judgement:
Civil Appeal No. 453 of 1988.
897 From the Judgment and Order dated 5.3.1984 of the Punjab and Haryana High Court in Civil Revision No. 3411 of 1983.
E.C. Agarwala for the Appellants.
G.K. Bansal for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The two short questions involved in this case are (i) whether the right of pre emption conferred on a tenant by a customary law is heritable or not and (ii) whether on the death of such a tenant, who had filed a suit for pre emption his legal representatives can continue the suit.
The property in dispute which is a double storied building situated in the town of Jagadhri, District Ambala, Haryana originally belonged to one Om Prakash.
Kishan Chand was in possession of a part of the said property as a tenant.
Om Prakash sold the entire property including the portion occupied by Kishan Chand to the respondent for a sum of Rs.23,000 under a registered sale deed dated 11.7.1980.
It is alleged that in the town of Jagadhri there was in force a customary law under which a tenant in occupation or a building had a right of pre emption.
Aggrieved by the sale of the property in his occupation as a tenant, Kishan Chand filed a suit for pre emption in the Court of the Sub Judge, II Class, Jagadhri in Civil Suit No. 131 of 1980 on 26.8.1980 stating that the value of the portion of the property occupied by him was Rs. 10.000.
The respondent denied that there was such a customary law conferring a right of pre emption on a tenant in force in the town of Jagadhri and that in the event of a decree being passed in the suit the plaintiff should be asked to pay a sum of Rs.20,000 by way of consideration.
During the pendency of the suit, Kishan Chand died on 8.8.1983.
An application was filed under Order 22, Rule 3, Civil Procedure Code by the appellants, who were the legal representatives of Kishan Chand to bring them on record in the place of the original plaintiff, Kishan Chand and to permit them to prosecute the suit further.
The respondent opposed the said application contending that the right of pre emption, even if it existed, was only a personal right of Kishan Chand and was not heritable and, therefore, the appellants were not entitled to be brought on record as the legal representatives of Kishan Chand.
It was further contended by the respondent that the suit was liable to be dismissed on the death of Kishan Chand as the right to sue did not survive.
The trial court 898 allowed the application made under Order 22, Rule 3, Civil Procedure Code holding that the right of pre emption was heritable and the right to sue survived on the death of the plaintiff in favour of his legal representatives.
Aggrieved by the order passed by the trial court, the respondent filed a revision petition under section 115, Civil Procedure Code before the High Court of Punjab & Haryana in Civil Revision No. 3411 of 1983.
Before the High Court, the respondent relied on a Full Bench decision of the High Court of Punjab & Haryana in Chandrup Singh and Another vs Data Ram and Another, [1982] Punjab Law Reporter 771 in which it had been held that a statutory right of pre emption resting only on blood relationship created by section 15(1) of the Punjab Pre emption Act, 1913 (1 of 1913) (hereinafter referred to as 'the Act ') (as it was in force in Haryana) was not a heritable right and did not devolve on the heirs on the death of the plaintiff pre emptor before the grant of the decree in the suit.
Though the learned Judge, who heard the revision petition, was of the view that the above Full Bench decision ran counter to the decision of the Supreme Court in Hazari & Ors.
vs Neki & Ors.
, ; he allowed the petition following the Full Bench decision on the ground that the said decision was bindig on him and declared that the suit instituted by Kishan Chand had abated on his death.
We have gone through the decision of this Court in Hazari 's case (supra) and also the Full Bench decision of the High Court of Punjab & Haryana in Chandrup 's case (supra).
The facts in Hazari 's case (supra) were these.
The plaintiff, who was the father 's brother of one Dhara Singh instituted three suits for pre emption of the lands sold by Dhara Singh under three sale deeds on the ground that he had a superior right of pre emption on the basis of his relationship with the vendor as against the purchasers under section 15(1)(a) of the Act.
The suits were decreed by the trial court.
The purchasers took the matter in appeal before the 1st Appellate Court and those appeals were dismissed, but in one of the appeals there was a slight modification in the amount which the plaintiff had to pay to the purchasers.
The purchasers filed three second appeals before the High Court against the judgments and the decrees of the 1st Appellate Court and the plaintiff also preferred a second appeal before the High Court in one of the cases against the increase made in the price of the land by the 1st Appellate Court.
While the second appeals were pending in the High Court, the plaintiff died.
After his death application were moved under Order 22, Rule 11 of the Civil Procedure Code to bring the legal representatives of the deceased plaintiff on record.
All the four second appeals were heard and dismissed by the High Court.
The purchasers 899 having failed in the Letters Patent Appeals filed before the Punjab & Haryana High Court against the decrees passed in the second appeals, filed three appeals before this Court by special leave.
It was contended before this Court by the purchasers that on the death of the plaintiff, the right to sue came to an end and his legal representatives were not entitled to claim any benefit under the decrees in question.
Rejecting the above contention this Court observed at page 836 of the Report thus: "In support of these appeals, learned counsel put forward the argument that the right of pre emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were not entitled to be granted a decree for preemption.
The argument was that the statutory right of preemption under the Punjab Act was not a heritable right and no decree for pre emption should have been passed by the lower court in favour of the legal representatives as representing the estate of Neki.
We are unable to accept the argument put forward by the appellants.
It is not correct to say that the right of pre emption is a personal right on the part of the pre emptor to get the re transfer of the property from the vendee who has already become the owner of the same.
It is true that the right of pre emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land.
The correct legal position is that the statutory law of pre emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner 's right of sale and compels him to sell the property to the person entitled to pre emption under the statute.
In other words, the statutory right of preemption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to preempt.
" In reaching the above conclusion this Court while accepting the contention that the right of pre emption under section 15(1)(a) of the Act did not create an interest in the land was, however, of the view that the right did not abate on the death of the plaintiff during course of the 900 proceedings in court.
This Court referred to the decision of the Punjab & Haryana High Court in Faqir Ali Shah vs Ram Kishan & Ors., 133 P.R. 1907 and the decision of the Allahabad High Court in Wajid Ali & Anr.
vs Shaban & Ors.
, I.L.R. 31 Allahabad 623.
In the latter decision, namely, the Wajid Ali 's case (supra) the High Court of Allahabad had held that where a right of pre emption existed by custom as recorded in the village Wajib ul arz, the right having once accrued did not of necessity lapse by the death of the pre emptor before making a claim, but descended along with the property in virtue of which it subsisted to the heir of the pre emptor.
It is significant that in that case the High Court of Allahabad had taken the view that the right of pre emption which had accrued in favour of the pre emptor would descend along with the property in virtue of which it subsisted to the heir of the pre emptor, even when the death of the pre emptor had taken place before he made a claim for pre emption.
The Full Bench of the High Court of Punjab & Haryana which heard Chandrup 's case (supra) after noticing the decision of this Court in Hazari 's case (supra) distinguished the said decision observing thus: "21.
To conclude, on the particular language of the statute, on principle, and on the weight of precedent, it is held that the purely statutory right of pre emption, resting wholly on blood relationship alone under section 15(1) of the Punjab Pre emption Act, is not a heritable right and does not devolve on the heirs on the death of the plaintiff pre emptor before the grant of the decree in the suit.
The answer to the question posed at the very outset is thus rendered in the negative.
" We find it difficult to agree with the decision of the Full Bench of the High Court of Punjab & Haryana in the above case.
While it may not be disputed that a right of pre emption does not give rise to an interest in immovable property, in the instant case the plaintiff had acquired the said right of pre emption under the customary law by virtue of the right of tenancy which he had in the portion of the property in his possession.
It cannot be disputed that the right of tenancy itself was heritable and, therefore, every right attached to the said right of tenancy or incidental to it should ordinarily be heritable.
There can be no distinction between a right of pre emption arising under the statute law or such a right arising under customary law.
The other reason given by the Full Bench in order to distinguish the decision of this Court in Hazari 's case (supra) namely that the pre emptor 901 had died at the stage of second appeal in the said case while the pre emptor had died in the case before the Full Bench at the stage of trial also does not appeal to us.
