.1984 taken over the possession of the land detailed below comprising an area 105 B - 2Bs-16B or 6751.3 acres and (not legible (name not ligible) of D.L.A.O's Office to hand over the possession of the same land to <ORG>, Ghaziabad.

Through Sri. D.V. (not ligible), village Sarna, Muradnagar, Pargana Jalalabad, District, Ghaziabad.

Sd/-

(District Land Acquisition Officer, Ghaziabad) Notification u/s. 6 :- 7574/P-3-84-23-26 Land P-84__264-84 published on 29.9.84.

Certified that I on behalf of the Manager, <ORG>, Ghaziabad have to take over possession of the abovementioned land through ______________________ today."

Khasra numbers and area of the plots, possession whereof had been taken, were specified therein.

6. Despite the same, the appellant contended that it had obtained the requisitioned physical possession of land admeasuring 10.215 acres only and the rest of the land continued to remain in possession of the land owners.

It is stated that <ORG> made recommendations that the choice of place for setting up a Thermal Power Station, having regard to its proximity to the National Capital being incorrect, the site thereof should be shifted. Pursuant thereto or in furtherance thereof, the site of the plant was shifted from Sarna, Murad Nagar to Dadri Tehsil. However, the Land Acquisition Officer despite the same proceeded to determine the amount of compensation payable for the acquisition of land.

7. An Award was made on 24th September, 1986.

A reference in terms of Section 18 of the Act was made which was answered by the learned Additional District Judge, Ghaziabad by a order dated 22nd October, 1993 determining the amount of compensation @ Rs.155/- per sq. yards and Rs.115/- per sq. yds. in respect of two references made separately before it. .

8. First appeals were preferred thereagainst in February, 1984 by <ORG> before <ORG>. Inter alia on the premise that possession of the entire land of 65.713 acres had not been obtained, the District Magistrate was approached for issuance of a notification denotifying the acquisition of the balance area i.e. for withdrawal of acquisition of land admeasuring 55.498 acres.

9. By its letter dated 24th February, 1986, <ORG> submitted a proposal as regards denotification of the land, which reads as under :-

" Kindly refer to our letter No.08/GM/13 dated January 8, 1986, on the above subject, addressed to District Land Acquisition Officer and copy endorsed to you (copy enclosed for ready reference). In continuation of para 2 of that letter this is to inform you that there are five cases in which delivery of possession is shown to have been given. These are of villages Sarna, Khurrampur, Sultanpur, Jalalpur and Mohiuddinpur. In Sarna, advance compensation has been paid to most of the persons affected while in Khurrampur only a few persons have been paid the advance compensation. In cases of Sultanpur, Jalalpur and Khurrampur villages - we did not get physical possession and the land owners continue to be in possession their lands even now. In many cases, their crops are standing on the land in question. Further, it may be added that the Land  Acquisition Amendment Act 1984 came into force w.e.f. 24.9.1984. As per sub-section (3A) to Section 17 of the Land Acquisition Act it is made obligatory that before taking possession of any land the Collector shall pay 80% of the compensation to the interested persons. This mandatory provision not having been complied with, the delivery of possession on paper has no legal force and that is why land owners did not allow <ORG> to take possession of these lands. Any possession without such 80% compensation are likely to be vitiated even if the land is proposed to be acquired. Similarly, in the village of Mohiuddinpur Hissali, no compensation has been paid.

It is understood that some mutations in respect of lands of these villages in favour of <ORG> have been made in the revenue records.

Obviously there appears to be some discrepancy. Since no legally valid possession has been given to <ORG> nor land owners have allowed <ORG> to take possession of these lands, mutations in revenue records made need to be set right by necessary correction proceedings.

It is, therefore, requested that the possession certificates of these villages may please be cancelled and original entries in the revenue records may be ordered to be restored.."

10. The said proposal was forwarded to the Commissioner and Director (Land Acquisition), <ORG> by the District Magistrate by his letter dated 11th August, 1994. <ORG> issued a clarification to the Commissioner and Director, <ORG>, by its letter dated 13th August, 2004. On or about 18th August, 1994 an inspection was carried by the Land Acquisition Amin, <NAME> together with the representatives of <ORG> and as per the report submitted pursuant thereto, the appellant is said to have been found in possession of only 10.215 acres of land.

11. On 11th November, 1994 the State of U.P. issued a Notification in terms of Section 48 of the Act.

Aggrieved, respondents filed a writ application before <ORG> on or about 29th August, 1995 and a Division Bench of <ORG> stayed the consequential effect of the Notification dated 11th November, 1994. On or about 9th September, 1997 the appellant filed an application for vacating the stay which having been refused, a Special Leave Petition was filed before this Court, which was dismissed by an order dated 14th October, 1997.

By reason of a judgment and order dated 21st July, 1998 the said writ petition was allowed.

12. Indisputably on the same day, the same Bench passed judgment in <ORG> preferred by appellant (<ORG>) against the order of <ORG> dated 22nd October, 1993. We shall deal with the said matter separately.

13. Mr. <NAME>, learned senior counsel appearing on behalf of the <ORG> would contend that although in the event possession had been taken by the Collector from the land owners, Section 48 of the Act will have no application but in view of the fact that possession of 55.498 acres of land had not been delivered in favour of <ORG> and merely a symbolic possession had been delivered, <ORG> must be held to have committed a serious error in passing the impugned judgment.

14. Mr. <NAME>, learned senior counsel appearing on behalf of the respondents, on the other hand, would contend :-

(i) Having regard to the provisions contained in Section 17(1) of the Act, as the vesting of the acquired land takes place immediately, the impugned Notification dated 1th November, 1994 has rightly been held to be illegal and without jurisdiction.

(ii) Having regard to the certificate of possession issued by the Collector on 16th November, 1984 under the provisions of the Act, stating possession of entire land had been taken and the details thereof having been mentioned in the said certificate itself, it is too late in the day for the appellant/<ORG> to contend that possession of a major portion of the land had was not taken over.

(iii) The fact that the possession of the entire land had been taken over not only would appear from the materials brought on record during the land acquisition proceedings culminating in passing of the Award but also from the award of <ORG> as also the judgment of <ORG> in the First Appeals and in that view of the matter, it would not be correct to contend that <ORG> could not have entered into such disputed questions of fact, particularly when the validity or otherwise of the proceedings is not in question.

15. A Notification under Section 4 of the Act was issued. Emergency provisions contained in Section 17 of the Act were resorted to. Sub-sections (1), (3A) and 4 of the Act read as under :-

(1) In cases of urgency, whenever the Appropriate <ORG> so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9 , sub-section (1), 1 [take possession of any waste or arable land needed for a public purpose]. Such land shall thereupon vest absolutely in the <ORG>, free from all encumbrances.

(2) .... .... .... (3) .... .... ....

(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub- section (3),--

(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and

(b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31 , sub-section (2), and where the Collector is so prevented, the provisions of section 31 , sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section.

