MADURAI BENCH OF MADRAS HIGH COURT = suit for partition and separate possession = can not be considered as Exclusive possession = However, having regard to their claim that the third defendant is entitled only to 1/4th share, their exclusive possession pleaded by them cannot be taken as a plea of a stranger claiming exclusive right over the entire property but as a joint owner. Though the property is settled in favour of first plaintiff and first defendant under the Will Ex.A3, the possession and enjoyment of the first item of property by the third defendant cannot be taken as one by a person who is entitled to be in possession as an exclusive owner. It was only because Dr.Jayaraman died, suddenly in a road accident, the property is in the enjoyment of third defendant as a person living along with Dr.Jayaraman during his life time and not as a person having independent title ; Since the Hindu Succession (Amendment) Act, 2005, came after the death of Dr.Jayaraman and the succession opens immediately upon the death of Dr.Jayaraman, a specific ground was raised in the appeal memorandum that the third defendant is entitled to 1/4th share in items 5 to 9. = State Amendment to the Hindu Succession Act, 1956.= As pointed out earlier, items 5 to 9 of the suit properties are allotted to Dr.Jayaraman in a family partition and it has been held by the trial Court that they are his ancestral properties. After the death of Dr.Jayaraman in the year 2002, his two daughters are entitled to equal share as that of Dr.Jayaraman and as a result, the plaintiffs and first defendant are entitled to 5/12 share and the first wife of Dr.Jayaraman, namely, the second plaintiff and third defendant, the illegitimate son of Dr.Jayaraman are entitled to 1/12 share. This is by virtue of the State Amendment to the Hindu Succession Act, 1956.

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 09.10.2017

Reserved on: 02.01.2017

Delivered on: 09.10.2017

CORAM

THE HONOURABLE MR.JUSTICE S.S.SUNDAR

Appeal Suit (MD) No.291 of 2008
and
M.P.(MD)Nos.1 of 2008 and 1 of 2014

 

1.Ezhilmathi
2.Karthikeyan : Appellants / Defendants 2 & 3

-Vs-

1.Karthika : 1st Respondent/1st Plaintiff
2.Megalai : 2nd Respondent/2nd Plaintiff
3.Rohini : 3rd Respondent/1st Defendant

Prayer: Appeal Suit filed under Section 96 of the Civil Procedure Code,
against the judgment made in O.S.No.167 of 2004, dated 24.04.2008 on the file
of the First Additional District Judge, Tiruchirappalli.

!For Appellants : Mr.S.Ramasamy
Senior Counsel
for AN.Ramanathan

^For Respondents 1&2: Mr.K.S.Vamsidhar
For Respondent 3 : Mr.S.Ramakrishnan

 

:JUDGMENT

The defendants 2 and 3 in O.S.No.167 of 2004 on the file of the
First Additional District Court, Tiruchirappalli, are the appellants in the
above appeal.

2.The respondents 1 and 2 in this appeal are plaintiffs 1 and 2
in the suit and third respondent in this appeal is the first defendant in the
suit.

3.The respondents 1 and 2 herein, as plaintiffs filed the suit in
O.S.No.167 of 2004 for partition and separate possession of + share in the
suit first item and for + share for the plaintiffs 1 and 2 in respect of
items 1 to 3 and item 10 of suit properties. Insofar as first item is
concerned, the plaintiffs also prayed for + share to the first defendant.
The plaintiffs also prayed for alternative relief for division of properties
item 1 to 3 and 10 of the suit properties into four equal shares and to allot
two shares to the plaintiffs and , share to the first defendant, in case, the
Court comes to the conclusion that the Will relied upon by them is held to be
not valid.

4.The first plaintiff is the daughter of second plaintiff who is
the first wife of Late Dr.Jayaraman. The first defendant is none else than
the sister of first plaintiff and the daughter of second plaintiff. The
second defendant in the suit is the second wife of Late Dr.Jayaraman and she
is also the sister of second plaintiff. The third defendant in the suit is
the son of Late Dr.Jayaraman through the second defendant.

5.The case of the plaintiff is that the suit first item was
purchased by Dr.Jayaraman by a registered sale deed dated 22.04.1981 and that
he constructed a clinic in the suit first item and was running the same in
the name and style of ?Krithika Nursing Home?. It is further stated that
Dr.Jayaraman executed a Will on 17.06.1986 bequeathing the suit first item to
his two daughters, namely, the first plaintiff and the first defendant. It
is not in dispute that Dr.Jayaraman died on 03.02.2002 in a road accident.

6.Though the suit was filed only in respect of suit first item,
the contesting defendants namely defendants 2 and 3 raised a plea stating
that all the properties of Dr.Jayaraman were not included in the suit.
Subsequently, the suit items 2 and 3 were included. Thereafter, the
defendants filed a petition to include other properties in the suit, namely,
items 4 to 9. Subsequently, item 10 in the suit schedule also included and
the same is a car bearing registration No.TN-45-Q-3838.

7.The case of the plaintiffs is that the suit items 1 to 3 are
the self-acquired properties of Dr.Jayaraman. The fourth item was included
in the suit schedule. It is the specific case of the plaintiffs that the
properties referred to in item 4 are the exclusive properties of the second
plaintiff, namely, the first wife of Dr.Jayaraman. It is also the case of
the plaintiffs that items 5 to 9 in the suit are the ancestral properties of
Dr.Jayaraman, who got the same in a family partition and that the third
defendant being the illegitimate son of Dr.Jayaraman through the second
defendant whose marriage is void, is not entitled to any share in the
ancestral properties.

8.The second defendant filed a detailed written statement which
was also adopted by the third defendant. It is the case of the appellants
that the third defendant along with second defendant is living in the suit
first item and that therefore, the suit for partition between the plaintiffs
and the first defendant, bye-passing the claim of third defendant is not
maintainable, as the relief of partition must be preceded by a relief for
recovery of possession from the third defendant.

9.It was further stated in the written statement that
Dr.Jayaraman married the second defendant, as he had no male child through
his first wife, namely, the second plaintiff. It is the case of the
defendants 2 and 3 that Dr.Jayaraman was living with them at Manapparai in
the suit first item ever since their marriage and that after the sudden and
sad demise of Dr.Jayaraman, defendants 2 and 3 continued to live in the
residential portion of suit first item whereas the plaintiffs and defendants
1 and 2 are living in Sakthi Nagar, Tiruchirappalli.

10.It is also the further case of the defendants 2 and 3 that at
the time of marriage between Dr.Jayaraman and second defendant, the second
plaintiff, namely, the first wife of Dr.Jayaraman pressurised Dr.Jayaraman to
settle the suit first item in her favour under threat, duress, intimidation
and coercion and Dr.Jayaraman was asked to settle the entire hospital
premises, namely, first item of suit property in favour of second plaintiff.
The Will alleged to have been executed by Dr.Jayaraman on 17.06.1986
bequeathing the suit first item in favour of the plaintiffs and first
defendant is specifically challenged by disputing the truth, validity,
execution and attestation of the Will dated 17.06.1986. Stating that the
Will dated 17.06.1986 is a concocted, fabricated and ante-dated document, it
was contended that the Will had been specially invented to knock away the
valuable properties from the hands of the third defendant. With regard to
the execution of the Will dated 17.06.1986, the contesting defendants /
appellants further relied upon the circumstances by which the petition for
divorce was presented by Dr.Jayaraman as against the second plaintiff on
16.06.1986. It was specifically pleaded that there was no occasion for
Dr.Jayaraman to execute the Will and further relied upon few circumstances
under which the Will came into existence. Though a specific plea was raised
by the appellants stating that the suit is bad for partial partition, by
inclusion of other properties which were allotted to Dr.Jayaraman under a
registered partition deed dated 28.02.1997, the said plea has now become
irrelevant.

11.The trial Court though framed originally certain issues only
in relation to the items 4 to 9, after hearing the arguments, framed the
following issues:
1.Whether the document which is marked as Ex.A3 is a Will or settlement deed
and whether it is validly executed by Dr.Jayaraman and further whether the
execution of the document is true and genuine?
2.Whether the 1st plaintiff and the defendants 1 and 2 are in joint
possession and enjoyment of the item 1 of the suit properties nad in case if
the Court decides that on 17.06.1986 document is a valid and enforceable then
whether the plaintiffs have to file a separate suit for recovery of
possession or not?
3.Whether the 2nd and 3rd defendants are entitled to share in the suit
properties?
4.To what relief the plaintiffs are entitled to?

12.Having regard to the pleadings and the evidence, the trial
Court observed that there is no dispute with regard to the character of suit
first item, as the self acquired property of Dr.Jayaraman. Since the claim
of + share by the first plaintiff and first defendant is only on the basis of
the Will, the trial Court considered the issue whether the document, namely,
the Will dated 17.06.1986, marked as Ex.A3 is a Will or settlement. Though
the document is styled as a settlement deed, since there was no transfer in
praesenti under the document, it was concluded by the trial Court that the
document Ex.A3 is only a Will. After referring to several judgments on this
issue, the trial Court observed that what was conveyed under Ex.A3 in favour
of plaintiff and first defendant should go to them only after the death of
Dr.Jayaraman. The trial Court found that Ex.A3 was executed as a Will,
though it was styled as a document of settlement. The trial Court thereafter
examined the truth and validity of the Will. Since the plaintiffs have
examined P.W.2, one of the attestors of the Will, his evidence was believed
by the trial Court, the trial Court had come to the conclusion that the Will
under Ex.A3 had been duly executed and attested in accordance with the
requirements of law.

13.The next question considered by the trial Court was regarding
the maintainability of suit for partition. A specific plea was raised by
the appellants stating that the suit for partition is not maintainable, as
the property is admittedly in the physical possession of the appellants, who
are not admitted as co-owners in respect of the suit first item. The plea of
appellants was negatived on the ground that the appellants themselves have
claimed , share in the suit first item by assuming that they are in joint
possession and that there is no necessity to file a separate suit for
recovery of possession. As regards item No.4 of the suit property, the trial
Court held that out of three plots, plot Nos.71 and 72 are the exclusive
property of the second plaintiff and that plot No.73 is the property of
Dr.Jayaraman. Since the appellants have not proved that the entire sale
consideration came from Dr.Jayaraman, the plea of appellants was not accepted
by the trial Court. Pointing out that Dr.Jayaraman is an income tax assessee
and that if he had advanced money for the purchase of the property in the
name of the second plaintiff, it could have been stated so in his accounts
and that the non-production of such documents by defendants 2 and 3 would
show that plot Nos.71 and 72 are the absolute properties of second plaintiff.
Though the plaintiffs did not admit the right of appellants to claim share in
items 5 to 9 on the ground that they are the ancestral properties of
Dr.Jayaraman, in the plaint, they practically conceded before the trial
Court. As a result, the trial Court found that in respect of items 5 to 9,
the first plaintiff and first defendant are entitled to 5/12 share and the
second plaintiff and third defendant are entitled to each 1/12 share. Since
the claim for partition in respect of item No.10 was conceded, the plaintiff
was not given any relief insofar as item No.10. Thus, the plaintiffs and
first defendant were given + share in item No.1 of the suit properties.
Thus, preliminary decree was passed granting + share each in favour of the
first plaintiff and first defendant in respect of item No.1 and , share each
to the plaintiffs and first defendant in respect of items 2 and 3 of the suit
properties and each 5/12 share in items 5 to 9 of the suit properties to the
first plaintiff and the first defendant and 1/12th share each to the second
plaintiff and third defendant. The suit is also dismissed as against item 4
and item No.10. Even though Plot No.73 is held to be the property of
Dr.Jayaraman, no share is given to the third defendant.

14.Aggrieved by the preliminary decree for partition, the
appellants, who are the defendants 2 and 3 in the suit, have preferred the
above appeal.

15.Though the appellants have raised several grounds challenging
the findings regarding all the items in the suit schedule and regarding the
character of the document Ex.A3 and its truth and validity, the learned
Senior Counsel appearing for the appellants submitted that he has not
challenged any of the findings of the trial Court except the conclusion that
the suit is maintainable, without seeking a relief of recovery of possession
by paying ad valorem court fee.

16.The learned Senior Counsel appearing for the appellants
submitted that the suit first item is not claimed to be a property in
enjoyment of either the first plaintiff or the first defendant. The fact
that the defendants 2 and 3 are residing in the suit first item is admitted
even in the plaint. When the suit first item is claimed on the basis of the
Will whereby suit first item is exclusively given to the first plaintiff and
first defendant who are not in enjoyment it was argued by the learned Senior
Counsel that the suit for partition cannot be sustained. Though the third
defendant is recognised as the son of Dr.Jayaraman, through his second wife,
for granting equal share to the third defendant in respect of the self-
acquired properties of Dr.Jayaraman, the failure to give any share in one of
the plots, namely, Plot No.73 is not challenged before this Court by the
learned Senor Counsel for the appellants. The learned Senior Counsel for the
appellants submitted that the trial Court should have given 1/4th share to
the first defendant in respect of items 5 to 9 as it was granted in respect
of other items which are held to be self-acquired properties of Dr.Jayaraman.
Since the Hindu Succession (Amendment) Act, 2005, came after the death of
Dr.Jayaraman and the succession opens immediately upon the death of
Dr.Jayaraman, a specific ground was raised in the appeal memorandum that the
third defendant is entitled to 1/4th share in items 5 to 9.

17.In order to appreciate the submission of the learned Senior
Counsel for the appellants as regards the maintainability of the suit for
partition in respect of first item of suit property, the following facts are
to be noted:

(a) The suit first item was purchased by Dr.Jayaraman by a
registered sale deed dated 22.04.1981 and it was the property in which he put
up his own clinic under the name and style of ?Krithika Nursing Home? and
practising medicine successfully till his death.

(b) Defendants 2 and 3 are residing only in the residential
portion of the building which was in upstairs.

(c) After the death of Dr.Jayaraman though it is stated in the
written statement that the suit first item is in possession of the third
defendant, the right of plaintiffs to claim a share in the property was not
disputed. In other words, the defendants have not claimed any exclusive
ownership over the suit first item. The third defendant’s claim is that he
is also entitled to , share.

18.It is in the above background, the plea regarding the
maintainability of the suit has to be considered. The case of defendants 2
and 3 is that they were living with Dr.Jayaraman in the residential portion
of the clinic at first floor along with Dr.Jayaraman. D.W.1, namely, the
second defendant even in her chief examination stated that her son, the third
defendant, is entitled to , share in all the suit properties. After the
demise of Dr.Jayaraman, no doubt it is true that the appellants alone are in
enjoyment of the entire property. However, having regard to their claim that
the third defendant is entitled only to 1/4th share, their exclusive
possession pleaded by them cannot be taken as a plea of a stranger claiming
exclusive right over the entire property but as a joint owner. Though the
property is settled in favour of first plaintiff and first defendant under
the Will Ex.A3, the possession and enjoyment of the first item of property by
the third defendant cannot be taken as one by a person who is entitled to be
in possession as an exclusive owner. It was only because Dr.Jayaraman died,
suddenly in a road accident, the property is in the enjoyment of third
defendant as a person living along with Dr.Jayaraman during his life time and
not as a person having independent title. Apart from the right of an
illegitimate son, who is also entitled to have a share in the property of his
father, the third defendant does not claim any other right. When the suit
was filed in 2004, the third defendant was still a minor and the possession
of appellants, in these circumstances, can only be treated as permissive.
The right of plaintiff as a co-owner entitled to seek partition was never
disputed by the third defendant. In such circumstances, the plea of
appellants that the suit itself is not maintainable without asking for
recovery of possession has no merits.