The view expressed in Muhammad Husain vs Niamet un nissa and Ors., I.L.R. 20 Allahabad 38 that under Mohammadan law applicable to the Sunni sect if a plaintiff in a suit for pre emption had not obtained his decree for pre emption in his life time the right to sue did not survive to his heirs is not relevant for purposes of this case.
It is true that the said decision was noticed by this Court in Hazari 's case (supra) but this Court did not express any opinion on the correctness of the above position.
In the case before us the right of pre emption is claimed not on the basis of Mohammadan law but under customary law by the heirs of a tenant who was in possession of the property in question and who had instituted a suit for enforcing the said right of pre emption.
It is appropriate to refer to the following passage in Faqir Ali 's case (supra) which is extracted in Hazari 's case (supra) at page 837: "While, therefore, there is good reason why voluntary transfers should not pass a right of pre emption as regards properties previously sold, those reasons do not apply to transfers by inheritance.
As regards transfers by inheritance, the general principle should apply that the right of pre emption passes with the land.
Mr. Grey laid great stress on sections 13 and 16 of the Punjab Laws Act urging that the father was the person on whom the notice had to be served, and that it was he who had the right to sue and that the right was thus a personal one that could not be inherited by the son.
The right was no doubt a personal one in the father based on his land, but I can see no reason why such right cannot be inherited by the son.
If the father had waived or otherwise disposed of his right this would no doubt be binding on the son, as the father was representing the whole estate.
Where, however, the father has done nothing of the kind, but has simply taken no steps in the matters, there seems to me no reason why the son should not step into the shoes of his father and take the same action as the father could have done.
The son inherits the other causes of action belonging to his father and why not this one? Nor do I see why the son cannot come in under section 16, simply alleging that no notice as required by section 13 was served on his father.
" 902 Hence the fact that the pre emptor had died in the present case at the trial stage cannot make any difference.
We are, therefore, of the view that the decision of the Punjab & Haryana High Court in Chandrup 's case (supra) is inconsistent with the decision of this Court in Hazari 's case (supra) and has to be overruled.
We accordingly overrule it.
We hold that the right to sue in the present case survived on the death of Kishan Chand in favour of the appellants who were his legal representatives and they were entitled to be brought on record in substitution of the original plaintiff Kishan Chand under Order 22 Rule 3 of the Civil Procedure Code.
The appeal is accordingly allowed, the order of the High Court is set aside and the order of the trial court is restored.
The trial court is directed to bring the appellants on record as the legal representatives of the deceased plaintiff and to proceed to dispose of the suit on merits.

summary:
% The property in dispute was sold by its original owner to the respondent.
Claiming that there was a local custom under which the tenant in occupation of a building had a right of pre emption, the tenant of a portion of the property filed a suit for pre emption and valued the portion at Rs.10,000.
The suit was opposed by the respondent contending that there was no such customary law and that in case the decree was passed, the plaintiff should be asked to pay Rs.20,000, as consideration.
During the pendency of the suit, the plaintiff tenant died and the appellants, his legal representatives filed an application under Order 22, Rule 3 of Civil Procedure Code, for being brought on record in place of the original plaintiff and for permission to prosecute the suit further.
The respondent, opposed the application contending that the right of pre emption, even if it existed, was only a personal right of the tenant and was not heritable, and consequent on his death the right to sue did not survive, and therefore the suit was liable to be dismissed.
Aggrieved by the aforesaid order, the respondent filed a revision petition before the High Court, which allowed the same following a Full Bench decision of that Court in Chandrup Singh and Anr.
vs Data Ram and Anr., [1985] Punjab Law Reporter 771, that a statutory right of pre emption resting only on blood relationship created by section 15(1) of the Punjab Pre emption Act, 1913 was not a heritable one and did not devolve on the heirs on the death of the pre emptor before the grant of 896 the decree in the suit, and declared that the suit instituted by the tenant had abated on his death.
Allowing the appeal, ^ HELD: While a right of pre emption does not give right to an interest in immovable property, the right of tenancy itself was heritable and, therefore, every right attached to the said right of tenancy or incidental to it should ordinarily be heritable.
There can be no distinction between the right of pre emption arising under the statutory law and the customary law.
[900F, H] In the instant case, the plaintiff had acquired the said right of pre emption under customary law by virtue of right of tenancy which he had in the portion of the property in his possession and had instituted a suit for enforcing that right.
The fact that the pre emptor had died at the trial stage cannot make any difference.
[900G] The right to sue therefore survived on the death of the plaintifftenant in favour of the appellants, who were his legal representatives, and they were entitled to be brought on record in substitution of the original plaintiff tenant under Order 22, Rule 3 of the Civil Procedure Code.
[902B C] The trial court was directed to bring the appellants on record as legal representatives of the deceased plaintiff and to dispose of the suit on merits.
[902C] Chandrup Singh and Another vs Data Ram and Another, [1982] Punjab Law Reporter 771, over ruled.
Hazari & Ors.
vs Neki & Ors.
, ; , followed.
Wajid Ali & Anr.
vs Shaban & Ors.
, I.L.R. 31 Allahabad 623, approved.
Muhammad Husain vs Niamet un nissa and Ors., I.L.R. 20 Allahabad 88, distinguished.
Faqir Ali Shah vs Ram Kishan & Ors., 133 P.R. 1907, referred to.


judgement:
N: Criminal Appeal Nos.
657 58 of 1986.
From the Judgment and Order dated 13.2.1986 of the High Court of Bombay in Criminal Application No. 120 of 1984.
Dr. L.M. Singhvi, Ram Jethmalani, Dalveer Bhandari, Mrs. Madhu Bhandari, S.S. Khanduja, A.M. Khanwilkar and A.S. Bhasme for the Appearing parties.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Both the appeals are by special leave and are directed against the same judgment of the Bombay High Court on an application under section 482 of the Code of Criminal Procedure.
The High Court by the impugned decision quashed the prosecution against two of the four accused persons.
The two accused persons whose prosecution has not been quashed are appellants in Criminal Appeal No. 657 of 1986 while the complainant assails the decision of the High Court quashing the prosecution of the two accused persons in Criminal Appeal No. 658 of 1986.
Rajamata Smt.
Vijaya Raje Scindia of Gwalior created a trust on 23rd of February, 1966, known as "Srikrishna Madhava Trust" with four trustees in all including the settler, the other three trustees being Mr. Madhavrao Jiwajirao Scindia, Col. Eknath Trimbak Patil and Kumar Shanbhajirao Chandrojirao Angre.
Madhavrao is the son of the settler while the other two, though residents of Gwalior, are not members of the family. 'Vijay Vilas ' a large house located in the Bombay city constituted a part of the trust property.
Russi Homi Awary and Damodar Rangrppa Shenoy, respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager respectively of the Trust between 1976 and 1982.
Flat No. 15 of 'Vijay Vilas ' was in the occupation of the Sushiladevi Kathait on tenancy basis.
In June, 1981, the said tenant surrendered the tenancy and on 9th of June, 1981, the 933 Secretary issued a certificate to the effect that the tenancy had terminated.
On 31st of March, 1982, the said Secretary issued another certificate to the effect that the aforesaid tenancy terminated with effect from 1st April, 1980, after the entire rental liability had been liquidated.
On the allegation that the two officers of the Trust in conspiracy with trustee Madhavrao and his wife Smt.
Madhavi had created documents showing tenancy in respect of that flat in favour of Smt.
Madhavi, a complaint was filed by trustee Angre in the Court of the Metropolitan Magistrate, 28th Court, Esplanade, Bombay on 27th July, 1983.
Summons were directed to be issued against the four persons referred to above for offences punishable under sections 406, 467 read with sections 34 and 120 B of the Indian Penal Code.
The accused persons challenged the proceedings before the High Court by filing an application under section 482 of the Code and prayed for quashing of the criminal case.