(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does not so direct, a declaration may be made under section 6 in respect of the land at any time 4 [after the date of the publication of the notification under section 4 , sub-section (1)."

16. Indisputably the said provisions were been taken recourse to and, thus, the lands under acquisition vested absolutely in the Government.

17. Concedingly, a declaration in terms of Section 6 of the Act was issued whereafter notices to persons interested under Section 9 thereof had also been issued. Award had also been published.

Section 16 of the Act providing for taking over possession of the land after making the Award would not be applicable in this case as possession is said to have already been taken over in terms of sub-section (1) of Section 17 thereof.

It is in the aforementioned backdrop of factual matrix, the power of the <ORG> to withdraw the Notification of acquisition as envisaged under Section 48 of the Act falls for our consideration.

The said provision is as under :-

" Section 48 - Completion of acquisition not compulsory, but compensation to be awarded when not completed (1) Except in the case provided for in section 36 , the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section."

18. It is a well settled proposition of law that in the event possession of the land, in respect whereof a Notification had been issued, had been taken over, the State would be denuded of its power to withdraw from the acquisition in terms of Section 48 of the Act.

19. Whether actual or symbolic possession had been taken over from the land owners is essentially a question of fact. Taking over of possession in terms of the provisions of the Act would, however, mean actual possession and not symbolic possession. The question, however, is as to whether the finding of fact arrived at by <ORG> that physical possession, indeed, had been taken over by the Collector is correct or not.

20. We have noticed hereinbefore the background facts. The emergency provisions were resorted to. Even 80% of the compensation had been paid way back in 1984. Had possession of the vacant land been not taken, the question of payment of 80 % of compensation would not have arisen. All other legal requirements to invoke the said provision have been complied with.

21. Mr. <NAME>, however, would draw our attention to a letter dated 24.2.1986 issued by the appellant to the District Magistrate to contend that even payment of 80% of the compensation had not made and, thus, the purported delivery of possession was merely a papr transaction. Our attention had further been drawn to the written statement filed on behalf of the appellant before the reference court, which reads as under :

"That out of the total acquired area in question the respondent utilized only a portion of the land by construction of their Satellite building while remaining area could not be put into use by the respondent, since the land is in actual physical possession of the land owners and they are deriving all the benefits from the land thereof and the respondent is having only a symbolic possession over the same."

22. We, however, have not been able to persuade ourselves to agree with the aforementioned submissions. The Officers of the appellant themselves were parties in regard to the process of actual physical possession obtained on its behalf by the Collector.

23. Even in the award made by the Special Land Acquisition Collector, the invocation of the provisions of Section 17 of the Act as also obtaining of possession of the land in question had clearly been found.

We may notice some of the statements recorded therein :

"10. Whether Sec.17 is in force : Yes 11. Date of the right : 16.11.84 XXX XXX XXX 18. Amount of Interest : 9% payable from 16.11.84 i.e. from the date of acquisition 15% further from that date payable to and owner."

We may quote hereinbelow the relevant portions from the said award :

"4. 12% additional from 8.9.84 i.e. from the date of notification till date of possession i.e. on 16.11.84 : Rs.1,46,531.69"

24. From a perusal of the award, therefore, it is evident that not only the provisions of Section 17 of the Act were found to have been implemented but even interest had been granted from the date of acquisition, namely, from the date of taking over of possession. Interest had also been granted in terms of Section 23A of the Act from the date of notification till the date of actual taking over of possession. <ORG> also, in its judgment, held :

"(2) The petitioners will get 12% per annum as additional amount on the above market value for the period commencing from the date of publication of the notification u/s. 4(1) dated 6.9.84 to the date of possession dated 16.11.84."

25. In the memo of appeal preferred by the appellant before <ORG> a statement was made that the possession of the land was taken by invoking Section 17 of the Act on 16.11.1984 and, thus, interest at the rate of 15% per annum on the excess amount under the provisions of Section 28 of the Act would be payble only in the case where such excess payment had not been made before the expiry of one year period from the date on which the possession has been taken and as determined by the <ORG>. In view of the stand taken by the appellant before <ORG> as also the reference court and <ORG>, in our opinion, it is estopped and precluded from raising a plea contra. The Reference <ORG>, in paragraph 4 of its judgment, also noticed that the possession of the land has been taken over on 16.11.1984. No objection was taken before the Reference <ORG> that possession had not been taken and, thus, interest was not payable. No issue was also framed in that regard.

Even before us, the only ground taken was that the land could not be put to use which is a non-issue.

26. Strong reliance has been placed upon a decision of this Court in <CITATION> , [ AIR 1975 SC 1967 =  ], wherein it has been held :-

"We think it is enough to state that when the <ORG> proceeds to take possession of the land acquired by it under the Land Acquisition Act , 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking "symbolical" possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the <ORG> is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it."

This decision, therefore, itself is an authority for the proposition that no absolute rule in this behalf can be laid down.

<CITATION> . [] and <CITATION> . [], the same view has been reiterated.

27. These decisions, as noticed hereinbefore, do not lay down an absolute rule. The question as to whether actual physical possession had been taken in compliance of the provisions of Section 17 of the Act or not would depend upon the facts and circumstances of each case.

28. When possession is to be taken over in respect of the fallow or Patit land, a mere intention to do so may not be enough. It is, however, the positive stand by the appellant that the lands in question are agricultural land and crops used to be grown therein. If the lands in question are agricultural lands, not only actual physical possession had to be taken but also they were required to be properly demarcated. If the land had standing crops, as has been contended by Mr. <NAME>, steps in relation thereto were required to be taken by the Collector. Even in the said certificate of possession, it had not been stated that there were standing crops on the land on the date on which possession was taken. We may notice that delivery of possession in respect of immoveable property should be taken in the manner laid down in Order XXI Rule 35 of the Code of Civil Procedure.

29. It is beyond any comprehension that when possession is purported to have been taken of the entire acquired lands, actual possession would be taken only of a portion thereof. The certificate of possession was either correct or incorrect. It cannot be partially correct or partially incorrect. Either the possession had actually been delivered or had not been delivered. It cannot be accepted that possession had been delivered in respect of about 10 acres of land and the possession could not be taken in respect of the rest 55 acres of land. When the provisions of Section 17 are taken recourse to, vesting of the land takes effect immediately.

30. Another striking feature of the case is that all the actions had been taken in a comprehensive manner. The Collector in his certificate of possession dated 16th November, 1984 stated that the possession had been taken over in respect of the entire land; the details of the land and the area thereof had also been mentioned in the certificate of possession; even <ORG> in its letter dated 24th February, 1986 stated that possession had not been delivered only in respect of land situated in four villages mentioned therein. Indisputably <ORG> got possession over 10.215 acres of land. It raised constructions thereover. It is difficult to comprehend that if the <ORG> had paid 80% of the total compensation as provided for under sub-section (3A) of Section 17 of the Act, out of 65.713 acres of land it had obtained possession only in respect of about 10.215 acres of land and still for such a long time it kept mum. Ex-facie, therefore, it is difficult to accept that merely symbolic possession had been taken.