19.The learned Senior Counsel appearing for the appellants made
an attempt to establish that the document Ex.A3 is not a Will but a
settlement deed. A reading of the Will clearly discloses the fact that
Dr.Jayaraman wanted the document to come into effect only after his life
time. His intention was clear that the legatees under the Will do not get
any right during his life time. It is not a case where there was mere
postponement of enjoyment. There is no clause which confers any right in
praesenti in favour of the legatees under the Will. Therefore, the
submission of the learned Senior Counsel for the appellants has no merits.

20.It is true that the document Ex.A3 is a described as a
settlement deed. It has been repeatedly held by this Court and the Hon’ble
Supreme Court that the form or nomenclature of the instrument is not
conclusive and that the Court is required to look into the substance of the
document when an issue arises as to the character of the document whether it
is a Will or a settlement deed or gift. In the case of P.K.Mohan Ram v.
B.N.Ananthachary and others reported in AIR 2010 SC 1725 the Hon’ble Supreme
Court has held in paragraph 13 as follows:
?13. Having noticed the distinction between vested interest and contingent
interest, we shall now consider whether Ex.A-2 was a Settlement Deed or a
Will. Although, no strait-jacket formula has been evolved for construction of
such instruments, the consistent view of this Court and various High Courts
is that while interpreting an instrument to find out whether it is of a
testamentary character, which will take effect after the life time of the
executant or it is an instrument creating a vested interest in praesenti in
favour of a person, the Court has to very carefully examine the document as a
whole, look into the substance thereof, the treatment of the subject by the
settlor/executant, the intention appearing both by the expressed language
employed in the instrument and by necessary implication and the prohibition,
if any, contained against revocation thereof. It has also been held that form
or nomenclature of the instrument is not conclusive and the Court is required
to look into the substance thereof.?
21.A Division Bench of this Court in the case of Arthur Mary
Ammal v. Aruldoss Pillai (deceased by L.Rs.) and others reported in AIR 2004
Madras 57 has considered several judgments of the Hon’ble Supreme Court and
this Court and approved the view that unless there is a disposition in
praesenti, though a document is styled as settlement deed and registered as
such, when the intention of the testator is very clear that the property can
be enjoyed by the legatees only after the life time of testator, it can be
termed only as a Will.

22.The findings of the trial Court that Ex.A3 is only a Will and
not a settlement and that the due execution, attestation and validity of
Ex.A3 is proved in accordance with law, has not been seriously argued before
this Court. Hence, this Court has no hesitation to confirm the findings of
the trial Court that the Will under Ex.A3 comes into effect only after the
death of Dr.Jayaraman and that it has been validly proved as a genuine and
valid Will of Dr.Jayaraman. With regard to the character of properties,
namely, the three plots referred in item No.4 of suit schedule, as it has
been held by the trial Court, except plot No.73, other two plots, namely,
plot Nos.71 and 72 are the exclusive properties of the second plaintiff and
they are not available for partition. As pointed out earlier, items 5 to 9
of the suit properties are allotted to Dr.Jayaraman in a family partition and
it has been held by the trial Court that they are his ancestral properties.
After the death of Dr.Jayaraman in the year 2002, his two daughters are
entitled to equal share as that of Dr.Jayaraman and as a result, the
plaintiffs and first defendant are entitled to 5/12 share and the first wife
of Dr.Jayaraman, namely, the second plaintiff and third defendant, the
illegitimate son of Dr.Jayaraman are entitled to 1/12 share. This is by
virtue of the State Amendment to the Hindu Succession Act, 1956. Having
regard to the specific findings of the trial Court and the arguments of the
learned Senior Counsel appearing for the appellants, this Court does not find
any legal infirmity in the judgment and decree of the trial court, except
plot No.73 described as part of item No.4. The conclusion of the trial Court
is not reflected in the operative portion of the judgment. Hence, the
judgment and decree of the trial Court is required to be modified by holding
that the plaintiffs and defendants 1 and 3 are entitled to , share in plot
No.73 described as part of item No.4 of suit schedule. Regarding other
aspects, the findings of the trial Court are supported by reasons and
evidence let in by both the parties. As a result, this appeal is partly
allowed. The plaintiffs and defendants 1 and 3 are entitled to equal , share
in Plot No.73. Hence, this judgment and decree of the trial Court is
modified insofar as the suit item No.4. While the judgment and decree of
trial Court is upheld in respect of Plot No.71 and 72 in suit item No.4, it
is concluded that the plaintiffs and defendants are entitled to , share each
in respect of plot No.73 which is held to be the absolute property of
Dr.Jayaraman. Hence, subject to the modification pointed out above, the
judgment and decree of the trial Court is affirmed. However, there is no
order as to costs. Consequently, the connected miscellaneous petitions are
closed.

To

1.The First Additional District Judge,
Tiruchirappalli.

2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai..

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AP AND TELANGANA HIGH COURT- Service Matter – directing to recruit the full time and part time Masalchies, who have put in more than 15/10/5 years of service in their respective units for recruitment to the posts of Attenders, the petitioner, who is also a part time masalchie, comes before us by way of this writ petition, seeking for such recruitment as an Office Subordinate. = Central Government, State Government and their instrumentalities have right to engage daily wagers on the agreed wages, on contractual basis, ad hoc and temporary basis and there is no prohibition in the Constitution or under any law of the land. However, their appointment should be in accordance to law. – Merely because the masalchies were not appointed by following the procedure prescribed for the post into which they are absorbed, it cannot be said in all cases, that their initial appointment itself was with ulterior motive. The penury of the petitioner and the likes may be one of the reasons for them to accept the employment with meagre wages. But, however, our sympathies to the petitioner, who has worked in the same capacity, with meagre wages, for several years, do not permit us to apply the circular to the petitioner as it is only issued as one time measure, as is made clear by the circular of the High Court dated 26.07.2014 by the words that the circular is only one time arrangement and would be applicable to the existing incumbents as on the date of the circular. With that thought, we can only recommend to the High Court to consider the case of the petitioner and other similarly placed employees and to explore the possibility and feasibility of issuing a circular similar to the circular issued earlier.

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THE HONBLE SRI JUSTICE V. RAMASUBRAMANIAN & THE HONBLE SMT JUSTICE T. RAJANI

WRIT PETITION No.41594 OF 2015

11-10-2017

A.Narsimha Reddy…. PETITONER

The State of Telangana, Rep. by its Secretary, Law Department, Secretariat, Hyderabad and others. … RESPONDENTS

COUNSEL FOR THE PETITIONER: MR. P. VENKATESHWER RAO

COUNSEL FOR THE RESPONDENT: GP FOR LAW & LEG.
AFFAIRS
MR. SWAROOP OORILLA
STANDING COUNSEL FOR TAPHC
<GIST :

>HEAD NOTE:

? Cases referred:

LAWS (ALL) 2011 8 21

 

THE HONBLE SRI JUSTICE V. RAMASUBRAMANIAN
&
THE HONBLE SMT JUSTICE T. RAJANI

WRIT PETITION No.41594 of 2015
DATED: 11.10.2017

THE COURT MADE THE FOLLOWING:
THE HONBLE SRI JUSTICE V. RAMASUBRAMANIAN
&
THE HONBLE SMT JUSTICE T. RAJANI

WRIT PETITION No.41594 of 2015

ORDER: (Per Honble Smt. Justice T. Rajani)

 

Scorned by the slip caused by the minute shortfall of service,
for the application of the circular of the High Court dated
06.01.2004,
(herein after referred to as the circular) directing to recruit the full
time and part time Masalchies, who have put in more than 15/10/5
years of service in their respective units for recruitment to the posts
of Attenders, the petitioner, who is also a part time masalchie,
comes before us by way of this writ petition, seeking for such
recruitment as an Office Subordinate. His long wait of all these
seventeen long years, since the date of the circular, with a hope that
history would repeat, did not fetch him any benefit of the like,
which similarly placed employees earlier had.

2. Petitioner was appointed as part time masalchie on 31.07.1999
and has been working as such since then and also as on the date of
the circular of the High court issued in the year 2004. Petitioner
would have become eligible for recruitment as office subordinate
under the said circular but for the shortage of few months to
complete five years of service. He then made a representation to the
High Court on 11.05.2015 stating that there is a post of office
subordinate vacant in the Court of Special Judge for Economic
Offences and he sought for relaxation of age, to become eligible for
being appointed in the said vacancy. Petitioner still awaits reply from
the High Court. Not being successful in the said attempt, the
petitioner seeks to go under the circular dated 06.01.2004 drawing
comparison with another employee, who, he alleges, was recruited
under the said circular, even after the date for the application of the
circular has expired.

3. One M. Srinivasulu, part time masalchie, was recruited as an
attender by relaxing his age, by virtue of the proceedings of the High
Court dated 12.05.2009. Under an impression that since the
direction was given on 09.04.2009, by which date this petitioner also
became eligible by completing his five years of service as part time
masalchie, the petitioner contends that he also is eligible for such
recruitment. But a reading of the relevant material on record shows
that, after the High Court issued the circular dated 06.01.2004, unit
heads of various units forwarded the names of part time masalchies
and the process of approving the said masalchies to be recruited
under the circular was taken up by the High Court and the direction
for appointment of said M. Srinivasulu is a consequence of such
consideration. A list of 39 masalchies was approved by the High
Court and M. Srinivasulu is one candidate in the list, figuring at
Sl.No.38. Hence, the understanding of the petitioner that M.
Srinivasulu was appointed subsequent to the said circular is
misconceived and no parity can be drawn between them.

4. The vexed issue of appointment of masalchies into regular
service came up before the Supreme Court in several cases.
The High Court of Allahabad in KRISHNA PRSAD v. STATE OF
UTTAR PRADESH observed that Articles 14 and 16 of the
Constitution of India have been considered by the Constitution
Bench of the Supreme Court in SECRETARY, STATE OF
KARNATAKA v. UMA DEVI [(2006) 4 SCC 44] and subsequently in
the case of STATE OF BIHAR v. UPENDRA NARAYAN SINGH [JT
2009 (4) SC 577]
in detail with reference to the appointment of the Daily Wager, ad
hoc and temporary appointment. The Supreme Court in UPENDRA
NARAYAN SINGHs case observed that the equality clause
enshrined in Article 16 of the Constitution of India mandates that
every appointment to a public post or office should be made by way
of open advertisement so as to enable all eligible persons to compete
for selection on merit. The Supreme Court observed as under:
Article 14 is the genus while Article 16 is a species.
Article 14 declares that the State shall not deny any
person equality before law or equal protection of the
laws within the territory of India. Article 16 gives effect
to the doctrine of equality in all matters relating to
public employment. Article16 embodies the fundamental
guarantee that there shall be equality of opportunity for
all citizens in matters relating to employment or
appointment to any office under the State. No citizen
shall eb ineligible for or discriminated against
irrespective of any employment or office under the State
on the grounds of religion, race, caste, sec, descent,
place of birth, residence or any of them. Though,
enacted as a distinct and independent fundamental
right, because of its great importance as a principle
ensuring equality of opportunity in public employment
which is so vital to the building up of the new classless
egalitarian society envisaged in the Constitution, The
basic principle which, therefore, informs both Arts. 14
and 16 is equality and inhibition against discrimination.
Now, what is the content and reach of this great
equalising principle? It is a founding faith, to use the
words of Bose J., “a way of life”, and it must not be
subjected to a narrow pedantic or lexicographic
approach. We cannot countenance any attempt to
truncate its all-embracing scope and meaning, for to do
so would be to violate its activist magnitude. Equality is
a dynamic concept with many aspects and dimensions
and it cannot be “cribbed cabined and confined” within
traditional and doctrinaire limits. From a positivistic point
of view, equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic while the other,
to the whim and caprice of an absolute monarch. Where
an act is arbitrary it is implicit in it that it is unequal both
according to political logic and constitutional law and is
therefore violative of Article 14, and if it affects any
matter relating to public employment, it is also violative
of Article 16. Articles 14 and 16 strike at arbitrariness in
State action and ensure fairness and equality of
treatment.

The Allahabad High Court referred to a decision of the
Supreme Court in ARUN KUMAR NAYAK v. UNION OF INDIA
[(2006) 8 SCC 111), wherein the Supreme Court observed as under:
This Court in Visweshwara Rao, therefore, held that
intimation to the employment exchange about the
vacancy and candidates sponsored from the
employment exchange is mandatory. This Court also
held that in addition and consistent with the principle of
fair play, justice and equal opportunity, the appropriate
department or establishment should also call for the
names by publication in the newspapers having wider
circulation, announcement on radio, television and
employment news bulletins and consider all the
candidates who have applied. This view was taken to
afford equal opportunity to all the eligible candidates in
the matter of employment. The rationale behind such
direction is also consistent with the sound public policy
that wider the opportunity of the notice of vacancy by
wider publication in the newspapers, radio, television
and employment news bulletin, the better candidates
with better qualifications are attracted, so that adequate
choices are made available and the best candidates
would be selected and appointed to subserve the public
interest better.”
The Supreme Court also further observed as under:
Notwithstanding the basic mandate of Article 16 that
there shall be equality of opportunity for all citizens in
matters relating to employment for appointment to any
office under the State. The spoil system which prevailed
in America in 17th and 18th centuries has spread its
tentacles in various segments of public employment
apparatus and a huge illegal employment market has
developed in the country adversely affecting the legal
and constitutional rights of lakhs of meritorious
members of younger generation of the country who are
forced to seek intervention of the court and wait for
justice for years together. However, the hope and
expectation of the framers of the Constitution that after
independence every citizen will get equal opportunity in
the matter of employment or appointment to any office
under the State and members of civil services would
remain committed to the Constitution and honestly
serve the people of this country have been belied by
what has actually happened in last four decades.

The observations also came with regard to the appointment of
lower strata of the civil services and the scenario of appointment to
lower strata is considered to be worst. The relevant observations of
the Supreme Court are as under:

Those who have been bestowed with the power to
make appointment on Class III and Class IV posts have
by and large misused and abused the same by violating
relevant rules and instructions and have indulged in
favouritism and nepotism with impunity resulting in total
negation of the equality clause enshrined in Article 16
of the Constitution. Thousands of cases have been filed
in the Courts by aggrieved persons with the complaints
that appointment to Class III and Class IV posts have
been made without issuing any advertisement or
sending requisition to the employment exchange as per
the requirement of the 1959 Act and those who have
links with the party in power or political leaders or who
could pull strings in the power corridors get the cake of
employment. Cases have also been filed with the
complaints that recruitment to the higher strata of civil
services made by the Public Service Commissions have
been affected by the virus of spoil system in different
dimensions and selections have been made for
considerations other than merit.

In State of Haryana v. Piara Singh [(1992) 4 SCC 118],
this Court reiterated that appointment to the public
posts should ordinarily be made by regular recruitment
through the prescribed agency and that even where ad
hoc or temporary employment is necessitated on
account of the exigencies of administration, the
candidate should be drawn from the employment
exchange and that if no candidate is available or
sponsored by the employment exchange, some method
consistent with the requirements of Article 14 of the
Constitution should be followed by publishing notice in
appropriate manner calling for applications and all those
who apply in response thereto should be considered
fairly, but proceeded to observe that if an ad hoc or
temporary employee is continued for a fairly long spell,
the authorities are duty bound to consider his case for
regularization subject to his fulfilling the conditions of
eligibility and the requirement of satisfactory service.