By the impugned order dated 13th February, 1986 the High Court quashed the proceedings so far as accused Nos. 2 and 4 were concerned but sustained the order of the Metropolitan Magistrate in regard to the remaining two accused persons.
Hence these appeals have been filed as already stated.
The settler and the accused being mother and son, an attempt was made to bring about a settlement but that having failed the appeals have been heard on merit and are being disposed of by this common judgment.
Dr. Singhvi,, learned counsel appearing for the accused appellants has contended that the criminal proceedings are without any basis and if at all, a civil wrong may be said to have been caused.
According to him, the trust deed authorised trustee Madhavrao to look after the affairs of the Trust.
The flat had been tenanted at a particular rent when the tenant vacated; and a new tenant had to be inducted it being the common case that the flat was intended for tenancy Madhavi wanted to be the tenant and at the rate of rent which the outgoing tenant was paying, a new tenancy was created.
Under the law applicable to tenancies in Bombay, a higher rent is not chargeable and as such no higher amount of rent could be claimed by the Trust in regard to the flat.
The wife of the trustee is an independent person having her own income and the tenancy in favour of Madhavi cannot be considered to be creating an interest in favour of the trustee.
Dr. Singhvi further relied upon a lawyer 's notice issued on behalf of the trust calling upon Madhavi to surrender the tenancy in favour of the Trust failing which action was threatened.
Madhavi volunteered to surrender the tenancy and thus there was really no 934 justification, according to Dr. Singhvi, for initiating criminal proceedings.
In the facts and circumstances of the case narrated above, the appellants ' counsel contended that there was no mens rea for the offences as alleged and at the most it amounted to a civil wrong.
He argued that the mother and the son had fallen out and on that score the machinery of the Court should not be permitted to be utilised for private vengeance.
Mr. Jethmalani, appearing for the complainant, on the other hand, maintained that it was a clear case of breach of trust and according to him every breach of trust would simultaneously be a civil wrong and a criminal offence and if summons have been issued by the Metropolitan Magistrate on the basis of the complainant 's allegations, no objection could be taken at the preliminary stage.
It is appropriate that the complainant should be given an opportunity to establish his case by leading evidence.
He relied upon the provisions of section 53 of the Indian Trust Act which provides: "No trustee, and no person who has recently ceased to be a trustee, may, without the permission of a principal Civil Court of original jurisdiction, buy or become mortgagee or lessee of the trust property or any part thereof; and such permission shall not be given unless the proposed purchase, mortgage or lease is manifestly for the advantage of the beneficiary.
" We have considered the relevant documents including the Trust deed as also the correspondence following the creation of the tenancy.
We have also kept in view the submissions advanced on behalf of the parties by their respective counsel.
We have further taken into consideration the natural relationship between the settler and the son and his wife and the fall out.
The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence.
It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue.
This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to 935 continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
Mr. Jethmalani has submitted, as we have already noted, that a case of breach of trust is both a civil wrong and a criminal offence.
There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence.
We are of the view that this case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting.
Several decisions were cited before us in support of the respective stands taken by counsel for the parties.
It is unnecessary to refer to them.
In course of hearing of the appeals, Dr. Singhvi made it clear that Madhavi does not claim any interest in the tenancy.
In the setting of the matter we are inclined to hold that the criminal case should not be continued.
Criminal Appeal No. 657 of 1986 is allowed and the criminal prosecution against the two appellants being Madhavrao and Russi Homi Avari is quashed.
In view of what we have stated above, Criminal Appeal No. 658 of 1986 has to fail and is dismissed.
N.P.V. Appeal dismissed.

dataset_name: IN-Abs

summary:
% A trust with the settler, her son and two others, as trustees was created.
Part of the trust property included a large house.
Respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager of the trust between 1976 and June, 1981.
On a complaint filed in the court of the Metropolitan Magistrate by one of the trustees alleging that these two officers, in conspiracy with one of the trustees, son of the settler, and his wife, had created documents showing tenancy in respect of a flat of the large house, forming part of the trust property, in favour of the aforesaid trustee 's wife, summons were directed to be issued against the aforesaid four accused for offences punishable under sections 406 and 467 read with section 34 and 120B of the IPC.
The accused persons challenged the proceedings before the High Court which quashed the proceedings against two of the accused, but sustained the order of the Magistrate against the other two accused, appellants in Civil Appeal No. 657 of 1986.
931 Appeals against the aforesaid order were filed in this Court both by the two accused, whose prosecution was not quashed, as also the complainant.
On behalf of the accused appellants, it was contended that the trust deed authorised the trustee to look after the affairs of the trust, but the tenancy in favour of the trustee 's wife could not be considered as creating an interest in favour of the trustee as the wife was an independent person having her own income, that there was no mens rea involved for initiating criminal proceedings and, at the most it amounted to a civil wrong, and that the court machinery should not be permitted to be utilised for private vengeance as the mother and the son had fallen out.
On behalf of the complainant it was urged that in view of section 53 of the , it was a clear case of breach of trust and that every breach of trust would simultaneously be a civil wrong and a criminal offence, and an opportunity should be given to the complainant to establish his case by leading evidence, and that no objection could be taken at the preliminary stage.
Allowing the appeal of the accused and dismissing the appeal of the complainant, the Court, ^ HELD: When a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations, as made, prima facie establish the offence.
It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue.
This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
[934G H; 935A] A case of breach of trust may be both a civil wrong and criminal offence.
But there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence.
The instant case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting.
[935B C] 932 Having regard to the relevant documents, including the trust deed and the correspondence following the creation of the tenancy and taking into consideration the natural relationship between the settler and the son and his wife and the fall out and the fact that the trustee 's wife does not claim any interest in the tenancy, the criminal case should not be continued.
The criminal proceedings against the appellants accused are quashed.
[934F; 935C D]


judgement:
Civil Appeal No. 707 of 1988.
From the Judgment and Order dated 13.10.87 of the Bombay High Court in A. No. 969 of 1984.
S.B. Bhasme and A.S. Bhasme for the Appellant.
Dr. Y.S. Chitale and R.S. Nariman for the Respondent No. 16.
Mrs. Karanjawala and Ms. Meenakshi Arora for the Caveator.
The following order of the Court was delivered: O R D E R Special leave granted against Respondent No. 16 in so far as relief claimed against Respondent No. 16.
The Charity Commissioner of State of Maharashtra has approached this Court by way of Special leave in order to seek redress in respect of the observations made by the Division Bench of the High Court casting reflections on the conduct of the officials of the organization and in regard to their competence to decide matters in their quasi judicial capacity.
He has also sought a direction against Respondent No. 16 who is present by caveat.
We are constrained to observe that the High Court might well have avoided casting reflections against the Deputy Charity Commissioner who was merely discharging his quasi judicial functions under the Bombay Public Trusts Act.
He should have been permitted to discharge his functions in regard to the issues arising before him in the light of his own independent perspective.
The 951 observations made by learned Single Judge, by the very nature of things, were of a tentative nature as the learned Single Judge was deciding the matter arising out of an interlocutary proceeding.
In fact, the observations made by the learned Single Judge on merits in regard to the interpretation of the clauses of the Will could not have influenced even the trial court.
Besides, an appeal to the Division Bench was pending.
Under the circumstances, taking a view which was different from the view reflected in the judgment of the learned Single Judge on the part of the Deputy Charity Commissioner could by no stretch of imagination be said to have been made in scant regard of the judgment of the High Court.
Nor could it ever have been construed as exhibiting disrespect for the High Court.
The Division Bench went far too far in observing to the effect that what the Deputy Charity Commissioner had done in discharging his quasi judicial functions would constitute contempt of Court.
Learned Deputy Charity Commissioner was entitled to take his own view subject to his decision being questioned in accordance with law before the High Court.
The observations made against the Deputy Charity Commissioner were therefore altogether uncalled for and unfair.
We, therefore, direct that these observations be treated as non existent.