<CITATION> [(1970 (2) SCC 149], this Court has stated the law, thus :

"But these observations do not assist the case of the appellant. It is clearly implicit in the observations that after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the <ORG>, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State <ORG> to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1) , the land vests in the <ORG>. There is no provision by which land statutorily vested in the <ORG> reverts to the original owner by mere cancellation of the notification."

The said view was affirmed in <CITATION> . [], in the context of applicablility of Section 11A of the Act, it was stated :

"When Section 17(1) is applied by reason of urgency, <ORG> takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the <ORG>. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the <ORG> and there is no provision in the said Act by which land statutorily vested in the <ORG> can revert to the owner."

<CITATION> . [], a Three Judge Bench of this Court opined as under :

"12. The provisions of sub-section (4) of Section 52 are somewhat similar to Section 17 of the Land Acquisition Act, 1894. Just as publication of a notification under Section 52(1) vests the land in the <ORG>, free from all encumbrances, as provided by Section 52(4) , similarly when possession of land is taken under Section 17(1) the land vests absolutely in the <ORG> free from all encumbrances. A question arose before this Court that if there is a non-compliance with the provisions of Section 5-A and an award is not made in respect to the land so acquired, would the acquisition proceedings lapse. <CITATION> . this Court held that once possession had been taken under Section 17(1) and the land vested in the <ORG> then the <ORG> could not withdraw from acquisition under Section 48 and the provisions of Section 11- A were not attracted and, therefore, the acquisition proceedings would not lapse on failure to make an award within the period prescribed therein. It was further held that non-compliance of Section 17 (3- A), regarding part payment of compensation before taking possession, would also not render the possession illegal and entitle the <ORG> to withdraw from acquisition. The aforesaid principle has been reiterated by this Court in <CITATION> . and <CITATION> . In view of the aforesaid ratio it follows that the provisions of Section 11-A are not attracted in the present case and even if it be assumed that the award has not been passed within the stipulated period, the acquisition of land does not come to an end."

<CITATION> . [], it was held :

"... <CITATION> .6, the question arose: whether notification under Section 4(1) and the declaration under Section 6 get lapsed if the award is not made within two years as envisaged under Section 11-A ? A Bench of three Judges had held that once possession was taken and the land vested in the <ORG>, title to the land so vested in the State is subject only to determination of compensation and to pay the same to the owner. Divesting the title to the land statutorily vested in the <ORG> and reverting the same to the owner is not contemplated under the Act. Only Section 48(1) gives power to withdraw from acquisition that too before possession is taken. That question did not arise in this case. The property under acquisition having been vested in the appellants, in the absence of any power under the Act to have the title of the appellants divested except by exercise of the power under Section 48(1) , valid title cannot be defeated. The exercise of the power to quash the notification under Section 4(1) and the declaration under Section 6 would lead to incongruity."

31. Yet again, in <CITATION> ) by Lrs. [], this <ORG> has categorically laid down that when the accepted mode of taking possession of the acquired land is resorted to, that would constitute taking possession of the land.

The said principle has been reiterated in <CITATION> . [], in the following terms :

"43. In our considered view, <ORG> has erred in holding that <ORG> could release the lands in exercise of its power under Section 48 of the Land Acquisition Act, 1894 from the acquisition."

It has further been held :

"46. The possession of the land in question was taken in the year 1966 after the passing of the award by the Land Acquisition Officer. Thereafter, the land vested in the <ORG> which was then transferred to <ORG>, predecessor-in-interest of the appellant. After the vesting of the land and taking possession thereof, the notification for acquiring the land could not be withdrawn or cancelled in exercise of powers under Section 48 of the Land Acquisition Act. Power under Section 21 of the General Clauses Act cannot be exercised after vesting of the land statutorily in the State <ORG>."

{See also <CITATION> . []}.

32. <ORG>, therefore, in our opinion, was correct in its view.

33. We may now consider the question as to whether the issue as to whether possession of the acquired land had actually been taken over or not being a disputed question of fact could not have gone into by <ORG>. It is not a case where oral evidence was required to be taken. There is no law that <ORG> is denied or debarred from entering into a disputed question of fact. The issue will have to be determined keeping in view the fact situation obtaining in each case. If a disputed question can be determined on the basis of the documents and/or affidavit, <ORG> may not ordinarily refuse to do so. In a given case, it may also examine witnesses.

<CITATION> . [], it was held :

"14. <ORG> observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. <ORG>, however, proceeded to dismiss the petition in limine. <ORG> is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 <ORG> has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account <ORG> is of the view that the dispute may not appropriately be tried in a writ petition, <ORG> may decline to try a petition. Rejection of a petition in limine will normally be justified, where <ORG> is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be in appropriate to try it in the writ jurisdiction, or for anologous reasons.

15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.

16. In the present case, in our judgment, <ORG> was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. <ORG> has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties <ORG> should have entertained the petition and called for an affidavit in reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit."

Such a direction has been issued, as noticed hereinbefore, even in a land acquisition matter.

Yet again, in <CITATION> [], this Court has held :

"10. It is not necessary for this case to express an opinion on the point as whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution.

Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of  Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in <ORG> to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of <ORG>, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226 , it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. <ORG> is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226 <ORG> has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account <ORG> is of the view that the dispute should not appropriately be tried in a writ petition, <ORG> may decline to try a petition (see <CITATION> ). If, however, on consideration of the nature of the controversy, <ORG> decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by <ORG> appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by <ORG> in this respect."

In <NAME> (supra), it has been observed :-

"4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4- 1976 by which date possession of the land had been taken. No doubt, Shri <NAME> has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession."

34. Recently the question came up for consideration before a Division Bench of this Court in <CITATION> , [  ], wherein it was held :-

"9. On the facts pleaded it is doubtful whether the Government can withdraw from the acquisition, since the case of the <ORG> and <ORG> is that possession has been taken and plans finalised to fulfil the purpose for which the acquisition was made. There is no plea in the writ petition that a request for reconveyance was made in terms of Section 48-B of the Act as amended in the <ORG> of Tamil Nadu."

It was furthermore held :-

"15. We may also notice that once a piece of land has been duly acquired under the Land Acquisition Act , the land becomes the property of the <ORG>.

The <ORG> can dispose of the property thereafter or convey it to anyone, if the land is not needed for the purpose for which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the <ORG> from giving back the property for anything less than the market value. <CITATION> in a similar situation, this Court observed:

"The question emerges whether the <ORG> can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, <ORG> is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the <ORG> should be sold only through the public auctions so that the public also gets benefited by getting a higher value."