5. The concern of the Supreme Court was about the temporary
appointments being made through back doors, defeating the rights
of the other eligible persons. But the other side of the coin comes to
our vision. The masalchies, who are appointed 5, 10, 15 years ago,
were absorbed as regular attenders by virtue of the circular of the
High Court, which goes to show that they could not be regularized
immediately, after their appointment and they were not regularized
before five years. That would imply that the services of the petitioner
and similarly placed masalchies were required by the Courts as an
exigency and that they were not necessarily brought in through
backdoors with an intention to get their entry first and regularise
their services later. If they had the favour of the employer, they
would not have been made to wait for so many long years without
regularisation.
The efficiency of the contract employees was recognised by the High
Court of Allahabad in the decision supra and observed as follows:
In the present scenario of Globalisation and Economic
growth, the execution of work by engaging the persons
on contractual basis, daily basis and part time basis has
become well recognised system and its results are more
productive, efficient and economical.

The constitutionality of such appointments is spelled in the
following lines:
Having regard to the financial aspects the Central Government,
State Government and their instrumentalities have right to
engage daily wagers on the agreed wages, on contractual basis,
ad hoc and temporary basis and there is no prohibition in the
Constitution or under any law of the land. However, their
appointment should be in accordance to law.

6. Merely because the masalchies were not appointed by
following the procedure prescribed for the post into which they are
absorbed,
it cannot be said in all cases, that their initial appointment itself was
with ulterior motive. The penury of the petitioner and the likes may
be one of the reasons for them to accept the employment with
meagre wages. But, however, our sympathies to the petitioner, who
has worked in the same capacity, with meagre wages, for several
years, do not permit us to apply the circular to the petitioner as it is
only issued as one time measure, as is made clear by the circular of
the High Court dated 26.07.2014 by the words that the circular is
only one time arrangement and would be applicable to the existing
incumbents as on the date of the circular.

7. How peaceful would the society be if the State can provide
employment to all the needy persons, with wages sufficient enough
to sustain their lives with dignity, we muse. With that thought, we
can only recommend to the High Court to consider the case of the
petitioner and other similarly placed employees and to explore the
possibility and feasibility of issuing a circular similar to the circular
issued earlier.

The writ petition is disposed of. Consequently, pending
miscellaneous applications, if any, shall stand closed. There shall be
no order as to costs.

_____________________
V. RAMASUBRAMANIAN, J
__________
T. RAJANI, J
October 11, 2017

Posted in Uncategorized

AP AND TELANGANA HIGH COURT- writ of Mandamus to declare Statute 13(3) made under the Rajiv Gandhi University of Knowledge Technologies Act, 2008 (for short the Act), and the procedure prescribed by the respondents for selection of candidates for admission into the six year integrated B-Tech programme for the academic year 2017-18, as illegal, contrary to the provisions of the Presidential Order, and in violation of Articles 14, 15 and 371(D) of the Constitution of India, and to strike down the same.= Statute 13 (3) of the Act violates Articles 14 and 15 of the Constitution of India, and is liable to be struck down on this ground alone= It is only students, who were admitted prior to the date of the judgment, who were directed by the Supreme Court not to be disturbed. We had by the order dated 14.07.2017, while issuing notice before admission, directed the respondent-University to reserve six seats, among the seats remaining unfilled as on the date of the order, in the S.V. University local area. These six seats have, admittedly, not been filled-up till date. As a consequence of our order, declaring Statute 13(3) made under the Act ultra vires Articles 14 and 15 of the Constitution of India, the respondent- university shall consider all eligible candidates, strictly in the order of their inter-se merit, for admission to the six un-filled seats in the six year integrated engineering course. This exercise shall be completed, and the selected students shall be admitted, within two weeks from the date of receipt of a copy of this order.

http://judis.nic.in/HCS/list_new2.asp?FileName=14380&Table_Main_Txt=apordtext

HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN AND THE HONBLE SRI JUSTICE M.GANGA RAO

Writ Petition No.21836 of 2017

04-10-2017

A.Sateesh Reddy and others … Petitioners

 

The Rajiv Gandhi University of Knowledge Technologies and others .. Respondents

 

Counsel for the petitioners : Sri P.Veerabhadra Reddy

Counsel for respondent No.1: Ms.M.Vidyavathi, Standing Counsel
Counsel for respondent No.2: GP for Higher Education
Counsel for respondent No.3: GP for General Administration

<GIST:

>HEAD NOTE:

? Citations:

1. 2010 SCC Online AP 1167
2. (2016) 2 SCC 328
3. (2003) 7 SCC 83
4. (1975) 1 SCC 267
5. (2012) 8 SCC 203
6. (2016) 9 SCC 749
7. AIR 2007 SC 1524
8. (1994) 4 SCC 401
9. AIR 1993 SC 477
10. (1968) 3 SCR 595 : AIR 1968 SC 1379
11.SLP No.2656/2011 dated 07.02.2011

 

THE HONBLE THE ACTING CHIEF JUSTICE RAMESH RANGANATHAN
AND
THE HONBLE SRI JUSTICE M.GANGA RAO
Writ Petition No.21836 of 2017
ORDER: {Per the Honble the Acting Chief Justice Ramesh Ranganathan}
Six students, who were denied admission, have invoked the
jurisdiction of this Court seeking admission into the six year
integrated B.Tech programme in IIITs for the academic year 2017-
18 on the basis of the GPA score secured by them in the 2017 SCC
examinations. They have sought a writ of Mandamus to declare
Statute 13(3) made under the Rajiv Gandhi University of
Knowledge Technologies Act, 2008 (for short the Act), and the
procedure prescribed by the respondents for selection of candidates
for admission into the six year integrated B-Tech programme for
the academic year 2017-18, as illegal, contrary to the provisions of
the Presidential Order, and in violation of Articles 14, 15 and
371(D) of the Constitution of India, and to strike down the same.
The respondent-University (Rajiv Gandhi University of
Knowledge Technologies) hitherto framed Statute 13(3) under the
Act whereby a rural unit of a mandal was stipulated as a local unit
of reservation in respect of a local candidate. The eligibility criteria,
prescribed in the then Statute 13, required the institute to be fully
residential, and to be primarily catering to the educational needs of
the meritorious rural youth of Andhra Pradesh. The admission
process was to be on a local basis with a rural mandal as a unit,
allowing for established reservation norms. Merit, among the
applicants, was to be determined on the basis of the marks secured
by them in the Secondary School Certificate (10th standard)
examination. Questioning the validity of Statute 13(3) of the Act,
two students had invoked the jurisdiction of this Court and a
Division Bench, by its order in Mudavathu Nagraju vs. The
Government of Andhra Pradesh , struck down Statute 13(3) as
violative of the Presidential Order, made under Article 371-D of the
Constitution of India, as it did not accommodate the States power
to identify or specify a mandal or a rural mandal as a distinct local
area; the specification in Statute 13(3) of a rural mandal, as the
unit for determination presumptively of a local candidate, was in
transgression of the contours of the expression local candidate
and local area clearly and unambiguously specified and defined in
the Presidential Order; and as the State had neither the legislative
nor the complementary executive power to enact a law nor to issue
orders or other instruments as to have the effect of transgressing
the provisions of the Presidential Order, and since the provisions of
Statute 13(3) clearly transgressed the provisions of the Presidential
Order, Statute 13 was incompetent and ab inito void.
On the earlier Statute 13(3) being struck down by this Court,
the respondent-university amended Statute 13. Statute 13(3), after
its amendment, reads thus:
Admission to the six year integrated engineering course shall be based on the
10th class marks of each applicant. A deprivation score, as prescribed by
Government from time to time in terms of percentage marks, may be added to the
10th class marks of the applicants from the non-residential government schools,
including zilla parishad and municipal schools, with the objective of providing
weightage to the socio economically challenged students.
The incentive/concession, of a deprivation score being added
to the 10th class marks of any applicant who studied in (i) non-
residential government schools (ii) zilla parishad schools, and (iii)
municipal schools, is said to have been extended with the objective
of providing weightage to the socio-economically challenged students.
In effect a candidate who secured a score of 9.9 in the 10th class
examination, having studied either in a residential government
school or in an aided or unaided private school, would have to yield
place to a candidate, who despite having secured a lower GPA score
of 9.6 in the 10th class examination would, by the fortuitous
circumstance of his having studied in a non-residential
government/zilla parishad/municipal school, now secure a score of
10 as the deprivation score of 0.4 would, because of Statute 13(3),
be added to his 10th Class GPA score.
Sri P.Veerabhadra Reddy, learned counsel for the petitioners,
would submit that Statute 13(3) violates Articles 14, 15 and 371-D
of the Constitution of India; classification of students between
those who passed out from residential government schools, aided
and unaided private schools on the one hand, and those who
passed out from non-residential government, zilla parishad and
municipal schools on the other, violates the equality clauses in
Articles 14 and 15(1) of the Constitution of India; and such a
classification has no nexus to the object sought to be achieved
which, as stated in the counter-affidavit, is to encourage students,
who studied in non-residential government/zilla parishad/
municipal schools, to secure admission in the six year integrated
engineering course offered by the respondent-university, and to
provide concessions to the socio-economically challenged students,
which is impermissible under the Constitution of India. Learned
counsel would rely on Mudavathu Nagraju1 and Sandeep vs.
Union of India in this regard.
On the other hand Ms.M.Vidyavathi, learned Standing
Counsel for the respondent-university, would submit that the
concession extended by the respondent-university cannot be
equated to reservation provided in favour of the socially and
educationally backward classes; the respondent-university is
providing reservation of 50% of the total number of available seats
in favour of the Scheduled Castes, the Scheduled Tribes, and the
other Backward Classes; Statute 13(3) was made only after a
detailed and scientific study of the data collected from the year
2011 onwards regarding the category of students who were able to
secure admission into the six year integrated engineering course;
an analysis of the data revealed that students, from non-residential
government/zilla parishad and municipal schools, were unable to
compete with students from residential government schools, aided
and unaided private schools; the preamble to the Act shows that
the University was constituted to provide an opportunity for rural
students who are economically inadequate compared to their urban
counterparts; the concession in Statute 13(3) was prescribed only
to enable such students to secure admission into the six year
integrated engineering course; the respondent-university has not
violated the Presidential Order; local area reservation of 85% of the
available seats, as stipulated in the Presidential Order, is being
provided to students from the S.V. University area within whose
jurisdiction the respondent-University falls; the remaining 15%
seats are left open for students both from the States of Andhra
Pradesh and Telangana; this concession, prescribed in Statute
13(3), is being extended to students, in addition to the reservation
provided in favour of the socially and educationally backward
classes (SC, ST and OBC); and Statute 13(3) does not fall foul of
Articles 14, 15 and 371-D of the Constitution of India or the
Presidential Order made thereunder. Learned counsel would rely
on State of M.P vs. Gopal D.Tirthani , State of Uttar Pradesh vs.
Pradip Tandon , Satyabrata Sahoo vs. State of Orissa , State of
Uttar Pradesh vs. Dinesh Singh Chauhan and Neeraj Kumar
Sainy vs. State of U.P .
Just as Article 14 permits classification, so does Article 15(1)
which is but a facet of the rule of equality in Article 14. Article
15(4) of the Constitution of India enables a State to make special
provisions for the advancement of any socially and educationally
backward classes of citizens or for the scheduled castes and the
scheduled tribes. For bringing about and ensuring equality,
appropriate measures, including reservations, can be adopted.
What kind of special provision should be made in favour of a
particular class is a matter for the State to decide having regard to
the facts and circumstances of a given situation. (Ajay Kumar
Singh v. State of Bihar ; Indra Sawhney v. Union of India ). The
word “any”, and the associated word special provisions must be given
their due meaning. (Indra Sawhney9). The words any special
provision in Article 15(4) are of wide amplitude (Ajay Kumar
Singh8), and are not mere surplusage. (Indra Sawhney9).
Reservations can take various forms. They may consist of
preferences, concessions, exemptions, extra facilities etc or of an
exclusive quota. Reservation is the highest form of special
provision, while preference, concession and exemption are lesser
forms. The larger concept of reservation takes within its sweep all
supplemental and ancillary provisions as also lesser types of
special provisions. Concessions, exemptions and other measures
are supplementary, incidental and ancillary provisions made with a
view to make the main provision of reservation effective i.e to
ensure that the members of the reserved class fully avail of the
provision for reservation in their favour. There is no reason why
such special provisions should not be held to be included within
the larger concept of reservation. (Indra Sawhney9).
When measures, other than an exclusive quota, are adopted,
they form part of the reservation measures or are ancillary to or
necessary for availing the reservations. Whatever the form of
reservation, the backward classes have to look for them to Article
15(4). (Indra Sawhney9). Where the State finds it necessary – for
the purpose of giving full effect to the provision of reservation to
provide certain exemptions, concessions or preferences to the
members of backward classes, it can extend the same under Clause
(4). All supplemental and ancillary provisions to ensure full
availment of the provisions for reservation can be provided as part
of the concept of reservation itself. Similarly, in a given situation,
the State may think that, in the case of a particular backward
class, it is not necessary to provide reservation, and it would be
sufficient if a certain preference or a concession is provided in their
favour. This can be done under Clause (4). (Indra Sawhney9).
The socially and educationally backward classes, having
been classified by the Constitution itself as a class deserving
special treatment, and the Constitution having itself specified the
nature of special treatment, it should be presumed that no further
classification or special treatment is permissible in their favour
apart from or outside of clause (4). (Indra Sawhney9). The
submission of Ms. M. Vidyavathi, learned Standing Counsel, that
Statute 13(3) of the Act does not provide for reservation but only
extends certain incentives/concessions for students, who had
passed their 10th class examination from non-residential
government/ zilla parishad/ municipal schools in the State, is of
no avail as incentives/concessions are ancillary to reservation, and
can only be provided if they fall within the ambit of Article 15(4) of
the Constitution.
Let us now refer to the judgments which Ms. M. Vidyavathi,
Learned Standing Counsel for the respondent-university, has relied
upon. In Pradip Tandon4, certain colleges in Uttar Pradesh, under
the Meerut University, had reserved seats in medical courses for
students from rural areas, for students from hill areas, and for
students from the Uttarakhand area, besides providing reservation
for the Scheduled Castes, the Scheduled Tribes etc. The
reservation, provided in favour of students from rural, hill and
Uttarakhand areas, was subjected to challenge as being
unconstitutional. Before the Supreme Court, it was contended
that rural India was socially and educationally backward because
of poverty; rural people had common traits of agriculture, and they
were conditioned by economic poverty; and the State was obligated
to promote, with special care, the educational and economic
interests of the weaker sections of the people. It is in this context
that the Supreme Court observed:-
Article 15(4) speaks of socially and educationally backward
classes of citizens. The State described the rural, hill and Uttrakhand areas
as socially and educationally backward areas. The Constitution does not
enable the State to bring socially and educationally backward areas within
the protection of Article 15(4). The Attorney General however submitted that
the affidavit evidence established the rural, hill and Uttrakhand areas to have
socially and educationally backward classes of citizens. The backwardness
contemplated under Article 15(4) is both social and educational. Article 15(4)
speaks of backwardness of classes of citizens. The accent is on classes of citizens.
Article 15(4) also speaks of Scheduled Castes and Scheduled Tribes. Therefore,
socially and educationally backward classes of citizens in Article 15(4) could not
be equated with castes. In M. R. Balaji & Ors. v. State of Mysore [1963] Supp. 1
S.C.R. 439 and State of Andhra Pradesh & Anr. v. P. Sagar [1968] 3 S.C.R. 595
this Court held that classification of backwardness on the basis of castes would
violate both Articles 15(1) and 15(4).
The expression “socially and educationally backward classes” in Article
15(4) was explained in Balaji’s case (supra) to be comparable to Scheduled
Castes and Scheduled Tribes. The reason is that the Scheduled Castes and
Scheduled Tribes illustrated social and educational backwardness. It is difficult
to define the expression “socially and educationally backward classes of
citizens”. The traditional unchanging occupations of citizens may continue
to social and educational backwardness. The place of habitation and its
environment is also a determining factor in judging the social and
educational backwardness.
The expression “classes of citizens” indicates a homogeneous section
of the people who are grouped together because of certain likeliness and
common traits and who are identifiable by some common attributes. The
homogeneity of the class of citizens is social and educational backwardness.
Neither caste nor religion nor place of birth will be the uniform element of
common attributes to make them a class of citizens.
The traits of social backwardness are these. There is no social
structure. There is no social hierarchy. There are no means of controlling
the environment through technology. There is no organization of the
society to create inducements for uplift of the people and improvement of
economy. Building of towns and industries, growth of cash economy which
are responsible for greater social wealth are absent among such classes.
Social growth and well being can be satisfied by massive change in resource
conditions. High lands ‘and hills are to be developed in fiscal values and natural
resources. Nature is a treasury. Forests, mountains, rivers can yield an
advanced society with the aid of education and technology.
The hill and Uttrakhand areas in Uttar Pradesh are instance of socially
and educationally backward classes of citizens for these reasons. Backwardness
is judged by economic basis that each region has its own measurable possibilities
for the maintenance of human numbers, standards of living and fixed property.
From an economic point of view the classes of citizens are backward when
they do not make effective use of resources. When large areas of land
maintain a sparse, disorderly and illiterate population whose property is
small and negligible the element of social backwardness is observed. When
effective territorial specialisation is not possible in the absence of means of
communication and technical processes as in the hill and Uttrakhand areas
the people are socially backward classes of citizens. Neglected opportunities
and people in remote places raise walls of social backwardness of people.
Educational backwardness is ascertained with reference to these
factors. Where people have traditional apathy for education on account of
social and environmental conditions or occupational handicaps, it is an
illustration of educational backwardness. The hill and Uttrakhand areas are
inaccessible. There is lack of educational institutions and educational aids.
People in the hill and Uttrakhand areas illustrate the educationally
backward classes of citizens because lack of educational facilities keep
them stagnant and they have neither meaning and values nor awareness for
education.
The 1971 Census showed population in India to be 54.79 crores. 32-89
crores or 80.1 per cent live in rural areas. 10.91 crores or 43.9 per cent live in
cities and towns. In 1921 the rural population in India was 88.8 per cent. In 1971
the rural population was reduced to 80.7 per cent. The rural population of Uttar
Pradesh in 1971 was roughly seven and a half crores. The population in
Uttrakhand was roughly seven and a half lakhs. The population of Hill areas in
Uttar Pradesh was near about twenty-five lakhs. It is in- comprehensible as to
how 80.1 per cent of the people in rural areas or 7 crores in rural parts of
Uttar Pradesh can be suggested to be socially backward because of poverty.
Further, it is also not possible to predicate poverty as the common trait of
rural people. This Court in J. P. Parimoo v. State of Jammu & Kashmir [1973]
3 S.C.R. 236 said that if poverty is the exclusive test a large population in
our country would be socially and educationally backward class of citizens.
Poverty is evident everywhere and perhaps more so in educationally
advanced and socially affluent classes. A division between the population of
our country on the ground of poverty that the people in the urban areas are
not poor and that the people in the rural areas are poor is neither supported
by facts nor by a division between the urban people on the one hand and the
rural people on the other that the rural people are socially and educationally
backward class.
Some people in the rural areas may be educationally backward, some
may be socially backward, there may be few who are both socially and
educationally backward, but it cannot be said that all citizens residing in
rural areas are socially and educationally backward.
On behalf of the State it is said that it is necessary to have reservation of
seats for the people from rural areas in order to attract people from those areas
who are otherwise handicapped in the matter of education, so that they can serve
the people in the rural areas on completion of their medical education. In order to
attract medical men for service in rural areas arrangements are to be made to
attract them. The special need for medical men in rural areas will not make
the people in the rural areas socially and educationally backward classes of
citizens (emphasis supplied).