We wish to make it clear that the Deputy Charity Commissioner has not been amiss or at fault in the smallest respect in taking the view which commended itself to him and which he was at full liberty to take under the law.
We wish to place on record that nothing said in the judgment of the Division Bench in Appeal No. 969 of 1974 should be construed as a reflection on the learned Deputy Charity Commissioner.
We are also of the view that the observations made in regard to the mode of recruitment to the office in question were also uncalled for and should be treated as non existent.
In the facts and circumstances of the case the Division Bench might will have permitted the Charity Commissioner to be substituted for the appellant before the Court for he was merely making sincere endeavour in the discharge of his official duties to protect the interest of the charity as he was duty bound to do, so as to be true to his office.
We have heard the learned counsel for the Respondent No. 16 in regard to the relief claimed against him.
Both counsel are agreeable to the directions which follow.
The status quo in regard to the property in question shall be maintained and Respondent No. 16 shall not get executed or obtain a sale deed in respect of the property in his favour or in favour of his nominees or assignees till the question is finally disposed of by the 952 Assistant Charity Commissioner or by the Appellate Authority, if any appeal is carried.
The Assistant Charity Commissioner before whom the matter is pending will have full liberty to decide the matter in accordance with law in the light of his own perception of the matter without being influenced one way or the other by any observation made in the judgment of the learned Single Judge or in the judgment of the Division Bench of the High Court which have given rise to the present Special Leave Petition.
We express no opinion on merits in regard to the effect of the relevant clauses of the Will as indeed we cannot do.
The Assistant Charity Commissioner will dispose of the matter pending before him with expedition preferably within the outside limit of six months.
The matter shall stand disposed of accordingly.
G.N. Appeal disposed of.

summary:
% A Division Bench of a High Court made certain observations casting reflections on the conduct of certain officials and their competence to decide matters in the quasi judicial capacity.
In the appeal by special leave the Charity Commissioner sought redressal in respect of such observations.
A direction against Respondent No. 16 was also sought.
Disposing of the appeal this Court, ^ HELD: 1.
The High Court might well have avoided casting reflections on the Deputy Charity Commissioner who was merely discharging his judicial functions under the Act.
He should have been permitted to discharge his function in regard to the issues arising before him, in the light of his own independent perspective.
The observations made by the Single Judge on merits in regard to the interpretation of the clauses of the Will could not have influenced even the trial court.
Besides, an appeal was pending before the Division Bench.
Taking a view different from the one reflected in the judgment of the Single Judge could not be said to have been made in scant regard of the judgment; nor can it be construed as exhibiting disrespect for the High Court.
The Division Bench went too far in observing to the effect that what the officer had done in discharging his quasi judicial functions would constitute contempt of Court.
The official was entitled to take his own view subject to his decision being questioned in accordance with law.
He had not been amiss or at fault in taking the view which commended itself to him and which he was at full liberty to take under the law.
The observations made against the Deputy Charity Commissioner should be treated as non existent.
So also the observations made in regard to the mode of recruitment to the office in question.
[950G H; 951A E] 2.
The status quo in regard to the property in question shall be maintained.
Respondent No. 16 shall not get executed or obtain a sale 950 deed in respect of the property in his favour or in favour of his nominees or assignees till the question is finally disposed of.
The Assistant Charity Commissioner before whom the matter is pending will have full liberty to decide the matter in accordance with law in the light of his own perception of the matter without being influenced one way or the other by any observation made in the judgment of the learned Single Judge or in the judgment of the Division Bench of the High Court.
[951H; 952A B] [The Court directed the Assistant Charity Commissioner to dispose of the matter with expedition preferably within the outside limit of six months.] [952C]


judgement:
Civil Appeal No. 2537 of 1985 etc.
From the Judgment and Order dated 27.4.1984 of the Bombay High Court in O.S.W.P. No. 704 of 1984.
G.G. Kalsekar, K.M.M. Khan, N. Nettar and S.N. Bhat for the Appellants.
S.K. Dholakia, Ashok H. Desai, A.M. Khanwilkar, A.S.Bhasme, D.N. Mishra, section Sukumaran, G.E. Vahanvati, V.B. Agarwala, B.B. Agarwala, R.B. Hathi Khanawala for the Respondents.
Vinod A. Bobde, Mrs. J. Wad and Mrs. Aruna Mathur for the Intervener.
922 The Judgment of the Court was delivered by DUTT, J.
The subject matter of this appeal by special leave is the permission for development of the land granted in favour of respondent No. 5 who proposed to construct a five star hotel on a tract of land measuring 44,820.49 square yards at Bandra, Bombay, bearing R.S. Nos. 416 (Part) and 417.
The land in question had been purchased by the respondent No. 5, Enjay Estates Pvt. Ltd., from its erstwhile owner, Byramji Jeejeebhoy Pvt. Ltd. In the 1966 sanctioned Development Plan of Greater Bombay, the said land was shown in the residential zone and a contiguous parcel of land measuring 18,000 sq.
was shown as a green belt.
With a view to developing the disputed land, the respondent No. 5 submitted a plan to the Municipal Corporation of Greater Bombay for the construction of a five star hotel.
The Commissioner of the Municipal Corporation, however, rejected the plan on the sole ground that it was proposed to earmark the said land under reference as a recreational ground with suitable internal network of roads during the revision of the development plan which was in the offing.
Being aggrieved by the said rejection of the plan, the respondent No. 5 pref erred an appeal to the Government of Maharashtra under section 47 of the Maharashtra Regional and Town Planning Act, 1966, hereinafter referred to as 'the Act '.
The appellants, who are rate payers of the Municipal Corporation of Greater Bombay and claim to be members of various ecological action groups, appeared in the appeal and opposed the same contending, inter alia, that the whole of the said land should be kept reserved for a green belt or recreational ground in the interest of the general public.
The appeal was heard by the Minister of State for Urban Development, the respondent No. 2 herein.
The respondent No. 2 set aside the order of the Commissioner of the Municipal Corporation rejecting the plan submitted by the respondent No. 5 after hearing the petitioners as also the Municipal Commissioner and directed sanctioning of the plan on certain conditions which will be referred to later in this judgment.
The Municipal Corporation accepted the appellate order and did not challenge the order of the respondent No. 2.
But the appellants filed a writ petition challenging the legality of the order of the respon 923 dent No. 2 granting sanction of the plan submitted by the respondent No. 5 for the construction of a hotel on the said land.
The writ petition was, however, dismissed by the Division Bench of the High Court by the judgment under appeal.
At this stage, we may refer to some of the provisions of the Act.
It is an Act to make provision for planning the development and use of land in Regions established for that purpose and for the constitution of Regional Planning Boards therefor; to make better provisions for the preparation of Development Plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective; to provide for the creation of new towns by means of Development Authorities; to make provisions for the compulsory acquisition of land required for public purposes in respect of the plans; and for purposes connected with the matters aforesaid.
Section 2(9) defines "Development Plan" to mean a plan for the development or re development of the area within the jurisdiction of a Planning Authority and includes revision of a development plan and proposals of a Special Planning Authority for development of land within its jurisdiction.
Under section 2(19), "Planning Authority" means a local authority; and includes a Special Planning Authority constituted or appointed under section 40.
Chapter III of the Act contains provisions for the Development plan.
Section 23 provides for the declaration of intention by the Planning Authority to prepare a Development plan.
Section 26 provides for the preparation and the publication of notice of draft Development plan.
Under section 30, the Planning Authority has to submit the draft Development Plan to the State Government for sanction.
Section 31 provides for the sanction to the draft Development plan by the State Government.
Section 43 provides, inter Ala, that after the date on which the declaration of intention to prepare a Development plan for any area is published in the Official Gazette, no person shall carry out any development of land without the permission in writing of the Planning Authority.
Section 45 deals with grant or refusal of sanction for development by the Planning Authority.
Section 45 enjoins that the Planning Authority in considering an application for permission shall have due regard to the provisions of any draft or final plan or proposals published by means of notice submitted or sanctioned under the Act.