35. Furthermore the Collector under the Act was acting as a statutory authority. When possession has been shown to have been taken over not only in terms of sub-section (1) of Section 17 of the Act but also by grant of the certificate and other documents, illustration (e) of Section 114 of the Evidence Act 1872, must be held to be applicable. Once such a presumption is drawn the burden would be on the <ORG> to prove the contra. The burden of proof could be discharged only by adducing clear and cogent evidence. Not only the aforementioned documents but even the judicial records clearly show that the possession had in fact been taken.

36. Mr. <NAME>, however, made an alternative submission before us that this <ORG>, in exercise of its jurisdiction under Article 142 of Constitution of India, may issue necessary directions so as to put a quietus to the entire matter. This <ORG> cannot foresee all the eventualities.

37. However, before us Mr. <NAME>, learned senior counsel appearing on behalf of the respondents, when questioned, categorically stated that in view of the statement made in the counter affidavit, the positive case of the respondents is that they had not been in possession.

If the aforementioned statement made by the respondents is found to be incorrect, legal steps as is permissible in law may be taken. Furthermore, if the respondents and/or any other person are found to be in possession of the lands which were the subject matter of acquisition in terms of the notification under Section 4 of the Act, appropriate steps for eviction therefor can be initiated. It goes without saying that the authorities of the State of Uttar Pradesh shall render all cooperation to the appellant in this behalf.

38. It is furthermore neither in doubt nor in dispute that the initiation of the acquisition proceedings at the instance of the appellant was for setting up of a thermal power station. It had to be shifted to another site only because <ORG> asked it to do so keeping in view the ecological perspective in mind. It is, therefore, permissible for the appellant to put the land in question which has vested in it for another purpose which would come within the purview of any public purpose as has been noticed by this Court in <NAME> (supra) and for any other purpose as has been noticed by this Court in Keerwani Ammal (Supra) Yet again in <CITATION> [], this Court has held :

"12. If the land was not used for the purpose for which it was acquired, it was open to <ORG> to take action but that did not confer any right on the respondents to ask for restitution of the land. As already noticed, <ORG> in this regard has already initiated proceedings for resumption of the land. In our view, there arises no question of any unjust enrichment to the appellant Company."

<CITATION> . [], it was contended :

"16. The learned Additional Solicitor General appearing on behalf of the respondents submitted that having regard to the authorities on the subject the question is no longer res integra. It is not as if lands acquired for a particular public purpose cannot be utilised for another public purpose. He contended that as long as the acquisition is not held to be mala fide, the acquisition cannot be invalidated merely because the lands which at one time were proposed to be utilised for a particular public purpose, were later either in whole or in part, utilised for some other purpose, though a public purpose. He, therefore, submitted that some change of user of the land, as long as it has a public purpose, would not invalidate the acquisition proceeding which is otherwise valid and legal."

It was held :

"23. Referring to the facts of the instant case, it cannot be disputed that the planned development of Delhi for which purpose the land was acquired under Section 4 of the Act is wide enough to include the development and expansion of an airport within the city of Delhi. Thus it cannot be said that the land is actually being utilised for any purpose other than that for which it was acquired.

The only difference is that whereas initially the development work would have been undertaken by <ORG> or any other agency employed by it, after the constitution of <ORG>, the said development work had to be undertaken by the newly constituted authority. Thus there has been no change of purpose of the acquisition. All that has happened is that the development work is undertaken by another agency since constituted, which is entrusted with the special task of maintenance of airports. Since the said authority was constituted several years after the issuance of the notification under Section 4 , the acquisition cannot be invalidated only on the ground that the public purpose is sought to be achieved through another agency. This, as we have noticed earlier, was necessitated by change of circumstances in view of the creation of the authority i.e. <ORG>. Moreover, since there is no change of public purpose for which the acquired land is being utilised, the acquisition cannot be invalidated on that ground. The purpose for which the lands are being utilised by a governmental agency is also a public purpose and as we have noticed earlier, would come within the ambit of the public purpose declared in Section 4 notification. Therefore, the acquisition cannot be challenged on the ground that the acquired lands are not being utilised for the declared public purpose. Having regard to the facts of the case it cannot be contended, nor has it been contended, that the notification under Section 4 of the Act was issued mala fide."

39. For the reasons aforementioned, the appeals, being devoid of any merit, are dismissed subject to the observations made hereinbefore with costs. Counsel fee assessed at Rs.50,000/- in each of these appeals.

.....................................J. [S.B. Sinha] .....................................J. [Cyriac Joseph] New Delhi;

July 16, 2009


PETITIONER: DEVENDRA PRATAP NARAIN RAI SHARMA Vs. RESPONDENT: STATE OF UTTAR PRADESH DATE OF JUDGMENT: 03/11/1961 BENCH: <NAME>, J.C. BENCH: <NAME>, J.C. SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R. CITATION: 1962 AIR 1334 1962 SCR Supl. (1) 315 CITATOR INFO : RF 1963 SC 687 (17) R 1965 SC1153 (26) E&R 1974 SC 130 (20) RF 1980 SC1773 (13) ACT: Public Servant-Dismissal-Re-instated by decree of Civil Court-Merits of charge not considered-Whether fresh enquiry on the same charges competent-Salary-Effect of order of Civil Court declaring dismissal invalid-Uttar Pradesh Government Fundamental Rules as amended in 1953 r. 54,-Code of Civil Procedure, 1908 (Act V of 1908), O. 2. r. 2-Constitution of India, Arts. 226, 310 and 311. HEADNOTE: The order of dismissal against the appellant was set aside by <ORG>, holding inter alia, that reasonable opportunity was set afforded to the appellant before imposing the penalty dismissed and the appellant must be deemed to continue in service. Thereafter the appellant was reinstated, but he was awarded salary at the rate of Rs. 76-11-0 till the order of dismissal, and at a token rate of Rs. 1/- for the period between the order of dismissal and reinstatement. The appellant was again suspended and enquiry was directed against him in respect of dereliction of duty for which he had already been once dismissed and re-instated. The appellant moved <ORG> for a writ to quash the order directing the said enquiry. He claimed that Government had no power to re-open the enquiry concluded by the decision of <ORG> and that the State was bound to pay him salary with increments for the period of suspension as if he was on duty during that period. <ORG>, inter alia, held that the second enquiry against the appellant was not barred by virtue of the previous decision, but the fixation of token salary amounted to punishment which could not be imposed without following the procedure laid down in Art. 311 of the Constitution, and there was no justification for not granting him full salary. The appellant came up in appeal to <ORG> by certificate. ^ Held, that <ORG> was competent in the circumstances, to direct a fresh enquiry against the public servant for dereliction of duty, and to suspend him. Where the order of dismissal of a public servant was declared invalid by the decree of <ORG> the effect was that the public servant was never to be deemed to have been lawfully dismissed from service, and the order of reinstatement was superfluous. It was not open to the authority 316 to deprive the public servant of the remuneration which he would have earned has he been permitted to work. Held, further, that r. 54 of the Fundamental Rules of the Uttar Pradesh Government enables <ORG> of fix the pay of a public servant, when dismissed is set aside in a departmental appeal, but that rule has no application to cases in which the dismissal of a public servant is declared invalid by the decree of <ORG> and he is consequently re- instated. <NAME> v. State of Rajasthan, I.L.R. (1957) Raj 1049, <NAME> v. Supdt. of Police, Sibsagar, I.L.R. (1955) Assam 191 and <NAME> v. Divisional Personnel Officer, <ORG>, Ferozepore Cantt. I.L.R. (1957) Publ. 1883, not applicable. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 622 of 1960.