As held in Pradip Tandon4, the Constitution does not enable
the State to bring socially and educationally backward areas within the
protection of Article 15(4). While the backwardness contemplated
is both social and educational, the accent under Article 15(4) is on
classes of citizens and not on areas or places. The “socially and
educationally backward classes” in Article 15(4) are those comparable to
the Scheduled Castes and the Scheduled Tribes as they illustrate
social and educational backwardness. The expression “classes of
citizens” indicates a homogeneous section of the people who are
grouped together because of certain likeliness and common traits,
and who are identifiable by some common attributes. The
homogeneity of the class of citizens is social and educational
backwardness. The traits of social backwardness are that there is
no social structure, there is no social hierarchy, and there is no
organization of the society to create inducements for upliftment of
the people and improvement of the economy. Where people have
traditional apathy for education, on account of social and
environmental conditions or occupational handicaps, it is an
illustration of educational backwardness.
The premise on which Statute 13(3) is based, that students
studying in non-residential government/zilla parishad/municipal
schools are socio-economically challenged is flawed. When a
question arises, whether a law, which prima facie infringes a
guaranteed fundamental right under Article 15(1), is protected by
Article 15(4), the validity of that law has to be determined by
Courts on the material placed before it. (State of A.P. v. P.
Sagar ). The test of the validity of a law, alleged to infringe the
fundamental rights of a citizen or any act done in execution of that
law, lies not in the belief of the maker of the law or of the person
executing the law, but in the demonstration by evidence before
Courts that the guaranteed right is not infringed. (P. Sagar10).
In its counter-affidavit, the respondent-University states that
it found students from non-residential government/zilla parishad/
municipal schools to be backward on the ground of socio-economic
backwardness; the respondent-University had taken into
consideration the social background of the students whoever
prosecuted their education in non-residential government schools
including Zilla Parishad/Municipal Schools etc, and had therefore
added a deprivation score of upto 0.4 to the GPA of the students;
and this was done with the object of providing weightage to these
deprived classes of students, who were socio-economically
challenged. No material has been placed by the respondents before
this Court to show that all students who are studying in non-
residential government/zilla parishad/municipal schools form a
homogeneous class grouped together because of certain likeliness
and common traits, and who are identifiable by some common
attributes. Neither is every student, who studies in such schools,
socially backward nor is there any basis for the respondents to
conclude that students, studying in such schools, are all
economically backward.
The object of Statute 13(3), as has been explicitly stated
therein, is to provide weightage to the socio-economically challenged
students. While the expression socio-economically challenged is
ambiguous, the State cannot merely, by adding the word socio to
the words economically challenged, provide reservation or make
special provisions in the form of concessions/incentives for the
economically backward sections of society, as what is permitted by
Article 15(4) of the Constitution of India is for the State to make
special provisions for the advancement of only the socially and
educationally backward classes, the scheduled castes and the scheduled tribes
and not any other class of citizens even if they be economically
backward. While economic backwardness cannot form the basis of
concessions or reservations under Article 15(4), the presumption
by the State that all the students, studying in such schools, are
economically backward is also not based on any verifiable data.
A contention, more or less identical to the one raised before
us, (that the number of marks obtained by candidates from non-
residential government/zilla parisahad/municipal schools showed
that they lagged behind in their ability to secure more marks vis–
vis students studying in residential government schools and
private aided and unaided schools) was also urged in Pradip
Tandon4, and the Supreme Court observed:
It was said that the number of marks obtained by candidates from rural
areas showed that they were much lower than the marks obtained by
general candidates and this would indicate educational backwardness. That
is neither a valid nor a justifiable ground for determining social and
educational backwardness. Educational institutions should attract the best
talents. It has been held by this Court in Balaij’s case (supra) that 50 per cent of
the seats in educational institutions should be left open to general competition.
in the present case, it appears that 85 candidates from rural areas were selected
in the general seats. One candidate from Uttrakhand area, 7 candidates from hill
areas and one Scheduled Caste candidate also completed for the general seats.
The candidates from hill areas, Uttrakhand Division and Scheduled Castes are
exceptions and their performance will not detract from the reservations for
Scheduled Caste, bill and Uttrakhand areas. The performance of 85 candidates
from rural areas speaks eloquently for the high standards of education in rural
areas.
The reservation for rural areas cannot be sustained on the ground
that the rural areas represent socially and educationally backward classes of
citizens. This reservation appears to be made for the majority population of
the State. 80 per cent of the population of the State cannot be a
homogeneous class. Poverty in rural areas cannot be the basis of
classification to support reservation for rural areas. Poverty is found in all
parts of India. In the instructions for reservation of seats it is provided that in
the application form a candidate for reserved seats from rural areas must submit
a certificate of the District Magistrate of the District to which he belonged that be
was born in rural area and had a permanent home there, and is residing there or
that he was born in India and his parents and guardians are still living there
and earn their livelihood there. The incident of birth in rural areas is made the
basic qualification. No reservation can be made on the basis of place of birth, as
this would offend Article.
The onus of proof is on the State to establish that the reservations
are for socially and educationally backward classes of citizens. The State has
established that the people in hill and Uttrakhand areas are socially and
educationally backward classes of citizens.. (emphasis supplied).

As held in Pradip Tandon4, it is not possible to predicate
poverty as the common trait of rural people. If poverty was the
exclusive test, a large population in our country would be socially
and educationally backward class of citizens. Poverty is evident
everywhere, and perhaps more so in educationally advanced and
socially affluent classes. A division between the population of our
country on the ground of poverty, that people in urban areas are
not poor and those in rural areas are poor, is neither supported by
facts, nor by a division between urban people on the one hand and
rural people on the other that all rural people are socially and
educationally backward. Some people in rural areas may be
educationally backward, some may be socially backward, there
may be a few who are both socially and educationally backward,
but it cannot be said that all citizens, residing in rural areas, are
socially and educationally backward.
Reservation, concessions and incentives for students who
passed out from schools in rural areas cannot, therefore, be
sustained on the ground that rural areas in its entirety, represent
the socially and educationally backward classes of citizens. This
concession cannot be extended to a majority population of the
State which is poor, as it is not a homogeneous class. Poverty, in
rural areas, cannot form the basis of classification to support
reservation for rural areas as and poverty is found in all parts of
India. The premise that students, studying in non-residential
government/zilla parishad/municipal schools, suffer from poverty,
and are therefore economically backward, cannot also form the
basis of a classification to bring the concessions extended to them
within the ambit of Article 15(4) of the Constitution of India.
As held in Pradip Tandon4, the contention that the number
of marks, obtained by candidates from rural areas, showed that
they were much lower than the marks obtained by general
candidates, and this indicated educational backwardness, is
neither a valid nor a justifiable ground for determining social and
educational backwardness. Educational institutions should attract
the best talents. It is evident, therefore, that lower marks being
secured by students, who passed 10th class from non-residential
government/zilla parishad/ municipal schools, is neither a valid
nor a justifiable basis for determining the social and educational
backwardness of a class of citizens.
Article 15(4) of the Constitution of India is not restricted to
reservation alone, but enables the State to make special provisions
for the advancement of the socially and educationally backward
classes, the Scheduled Castes and Scheduled Tribes. The special
provisions which the State may make, for these specified
categories, would include providing them concessions and
incentives, such as the incentive provided in the present case of
adding a deprivation score to their GPA. Such
concessions/incentives would be saved from the vice of
discrimination, and violation of Article 15(1), only if they fall within
the ambit of Article 15(4), and such concessions/incentives are
provided only to socially and educationally backward classes, the
Scheduled Castes and the Scheduled Tribes and not, as Statute
13(3) would stipulate, to the socio-economically challenged students.
Article 15(4) does not enable the State, or its instrumentalities, to
provide such concessions/incentives to the economically backward
classes of citizens.
The concession/incentive, as stipulated in Statute 13(3), is
made available to all students who passed their 10th Class from
non-residential government/zilla parishad/Municipal schools,
which would, undoubtedly, include students from the open
category also. Students, who passed their 10th Class from such
schools, are not confined only to the socially and educationally
backward classes or to the Scheduled Castes and the Scheduled
Tribes, but would also include the affluent and those who, though
economically backward, are from the socially and educationally
advanced sections of society. Reliance placed by Ms.M.Vidyavathi,
on Pradip Tandon4, is therefore misplaced.
In Gopal D.Tirthani3, a provision giving weightage of marks
to rural services, and for holding a separate eligibility test for
determining the merit of in-service candidates for admission to
post-graduate medical courses, as distinguished from open
category candidates, was under challenge. It is in this context that
the Supreme Court observed:
.To withstand the test of reasonable classification within the
meaning of Article 14 of the Constitution, it is well settled that the
classification must satisfy the twin tests: (i) it must be founded on an
intelligible deferential which distinguishes persons or things placed in a
group from those left out or placed not in the group, and (ii) the defferentia
must have a rational relation with the object sought to be achieved. It is
impermissible to use territories or the nature of the objects or occupations
or the like as the basis for classification. So long as there is a nexus
between the basis of classification and the object sought to be achieved, the
classification is valid. We have, in the earlier part of the judgment, noted the
relevant statistics as made available to us by the learned Advocate-General
under instructions from Dr Ashok Sharma, Director (Medical Services), Madhya
Pradesh, present in the Court. The rural health services (if it is an appropriate
expression) need to be strengthened. 229 community health centres (CHCs) and
169 first-referral units (FRUs) need to be manned by specialists and block
medical officers who must be postgraduates. There is nothing wrong in the
State Government setting apart a definite percentage of educational seats
at post graduation level consisting of degree and diploma courses
exclusively for the in-service candidates. To the extent of the seats so set
apart, there is a separate and exclusive source of entry or channel for
admission. It is not reservation. In-service candidates, and the candidates
not in the service of the State Government, are two classes based on an
intelligible differentia. There is a laudable purpose sought to be achieved.
In-service candidates, on attaining higher academic achievements, would
be available to be posted in rural areas by the State Government. It is not
that an in-service candidate would leave the service merely on account of
having secured a postgraduate degree or diploma though secured by virtue
of being in the service of the State Government. If there is any
misapprehension, the same is allayed by the State Government obtaining a
bond from such candidates as a condition precedent to their taking
admission that after completing PG degree/diploma course they would serve
the State Government for another five years. Additionally, a bank guarantee
of rupees there lakhs is required to be submitted along with the bond. There
is, thus, clearly a perceptible reasonable nexus between the classification
and the object sought to be achieved (emphasis supplied)
To satisfy the test of a reasonable classification, within the
meaning of Article 14 of the Constitution, the classification must
fulfil twin tests i.e., (i) it must be founded on an intelligible
deferentia which distinguishes persons or things placed in a group,
from those left out or placed outside the group, and (ii) the
differentia must have a rational relation to the object sought to be
achieved. As long as there is a reasonable nexus between the basis
of classification, and the object sought to be achieved, the
classification is valid. It is impermissible to use territories or the
nature of objects or occupations or the like as the basis for
classification (Gopal D.Tirthani3).
While classification of students, studying in non-residential
government/ zilla parishad/municipal schools, may be founded on
an intelligible differentia, as students from these schools are
distinguishable from those studying in other schools, such a
classification would be held to satisfy the test of Article 14 only if
this differentia has a reasonable nexus to the object sought to be
achieved, and such an object is legal and valid.
The object which the respondent-university seeks to achieve,
as stated by them in their counter affidavit, is that students, who
studied in non-residential government/zilla parishad/Municipal
schools, were not reaching the expected Grade Point Average for
securing admissions into IIIT for the 6 Year Integrated Course.
This concession/incentive, of adding a deprivation score of 0.4 to
the GPA, is in addition to the reservations provided in favour of the
socially and educationally backward classes. In its counter-
affidavit, the respondent-university has stated that the rule of
reservation, fixed by the State Government, is being strictly
followed, which is 15% for the SC category, 6% for the ST category,
7% for the BC-A category, 10% for the BC-B category, 1% for the
BC-C category, 7% for the BC-D category and 4% for the BC-E
category.
The concession, of giving weightage of a maximum
deprivation score of 0.4, is extended to students from non-
residential government/zilla parishad/municipal Schools on the
premise that all of them are socio-economically challenged, an
ambiguous expression which appears to presume, erroneously,
that the economically challenged are invariably socially challenged
also. The counter affidavit does not disclose the basis on which
the respondent-university has concluded that all students, from
these schools, are economically challenged. Even otherwise,
economic backwardness is not a valid ground for making special
provisions under, and extending incentives/concessions to the
economically challenged is not sanctioned by, Article 15 (4) of the
Constitution of India.
The concession of providing a deprivation score of a
maximum of 0.4, to students studying in non-residential
government/zilla parishad/municipal schools must fail, firstly
because there is no verifiable data to show that all the students
studying in such schools are socio-economically challenged which is
the object of Statute 13(3). Secondly, because this object, of
providing weightage to the socio-economically challenged students, is
not legally valid as concessions in favour of the economically
backward is not permissible under Article 15(4) of the Constitution
of India. Reliance placed on Gopal D.Tirthani3 is therefore
misplaced.
While establishing the University and Colleges in rural areas
would, undoubtedly, provide an opportunity for students from
rural areas to have greater access to the educational facilities
provided thereat, reservation/concession/incentive to students
from certain categories of schools alone, and denying such benefits
to students from other schools, does not have a rational nexus to a
permissible objective. Extension of such concessions to the socio-
economically challenged (whatever this expression means) would fall
foul of the equality clause in Article 15 (1) of the Constitution of
India, besides violating Article 14 of the Constitution of India as
neither does the classification have a rational nexus to the object
sought to be achieved nor is the avowed object permissible under
Article 15 of the Constitution. Statute 13(3) not only falls foul of
Article 15(4) of the Constitution, it also suffers from the vice of
discrimination and arbitrariness offending Articles 14 and 15(1)
thereof.
In Satyabrata Sahoo5, additional weightage of marks was
given to in-service candidates in the post-graduate medical
entrance examination, for having served in rural areas/tribal areas,
even for seats earmarked for the open category. In this context the
Supreme Court held:
..We have referred to the above mentioned judgments only to indicate the
fact that this Court in various judgments has acknowledged the fact that
weightage could be given for doctors who have rendered service in
rural/tribal areas but that weightage is available only in in-service category,
to which 50% seats for PG admission has already been earmarked. The
question is whether, on the strength of that weightage, can they encroach
upon the open category, i.e direct admission category. We are of the view
that such encroachment or inroad or appropriation of seats earmarked for
open category candidates (direct admission category) would definitely affect
the candidates who compete strictly on the basis of the merit.
The purpose and object for giving weightage to in-service candidates
who have rendered rural/tribal service is laudable and their interest has
been taken care of by the Medical Council of India as well as the prospectus
issued for admission to the various medical colleges in State of Odisha but
they have to come through the proper channel i.e. the channel exclusively
earmarked for in-service candidates and not through the channel earmarked
for candidates in the open category. The in-service candidates are also free
to compete through the open category just like any other who fall under that
category. Further, it is also relevant to note those who get admission in post
graduate courses through the open category have to execute a bond stating that
they would serve rural/tribal areas after completion of their post-graduation. In
fact, weightage is given to those candidates who have rendered service in
rural/tribal areas when they compete for admission to PG (Medical) Courses in
in-service category for whom 50% seats are earmarked (emphasis
supplied).
While weightage of marks given to in-service candidates was
held to satisfy the test of Article 14 of the Constitution of India as
long as it was confined to the quota prescribed for in-service
candidates alone, and did not encroach into the seats left open for
the open competition, the Supreme Court, in Satyabrata Sahoo5,
made it clear that such weightage, for in-service candidates, could
not be provided in seats under the open category.
In Dinesh Singh Chauhan6, the proviso to Regulation 9 (2)
(d) permitted weightage of marks for admission in post-graduate
medical courses, to be given as incentives to in-service candidates
for each year of service rendered by them in remote or difficult
areas upto a maximum of 30% marks. On the validity of this
Regulation being subjected to challenge, the Supreme Court
observed:
In the present case, we have held that providing 30% reservation
to in-service candidates in Post Graduate Degree Courses is not permissible. It
does not however, follow that giving weightage or incentive marks to in-service
candidates for Post Graduate Degree Courses entails in excessive or substantial
departure from the rule of merit and equality. For, Regulation 9 recognizes the
principle of giving weightage to in-service candidates while determining
their merit. In that sense, incentive marks given to in-service candidates is
in recognition of their service reckoned in remote and difficult areas of the
State, which marks are to be added to the marks obtained by them in the
NEET. Weightage or incentive marks specified in Regulation 9 are thus
linked to the marks obtained by the in-service candidate in the NEET and
reckon the commensurate experience and services rendered by them in
notified remote/difficult areas of the State. That is a legitimate and rational
basis to encourage the Medical Graduates/Doctors to offer their services
and expertise in remote or difficult areas of the State for some time.
Indisputably, there is a wide gap between the demand for basic health care
and commensurate medical facilities, because of the inertia amongst the
young doctors to go to such areas. Thus, giving specified incentive marks
(to eligible in-service candidates) is permissible differentiation whilst
determining their merit. It is an objective method of determining their
merit.
The imperative of giving some incentive marks to doctors working in
the State and more particularly serving in notified remote or difficult areas
over a period of time need not be underscored. For, the concentration of
doctors is in urban areas and the rural areas are neglected. Large number of
posts in Public Health Care Units in the State are lying vacant and unfilled
in spite of sincere effort of the State Government. This problem is faced by
all States across India. This Court in Dr.Snehelatas case (supra) had left it to
the Authorities to evolve norms regarding giving incentive marks to the in-service
candidates. The Medical Council of India is an expert body. Its assessment about
the method of determining merit of the competing candidates must be accepted
as final (State of Kerala V. T.P.Roshana[9]; also see MCI V. State Of
Karnataka[10]). After due deliberations and keeping in mind the past
experience, Medical Council of India has framed Regulations inter alia
providing for giving incentive marks to in-service candidates who have
worked in notified remote and difficult areas in the State to determine their
merit. The Regulation, as has been brought into force, after successive
amendments, is an attempt to undo the mischief. (emphasis supplied).