Section 47 provides for an appeal to the State Government or to an officer appointed by the State Government by any applicant aggrieved by an order granting permission on conditions or refusing permission under section 45.
In allowing the appeal of the respondent No. 5 and directing 924 sanction of the development plan, the respondent No. 2 observed that in view of the clear provisions of sections 46 and 31(6) of the Act and having regard to the position that in the sanctioned plan of 1966, the said land was included in the residential zone and no proposal to exclude it therefrom in the draft revised development plan had been published, the Municipal Commissioner was not justified in rejecting the application for approval of the plan submitted by the respondent No. 5 on the ground that the Bombay Municipal Corporation had decided to revise the 1966 Development Plan.
We have already referred to section 46 of the Act which provides that the Planning Authority in considering the application for permission shall have due regard to the provisions of any draft or final plan or proposals published by means of notice submitted or sanctioned under the Act.
It seems that the respondent No. 2 was of the view that the Planning Authority could only take into its consideration any draft or final plan or proposal which had been published by means of notice or sanctioned under the Act as provided in section 46.
There is, in our opinion, some force in the contention made by Mr. Kalsekar, learned Counsel appearing on behalf of the appellants, that the respondent No. 2 has misunderstood the provisions of section 46.
It is submitted by the learned Counsel that the Municipal Corporation was entitled to take into consideration other relevant facts including the contemplated revision of the plan, apart from those mentioned in section 46.
In support of his contention, the learned Counsel has placed reliance on an unreported decision of a learned Single Judge of the Bombay High Court in Life Insurance Corporation of India and Another vs Municipal Corporation of Greater Bombay and Others, Writ Petition No. 2944 of 1932 disposed of on 6.3.1984.
In that case, a development application was rejected by the Municipal Corporation on the ground that the property was proposed to be reserved for public purposes or for recreational ground in the draft revised development plan, and the High Court repelled the challenge to the decision taking the view that even the proposed revision could be taken into account as one of the relevant factors.
There can be no doubt that if there be any other material or relevant fact, section 46 does not stand in the way of such material or fact being considered by the Municipal Corporation for the grant or refusal to grant sanction of any development plan.
In the unreported decision of the High Court, the relevant fact that was taken into consideration was the draft revised development plan, even though the plan was not published.
In the instant case, however, at the time the Municipal Commissioner rejected the plan submitted by the respondent No. 5, there was no draft revised development plan in existence.
925 It was in contemplation.
If there had been such a plan, the Municipal Commissioner would be entitled to rely upon the same in rejecting the plan submitted by the respondent No. 5.
But, as there was no such draft revised plan as has been stated before this Court even by the Counsel for the Municipal Corporation, the Municipal Commissioner was not justified in merely relying upon a proposal for the preparation of a draft revised plan.
An order rejecting a development plan submitted by the owner of the land should be supported by some concrete material.
In the absence of any such material, it will be improper to reject the plan on the ground that there is a proposal for revision of the draft plan or that such a revision is under contemplation.
We are, therefore, of the view that the ground for rejecting the plan submitted by the respondent No. 5 was not tenable and the appellate authority was justified in allowing the appeal.
It is urged by Mr. Kalsekar that in any event no appeal lay under section 47 when the Municipal Corporation had decided to revise the development plan.
We are afraid, we are unable to accept the contention.
The same contention was advanced before the respondent No. 2 and it was rightly rejected.
Section 47 of the Act does not warrant the contention urged by the learned Counsel.
In our opinion, to hold that after the Municipal Corporation had decided to revise the development plan, no appeal would be competent to the State Government under section 47, would amount to legislating and rewriting the provision.
Such a contention is without any substance and is rejected.
The respondent No. 2 directed sanction of the plan out of 44,820.49 sq. yds.
belonging to the respondent No. 5, on the following conditions: (i) 15% Recreation space to be left in Block 'A ' shall be kept on the southern side of the plot abutting the green space left from Block 'B ' after merging the Road area in the Green space.
(ii) The Development shall be allowed IOD and C.C. shall be issued as per the Development Control Rules.
(iii)The F.S.I. of the road area would be admissible on plot 'A ' as per Development Control Rule 10(2).
(iv) The Municipal Commissioner, Municipal Corporation of Greater Bombay, Bombay, shall take over the possession of 926 the land proposed to be kept as Green on southern side, abutting the sea after getting the plots properly demarcated.
The Municipal Commissioner, M.C., G.E., Bombay, may consider the proposal of allowing the development and maintenance of the park and garden space by the applicant party at their own cost after obtaining the possession of the lands now proposed to be kept green.
The permission for development of plots as per plans submitted by appellants be granted by the M.C.B. M.C. subject to the conditions mentioned above.
We are told that after the above conditions are worked out, the area that will be available to the respondent No. 5 for the construction of the hotel is only 19,951.10 sq.
It is, therefore, apparent that in granting sanction to the plan, the respondent No. 2 was quite alive to public interest.
At this stage, we may notice a very significant development that has taken place during the pendency of this appeal, namely, that the Municipal Corporation has, subsequent to the judgment of the High Court, prepared and published on April 30, 1984 a draft revised development plan.
The plan of the respondent No. 5 is not inconsistent with the draft revised development plan.
This fact demolishes all the contentions of the appellants against the plan submitted by the respondent No. 5.
Realising this difficulty, Mr. Kalsekar assailed the draft revised plan on the ground that it was prepared in accordance with the direction of the respondent No. 2.
This contention of the learned Counsel has no foundation whatsoever.
There is no material on record to show that the Municipal Corporation which is the Planning Authority, had prepared the draft revised plan in accordance with the direction of the respondent No. 2.
The respondent No. 2, in our opinion, has acted in public interest by imposing the conditions mentioned above.
The conditions would show that considerable area out of the disputed land has been reserved for recreational ground or green belt.
The plan, as sanctioned by the respondent No. 2 with the conditions imposed, has been shown in the draft revised plan.
It was open to the Municipal Corporation to accept the verdict of the appellate authority and it has done so by not challenging it in the High Court or before this Court.
In the circumstances, there is no merit in this appeal challenging the order of the respondent No. 2 sanctioning the development plan of the respondent No. 5. 927 Now we may take up the two Special Leave Petitions being Special Leave Petition (Civil) No. 173776 of 1985 and Special Leave Petition (Civil) No. 17377 of 1985.
A few facts may be stated.
The Municipal Corporation passed a resolution on 3.12.1973, inter Ala, extending the park reservation by including the remaining area of the land comprised in R.S. No. 416 and R.S. No. 417 (part) at Bandra.
By another resolution dated 14.3.1974, the first resolution was modified limiting the reservation for the park to 7,000 sq.
out of the disputed land.
The petitioners, who are the appellants in the above appeal, filed two Misc.
Petitions, namely, Misc.
Petition No. 463 of 1974 challenging the legality and validity of the resolution dated 14.3.1974 and Misc.
Petition No. 1406 of 1978 challenging the order of the Government of Maharashtra dated 25.7.1978 exempting the disputed land under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976, hereinafter referred to as the 'Urban Land Ceiling Act '.
Both the Misc.
Petitions were dismissed by a learned Single Judge of the Bombay High Court.
Two appeals were preferred by the petitioners against the judgment of the learned Single Judge to the Division Bench.
On July 30, 1984 when the appeals were taken up for hearing, a prayer was made by the learned Counsel for the petitioners for an adjournment for two weeks on the ground that Shri Bhore, the Advocate on Record, had met with an accident and the learned Counsel was unable to proceed with the appeals without the Advocate on Record.
The learned Judges of the Division Bench did not accede to the prayer of the learned Counsel for an adjournment for two weeks on the ground that the appeals were old appeals of 1979, and that the learned Counsel who prayed for adjournment himself appeared throughout the proceedings as an Advocate.
The learned Judges, however, adjourned the appeals to the next day, that is, July 31, 1984 to enable the learned Counsel to be ready with the matter.