Appeal from the judgment and order dated February 12, 1960, of <ORG> (<ORG>) at Lucknow in Writ Petition No. 228 of 1959.

<NAME>, <NAME> and <NAME>, for the appellant.

<NAME> and <NAME>, for the respondents.

1961. November 3. The Judgment of the Court was delivered by <NAME>, J.-In 1951 the appellant <NAME> held the post of "Inspector Qanungo" in <ORG> of the State of Uttar Pradesh and was selected for the post of Tehsildar on probation. By order dated April 21, 1952, the Collector of Jhansi suspended the appellant and commenced an enquiry against him on certain charges of misdemeanour. In June, 1952, the Collector recommended to <ORG> that the appellant be reverted to the post of "Naib Tehsildar", but the Commissioner recommended to <ORG> that the applicant be dismissed from service.

The State Government accepted the recommendation of the Commissioner and dismissed the appellant from service, by order dated September 16, 1953. The appellant then commenced an action (Suit No. 163 of 1954) in <ORG>, Lucknow, challenging the legality of the order of dismissal principally on the ground that he was not afforded the opportunity of defending himself and of showing cause against the action proposed to be taken against him. The Civil Judge dismissed the suit but the decree of the Judge was reversed by <ORG> at Allahabad. <ORG> held that reasonable opportunity was not afforded to the appellant either before the recommendation was made for imposing penalty or before imposing punishment and therefore the appellant was deprived of the protection of Art. 311 of the Constitution. <ORG>, accordingly, allowed the appeal, set aside the decree of the Civil Judge and granted a declaration that the order passed by <ORG> dated September 16, 1953, purporting to dismiss the appellant was void, inoperative and illegal and the appellant must be deemed to continue in service.

The appellant was then by the Government of Uttar Pradesh Notification dated March 30, 1959, reinstated to his original post of Tehsildar. He was posted at Tehsil Puranpur in District Pilibhit and took charge of his office on April 28, 1959. The appellant then applied to the Accountant General of Uttar Pradesh for payment of arrears of salary and allowances due to him. The Accountant General, by letter dated May 18. 1959, informed the appellant that he was "entitled to draw pay and allowances with effect from April 28, 1959" and that as regards the arrears of pay and allowances for the period between April 21, 1952, and April 28, 1959, reference had been made to <ORG> about the terms and conditions of the appellant's reinstatement and that action would be taken on receipt of instructions in that behalf.

The appellant was again suspended by order dated July 11, 1959, issued by <ORG> and was directed to hand over charge to the Naib Tehsildar of Tehsil Puranpur. On July 24, 1959, <ORG> ordered that the salary of the appellant for the period between April 21, 1952, and the date of taking over charge of his duties as Tehsildar on reinstatement will be fixed as follows:-

(1) The pay from April 21, 1952 till the date of orders of his dismissal will be limited to the subsistence allowance of Rs. 76/11/-p.m. already drawn by him. (2) The pay for the period from the date following the date of the order of his dismissal till the date of his taking over charge of his duties as Tahsildar on reinstatement will be fixed at Rs. 1/-p.m. as token pay.

The appellant was also informed that the period of his dismissal, i.e. April 21, 1952, to the date of his taking over charge of his office as Tehsildar on reinstatement will be treated as "on duty", and will count towards pension.

The appellant applied on August 25, 1959, to <ORG> at Allahabad by a petition under Art. 226 of the constitution praying for a writ quashing the order directing enquiry into the allegations regarding his work and conduct as Tehsildar at Garautha, District Jhansi and for a direction setting aside the order of suspension dated July 11, 1959, and for a direction permitting the appellant to draw his full salary and allowances with all increments amounting to Rs. 27,238/10/- and for an order to the Accountant General to issue pay slips at the rate of Rs. 325/-p.m. from the date of taking over charge with dearness and house allowances with further increments, if any, falling due in the scale of Rs. 200-10-250-15-400, and for directions to the respondents to issue orders for confirmation of the appellant with effect from April 19, 1953. The appellant claimed that the Government of Uttar Pradesh had no power to reopen the enquiry concluded by the decision of <ORG> of Allahabad and that the <ORG> was bound to pay him salary with increments and allowances for the period of suspension as if he was on duty during that period. He also claimed that he must be deemed to have been confirmed in the post of a Tehsildar and, therefore, entitled to salary in the grade of Tehsildar.

<ORG> held that the second enquiry against the appellant directed by <ORG> was not barred by virtue of the previous decision and that the appellant could not be deemed to have been confirmed with effect from April, 1953. <ORG> further held that because the appellant had not claimed the salary for the period April 21, 1959, to November 24, 1954, in the Civil Suit filed by him he should be deemed to have relinquished that part of his claim. Regarding the salary for the period November 24, 1954, to April 28, 1959, <ORG> held that fixation of Rs. 1/- by <ORG> as token salary of the appellant amounted to punishment which the Government could not impose without following the procedure laid down by Art. 311 of the Constitution. In the view of <ORG> the appellant having been reinstated, there was no justification for not granting him full salary till July 14, 1959, the date till which he continued to function as Tehsildar after reinstatement. But <ORG> observed, "A writ of mandamus can, however, only direct the opposite parties to proceed in accordance with law. We, therefore, direct that the order contained in annexure 11 be quashed and <ORG> directed to reconsider the matter in the light of the relevant rule after giving notice to and hearing the petitioner." <ORG> further held that the appellant was not entitled to any higher salary nor was there anything to show that he had earned any annual increment or had crossed the efficiency bar.

Against the order passed by <ORG> partially allowing the petition and directing <ORG> to reconsider the matter regarding the pay and allowances due to the appellant for the period November 24, 1954, to April 28, 1959, this appeal has been preferred with certificate of fitness granted under Articles 132 (1) and 133 (1)(b) of the Constitution.

In our view, <ORG> was competent to direct a fresh enquiry against the appellant for dereliction of duty even if such dereliction was in the period relating to which proceedings were previously started and the appellant had been dismissed from service. The appellant was not in the earlier proceedings exonerated by <ORG> in respect of the alleged misconduct charged against him, and, in any event, charge against him in the second enquiry was different from the charge in the first enquiry. <ORG> had in the suit challenging the order passed in the first enquiry expressly observed that on the question as to misconduct and the punishment, no opinion was expressed. The suit filed by the appellant was decreed only on the ground that he had not been afforded a reasonable opportunity of showing cause against the charge against him and also the punishment decided to be imposed upon him.