Weightage of marks to in-service candidates in admission to
post-graduate medical seats, for services rendered by them in rural
areas, was upheld by the Supreme Court in Dinesh Singh
Chauhan6, taking note of the fact that doctors were concentrated
mainly in urban areas, and rural areas were neglected; a large
number of posts in Public Health Care Units were lying vacant and
unfilled inspite of sincere efforts of the State Government; and
providing such incentives to in-service candidates, who served in
difficult areas, was justified.
Unlike in Dinesh Singh Chauhan6, where weightage of
marks given for service rendered in difficult areas was held to be
valid by the Supreme Court, in the present case the weightage of
marks, in the form of a maximum deprivation score of 0.4, is
extended to students who passed their 10th Class from non-
residential govt/zilla parishad/municipal schools on the erroneous
premise that all such students are from the socio-economically
backward category. While this premise is itself flawed, even if we
were to presume that it is not, the socio-economic backward class of
citizens are not among those specified classes in whose favour
alone special provisions can be made by the State or its
instrumentalities under Article 15 (4) of the Constitution of India.
As we are satisfied that Statute 13 (3) of the Act violates
Articles 14 and 15 of the Constitution of India, and is liable to be
struck down on this ground alone, it is wholly unnecessary for us
to examine the contention of Sri P. Veerabhadra Reddy, learned
counsel for the petitioner, that such concessions/incentives are
also contrary to the Presidential Order made under Article 371-D of
the Constitution. This question is left open to be considered, if
need be, in appropriate legal proceedings.
A feeble submission is made by Ms. M. Vidyavati, learned
Standing Counsel for the respondent-University, that this order
should be given prospective effect since admissions to the six year
Integrated Engineering Course has already been completed, and
classes have commenced; against the judgment of the Division
Bench of this Court, in Mudavathu Nagraju1, the respondent-
University had carried the matter in appeal; and the Supreme
Court had directed that the students, who were already admitted,
should not disturbed.
The order of the Supreme Court, in Dean Rajiv Gandhi
Univ. of Knowledge Tech v. Mudavathu Nagaraju , reads thus:
Issue Notice.
Interim stay of the applicability of the impugned order to admissions made
prior to the date of judgment of the High Court. However, the interim stay
will not affect the direction to admit the second respondent to the
engineering course and it is made clear that the direction for his
admission is not disturbed.

It is only students, who were admitted prior to the date of the
judgment, who were directed by the Supreme Court not to be
disturbed. We had by the order dated 14.07.2017, while issuing
notice before admission, directed the respondent-University to
reserve six seats, among the seats remaining unfilled as on the date
of the order, in the S.V. University local area. These six seats have,
admittedly, not been filled-up till date. As a consequence of our
order, declaring Statute 13(3) made under the Act ultra vires
Articles 14 and 15 of the Constitution of India, the respondent-
university shall consider all eligible candidates, strictly in the order
of their inter-se merit, for admission to the six un-filled seats in the
six year integrated engineering course. This exercise shall be
completed, and the selected students shall be admitted, within two
weeks from the date of receipt of a copy of this order.
The Writ Petition is allowed. Miscellaneous petitions
pending, if any, shall stand disposed of. There shall be no order as
to costs.

 

_________________________________
(RAMESH RANGANATHAN, ACJ)
____________________
(M.GANGA RAO, J)
4th October, 2017

Posted in Uncategorized

AP AND TELANGANA HIGH COURT = the Writ Petition in a contractual matter is not maintainable. In respect of bank guarantees, the satisfaction of the beneficiary is final with regard to breach of the covenants between the beneficiary and the person on whose behalf the bank guarantee was issued and the bank has no other alternative except to honour the payment under the guarantee. In the case before me, though the respondents satisfy the requirement of State, no relief can be granted in the present Writ Petition in the absence of any element of public law. The contract between the petitioners and the respondents are purely private contracts. The first point is answered accordingly.- Hence, I am of the opinion that the present Writ Petition challenging the letter dated 26.07.2017 is not maintainable and the Writ Petition is liable to be dismissed.

http://judis.nic.in/HCS/list_new2.asp?FileName=14379&Table_Main_Txt=apordtext

THE HONBLE SRI JUSTICE A. RAMALINGESWARA RAO

Writ Petition No. 28092 of 2017

10-10-2017

M/s Jaiprakash-Gayatri Joint Venture, Rep. by its Authorised Signatory G. Venkateswara Rao and others Petitioners

State of Andhra Pradesh, Rep. by its Principal Secretary, Irrigation and Command Area Development Department, Amaravati, Gun

Counsel for the Petitioners :Sri S. Ravi, learned Senior
Counsel appearing for Sri V.R.N. Prashanth

Counsel for the Respondents: GP for Irrigation

 

<Gist :

>Head Note :

? Cases referred:

1. 2017(5) ALD 556
2. (2011) 6 SCC 508
3. (2011) 9 SCC 354
4. (2014) 9 SCC 1
HONBLE SRI JUSTICE A. RAMALINGESWARA RAO

Writ Petition No.28092 of 2017

Order:

Heard learned Senior Counsel, Sri S. Ravi for the petitioners and
learned Government Pleader for the respondents.
This Writ Petition was filed challenging the action of the
respondents in calling upon the first petitioner to pay an amount of
Rs.5,59,80,000/- with interest at 8% p.a., from the date of payment of
the amounts and in issuing letter dated 26.07.2017 by the fourth
respondent as illegal, arbitrary and also sought stay of further
proceedings of invocation of bank guarantees.
When the Writ Petition came up for admission on 22.08.2017, time
was granted and posted the matter to 29.08.2017, but the respondents
did not give proper instructions to the learned Government Pleader, and
hence this Court was constrained to grant stay of further action in the
instant case. Seeking vacation of the said stay, the respondents filed
W.V.M.P.No.3839 of 2017 on 13.09.2017 and while extending the interim
order up to 10.10.2017, this Writ Petition was taken up for hearing on
merits as the matter relates to invocation of bank guarantee.
The undisputed facts in this case are that the third respondent
entered into an Agreement No.8 SE/2007-2008 dated 25.06.2007 for the
work of Package No.04/2006 pertaining to investigation, design and
earth work excavation of GNSS Main Canal from KM 119.000 to KM
141.350 including construction of CM & CD works including formation of
Uddimadugu Reservoir and distributory system including field channels to
feed an Ayacut of 10000 acres in Kadapa District. The work has to be
completed in forty eight (48) months. The petitioners became the lowest
tenderers pursuant to quoting of an amount of Rs.111,96,00,000/- being
minus 23.3885% of less than the tender value. As per Clause 49 of the
general conditions of contract, which forms part of the agreement, the
contractor is entitled to avail the mobilization advance in two installments
equivalent to 10% of the contract amount (5% for labour mobilization
and 5% for machinery and equipment) named in the letter of acceptance.
The 5% of the amount shall be paid in two installments i.e., 1% of the
said amount shall be paid after concluding the agreement and the balance
of 4% under two installments shall be released after commencement of
the work i.e., after completion of investigation, survey and designs. The
1% of the amount was paid in a sum of Rs.58,98,000/- on 05.09.2007
and Rs.55,98,000/- on 24.09.2007. The balance of 4% of mobilization
advance was also paid in two installments of Rs.1,34,40,000/- on
05.07.2008 and Rs.3,13,44,000/- on 24.07.2008. Since the petitioners
were required to submit bank guarantees, the first petitioner submitted
bank guarantee for Rs.6,71,76,000/- instead of an amount of
Rs.5,59,80,000/- released by the respondents. Though the petitioners
were not asked to submit the bank guarantees towards interest, the
petitioners submitted excess bank guarantees as above. The bank
guarantees are valid up to 08.01.2018. The commission on bank
guarantee should be borne by the first petitioner only. It appears that
the site could not be handed over to the petitioners as no forest clearance
was obtained. In those circumstances, extension of time was granted
from 25.06.2011 to 24.06.2014, from 25.06.2014 to 31.03.2015, from
01.04.2015 to 31.07.2015, from 01.08.2015 to 30.09.2015 and lastly
from 01.10.2015 to 31.03.2016. Since the first petitioner opted to close
the contract, no further extension was granted by the Government and
the issue with regard to pre-closure of the contract is pending with the
Government pursuant to letter No.CE(P) & DWRO/WRD/KDP/TS-3/Pack-
IV/2016, dated 05.06.2016 of the Chief Engineer. The fourth respondent
addressed a letter on 26.07.2017 to the first petitioner asking to pay
back the mobilization advance of Rs.5,59,80,000/- with interest at 8%
p.a., up to date from the date of payment within 14 days, and further
stating that failing the same the bank guarantee available with the
department would be encashed. It is stated that the said letter was
issued pursuant to failure of the petitioners to pay back the amount in
spite of the letter of the Superintending Engineer dated 22.06.2016.
Challenging the said letter, the present Writ Petition is filed.
The respondents defended their action stating that there is no
element of public law involved in the contract and in view of the decision
of this Court in M/s.Lanco Infratech Limited v. Power Finance
Corporation, New Delhi this Writ Petition is liable to be dismissed.
The first petitioner entered into an agreement with the Superintending
Engineer, GNSS Circle, Kadapa, but not with the third respondent and the
concerned Superintending Engineer was not made a party to the present
Writ Petition, hence, it is liable to be dismissed. The forest clearance
could not be obtained and possession of the site could not be given to the
petitioners due to non-availability of the land for compensatory
afforestation. No claim for compensation on account of delays or
hindrances from whatsoever cause shall lie, but reasonable extension of
time will be allowed by the Executive Engineer and accordingly extension
of time was granted. Since the first petitioner opted to close the
contract, no further extension of contract was granted after 31.03.2016.
No fundamental breach was committed by the respondents and the
contract is no longer existing. The permission from the Forest
Department was obtained for conducting investigation and though the
same was intimated to the petitioner, the petitioner vide its reply dated
14.04.2016 stated that it is not in a position to take up balance survey
and investigation work. Since the proposal submitted by the petitioner
with regard to hydraulic particulars was not in accordance with the norms,
the competent authority observed certain deficiencies in the proposal and
communicated for rectification way back in 2008. Due to incomplete
survey, investigation and design operations by the first petitioner, the
revocation of mobilization advance has become mandatory. The proposal
submitted by the Chief Engineer (Project), Kadapa on 05.06.2016 to the
Government is pending with the Government. Even after approval of
hydraulic particulars submitted by the first petitioner, the first petitioner
has not submitted the designs and drawings of structures, ayacut
registers, block command maps, land plan schedules etc., which do not
require any forest clearance. It is possible to conduct investigation for
which forest clearance was not a hindrance and in spite of the same the
first petitioner has not made any attempt to complete the investigation.
Though the requisite permission was obtained from the District Forest
Officer, Kadapa to conduct survey work, the first petitioner could not
complete the balance survey work. Thus, the purpose for release of
mobilization advance was not fulfilled. In fact, the second installment
amount of 4% should not have been released as the investigation itself
was not completed, but the second installment was released with the fond
hope that the first petitioner may complete the investigation. Even after
lapse of 10 years, the first petitioner could not complete the investigation
works.
In the light of the above facts, the following points require to be
decided.
1) Whether the Writ Petition is maintainable challenging the letter
dated 26.07.2017 issued by the 4th respondent?
2) Whether the action of the respondents is fair in the facts and
circumstances of the case?