On the next day, the learned Counsel did not appear and the learned Judges of the Division Bench disposed of the appeals ex parte by a judgment dealing with the contentions of the petitioners.
The result was that both the appeals were dismissed.
We do not think that we are called upon to consider whether the learned Judges should have granted an adjournment for two weeks as was prayed for by the learned Counsel.
Suffice it to say that if an adjournment had been granted, multiplicity of proceedings could have been avoided.
Be that as it may, the petitioners filed two applications for review.
Both the said applications for review were dismissed by the 928 Division Bench after considering all the points including certain additional grounds to the effect that certain contentions had not been dealt with earlier by the judgment dated October 9/10, 1985.
The petitioners have not challenged the judgment of the High Court passed on the review applications.
They have, however, filed before this Court the above two Special Leave Petitions.
Special Leave Petition (Civil) No. 17376 of 1985 arises out of Misc.
Petition No. 463 of 1974 whereby the petitioners challenged the legality and validity of the said resolution dated 14.3.1974.
We are of the view that the contention of the petitioners against the validity of the resolution is no longer tenable, regard being had to the fact that the draft revised development plan has since been published and the plan submitted by the respondent No. 5 and conditioned by the respondent No. 2 is not inconsistent with the draft revised plan.
In that view of the matter, Mr. Kalsekar also has not seriously pressed the validity of the said resolution.
Accordingly, Special Leave Petition (Civil) No. 17376 of 1985 is liable to be dismissed.
So far as Special Leave Petition (Civil) No.17377 of 1985 is concerned, it has been strenuously urged by Mr. Kalsekar that in granting exemption to the respondent No. 5, the authority concerned has violated the relevant guidelines and also the provision of section 20 of the Urban Land Ceiling Act.
Learned Counsel points out that one of the grounds for exemption is that 75,000 sq.
of vacant land is available for the development of gardens.
As a matter of fact, Counsel submits, it is not a vacant land, but contains 350 houses.
It is submitted that granting exemption on the ground of availability of 75,000 sq.
of open site for the purpose of gardens is a fraud on the Urban Land Ceiling Act.
It is, accordingly, urged by the learned Counsel that the order granting exemption should be quashed.
The above grounds of challenge to the order of exemption granted to the respondent No. 5 have all been considered by the High Court in its judgment disposing of the review applications.
The petitioners have not challenged the judgment on review applications.
The petitioners are only interested in seeing that sufficient area is kept reserved for a park or recreation ground for the benefit of the members of the public.
They are not, in our opinion, concerned with the question as to the legality or otherwise of the exemption granted by the Government to the respondent No. 5 under the Urban Land Ceiling Act.
A copy of the draft revised development plan has been produced before us by Mr. Desai, learned Counsel appearing on behalf of 929 the respondent No. 5.
We are satisfied that the question whether or not sufficient quantity of land has been kept reserved for park and recreation ground has been adequately considered and taken into account by the High Court.
In the circumstances, we do not think that we are called upon to decide the legality or otherwise of the order granting exemption to the respondent No. 5 under the Urban Land Ceiling Act.
There is, therefore no substance also in Special Leave Petition (Civil) No. 17377 of 1985.
In the result, the appeal and both the special leave petitions are dismissed.
There will, however, be no order as to costs.
G.N. Appeal and Petitions dismissed.

summary:
% A piece of land had been purchased for the construction of a five star hotel.
In the sanctioned development plan the said land was shown in the residential zone and a contiguous parcel of land was shown as green belt.
When the plan was submitted to the Municipal Corporation for the construction of a five star hotel, the Commissioner rejected the plan on the ground that it was proposed to earmark the said land as a recreational ground with suitable internal network of roads during the revision of the development plan which was in the offing.
Aggrieved by the rejection, an appeal was preferred to the State Government under sec.
47 of the Maharashtra Regional and Town Planning Act, 1966.
The appeal was heard by the Minister of State for Urban Development.
The appellants herein, members of various ecological groups and rate payers of the Municipal Corporation, appeared and opposed saying that the land should be kept reserved for a green belt or recreational ground in the interest of the general public.
However, the Minister set aside the order of the Municipal Commissioner and directed the sanctioning of the plan on certain conditions.
The Municipal Corporation accepted the appellate order and did not challenge it.
But the appellants filed a Writ Petition challenging the legality of the order.
The writ petition was dismissed by the High Court.
The present appeal by special leave is against this dismissal.
Meanwhile the Municipal Corporation passed a resolution extending the park reservation by including the remaining area of the land in question.
By another resolution the first resolution was modified limiting the reservation for the park to 7,000 sq.
yards out of the dis 920 puted land.
Thereafter the State Government exempted the disputed land under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976.
The resolutions and the order were challenged in the High Court.
The petitions were dismissed by a Single Judge of the High Court and later by the Division Bench on appeal.
The Review Petitions also met the same fate.
The petitioners have not challenged the judgment of the High Court passed on the review applications, but filed before this Court the two special leave petitions challenging the legality and validity of the two resolutions and the order of Government giving exemption under section 20 of the Urban Land (Ceiling and Regulation) Act.
Dismissing the appeal, and the special leave petitions, this Court, ^ HELD: 1.1 In allowing the appeal and directing sanction of the development plan, the Minister observed that in view of the clear provisions of sections 46 and 31(6) of the Act and having regard to the position that in the sanctioned plan of 1966, the said land was included in the residential zone and no proposal to exclude it therefrom in the draft revised development plan had been published, the Municipal Commissioner was not justified in rejecting the application for approval of the plan on the ground that the Bombay Municipal Corporation had decided to revise the 1966 Development Plan.
The Minister was of the view that the Planning Authority could only take into consideration any draft or final plan or proposal which had been published by means of notice, or sanctioned under the Act.
When Municipal Commissioner rejected the plan, there was no draft revised development plan in existence.
It was in contemplation.
If there had been such a plan, the Municipal Commissioner would be entitled to rely upon the same in rejecting the plan.
The Commissioner was not justified in merely relying upon a proposal for the preparation of a draft revised plan.
An order rejecting a development plan submitted by the owner of the land should be supported by some concrete material.
In the absence of any such material, it will be improper to reject the plan on the ground that there is a proposal for revision of the draft plan or that such a revision is under contemplation.
Therefore, the ground for rejecting the plan was not tenable and the appellate authority was justified in allowing the appeal.
[923H; 924A B, H; 925A C] 1.2 The Municipal Corporation has, subsequent to the judgment of the High Court, prepared and published a draft revised development plan.
The plan is not inconsistent with the draft revised development plan.
There is no material on record to show that the Municipal Corporation which is the Planning Authority, had prepared the draft revised 921 plan in accordance with the direction of the Minister.
The Minister has acted in public interest by imposing the conditions.
The conditions would show that considerable area out of the disputed land has been reserved for recreational ground or green belt.
The plan, as sanctioned with the conditions imposed, has been shown in the draft revised plan.
It was open to the Municipal Corporation to accept the verdict of the appellate authority and it has done so by not challenging it in the High Court or before this Court.
[926E H] 2.
The contention of the petitioners against the validity of the resolution is no longer tenable, regard being had to the fact that the draft revised development plan has since been published and the plan submitted and conditioned by the Minister is not inconsistent with the draft revised plan.
The petitioners have also not seriously pressed the validity of the said resolution.
[928C D] 3.
This Court is not called upon to decide the legality or otherwise of the order granting exemption.
These have been considered by the High Court in its judgment disposing of the review applications.
The petitioners have not challenged the judgment on review applications.
The petitioners are only interested in seeing that sufficient area is kept reserved for a park or recreation ground for the benefit of the members of the public, and are not concerned with the question as to the legality or otherwise of the exemption granted by the Government.
The question whether or not sufficient quantity of land has been kept reserved for park and recreation ground has been adequately considered and taken into account by the High Court.
[928G H; 929A]


judgement:
Civil Appeal No. 2107 of 1987.