Authorities on which reliance was placed by counsel for the appellants, namely, <CITATION> , <NAME> v.

Supdt. of police, <CITATION> officer, <ORG>, Ferozepore Cantt, do not support the plea that the second enquiry is, in the circumstances of the case, barred. An adjudication on the merits by a quasi-Judicial body may or may not debar commencement of another enquiry in respect of the same subject matter. But in this case we are concerned with the scope of the High court order. The binding effect of a judgment depends not upon any technical consideration of form, but of substance. <ORG> in the appeal filed by the appellant in suit No. 163 of 1954 did not exonerate the appellant from the charges. <ORG> decreed the suit on the ground that the procedure for imposing the penalty was irregular, and such a decision cannot prevent the <ORG> from commencing another enquiry in respect of the same subject matter consistently with the provisions of Arts. 310 and 311. In <NAME>'s case, in a previous enquiry the public servant concerned had been exonerated; and in <NAME> case a decision by the, civil court declaring illegal an order dismissing a public servant by an officer not authorised in that behalf was held binding on all the parties in proceedings under Art 226 till such decision was set aside in accordance with law. In <NAME> case it was held that an order in exercise of powers of revision by the Governor under the authority reserved to him setting aside on order of censure passed by a subordinate authority and dismissing the public servant concerned from service did not amount to a second departmental enquiry. These cases do not lend support to the proposition that after an order passed in a enquiry against a public servant imposing a penalty is quashed, by a civil court, no further proceeding can be commenced against him even if in the proceeding can be commenced against him even if in the proceeding in which the order quashing the enquiry was passed, the merits of the charge against the public servant concerned were never investigated.

If <ORG> was competent to order a fresh enquiry, we see no reason why it would be incompetent to direct suspension of the appellant during the pendency of the enquiry.

<ORG> in dealing with the appellant's claim to salary during the period of his suspension pending the earlier enquiry observed that there was no justification for "not granting the appellant his full pay" for the period after the date of the suit. But the counsel for the State of Uttar Pradesh asserted that it is open to the State, notwithstanding the direction, to award as remuneration to the appellant for the period for which he was under suspension any amount which on a reconsideration of the matter in the light of the relevant rules and after hearing the appellant <ORG> considers just and proper. This power, counsel contends, arises by virtue of Rule 54 of the Fundamental Rules framed by the State of Uttar Pradesh under the authority conferred under Art. 309 of the Constitution. Counsel says that it was because of this rule that <ORG> directed <ORG> to reconsider the matter in the light of the relevant rules.

In our view, this contention is wholly misconceived. Rule 54, as amended in 1953, stands as follows:-

"54. (1) When a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order-

(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) Where such competent authority holds that the Government servant has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be together with any allowances of which he was in receipt prior to his dismissal, removal or suspension. (3) In other cases, the <ORG>. servant shall be given such proportion of such pay and allowances as such competent authority may prescribe.

Provided that the payment of allowances under clauses (2) and (3) shall be subject to all other conditions under which such allowances are admissible. (4) In a case falling under clauses(2) the period of absence from duty shall be treated as the period spent on duty for all purposes.

(5) In a case falling under clause (3) the period of absence from duty shall not be treated as period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purposes.

This rule has no application to cases like the present in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated. This rule, undoubtedly enables <ORG> to fix the pay of a public servant whose dismissal is set aside in a departmental appeal. But in this case the order of dismissal was declared invalid in a civil suit. The effect of the decree of the civil suit was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfluous. The effect of the adjudication of the civil court is to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant. It would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work.

<ORG> has disallowed to the appellant his salary prior to the date of the suit. The bar of O.2 r. 2 of the Civil Procedure Code on which <ORG> apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution, but <ORG> having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by <ORG>.

The order of <ORG> therefore is confirmed. The State has made a wholly unjustifiable claim to fix the salary of a public servant wrongfully prevented from performing his duties, even after he is reinstated in consequence of a decision of the civil court declaring his dismissal as wrongful. As, however, the principal relief claimed by the appellant is not granted, we think that the proper order is that there will be no order as to costs throughout.


<NAME>, J.

1. This appeal has been filed by the State of Maharashtra against an order of <ORG> directing <NAME>, Inspector of Police, Faujdar Chavadi Police Station, Sholapur, the fourth respondent before <ORG>, to pay an amount of Rs. 10,000/- by way of compensation to the respondent herein, an undertrial prisoner, on the ground that the said police officer was guilty of violation of fundamental right of an undertrial prisoner under Article 21 of the Constitution of India. It further directed that an entry should be made in his service record. The facts that give rise to this appeal are as follows.

2. One <NAME> was murdered on 2nd August, 1989. During the investigation, the police suspected that the respondent herein was a party to the said murder. He was arrested in Karnataka State and was brought to Sholapur in the early hours of 17th August, 1989. A local paper called <ORG> published from Sholapur, carried in its issue of 17th August, 1989 a news item which stated that the respondent, an undertrial prisoner, would be taken in a procession or a parade from Faujdar Chavadi Police Station through the main squares of the city for the purpose of investigation. On 17th August, 1989, the respondent herein was handcuffed and both his arms were tied by a rope and he was taken through the streets and the same is not in dispute. The respondent herein filed a writ petition seeking a censure of the police officer and to award damages. A Division Bench of <ORG> having exonerated the Superintendent of Police and other respondents, held that the 4th respondent <NAME>, Inspector of Police, who is one of the appellants before us, has subjected the undertrial prisoner to an unwarranted humiliation and indignity which cannot be done to any citizen of India and accordingly directed him to pay the compensation and he was also censured as mentioned above.

3. It is submitted before as that the respondent had a long criminal record and that the murder of <NAME> was as a result of enmity between the two gangs and the respondent belonged to one gang and the situation required that he should be taken after being handcuffed. <ORG> elaborately dealt with this aspect and held that the explanation given by the Inspector of Police is wholly unacceptable. On behalf of the respondent, reliance is placed on some of the decisions of this Court on the aspect of handcuffing and violation of Article 21 of the Constitution of India. <CITATION> . , a Constitution Bench of this Court held that "the convicts are not wholly denuded of their fundamental rights. Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed." <CITATION> , this Court observed that "To be consistent with Articles 14 and 19 handcuffs must be the last refuge as there are other ways for ensuring security. No prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort." <CITATION> .  , this Court again reiterated following the principles laid down in <NAME> case1 and other cases held that handcuffing is an act against all norms of decency and amounts to violation of principles underlying Article 21. This Court also directed <ORG> to take appropriate action against the erring officials for having unjustly and unreasonably handcuffed the arrested persons.