The details of the bank guarantees furnished by the first petitioner
towards the mobilization advance are as follows:
Sl.No
.
Bank Guarantee No.
Date
Amount
Rs.
Name of
the Bank
Purpose
1.
09541GPER004407
25.04.200
7
2,80,00,00
0
Bank of
Baroda
EMD
2.
G84GOPG07190000
1
09.07.200
7
1,00,00,00
0
Canara
Bank
Mobilization
Advance
3.
G84GOPG07190000
2
09.07.200
7
1,00,00,00
0
Canara
Bank
Mobilization
Advance
4.
G84GOPG07190000
5
09.07.200
7
1,00,00,00
0
Canara
Bank
Mobilization
Advance
5.
G84GOPG07190000
6
09.07.200
7
1,00,00,00
0
Canara
Bank
Mobilization
Advance
6.
G84GOPG07190000
7
09.07.200
7
1,00,00,00
0
Canara
Bank
Mobilization
Advance
7.
G84GOPG07190000
8
09.07.200
7
1,00,00,00
0
Canara
Bank
Mobilization
Advance
8.
G84GOPG07190000
9
09.07.200
7
71,76,000
Canara
Bank
Mobilization
Advance

The case of the first petitioner is that it is incurring an amount of
Rs.1,07,79,703/- towards commission charges for keeping the
mobilization advance bank guarantees alive and till date an amount of
Rs.81,16,170/- was paid towards commission charges. The first
petitioner also paid an amount of Rs.26,63,533/- towards commission
charges for performance bank guarantee. The further case of the
petitioners is that as per Clause 20 of the terms and conditions of the
agreement, the department shall give possession of the site to the
Contractor and if possession of a part of the site is given, the department
shall ensure that the site so handed over was amenable to carry out the
work at the site by the Contractor. The respondents failed to handover
the possession of the site and it disabled the first petitioner to execute
the work. The land in 98% of the reach of Package No.4 is passing
through the reserved forest area and though they completed the
investigation, survey and submitted hydraulic particulars along with the
proposed alignment, the site was not handed over. They requested for
waiving/reimbursement of interest charges on mobilization advance and
bank guarantee commission, but there was no response from the
respondents. They requested for closure of the contract way back in the
year 2010 and settle their accounts. After five extensions which expired
on 31.03.2016, though the first petitioner sought extension of time from
01.04.2016 to 31.03.2017, no orders have been passed. As per Clause
49.3 of the terms and conditions of the agreement, mobilization advance
can be recovered, if there is any misappropriation of the said amount, but
there is no allegation to the said effect. The respondents are not
empowered to recover the said amount in one lump sum and recovery can
be affected only under Clauses 49.5 and 49.6 and the obligation to pay
back the amount would arise only on closure of the contract, but the
respondents have not taken any action. In fact, the respondents are
liable to pay huge amount of Rs.32.00 Crores to the first petitioner.
Though, no interest can be levied under Clause 49.4 of the agreement,
the interest is sought to be recovered from the mobilization advance. In
those circumstances, they challenged the impugned letter.
The relevant Clauses of the agreement dated 25.06.2007 read as
follows:
20 Possession of the Site:

20.3 The Department shall give possession of the site to the
Contractor. If possession of a part site is given, the
Department will ensure that the part site so handed
over is amenable to carry out the work at site by the
Contractor.

23 Settlement of disputes:

23.3 If any dispute of difference of any kind whatsoever
arises between the department and the Contractor in
connection with, or arising out of the Contract,
whether during the progress of the works or after their
completion and whether before or after the
termination, abandonment or breach of the Contract, it
shall in the first place, be referred to and settled by the
Engineer-in-charge who shall, within a period of thirty
days after being requested by the Contractor to do so,
give written notice of his decision to the Contractor.
Upon receipt of the written notice of the decision of
the Engineer-in-Charge the Contractor shall promptly
proceed without delay to comply with such notice of
decision.

23.4 If the Engineer-in-Charge fails to give notice of his
decision in writing within a period of thirty days after
being requested or if the Contractor is dissatisfied with
the notice of the decision of the Engineer-in-Charge,
the Contractor may within thirty days after receiving
the notice of decision appeal to the Department who
shall offer an opportunity to the Contractor to be
heard and to offer evidence in support of his appeal,
the Department shall give notice of his decision within
a period of thirty days after the Contractor has given
the said evidence in support of his appeal, subject to
arbitration, as hereinafter provided. Such decision of
the Department in respect of every matter so referred
shall be final and binding upon the Contractor and shall
forthwith be given effect to by the Contractor, who
shall proceed with the execution of the works with all
due diligence whether he requires arbitration as
hereinafter provided, or not. If the Department has
given written notice of his decision to the Contractor
and no claim to arbitration, has been communicated to
him by the Contractor within a period of thirty days
from receipt of such notice the said decision shall
remain final and binding upon the Contractor. If the
Department fail to give notice of his decision, as
aforesaid within a period of thirty days after being
requested as aforesaid, or if the Contractor be
dissatisfied with any such decision, then and in any
such case the Contractor within thirty days after the
expiration of the first named period of thirty days as
the case may be, require that the matter or matters in
dispute be referred to arbitration as detailed below:-

SETTLEMENT OF CLAIMS:

Settlement of claims for Rs.50,000/- and below by
Arbitration.

All disputes or difference arising of or relating to the
Contract shall be referred to the adjudication as
follows:

a) Claims up to a value of Rs.10,000/-
Superintending Engineer, T.G.P. Circle, Kadapa.

b) Claims above Rs.10,000/- and up to Rs.50,000/- –
Chief Engineer, T.G.P., Srikalahasti.

The arbitration shall be conducted in accordance with
the provisions of Indian Arbitration and Conciliation
Act, 1996 or any statutory modification thereof.

The arbitrator shall state his reasons in passing the
award.

Claims above Rs.50,000/-.

All claims of above Rs.50,000/- are to be settled by a
Civil Court of competent jurisdiction by way of Civil
Suit and not by arbitration.

A reference for adjudication under this clauses shall be
made by the Contractor within six months from the
date of intimating the contractor of the preparation of
final bill or his having accepted payment which ever is
earlier.

24.9 Save in so far as the contract may prescribe, the extent
of portions of the site of which the contractor is to be
given possession from time to time and the order in
which such portions shall be made available to him
and, subject to any requirement in the contract as to
the order in which the works shall be executed, the
Superintending Engineer will, with the Executive
Engineers written order to commence the works, give
to the contractor possession of so much of the site as
may be required to enable the contractor to
commence and proceed with the execution of the
works in accordance with the programme if any, and
otherwise in accordance with such reasonable
proposals of the contractor as he shall by written
notice to the Superintending Engineer, make and will
from time to time as the works proceed, give to the
contractor possession of such further portions of the
site as may be required to enable the contractor to
proceed with the execution of the works with due
dispatch in accordance with the said programme or
proposals as the case may be; if the contractor suffers
delay or incurs cost from failure on the part of the
Superintending Engineer to give possession in
accordance with the terms of this clause, the
Superintending Engineer shall grant an extension of
time for the completion of works and the contractor is
not entitled for any compensation what so ever in this
regard.

24.12 Delays and extension of time:

No claim for compensation on account of delays
or hindrances to the work from any cause whatever
shall lie, except as hereafter defined. Reasonable
extension of time will be allowed by the Executive
Engineer or by the Officer competent to sanction the
extension, for unavoidable delays, such as may result
from causes, which in the opinion of the Executive
Engineer, are undoubtedly beyond the control of the
contractor. The Executive Engineer shall assess the
period of delay or hindrance caused by any written
instructions issued by him, at twenty five per cent in
excess or the actual working period so lost.

In the event of the Executive Engineer failing to
issue necessary instructions and thereby causing delay
and hindrance to the contractor, the latter shall have the
right to claim an assessment of such delay by the
Superintending Engineer of the Circle whose decision will
be final and binding. The contractor shall lodge in
writing with the Executive Engineer a statement of claim
for any delay or hindrance referred to above, within
fourteen days from its occurrence, otherwise no
extension of time will be allowed.

Whenever authorized alterations or additions
made during the progress of the work are of such a
nature in the opinion of the Executive Engineer as to
justify an extension of time in consequence thereof,
such extension will be granted in writing by the Executive
Engineer or other competent authority when ordering
such alterations or additions.

49. Mobilization Advance:

49.1 The contractors for works exceeding more than Rs.1.00
Crore of estimated contract value are permitted to
avail the facility of mobilization advance in two
installments equivalent to 10% of the contract amount
(5% for labour mobilization and 5% for machinery and
equipment) named in the letter of acceptance payable
as per above. Advance shall be paid in 2 installments
i.e., at 1% after concluding the agreement and the 2nd
installment of balance 4% of mobilization advance
shall be released after commencement of the work
i.e., after completion of investigation, survey and
designs. Payment of the loan will be done under
separate certification by the Executive Engineer after
(i) Execution of the form of agreement by the parties
thereto (ii) Provisions by the contractor of the further
security in accordance with relevant condition and (iii)
provision by the contractor of a Bank Guarantee from
scheduled Bank acceptable to the Executive Engineer
for an amount equal to 10% of a contract amount as
indicated in the letter of acceptance valid up to the
Agreement period towards the installment of the
advance mobilization loan. The advance mobilization
loan will be paid in 30 days after fulfilling the above
I, ii and iii items. Advance mobilization loan will be
paid only in case of contracts with estimated contract
value exceeding Rs.100 lakhs.

49.3 Should the contractor misappropriate any portion of
the advance loan, it shall become due to the Executive
Engineer and payable immediately in one lump by the
contractor and no further loan will be considered
thereafter.

49.4 The above advance shall bear an interest of 8% per
annum. The interest on the amounts paid as advance
is chargeable from the date the amount is paid.
However, if completion is delayed by circumstances
beyond control of the contractor for which an
extension has been granted by the Executive
Engineer/Superintending Engineer the interest charges
on such advances shall be waived for the period of
extension.

49.5 The value of Bank Guarantee for the advance payment
given to the contractor can be progressively reduced
by the amount repaid by the contractor as certified by
the Executive Engineer.

49.6 Recovery of advances:

49.6.1 The advance loan together with interest at the rate of
8% as specified in the above shall be repaid within
percentages deductions from the intermediate
payments under the contract. Deduction shall
commence in the next interim payment following that
in which the total of all such payments to the
contractor have reached 10 percent of the contract
amount and shall be made at the rate of 20 percent of
amount of all interim payments in which the loan was
made together with interest payable up to that date,
until such time as the loan together with interest at the
rate specified in para above shall be completely repaid
prior to the expiry of the contract period including
authorized extensions for completion.

The correspondence in the case indicates that way back on
07.03.2008 permission was issued by the Divisional Forest Officer, Kadapa
for surveying and investigation work in Palakonda Reserve Forest,
Vongimalla Reserve Forest and Vontimitta Reserve Forest areas for a
period of one month. In fact, a letter was addressed to Canara Bank on
09.06.2011 by the Executive Engineer to liquidate the bank guarantees
and send a Demand Draft for a total amount of Rs.6,71,76,000/-. It
appears that the first petitioner addressed a letter on 24.02.2014 to close
the agreement and settle their account as per G.O.Ms.No.1, Finance
(W&P) Department, dated 25.02.2012 and as per Clause 58 of APSS, but
it is informed to the first petitioner by the Executive Engineer on
29.04.2014 that in the said letter there was no mention with regard to
repayment of mobilization advance already taken towards labour
component of Rs.5,59,80,000/- with interest. Another permission was
obtained on 11.09.2015 for survey work from the Forest Department.
The Chief Engineer in his report dated 05.06.2016 addressed to the
Secretary to Government (Major Irrigation) sought instructions with
regard to payment of bill to the Contractor for an amount of
Rs.33,86,790/- towards investigation work, recovery of principal amount
and interest on mobilization advance from the first petitioner of an
amount of Rs.6,98,68,882/- consisting a principal of Rs.5,59,80,000/- and
Rs.1,38,88,882/- and seeking orders for closure of contract and
settlement of accounts. The Secretary to Government had not
communicated any decision so far. But, a clarification was issued on
12.11.2016 stating that the interest shall be levied till the entire
mobilization advance is recovered even beyond agreement period.
Thereafter, the Executive Engineer had issued the impugned letter to the
first petitioner. The first petitioner submitted a reply on 08.08.2017 to
the fourth respondent and the fourth respondent addressed a letter to the
third respondent seeking instructions for recovery of the amount
furnished by bank guarantees.
The above facts would disclose that the amount sought to be
recovered is of the amount belonging to the respondents which was given
towards mobilization advance. It is not the money of the petitioners. As
on 05.06.2016, an amount of Rs.33,86,790/- only is outstanding towards
work bill for investigation and labour component submitted by the first
petitioner. This could be seen from the report of the Chief Engineer on
that date. The letter dated 11.08.2017 addressed to the Superintending
Engineer by the present Executive Engineer shows that the payment of
second installment on mobilization advance of an amount of
Rs.4,47,84,000/- was not as per the agreement conditions. The letter of
the Executive Engineer addressed to the Superintending Engineer
ultimately states as follows:
i. The agency have not completed the investigation
work in full shape so far for which forest clearance is not a
hurdle even though necessary permission from the forest
authorities is obtained for conducting survey work in the forest
zone and communicated to the agency.

ii. The orders of the Government on the issue of closure
of contract and settlement of accounts is not a criteria for
repayment of the mobilization advance with up to date interest
of 8% by the agency as this amount is repayable in any case
and

iii. The forest clearance is getting delayed and keeping
huge amount of advance with the agency is leading to audit
objections.