From the Judgment and Order dated 3.3.1986 of the Delhi High Court in Writ Petition No. 2503 of 1985.
R.K. Garg and D.K. Garg for the Appellant.
M.S. Rao and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by RAY, J.
Special leave granted.
Heard arguments of learned counsel for the parties.
This appeal by special leave is against the judgment and order dated 3rd March, 1986 passed by the High Court at Delhi dismissing the writ petition No. 2503 of 1985.
The facts of the case in brief are that the appellant was appointed to the post of Craftsman (Jawan) on November 23, 1973.
We was sent to 3 E.M.E. Centre, Bhopal for training.
After completion of his two years ' training he was posted to 80 EME Battalion C/o 56.
A.P.O. on July 25, 1975.
The appellant in view of his good service was promoted to the post of Naik and subsequently he was confirmed in that post.
During his service as Jawan and as a Naik, the appellant served at various places in the country including the field area at Punj Sector in 956 Jammu & Kashmir.
The appellant was reverted from the post of Naik to the post of Jawan (Craftsman) by Lt. Col. G.S. Srivastava and he was, thereafter, directed to report to NEFA.
The appellant joined his post in NEFA.
However, the appellant was subsequently transferred and posted in Panagarh.
One Major N.K. Tiwari who was the Commanding Officer of the said regiment became very much displeased with the appellant as he did not comply with his directions to go to Kanpur to bring his personal goods from Kanpur to Panagarh.
The appellant was harassed and maltreated in various ways.
The appellant being unable to bear the torture caused to him approached Col. R.K. Mehta, Commanding Officer, EME Depot Battalion, Sikandrabad and surrendered to the mercy of the said Colonel.
The Colonel advised the appellant to go back to Panagarh and report to his Unit.
The appellant was sent with the certificate of surrender.
On his return, the appellant was not permitted to join his duty; but he was taken into the custody immediately and thereafter he was directed by Major Tiwari to be treated without leave for three days and should be court martialled for the same.
The appellant was charge sheeted for the purpose and he was convicted to 42 days imprisonment in military custody.
During the period of his remaining in military custody, he was given only a small sum of Rs.60 and as such his family had to suffer much harassment.
The appellant, however, on 12th September, 1984 left Panagarh with his wife and children for Kanpur without taking any leave.
It is stated that he became unwell and he was under the treatment of a doctor.
After coming round he reported to Panagarh and reported in his Unit with the fitness certificate.
The appellant was called by the Officer Commanding and he was served with a charge sheet on November 2, 1984 wherein it was ordered by Major P.S. Mahant that the appellant be tried by a Summary Court Martial.
It has been alleged that Major Mahant appointed his close associate Captain K.J. Singh to record summary of evidence.
The appellant was not given proper opportunity to defend himself.
In the proceedings the appellant was not allowed to raise any objections.
On 9th November, 1984, the order of dismissal from service of the appellant was made by Major P.S. Mahant, Commanding Officer, in the summary court martial.
The appellant challenged this order by a writ petition being Civil Writ Petition No. 2503 of 1985 on the ground that the Commanding Officer was not legally competent to preside a summary court martial.
It was also stated in the petition that the punishment of dismissal from service was disproportionate to the charge; he was denied a fair 957 opportunity to defend himself and was in fact not permitted to ask questions to the witnesses.
The appellant so prayed for issuance of an appropriate writ for quashing the impugned order of dismissal from service and also for a direction to the respondents to pay the entire arrears of salary and allowances which are legally due to him.
The writ petition was heard by a Division Bench of the High Court at Delhi and it was dismissed on March 3, 1986 holding inter alia that no objection was taken before the Summary Court Martial that the appellant was not allowed to be represented by his counsel.
It was also held that in the writ petition no objection was taken as to the competence of Major P.S. Mahant to act as a Judge in the Summary Court Martial nor objection was made to the effect that Captain K.J. Singh ordered him to keep his mouth shut.
It was also observed that besides Major P.S. Mahant who was presiding Summary Court Martial there were two other members.
The appellant, it was held, had earlier been convicted four times and entries were made in the red ink.
The appellant was absent from duty without any leave and he pleaded guilty before the court martial proceedings and as such there was no illegality in the order of dismissal made in the court martial proceedings.
It is against this judgment and order, the impugned appeal on special leave has been preferred before this Court.
An affidavit in counter sworn by one Capt.
D.K. Ghosh on behalf of the respondents has been filed.
In paragraph 4 of the said affidavit, it has been submitted that Rule 39(2) of the Army Rules deals with the disqualification of officers for General and District Courts Martial.
The said rule says that an officer is disqualified for serving on a general or district court martial if he is the Commanding Officer of the accused.
The appellant has assailed the court martial proceedings on the ground that the Commanding Officer served on the Court Martial and as such the court martial proceedings are in breach of Rule 39(2) of the Army Rules, 1954.
It has been further stated that the appellant was tried by a Summary Court Martial and not by a General or District Court Martial and Army Rule 39(2) does not apply to Summary Court Martial constituted under Section 116 of the .
It has been further stated that a Summary Court Martial may be held by a Commanding Officer of any Corps, Department or Detachment of the regular army, as stipulated by Section 116(c) of the .
It has been submitted that the appellant has been tried by a Summary Court Martial and he was sentenced to dismissal from 958 service on November 9, 1984.
It has also been stated that the proceedings have been attended throughout by two other persons in accordance with the provisions of Section 116(1) of the said Act.
It has been averred that in a case of Summary Court Martial as per Section 116 of the said Act, the Commanding Officer shall alone constitute the Court.
The proceedings of the Court shall be attended by two officers/JCOs or one of either.
It has been further stated that the appellant incurred the following red ink entries while serving with various units prior to the summary court martial: (i) 14 days R.I. in military custody under AA (Army Act) Sec.
39(a) on September 3, 1975 by 80 EME Bn.
(ii) 3 days R.I. in military custody under A.A. Sec.
39(a) on 22nd June, 1979 by 1 EME Centre.
(iii) Reduced to the rank under AA Sec. 63 on 24 January, 1983 by 174 Fd.
(iv) 28 days R.I. and 14 days detention in mil.
custody under AA Sec.
39(a) on 10th July, 1984 by 986 AD.
Regt WKSP.
The appellant was issued a show cause notice for discharge being unsuitable inefficient soldier on 30th August, 1984 to which he replied on 2nd September, 1984.
The appellant again became absent without leave on 13th September, 1984.
The appellant did not inform the Unit authority again of taking his family to Kanpur.
While leaving for Kanpur he locked his quarter securely to keep possession of the family accommodation.
The proceedings of the summary court martial were in accordance with the provisions of the and the order of dismissal from service of the appellant is a valid order.
A rejoinder was filed by the appellant wherein he reiterated that the order of dismissal passed by the Commanding Officer, Major P.S. Mahant was illegal and contrary to the provisions of natural justice.
The charge sheet was given to the appellant by the aforesaid Major alleging that the appellant remained absent from 13th September, 1984 to 30.10.1984 without leave from the Unit 's line and the said officer himself made an order that the appellant shall be tried by a summary court martial on that day.
The said officer constituted the court of summary court martial and himself presided over the same.
The order of dismissal was passed in violation of the rules of natural justice.
It has also been submitted that the conviction of the appellant 959 was in utter breach of Articles 14 and 21 of the Constitution of India and as such the said order was liable to be set aside.
The first submission on behalf of the appellant is that the constitution of the Summary Court Martial by the Commanding Officer Major P.S. Mahant is in contravention of Rule 39(2) of the Army Rules, 1954.
the relevant provisions of Rules 39 are in the following terms: "Rule 39 . . (2) An officer is disqualified for serving on a general or district court martial if he: (a) is an officer who convened the court; or (b) is the prosecutor or a witness for the prosecution; or (c) investigated the charges before trial, or took down the summary of evidence, or was a member of a court of inquiry respecting the matters on which the charges against the accused are founded, or was the squadron, battery, company, or other commander, who made preliminary inquiry into the case, or was a member of a previous court martial which tried the accused in respect of the same offence; or (d) is the commanding officer of the accused, or of the corps to which the accused belongs; or (e) has a personal interest in the case." Rule 39(2) provides that an officer who is the Commanding Officer of the accused or of the corps to which the accused belongs or who is an officer who convened the court or who is the prosecutor or a witness for the prosecution and who has a personal interest in the case, is not eligible for serving on a general or district Court Martial.