4. Having gone through the entire record we are unable to disagree with some of the findings of <ORG> regarding the handcuffing and we do not propose to interfere with the order directing the payment of compensation. But we think that <NAME>, Inspector of Police, 2nd appellant herein, cannot be made personally liable. He has acted only as an official and even assuming that he has exceeded his limits and thus erred in taking the undertrial prisoners handcuffed, still we do not think that he can be made personally liable. <CITATION> . , this Court directed the <ORG> to pay compensation to the person illegally detained. <ORG> also having noted this decision observed that the court can order payment of compensation either by the <ORG> or persons acting on behalf of the <ORG>. Having so observed, <ORG>, however, held <NAME>, Inspector of Police personally liable and directed him to pay the compensation. We are of the view that in the instant case also a similar order as one passed in <NAME> case4, will meet the ends of justice. Then <ORG> has also directed that an entry should be made in his service record to the effect that he was guilty of violation of fundamental right of an undertrial prisoner. So far this direction is concerned, it is submitted that such an adverse entry cannot straightway be made without giving the Inspector of Police, 2nd appellant herein, an opportunity of being heard. We find considerable force in this submission and accordingly we modify the order of <ORG> as follows.

5. The compensation of Rs. 10,000/- as awarded by <ORG> shall be paid by the State of Maharashtra. The concerned authorities may, if they think it necessary, hold an enquiry and then decide whether any further action has to be taken against <NAME>, Inspector of Police. Subject to the above directions, this appeal is disposed of.


ORDER

1. This is a revision petition referred to us for disposal under Sub-section (1) of Section 8 of the Mysore High Court Act, 1961 by <NAME> It is necessary to state the relevant facts leading to the reference. The petitioners <NAME> and <NAME> are the parents of a child which died as a result of an accident caused by a motor vehicle at Davangere on 24-7-1963. They filed the suit O. S. 9/65 in <ORG>, Chitradurga, on 24-4-1965 against the owner of the vehicle, first defendant, and the Insurance Company which had insured the motor vehicle, defen-dant-2, for recovery of Rs. 10,000/- being the loss of future pecuniary benefit and Rs. 5,000/- towards the expectation of life, mental agony and loss of society.

2. The State Government, in exercise of the powers conferred by Section 110 of the Motor Vehicles Act, under a Notification No. H. D. 228 MVA 57 dated 28th June, 1963 and published in <ORG> on the same day, constituted the District Judges of various districts mentioned therein as Motor Accidents Claims Tribunals for the areas within their Jurisdiction with effect from 1st July 1963. Since there was no separate District Judge for Chitradurga District, the District Judge of Shimoga was constituted as the Tribunal for Chitradurga District in which Davangere is situated.

3. Since on the date of the accident a Tribunal under Section 110 of the Motor Vehicles Act, hereinafter referred to as the Act, had been constituted for the area in question, the Civil Judge held that the jurisdiction of his <ORG> as a Civil <ORG> has been ousted by Section 110-F of the Act. He therefore ordered return of the plaint for presentation to proper <ORG>. Against the said order the petitioners appealed to the District Judge of Chitradurga in 1966 by which time a separate District Judge had been appointed for Chitradurga District The District Judge of Chitradurga was also <ORG> under Section 110 of the Act by the time he came to hear the appeal, under the Notification No. HD 565 TMA 65 dated 28th October, 1965. The District Judge confirmed the order of the trial <ORG> and dismissed the appeal. Against that order the petitioners filed the present Civil Revision Petition.

4. If the claim for compensation made in the suit was a claim which is covered by Section 110 of the Act, and can be made to <ORG> which had exclusive jurisdiction to decide the claim, the jurisdiction of <ORG> is excluded by Section 110-F of the Act.

5. The petitioners contend that at any rate, so far as the first petitioner, the father of the child is concerned, his right to compensation conferred by the Fatal Accidents Act (Central Act 13 of 1855) is not a right, the adjudication of which has been taken away from the jurisdiction of <ORG> and placed within the exclusive jurisdiction of <ORG>. The argument in support of this contention is that whereas Section 110-A of the Act enables only the legal representative of the deceased to make an application for compensation to <ORG> the right conferred by Section 1-A of the Fatal Accidents Act is capable of being sued upon by a person who may not be the legal representative but nevertheless comes within the description of "representative of the person deceased" contained in the 2nd paragraph of Section 1-A of the Fatal Accidents Act. If is further contended that the word "representative" has a different meaning from the expression "legal representative" mentioned In Section 110-A of the Act.

6. The first contention urged on behalf of the petitioners is that the suit filed by the petitioners is one for recovery of damages and not for compensation and therefore the suit claim is not barred under Section 110-F . The argument of the petitioner's learned counsel was that under Section 110(1) of the Motor Vehicles Act, the Jurisdiction of <ORG> for the area is restricted to claims for compensation in respect of accidents involving death or bodily injury arising out of the use of motor vehicles and that under Section 110-F , the jurisdiction of <ORG> is barred in respect of any claim for compensation which may be adjudicated upon by <ORG> for the area. The first question, therefore, is whether a claim for compensation includes a claim for damages.

7. In Md. <NAME> v. <NAME>, AIR 1923 Cal 507 it was observed that the term "compensation" as stated in the Oxford Dictionary, signifies that which is given in recompense, an equivalent rendered, and that damages, on the other hand, constitute the sum of money claimed or adjudged to be paid in compensation for loss or injury sustained; the value estimated in money, of something lost or withheld. The term "compensation" etymologically suggests the image of balancing one tiling against an-, other; its primary signification is equivalence, and the secondary and more common meaning is something given or obtained as an equivalent. Thus, it is clear that the word "compensation" is a more comprehensive term and the claim for compensation includes a claim for damages and hence, the petitioners could have put forward their suit claim before <ORG>.

8. Under Section 110-A (1) (b) of the Act, an application for compensation arising out of an accident involving the death of a person arising out of the use of motor vehicles may be made by the legal representatives of the deceased. Under Clause (2) of Rule 342 of the Mysore Motor Vehicles Rules, 1963, it is provided that the term "legal representative shall have the meaning assigned to it under Clause (11) of Section 2 of the Code of Civil Procedure, 1908. In Section 2 Clause (11) of the Code of Civil Procedure the term "legal representative" as a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Hence it is urged on behalf of the petitioners that so far as the claim put forward by the father is concerned, it could not be adjudicated upon by <ORG> constituted under the Act, and that therefore, the jurisdiction of <ORG> to entertain the claim is not barred.

Under Section 1-A of the Indian Fatal Accidents Act (Central Act 13 of 1855) an action or a suit for damages in respect of the death of a person caused by wrongful act, neglect or default, of another person shall be for the benefit of the wife, husband, parent and child if any, of the person whose death shall have been so caused, and "shall be brought by and in the name of the executor, administrator or representative of the person deceased". It is further provided that the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought. Section 2 of the same Act provides that not more than one suit or action shall be brought for and in respect of the same subject matter of complaint, and the proviso to that section provides that in every such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased.