Necessary action may please be taken by the competent
authority to encash the mobilization advance B.Gs.

Also I submit that necessary instructions may please be
communicated to recover the up to date interest on the
mobilization advance amount, by encashment of EMD B.Gs.

I am herewith enclosing 7 Nos. of mobilization advance
B.Gs in original for this purpose.

This is submitted for favour of further necessary action.

This Court had an occasion to consider the issue relating to the
maintainability of Writ Petition, more particularly with regard to
invocation of bank guarantees in M/s. Lanco Infratech Limiteds case
(supra) and after surveying the entire case law on this point held as
follows:
What emerges from the above discussion is that
though the respondent is a State within the meaning of Article 12
of the Constitution of India, in the absence of any element of
public law, the Writ Petition in a contractual matter is not
maintainable. In respect of bank guarantees, the satisfaction of
the beneficiary is final with regard to breach of the covenants
between the beneficiary and the person on whose behalf the
bank guarantee was issued and the bank has no other
alternative except to honour the payment under the guarantee.
In the case before me, though the respondents
satisfy the requirement of State, no relief can be granted in the
present Writ Petition in the absence of any element of public
law. The contract between the petitioners and the respondents
are purely private contracts. The first point is answered
accordingly.

Hence, I am of the opinion that the present Writ Petition
challenging the letter dated 26.07.2017 is not maintainable and the Writ
Petition is liable to be dismissed.
Coming to the fairness of action on which the entire Writ Petition
is based, even assuming that the Writ Petition can be entertained, the
action of the fourth respondent cannot be held to be arbitrary. As stated
above, at the cost of repetition, it has to be borne in mind that the
amount covered by the bank guarantees was given to the first petitioner
towards mobilization advance by the respondents and it is the
respondents money. This Court is purposely refraining from expressing
any opinion on the merits of the case, as it may eventually prejudice the
rights of the parties in a future litigation, if any. Who committed the
breach of contract and whether the party who suffered such breach is
entitled to compensation, is a matter to be decided in appropriate
proceedings. As rightly opined by the Executive Engineer in his
communication addressed to the Superintending Engineer on 11.08.2017,
the second installment of Rs.4,47,84,000/- should not have been released
to the first petitioner without completion of the survey work. Whatever
may be the reason, the work could not go ahead for the last 10 years.
The first petitioner sought closure of the agreement and the Chief
Engineer sought instructions from the Government way back on
05.06.2016. The Secretary to Government (Major Irrigation) sat over the
file for the reasons best known to him. Learned counsel for the
petitioners submits that the bank guarantees cannot be invoked without
closure of the agreement and without settling its account. But, the
closure of the agreement and settlement of accounts has nothing to do
with the invocation of the bank guarantee by the party in whose favour it
was given, as the satisfaction of the beneficiary is primary and this Court
cannot go into that aspect of the matter. It is not a case where fraud is
alleged or the amount cannot be recovered at a later date by the affected
party. In the facts and circumstances of the case, it cannot be held that
the impugned letter of the fourth respondent is arbitrary and the first
petitioner cannot challenge the communication of the fourth respondent.
Before parting with the case, when the facts are so glaring, it is
necessary for this Court to make comments on the functioning of the
officers who are entrusted with public money. The second installment of
the mobilization advance to the tune of Rs.4,47,84,000/- was released
way back in July 2008. The respondents allowed the first petitioner to
use the said amount for all these years. No timely decision was taken, but
routine extensions of agreement were granted. The first respondent has
not filed any counter affidavit in the present case indicating the reasons
for sitting over the file for the last more than one year. There is clear
dereliction of duty from the then Executive Engineer to the present
Secretary to Government (Major Irrigation). The doctrine of public trust
has taken firm roots in our judicial system. In Noida Enterpreneurs
Association v. Noida and others , the Supreme Court ordered CBI
enquiry when the authorities passed order in colourable exercise of power
favouring himself and certain contractors. The observations of the
Supreme Court in that context are as follows:
41. Power vested by the State in a public authority
should be viewed as a trust coupled with duty to be exercised
in larger public and social interest. Power is to be exercised
strictly adhering to the statutory provisions and fact situation
of a case. Public authorities cannot play fast and loose with
the powers vested in them. A decision taken in an arbitrary
manner contradicts the principle of legitimate expectation. An
authority is under a legal obligation to exercise the power
reasonably and in good faith to effectuate the purpose for
which power stood conferred. In this context, in good faith
means for legitimate reasons. It must be exercised bona fide
for the purpose and for none other. (Vide Commr. Of Police
v. Gordhandas Bhanji, AIR 1952 SC 16, Sirsi Municipality
v. Cecelia Kom Francis Tellis, (1973) 1 SCC 409, State of
Punjab v. Gurdial Singh (1980) 2 SCC 471, Collector
(District Magistrate) v. Raja Ram Jaiswal, (1985) 3 SCC
1, Delhi Admn. v. Manohar Lal (2002) 7 SCC 222, and N.D.
Jayal v. Union of India (2004) 9 SCC 362).

 

In a later decision, one of the Judges in Delhi Airtech Services
Private Limited v. State of Uttar Pradesh , in a case arising out of
Land Acquisition proceedings has to say this regarding the duty of
officers:
213. These authorities are instrumentalities of the State
and the officers are empowered to exercise the power on
behalf of the State. Such exercise of power attains greater
significance when it arises from the statutory provisions. The
level of expectation of timely and just performance of duty is
higher, as compared to the cases where the power is
executively exercised in discharge of its regular business. Thus,
all administrative norms and principles of fair performance are
applicable to them with equal force, as they are to the
government department, if not with a greater rigour. The well
established precepts of public trust and public accountability
are fully applicable to the functions which emerge from the
public servants or even the persons holding public office.
214. In State of Bihar v. Subhash Singh [(1997) 4
SCC 430], this Court, in exercise of the powers of judicial
review, stated that the doctrine of `full faith and credit’ applies
to the acts done by the officers in the hierarchy of the State.
They have to faithfully discharge their duties to elongate public
purpose.
215. The concept of public accountability and
performance of functions takes in its ambit, proper and timely
action in accordance with law. Public duty and public obligation
both are essentials of good administration whether by the
State or its instrumentalities. In Centre for Public Interest
Litigation v. Union of India [(2005) 8 SCC 202], this Court
declared the dictum that State actions causing loss are
actionable under public law. This is a result of innovation, a
new tool with the courts which are the protectors of civil
liberties of the citizens and would ensure protection against
devastating results of State action. The principles of public
accountability and transparency in State action are applicable
to cases of executive or statutory exercise of power, besides
requiring that such actions also not lack bona fides. All these
principles enunciated by the Court over a passage of time
clearly mandate that public officers are answerable for both
their inaction and irresponsible actions. If what ought to have
been done is not done, responsibility should be fixed on the
erring officers; then alone, the real public purpose of an
answerable administration would be satisfied.
216. The doctrine of `full faith and credit’ applies to the
acts done by the officers. There is a presumptive evidence of
regularity in official acts, done or performed, and there should
be faithful discharge of duties to elongate public purpose in
accordance with the procedure prescribed. Avoidance and delay
in decision making process in Government hierarchy is a matter
of growing concern. Sometimes delayed decisions can cause
prejudice to the rights of the parties besides there being
violation of the statutory rule.
217. This Court had occasion to express its concern in
different cases from time to time in relation to such matters. In
State of A.P. v. Food Corporation of India [(2004) 13 SCC
53], this Court observed that it is a known fact that in
transactions of Government business, no one would own
personal responsibility and decisions would be leisurely taken
at various levels.
218. Principles of public accountability are applicable to
such officers/officials with all their rigour. Greater the power to
decide, higher is the responsibility to be just and fair. The
dimensions of administrative law permit judicial intervention in
decisions, though of administrative nature, which are ex facie
discriminatory. The adverse impact of lack of probity in
discharge of public duties can result in varied defects, not only
in the decision making process but in the final decision as well.
Every officer in the hierarchy of the State, by virtue of his
being `public officer’ or `public servant’, is accountable for his
decisions to the public as well as to the State. This concept of
dual responsibility should be applied with its rigours in the
larger public interest and for proper governance.

In recent days we are coming across cases of Crores of rupees of
ill-gotten money unearthed from the Engineers, Town Planners and other
officers and though the said cases are few, it is shocking the conscious of
enlightened citizens. What is conscience of the court is beautifully
expressed by one of the Judges in the Constitution Bench decision of
Manoj Narula v. Union of India , as follows:
143. Court is the conscience of the Constitution of
India. Conscience is the moral sense of right and wrong of a
person. (Ref. Oxford English Dictionary.) Right or wrong, for
court, not in the ethical sense of morality but in the
constitutional sense. Conscience does not speak to endorse
ones good conduct; but when things go wrong, it always
speaks; whether you listen or not. It is a gentle and sweet
reminder for rectitude. That is the function of conscience.
When things go wrong constitutionally, unless the conscience
speaks, it is not good conscience; it will be accused of as
numb conscience.

In this atmosphere it is necessary to have more transparency and
probity in discharge of duties by officers. It is the duty of this Court to
order probe, when there are clear cases of misuse of public money and
this is one such instance. The facts available before this court are not
sufficient to point out finger on any one. It requires enquiry. Hence, it is
hoped that the Chief Secretary to Government would go through the files
in the instant case and take necessary action against the officers who
were negligent in their duties.
For all the above reasons, the Writ Petition is dismissed. There
shall be no order as to costs.
As a sequel thereto, the miscellaneous petitions, if any, pending in
this Writ Petition shall stand closed.

 

____________________________
A.RAMALINGESWARA RAO, J
Date: 10th October 2017

Posted in Uncategorized

AP AND TELANGANA HIGH COURT – MOTOR ACCIDENT CLAIM = The Tribunal, on consideration of the evidence and material available on record, granted compensation of Rs.5,56,000/- as against the claim of Rs.11,00,000/- with interest @ 9% per annum from the date of the petition till the date of deposit of the amount in the Court and apportioned the same among the petitioners. -The only dispute is with regard to the quantum of compensation. While the petitioners sought for enhancement of compensation, the respondents Corporation contends that the compensation awarded by the Tribunal is highly excessive and exorbitant. On consideration of the order passed by the Tribunal, it does not appear that the compensation awarded by the Tribunal is highly excessive or exorbitant, except the rate of interest granted @ 9% per annum ;since the rate of interest appears to be on higher side, following the decision of the Apex Court in DHARAMPAL AND OTHERS Vs. U.P. STATE ROAD TRANSPORT CORPORATION , this Court feels it appropriate to award interest @ 7.5% per annum from the date of petition till the date of deposit of the amount. = the appeal filed by the respondents Corporation is partly allowed by reducing the rate of interest from 9% to 7.5% per annum from the date of petition till the date of deposit of the compensation amount.

http://judis.nic.in/HCS/list_new2.asp?FileName=14374&Table_Main_Txt=apordtext

HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD

M.A.C.M.A.Nos.189 OF 2006 and batch

06-10-2017

Naseemunnisa Begum and others. Appellants

Puligadda Narasimha and others. . Respondents
Counsel for the appellants : Smt. S. Vani

Counsel for the respondents: Sri C. Sunil Kumar Reddy
SC for APSRTC

<GIST:

>HEAD NOTE:

? Cases referred

1.MANU/SC/7680/2008

HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD

M.A.C.M.A. Nos.189 and 2667 of 2006

COMMON JUDGMENT :

Aggrieved by the order and decree dated 11.07.2005 in
O.P.No.2398 of 2002 passed by the II Additional Chief Judge,
City Civil Court, Hyderabad, granting compensation of
Rs.5,56,000/-, as against the claim of Rs.11,00,000/-, with
interest @ 9% per annum for the death of the deceased Mirza
Yousuf Baig in a motor accident that occurred on 12.01.2002
with APSRTC Bus bearing No.AAZ 4659, while the petitioners
in the aforesaid O.P. filed MACMA.No.189 of 2006 seeking
enhancement of compensation, respondent Nos.2 and 3 A.P.
State Road Transport Corporation (for brevity the
Corporation) in the O.P. filed MACMA.No.2667 of 2006
seeking to set aside the impugned order dated 11.07.2005 as
the compensation amount granted by the Tribunal is highly
excessive and exorbitant.

2. For the sake of convenience, the parties are referred to as
they were arrayed in O.P.No.2398 of 2002 before the Tribunal.

3. The brief facts of the case are that the petitioners are
widow, son and father of the deceased Mirza Yousuf Baig.
They filed the aforesaid O.P.No.2398 of 2002 claiming
compensation of Rs.11,00,000/- stating that on 12.01.2002
while the deceased Mirza Yousuf Baig was standing in
Sanathnagar Bus Stand and waiting for bus, suddenly APSRTC
Bus bearing No.AAZ 4659 coming from SBH, proceeding
towards Sanathnagar Bus Stand, came in high speed and in a
rash and negligent manner and hit the deceased and others. As
a result, the deceased sustained multiple injuries and died on
the spot.

4. Respondent No.1, who is the driver of the offending Bus
set exparte and respondent Nos.2 and 3 Corporation filed
counter denying its liability. The Tribunal, on consideration of
the evidence and material available on record, granted
compensation of Rs.5,56,000/- as against the claim of
Rs.11,00,000/- with interest @ 9% per annum from the date of
the petition till the date of deposit of the amount in the Court
and apportioned the same among the petitioners. Challenging
the same, while the petitioners filed appeal seeking
enhancement of compensation, the respondents Corporation
filed appeal contending that the quantum of compensation
awarded by the Tribunal is highly excessive and exorbitant.

5. Heard the arguments of learned counsel for the
appellants in both the appeals and perused the order under
challenge and also the evidence on record.

6. The only point that arises for consideration in these
appeals is, whether the quantum of compensation awarded by
the Tribunal is highly excessive.

7. There is no dispute with regard to the facts of the case.
The only dispute is with regard to the quantum of
compensation. While the petitioners sought for enhancement of
compensation, the respondents Corporation contends that
the compensation awarded by the Tribunal is highly excessive
and exorbitant. On consideration of the order passed by the
Tribunal, it does not appear that the compensation awarded by
the Tribunal is highly excessive or exorbitant, except the rate of
interest granted @ 9% per annum.

8. Therefore, without going into the merits of the matter,
since the rate of interest appears to be on higher side, following
the decision of the Apex Court in DHARAMPAL AND OTHERS
Vs. U.P. STATE ROAD TRANSPORT CORPORATION , this
Court feels it appropriate to award interest @ 7.5% per annum
from the date of petition till the date of deposit of the amount.

9. In the result, while confirming the amount of
compensation granted by the Tribunal at Rs.5,56,000/-, the
appeal filed by the petitioners is dismissed and the appeal filed
by the respondents Corporation is partly allowed by reducing
the rate of interest from 9% to 7.5% per annum from the date
of petition till the date of deposit of the compensation amount.
In all other aspects, the order passed by the Tribunal shall
remain unaltered. No order as to costs.