There are four kinds of court martials specified in Section 108 of the Army Act, 1959.
These are: (a) General Courts Martial; (b) District Courts Martial 960 (c) Summary General Courts Martial; (d) Summary Courts Martial Section 116 of the said Act says that a summary court martial may be held by the commanding officer of any corps or department or detachment of the regular Army, and he shall alone constitute the court.
It further provides that the proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed.
In the instant case a summary court martial was held by the Commanding Officer, Major P.S. Mahant in accordance with the provisions of Section 116 of the Army Act.
The Commanding Officer of the Corps, Department of Detachment of the Regular Army to which the appellant belongs, is quite competent in accordance with the provisions of Section 116 of the said Act and as such the constitution of the summary court martial by the Commanding Officer of the Corps cannot be questioned as illegal or incompetent.
It is neither a general court martial nor a district court martial where the appellant 's case was tried and decided.
In case of general court martial or district court martial Rule 39(2) of the Army Rules, 1954 is applicable and the Commanding Officer is not competent to convene general or district court martial.
The summary court martial was held by the Commanding Officer of the corps, Major P.S. Mahant and there are two other officers including Capt.
K.J. Singh and another officer to attend the proceedings.
In such circumstances, the summary court martial having been convened by the Commanding Officer of the corps according to the provisions of the , the first submission made on behalf of the appellant fails.
Chapter 6 of the specifies the offences and also the punishments for such offences.
Section 39(a) specifies that to be absent without leave constitutes an offence and Section 71(e) of the said Act provides dismissal from service as one of the punishments for such an offence.
The appellant undoubtedly absented himself from duty without taking any leave from the lines as required under the .
The appellant was charge sheeted for the said offence and he was tried by a summary court martial convened by the Commanding Officer and after giving him due opportunity it was held that the appellant was previously punished also for the offence of absence from duty on four occasions and there was a red ink entry.
Considering all this in the summary court martial proceedings he was convicted and sentenced to the punishment of dismissal from service.
The submission 961 that the punishment is disproportionate to charge is wholly unsustainable.
The summary court martial constituted by Major P.S. Mahant after considering the evidences has found the appellant guilty of the alleged charge and awarded the said punishment in accordance with the provisions of the .
As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality.
It has been urged on behalf of the appellant that he raised an objection to Major P.S. Mahant to preside over the summary court martial.
It has also been urged that at the time of taking evidence of the witnesses, the appellant was asked to keep his mouth shut and as such the appellant could not cross examine the witnesses examined on behalf of the prosecution, thereby the principles of natural justice have been violated.
It appears that the appellant has not filed any objection before the summary court martial objecting to the presiding of the court martial proceedings by Major P.S. Mahant nor any such objection had been taken in the writ petition moved before the High Court.
It is for the first time in the appeal which the appellant filed before the Chief of the Army Staff (Competent Authority), Army Headquarters, New Delhi that he raised an objection to the presiding of Major P.S. Mahant as Judge of the court martial proceedings.
It has been rightly held by the High Court that this is an after thought and as such this submission cannot be permitted to be made by the appellant after the court martial proceedings were completed and the order of dismissal from service was made.
As regards the other objection that he was directed by Capt.
K.J. Singh to keep his mouth shut, it is also without any substance in as much as it appears from the summary of the evidences recorded that the appellant in fact cross examined the prosecution witnesses.
It is also evident from the judgment of the Delhi High Court that the appellant admitted his guilt of absenting from duty without taking any leave.
Considering all these facts and circumstances, the judgment and order passed by the High Court of Delhi appears to us as unassailable.
We, therefore, dismiss the appeal and affirm the judgment and order of the High Court.
There will be no order as to costs.
N.V.K. Appeal dismissed.

summary:
% The appellant was appointed to the post of Craftsman (Jawan) on November 23, 1973.
He was later promoted to the post of Naik in view of his good services and subsequently confirmed in that post.
He served at various places in the country, including field areas.
He was, however, reverted from the post of Naik to the post of Craftsman (Jawan).
While he was in service he incurred the displeasure of the Commanding Officer of his regiment (Major) as he did not comply with his directions.
He was consequently harassed and maltreated in various ways.
Unable to bear the torture he surrendered to the mercy of the Commanding Officer of the Battalion (Colonel).
He, however, directed him to surrender to the Commanding Officer of his regiment and gave him a certificate of surrender.
The Commanding Officer took him into custody.
He was charge sheeted for the purpose and sentenced to 42 days imprisonment in military custody.
During the period of his remaining in military custody, his family suffered harassment.
The appellant on 12th September, 1984 left station with his wife and children without taking any leave.
He stated that he became unwell and was under the treatment of a doctor.
When he reported back to his unit with the fitness certificate the Commanding Officer of his regiment served him with a charge sheet on November 2, 1984 and directed that he be tried by a summary court martial.
On November 9, 1984, the order of dismissal of the appellant from service was made by the Commanding Officer in the Summary Court Martial.
The appellant challenged the aforesaid order in a writ petition to the High Court, and sought quashing of the same contending: that the Commanding Officer was not legally competent to preside a summary 954 court martial, that the punishment of dismissal from service was disproportionate to the charge, that he was denied a fair opportunity to defend himself, and was in fact not permitted to question the witnesses.
A Division Bench of the High Court however, dismissed the writ petition holding that no objection was taken before the Summary Court Martial that the appellant was not allowed to be represented by his counsel, that no objection was taken as to the competence of the Commanding Officer to act as a Judge in the Summary Court Martial, that the appellant had earlier been convicted four times and entries were made in red ink in his service record, and that as the appellant was absent from duty without leave and pleaded guilty before the court martial proceedings, there was as such no illegality in the order of dismissal made in the court martial proceedings.
Dismissing the Appeal, ^ HELD: 1.
Four kinds of courts martial are specified in Section 108 of the .
These are:(a) General Courts Martial; (b) District Courts Martial; (c) Summary General Courts Martial and (d) Summary Courts Martial.
[959G H; 960A] 2.
Section 116 of the Act says that a summary court martial may be held by the Commanding Officer of any corps or department or detachment of the regular Army, and he shall alone constitute the court, and that the proceedings shall be attended throughout by two other persons who shall be Officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed.
It is only in the case if general court martial or district court martial that Rule 39(2) of the Army Rules 1954 is applicable and the Commanding Officer is not competent to convene general or district court martial.
[960B,D] 3.
In the instant case, the summary court martial was held by the Commanding Officer of the Corps, Major P.S. Mahant and there were two other officers Captain K.J. Singh and another officer to attend the proceedings.
In such circumstances, the summary court martial had been convened by the Commanding Officer according to the provisions of the .
[960C, E F] 4.
Section 39(a) of the Act specifies that to be absent without leave constitutes an offence, while Section 71(e) provides dismissal from service as one of the punishments for such an offence.
[960F] 955 5.
The appellant in the instant case, undoubtedly absented himself from duty without taking any leave from the lines as required under the , was charge sheeted for the said offence and tried by a summary court martial convened by the Commanding Officer.
After giving him due opportunity it was held that the appellant was previously punished also for the offence of absence from duty on four occasions and there was a red ink entry.
Considering all this, in the summary court martial proceedings he was convicted and sentenced to the punishment of dismissal from service.
The submission on behalf of the appellant that punishment is disproportionate to the charge is wholly unsustainable.
As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality.
It is also evident from the judgment of the High Court that the appellant admitted his guilt of absenting from duty without any leave.
[960G H; 961A B,F]