The Legal Representatives' Suits Act , 1855 (Act 12 of 1855) provides that an action may be maintained by the executors, administrators, or representatives of any person deceased, for any wrong committed in the lifetime of such person, which has occasioned pecuniary loss to his estate, for which wrong an action might have been maintained by such person. Both Act 12 of 1855 and Act 13 of 1855 were passed on the same day. The precise nature of the right conferred by Act 33 of 1855 was considered in <CITATION> , (1905) ILR 28 Cal 479. It was held that as the preamble of the Act 13 of 1855 itself indicated the relations of another were not, prior to its enactment, entitled to claim compensation on account of the death, and that the right to claim compensation in respect of such a death was created by the said Act. It was contended in that case that in the case of Europeans and Eurasians, the only 'representative' of a deceased man is his executor or administrator, and that in the said Act the word "representative" has no application to Europeans and Eurasians, but is used only with respect to Hindus and Mohammadans. It was held that the word 'representative' is not equivalent to 'heirs' since by Act 12 of 1855 passed on the same day, the right is given to bring a suit against "heirs or representatives" of the deceased wrong-doer. It was held that the word "representative' means and includes all or any one of the persons for whose benefit a suit under the Act can be maintained, and that these persons are the representatives of the deceased, in the sense, that they are the persons taking the place of the deceased in obtaining reparation for the wrong done. It was further held that where there is no executor or administrator or where there is one, and he fails or is unwilling to sue, then the suit may be instituted by, and in the name of, the representative of the person deceased, but one suit only is allowed to enforce the claims of all the persons beneficially entitled, -- it being provided that the rights of each and every one of them shall be adjudged and adjusted by the <ORG> in such suit. The right of each beneficiary is only to receive compensation in proportion to the loss occasioned to him by the death of his deceased relative. The beneficiaries entitled to compensation under Act 13 of 1855 are not persons entitled to claim compensation jointly, but are parties entitled to relief severally, in respect of the same cause of action which is enforceable at the suit of all or any of them suing for himself and the rest.

8-A. The Indian Fatal Accidents Act 13 of 1855 was enacted on the same lines as the English Fatal Accidents Act , 1846. Under Section 2 of the English Act, it is provided that the action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been caused and shall be brought by and in the name of the executor or administrator of the person deceased. Thus, it is only the executor or administrator of the deceased who could bring an action under the English Act . The English Act was amended by Fatal Accidents Act , 1864, which provided that in case there is no executor or administrator of the deceased or where there is an executor or administrator, no action is brought by him within the time prescribed, then such an action may be brought by and in the name or names of any of the persons for whose benefit such action could have been brought by the executor or administrator, and that every action so brought shall bo for the benefit of the said person or persons. Thus, it enables an action to be brought by the persons beneficially interested under the Act.

9. It has been observed in <NAME> v. <ORG>, 1966 Acc CJ 19 (Mad), a decision of <ORG>, that Section 110 of the Motor Vehicles Act provides a speedier remedy, obviously conceived as a better one from the point of view of the injured person or his unfortunate dependants. No new right or even a now remedy has been created by that provision; the forum alone is changed. The right to claim damages by the legal representatives of a deceased in respect of an accident, where the latter met with his death, was actionable under the pre-existing law, in <ORG>. The effect of the new provision is to create a new forum thus taking away the jurisdiction of the ordinary <ORG>. The aggrieved person has, as before, a remedy for damages in respect of the injury. The forum alone is changed. The period of limitation has also been curtailed but those two are matters of procedure.

<CITATION> , AIR 1934 Cal 665 it was held that tho word 'representative" has a special meaning of its own. It has not the same meaning as legal representative" in the Civil Procedure Code. The intention was that in the absence of an executor or administrator any one or more of the persons for whose benefit the right of action is given shall be deemed to be a "representative" of the deceased for the purpose o£ maintaining a suit under the Act. It could not have been intended that in such a case where there is no executor or administrator, the persons for whose benefit the right of action was given should be without a remedy. Consequently, a widow of a deceased European or Eurasian was held entitled to maintain a suit under the Fatal Accidents Act . The decisions in (1905) ILR 28 Mad 479 and AIR 1934 Cal 665 were followed in <NAME> v. <NAME>, AIR 1935 Bom 333 wherein it was held that the suit brought by the widow, sons and daughters of a deceased <NAME> under the Fatal Accidents Act was maintainable.

<CITATION> ., AIR 1947 Cal 195, it was held, following the view of the Madras and Calcuta High Courts, that the word "representative" in the Fatal Accidents Act means not the legal representative of the deceased but the wife, husband, parent and children of the deceased, and that any one of them can also bring the suit for the benefit of the others. <CITATION> , it was held that the claim preferred by the married sister of the deceased who died a bachelor, is maintainable under Section 110 (1) of the Act on the ground that Section 110-F provided for the foundation of a claim by any legal representative of the victim of the accident. The contention that such a claim be preferred only by the wife, child or parents who are the persons mentioned in the Fatal Accidents Act , was negatived. It has been held in <CITATION> , (1966) 1 Mys LJ 576 = (AIR 1967 Mys 11) that a claim for compensation can be made under Section 110-A of the Act not only against the owner of the motor vehicle and the Insurer, but also against the driver whose negligence produces the claim for compensation. In Re: Crawford's Trust, (1854) 23 LJ Ch 625 it has been held that the word "legal" when added to "representative" only means the representatives reorganised by law and does not designate different persons from those who would be intended by the single word "representatives", any more than the term 'legal heirs" describes different persons from those who would be designated by the single word "heirs".

10. After the Motor Vehicles Act was amended by incorporating Sections 110 to 110-F , it is only the forum which has been changed in order to provide for a speedier remedy. In our Judgment, the term "legal representative" in Section 110-A includes the persons referred to as "representatives" in Section 1-A of the Fatal Accidents Act, namely, the wife, husband, parent or child of the deceased. Since both the petitioners come within the meaning of "parent" they could have made their claim before <ORG>. In that view, <ORG> jurisdiction to entertain the suit is clearly barred. The Courts below were right in returning the plaint for presentation before the proper forum.

11. Since we have held that the term "legal representative" used in Section 110-A of the Act cannot have the same meaning as that attributed to it under Section 2(11) of the Code of Civil Procedure the right that could be exercised under Section 110-A of the Act cannot be confined to persons who come within the term "legal representative" as defined under Section 2(11) of the Civil Procedure Code only. The right of representatives of the deceased who do not come under the definition of the term "legal representatives" as defined in the Code of Civil Procedure to put forward a claim under Section 110-A of the Act cannot be taken away by means of a rule framed under the Rule-making power conferred by Section 111-A of the Act. The power to make rules under Section 111-A is given to <ORG> only for the purpose of carrying into effect the provisions of Section 110-A of the Act, and while acting for that purpose, <ORG> cannot restrict the right given under Section 110-A of the Act to only some of the persons contemplated under that Section. Hence, Clause (2) of Rule 342 is beyond the Rule-making power of <ORG> and is therefore invalid.

12. The revision petition is therefore, dismissed. But in the circumstances of the case there will be no order as to costs.

13. Petition dismissed.