10. As a sequel, miscellaneous petitions pending, if any, in
these appeals shall stand closed.

______________________________
GUDISEVA SHYAM PRASAD, J
06.10.2017

Posted in Uncategorized

AP AND TELANGANA HIGH COURT – MOTOR ACCIDENT CLAIM= Disability Certificate was issued 2 years 2 months after the accident is not a factor to discard/disbelief – entitled to compensation for 50% disability cannot be countenanced in view of the finding of the Tribunal that the Disability Certificate was issued 2 years 2 months after the accident. However, the appellant is entitled for enhancement of compensation towards the injuries suffered by him – Thus the compensation awarded by the Tribunal under various heads is enhanced as mentioned below: ————————————————————————— Compensation towards Amount awarded Amount awarded by the Tribunal by this Court Rs. Rs. ————————————————————————— 1. Injuries 20,000.00 40,000.00 2. Pain & suffering 5,000.00 25,000.00 3. Medical & extra-nourishment 2,768.00 5,000.00 4. Transport expenses 500.00 1,000.00 5. Damage to clothing 500.00 500.00 ————- ———— Rounded off total : 29,000.00 71,500.00 ————- ———— 11. In the result, the Civil Miscellaneous Appeal is allowed in part, enhancing the amount of compensation awarded by the Tribunal from Rs.29,000/- to Rs.71,500/- (Rupees seventy one thousand five hundred only) with interest @ 9% per annum from the date of petition till the date of realization. The respondents-Corporation is directed to deposit the compensation amount within one month from the date of receipt of a copy of the judgment. On such deposit, the appellant is permitted to withdraw the entire amount of compensation. No order as to costs.

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HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD

M.A.C.M.A.No.652 OF 2006

05-10-2017

Shaik Mahaboob Appellant

A.P. State Road Transport Corporation, Main Road, Nizamabad and another. Respondents

Counsel for the appellant :Sri M. Rajamalla Reddy

Counsel for the respondents: Sri N. Vasudeva Reddy, SC

<GIST:

>HEAD NOTE:

? Cases referred

 

HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD

 

M.A.C.M.A. No.652 of 2006

 

JUDGMENT :

This Civil Miscellaneous Appeal, under Section 173 of the
Motor Vehicles Act, 1988 (for brevity the Act), is preferred by
the appellantpetitioner aggrieved by the judgment and decree
dated 17.10.2005 in O.P.No.599 of 2000 passed by the
Chairman, I Additional Motor Accidents Claims Tribunal,
Nizamabad (for brevity the Tribunal), awarding compensation
of Rs.29,000/- as against the claim of Rs.1,00,000/- made
under Section 166 of the Act, for the injuries sustained by him
in a motor vehicle accident that occurred on 22.11.1999.

2. The brief facts of the case are that on 22.11.1999 at
about 2.00 p.m., while the appellant and others were going in a
Jeep bearing No.AP 25T 7546 towards Mosra Village and when
they reached near Gandhinagar, Nizamabad, the RTC Bus
bearing No.AP 9Z 9113 belonging to the respondents-A.P. State
Road Transport Corporation (for brevity the Corporation)
came from behind the Jeep in a rash and negligent manner and
at high speed and dashed against the said Jeep, due to which
the appellant received fracture injury to his right leg and ankle
and injuries on both hands and head and multiple and
grievous injuries to all over the body, while the other inmates of
the Jeep received multiple and grievous injuries. Immediately,
the appellant was shifted to Government Headquarters
Hospital, Nizamabad, for treatment and from there to a Private
Hospital for further treatment. The appellant laid a claim for
Rs.1,00,000/- against the respondents-Corporation for the
injuries sustained by him in the said accident.

3. The respondents-Corporation contested the said claim
stating that the appellant has not filed any injury or permanent
disability certificate in support of his claim and that the claim
is excessive and highly exorbitant.

4. On consideration of the rival contentions and the
documentary evidence under Exs.A.1 to A.7 filed on behalf of
the appellant, the Tribunal awarded a compensation of
Rs.29,000/- with simple interest @ 9% per annum from the
date of petition till the date of deposit with a further direction to
deposit the amount within 30 days from the date of award.
Aggrieved by the same, the appellant-petitioner has filed the
present appeal.

5. Heard Sri M. Rajamalla Reddy, learned counsel for the
appellant-petitioner, as well as Sri N. Vasudeva Reddy, learned
Standing Counsel for the respondents-Corporation and
perused the material and evidence available on record.

6. Learned counsel for the appellant-petitioner submits that
the Tribunal has not considered the permanent disability
suffered by the appellant at 50% as per Ex.A.4 Disability
Certificate. He further submitted that though the appellant filed
Exs.A.3 to A.5 and A.7, which are Wound Certificate, Disability
Certificate, Discharge Certificate and X-Ray film, respectively,
the Tribunal did not consider the said documents and
permanent disability sustained by the appellant at 50% for
awarding compensation. The learned counsel also submits that
the compensation awarded by the Tribunal for the injuries
sustained by the appellant is inadequate.

7. On the other hand, learned Standing Counsel for the
respondents-Corporation submits that the Tribunal has
awarded Rs.20,000/- for 2 grievous injuries and two simple
injuries. He would further submit that the Tribunal has
awarded Rs.5,000/- towards pain and suffering and that it
disbelieved Ex.A.4 – Disability Certificate as it was issued 2
years 2 months after the accident had occurred and, therefore,
the compensation awarded by the Tribunal is reasonable and
adequate.

8. On consideration of the rival contentions of the respective
parties and the material on record, the only point that arises
for consideration in this appeal is, whether the compensation
awarded by the Tribunal is just and reasonable.

9. The contention of the learned counsel for appellant that
the appellant is entitled to compensation for 50% disability
cannot be countenanced in view of the finding of the Tribunal
that the Disability Certificate was issued 2 years 2 months after
the accident. However, the appellant is entitled for
enhancement of compensation towards the injuries suffered by
him. Therefore, keeping in view the facts and circumstances
and the evidence on record, this Court is of the considered
view that the appellant is entitled for enhancement of
compensation under the head pain and suffering.

10. Thus the compensation awarded by the Tribunal under
various heads is enhanced as mentioned below:
—————————————————————————
Compensation towards Amount awarded Amount awarded
by the Tribunal by this Court
Rs. Rs.
—————————————————————————
1. Injuries 20,000.00 40,000.00
2. Pain & suffering 5,000.00 25,000.00
3. Medical & extra-nourishment 2,768.00 5,000.00
4. Transport expenses 500.00 1,000.00
5. Damage to clothing 500.00 500.00
————- ————
Rounded off total : 29,000.00 71,500.00
————- ————

 

 

 

11. In the result, the Civil Miscellaneous Appeal is allowed in
part, enhancing the amount of compensation awarded by the
Tribunal from Rs.29,000/- to Rs.71,500/- (Rupees seventy one
thousand five hundred only) with interest @ 9% per
annum from the date of petition till the date of realization. The
respondents-Corporation is directed to deposit the
compensation amount within one month from the date of
receipt of a copy of the judgment. On such deposit, the
appellant is permitted to withdraw the entire amount of
compensation. No order as to costs.

12. As a sequel, miscellaneous petitions pending, if any, shall
stand closed.

______________________________
JUSTICE G. SHYAM PRASAD
05.10.2017.

Posted in Uncategorized

AP AND TELANGANA HIGH COURT – MOTOR ACCIDENT CLAIM = Since the petitioner sustained grievous injury i.e., left femur, he might have bed ridden for a longer period. It is pertinent to note that the appellant is working as a private Typist and he has suffered a grievous injury to his left femur. Therefore, the compensation of Rs.5,000/- awarded by the Tribunal towards pain and suffering is enhanced to Rs.30,000/-. Further, the Tribunal has not assigned any reasons for not considering the bunch of Medical Bills worth Rs.39,000/- filed by the appellant, except stating that the Medical Officer was not examined. The reasoning assigned by the Tribunal in awarding Rs.21,000/- as against the Medical Bills of worth Rs.39,000/- appears to be arbitrary. I do not see any valid reason in disallowing the said Medical Bills, for the reason that even as per the finding of the Tribunal, the appellant had received a grievous injury to his left femur and was bed-ridden for about six months. Therefore, the Medical Bills worth Rs.39,000/- is granted. 9. Further, the Tribunal has taken into consideration the notional income of the appellant as Rs.1,500/- per month, which appears to be on lower side. Therefore, the same is enhanced to Rs.3,000/- per month and for 6 months, it comes to Rs.18,000/- towards loss of earnings. 10. Thus the compensation awarded by the Tribunal under various heads is now enhanced as mentioned below: ————————————————————————— Compensation towards Amount awarded Amount awarded by the Tribunal by this Court Rs. Rs. ————————————————————————— 1. Pain and suffering 5,000.00 30,000.00 2. Medical Bills 21,000.00 39,000.00 3. Loss of earnings for 9,000.00 18,000.00 six months ————- ———— TOTAL : 35,000.00 87,000.00 ————- ———— 11. In the result, the Civil Miscellaneous Appeal is allowed in part, enhancing the amount of compensation from Rs.35,000/- to Rs.87,000/- (Rupees eighty seven thousand only) with proportionate costs and interest @ 9% per annum on the enhanced amount also from the date of petition till the date of realization. Respondent Nos.1 and 2 are jointly and severally held liable to pay compensation and they are directed to deposit the compensation amount within one month from the date of receipt of a copy of this judgment. On such deposit, the appellant is permitted to withdraw the entire amount of compensation. No order as to costs.

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HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD

M.A.C.M.A.No.266 OF 2006

05-10-2017

Yedama Laxma Reddy Appellant

Panasa Buchaiah and another Respondents

Counsel for the appellant:Sri Chalakani Venkat Yadav

Counsel for the respondents : Smt. S.A.V. Ratnam,
SC for R.2

<GIST:

>HEAD NOTE:

 

? Cases referred

HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD

 

M.A.C.M.A. No.266 of 2006

 

JUDGMENT :

This Civil Miscellaneous Appeal, under Section 173 of the
Motor Vehicles Act, 1988 (for brevity the Act), is preferred by
the appellant-petitioner seeking enhancement of compensation
challenging the order and decree dated 25.10.2004 in
O.P.No.159 of 2004 (old O.P.No.1477 of 2002) passed by the
Chairman, Motor Accidents Claims Tribunal-cum-II Additional
District Judge, Suryapet, Nalgonda District (for brevity the
Tribunal), awarding compensation of Rs.35,000/- as against
the claim of Rs.1,00,000/- laid by him under Section 166 of
the Act, for the injuries sustained by him in a motor accident
that occurred on 18.09.2002.

2. The brief facts of the case are that on 18.09.2002 at
about 11.30 a.m., while the appellant was proceeding on his
Hero Honda Motor Cycle bearing No.AP-24G-6875 with his
friend from Khammam Cross Road to Lorry Association Office
and when they reached just opposite to Fuse Call Office, Kodad
Town, one Auto bearing No.AP-24U-8102 of respondent No.1
came in a rash and negligent manner with high speed driven by
its driver and dashed the said motor cycle, as a result of which
the appellant sustained grievous injuries and fractures. On
report about the accident, the Police of Kodad Town P.S.
registered a case in Crime No.140/2002 for the offence
punishable under Section 338 IPC against respondent No.1
Owner of the Auto. The appellant filed the aforesaid O.P.No.159
of 2004 claiming compensation of Rs.1,00,000/- for the
injuries sustained by him in the said accident against
respondent Nos.1 and 2, who are owner and insurer,
respectively, of the crime Auto.

3. Before the Tribunal, respondent No.1 owner of the
crime Auto was set exparte and respondent No.2 Oriental
Insurance Company Limited (insurer) filed its counter denying
the allegations made in the claim petition. On consideration of
the evidence of P.W.1 and the documentary evidence under
Exs.A.1 to A.8 filed on behalf of the appellant-petitioner, and
Ex.B.1 True copy of Insurance Policy filed on behalf of the 2nd
respondent – insurer, by order and decree dated 25.10.2004,
the Tribunal awarded a compensation of Rs.35,000/- under
various heads with interest @ 9% per annum from the date of
the petition till realization fixing liability against respondent
Nos.1 and 2. Aggrieved by the same, the appellant-petitioner
has preferred the present appeal seeking enhancement of
compensation.

4. Heard Sri Chalakani Venkat Yadav, learned counsel for
the appellantpetitioner, as well as Smt. S.A.V. Ratnam,
learned Standing Counsel for respondent No.2 Insurer.
Perused the order under challenge and also the evidence on
record.

5. Learned counsel for the appellant submits that the
Tribunal has not awarded adequate compensation and hence
the compensation is required to be enhanced. He would
further submit that though the appellant had suffered grievous
injury to his left femur, which is evident from Ex.A.2 Certified
copy of Injury Certificate dated 18.09.2002, and filed Ex.A.6
Bunch of Medical Bills worth Rs.39,000/-, the Tribunal has
granted only Rs.21,000/- towards medical expenses. The
learned counsel also submits that the Tribunal has awarded
Rs.5,000/- towards pain and suffering, which is required to be
enhanced. It is further argued that the income of the appellant
was taken as Rs.1,500/- per month for the purpose of
calculation of loss of earnings and accordingly awarded
Rs.9,000/- only, which is required to be enhanced.

6. On the other hand, learned Standing Counsel for the 2nd
respondent insurer submits that the compensation awarded
by the Tribunal is adequate and that the rate of interest
awarded by the Tribunal @ 9% per annum is also on higher
side and hence the impugned order does not require any
interference.

7. On consideration of the arguments advanced by the
learned counsel for the respective parties and also the evidence
available on record, there is no dispute with regard to causing
of the accident and the only issue to be decided in this appeal
is regarding adequacy of compensation awarded by the
Tribunal.

8. The Tribunal in para-7 of its order had clearly observed
with regard to the nature of injuries sustained by the appellant
and the suffering undergone by him as follows:
.. Since the petitioner sustained grievous injury i.e.,
left femur, he might have bed ridden for a longer period.

It is pertinent to note that the appellant is working as a private
Typist and he has suffered a grievous injury to his left femur.
Therefore, the compensation of Rs.5,000/- awarded by the
Tribunal towards pain and suffering is enhanced to
Rs.30,000/-. Further, the Tribunal has not assigned any
reasons for not considering the bunch of Medical Bills worth
Rs.39,000/- filed by the appellant, except stating that the
Medical Officer was not examined. The reasoning assigned by
the Tribunal in awarding Rs.21,000/- as against the Medical
Bills of worth Rs.39,000/- appears to be arbitrary. I do not see
any valid reason in disallowing the said Medical Bills, for the
reason that even as per the finding of the Tribunal, the
appellant had received a grievous injury to his left femur and
was bed-ridden for about six months. Therefore, the Medical
Bills worth Rs.39,000/- is granted.

9. Further, the Tribunal has taken into consideration the
notional income of the appellant as Rs.1,500/- per month,
which appears to be on lower side. Therefore, the same is
enhanced to Rs.3,000/- per month and for 6 months, it comes
to Rs.18,000/- towards loss of earnings.

10. Thus the compensation awarded by the Tribunal under
various heads is now enhanced as mentioned below:
—————————————————————————
Compensation towards Amount awarded Amount awarded
by the Tribunal by this Court
Rs. Rs.
—————————————————————————
1. Pain and suffering 5,000.00 30,000.00
2. Medical Bills 21,000.00 39,000.00
3. Loss of earnings for 9,000.00 18,000.00
six months
————- ————
TOTAL : 35,000.00 87,000.00
————- ————

11. In the result, the Civil Miscellaneous Appeal is allowed in
part, enhancing the amount of compensation from Rs.35,000/-
to Rs.87,000/- (Rupees eighty seven thousand only) with
proportionate costs and interest @ 9% per annum on the
enhanced amount also from the date of petition till the date of
realization. Respondent Nos.1 and 2 are jointly and severally
held liable to pay compensation and they are directed to
deposit the compensation amount within one month from the
date of receipt of a copy of this judgment. On such deposit, the
appellant is permitted to withdraw the entire amount of
compensation. No order as to costs.
12. As a sequel, miscellaneous petitions pending, if any, shall
stand closed.
______________________________
GUDISEVA SHYAM PRASAD, J
05.10.2017.

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