What approach the court should adopt while dealing with delay condonation application filed by Government department?

Thus, the Supreme Court has, in clear terms, held that existence of sufficient cause for not filing the appeal in time is a condition precedent for exercising discretionary power to condone the delay. The Court further clarified that the phrases 'liberal approach', justice-oriented approach' and cause for the advancement of 'substantial justice' cannot be employed to defeat the law of limitation so as to allow stale matters or as a matter of fact dead matters to be revived and re-opened by taking aid of Section 5 of the Limitation Act.

17. The Supreme Court, while highlighting the aspect of protecting the interest of institution, has also observed that the law of limitation will have to be implemented, though would harshly affect the party. Thus, at the end of the day, the delay will have to be condoned only upon showing sufficient cause. At the same time, the institutional interest of the State will have to be considered but then the default of individuals cannot be ignored as well.

18. The default will have to be dealt with in terms of Section 10 of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (for short "the Act of 2005"), which reads thus :

"10. (1) Every Government servant shall be bound to discharge his official duties and the official work assigned or pertaining to him most diligently and as expeditiously as feasible :

Provided that, normally no file shall remain pending with any Government servant in the Department or Office for more than seven working days :

Provided further that, immediate and urgent files shall be disposed of as per the urgency of the matter, as expeditiously as possible, and preferably the immediate file in one day or next day morning and the urgent file in four days :

Provided also that, in respect of the files not required to be referred to any other Department, the concerned Department shall take the decision and necessary action in the matter within forty-five days and in respect of files required to be referred to any other Department, decision and necessary action shall be taken within three months.

(2) Any wilful or intentional delay or negligence in the discharge of official duties or in carrying out the official work assigned or pertaining to such Government servant shall amount to dereliction of official duties and shall make such Government servant liable for appropriate 1.[disciplinary action under the All India Services (Discipline and Appeal) Rules, 1969, the] Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 or any other relevant disciplinary rules applicable to such employee.

(3) The concerned competent authority on noticing or being brought to its notice any such dereliction of duties on the part of any Government servant, after satisfying itself about such dereliction on the part of such Government servant shall, take appropriate disciplinary action against such defaulting Government servant under the relevant disciplinary rules including taking entry relating to such dereliction of duty in the Annual Confidential Report of such Government servant."

19. As could be seen, sub-section (1) of Section 10 of the Act of 2005 provides that every Government servant shall discharge his official duties assigned or pertaining to him most diligently and expeditiously and that no file shall remain pending with any Government servant in the department, usually for more than seven working days. Thus, additional time taken will have to be properly justified. In addition, Rules 10 to 13 of the Maharashtra Prevention of Delay in Discharge of Official Duties Rules, 2013 (for short "the Rules of 2013) provides for detailed mechanism to prevent/avoid delay. Despite such a provision and several judgments of the Supreme Court deprecating casual approach in processing files, there is no improvement.

20. There is a reason for the same and the reason is not taking action, provided under sub-sections (2) and (3) of Section 10. It is unfortunate that the effect of sub-section (1) of Section 10 has been neutralized by not taking recourse to sub-sections (2) and (3) of Section 10. In that sense, all the officials have collectively failed to protect institutional interest of the State. Resultantly, the casual approach of Government servants continue and on top of it, the judgments of the Supreme Court are cited to argue as if the Government Servants have license to sit over the files and to expect the Courts to take liberal view.

21. As stated earlier, to expect from the Court a liberal approach, the officers, like the applicants, are/were duty bound to show that despite due diligence and bona fide efforts, the appeal could not be filed within stipulated time because of certain administrative exigencies, which were beyond their control. The Government Officials are under a special obligation to ensure that they perform their duties with due diligence and commitment.

22. The application as also the affidavit filed by the applicants before the First Appellate Court is completely silent as to what prevented the applicants to adhere to rigor of Section 10 of the Act of 2005. In fact, the reasons assigned to condone the delay does not show any cause, much less sufficient cause, to condone the delay. This is not a case where certain leeway could be provided to the applicants. The judgment of Sheo Raj Singh (supra) is, therefore, of no help to the applicants.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 305 of 2009

Decided On: 25.04.2024

The State of Maharashtra and Ors. Vs. Omprakash

Hon'ble Judges/Coram:

Anil L. Pansare, J.

Citation: 2024:BHC-NAG:4790, 2024:BHC-NAG:4722,

MANU/MH/2714/2024, 2024(4) MhLJ 428(Bom).

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Whether the government can allot Gairan land to a private person?

 After having heard the learned advocate, it is quite apparent that the petitioner is seeking allotment of a portion of Gairan land. The Supreme Court in the case of Jagpal Singh & Ors. Vs. State of Punjab & Ors. reported in (2011) 11 SCC 396, has specifically prohibited such allotment of a Gairan land to individuals. Pursuant thereto, the State Government has also issued a circular dated 12.07.2011, implementing the directions of the Supreme Court and regulating the allotment of portion of gairan land for public use. {Para 4}

5. In view of such specific directions of the Supreme Court and the subsequent decision by the State Government prohibiting private use of a Gairan land, ex-facie there is no apparent illegality in the impugned communication whereby the learned Collector has rejected the proposal of the petitioner.

 Bombay High Court

Ramesh Asaram Shelke vs The State Of Maharashtra And ... on 7 December, 2020

Bench: Mangesh S. Patil

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How to appreciate evidence in suit for recovery of money for supply of goods to government department?

 The plaintiff has filed affidavit under Order 18 Rule 4 CPC reiterating the plaint averment saying that he has supplied the material to the Block Development Officer Farasgaon valued at Rs. 61,464/-. In the cross examination he has admitted that no order has been issued in his favour for supply of material. It has stated that as per document (Ex.P-4) he was directed to supply material, which was supplied by him and additional to that order supply was demanded which he has provided and receipt has been obtained. He has also stated that he has no knowledge whether the material supplied to the defendants has been mentioned in the stock register or not. He has reiterated that for supply of goods two cheques of Rs. 20,000/- and 40,000/- have been issued on 14.07.2000, but the said cheques were not honoured and returned unpaid due to insufficient fund in the account on 10.01.2001. He has further admitted that he has filed a complaint before Chief Judicial Magistrate under section 138 of Negotiate Instruments Act which was dismissed for want of prosecution. {Para 6}

7. The defendants have examined in their support Devi Prasad Rai, Principal Govt. Higher Secondary School Farasgaon and BEO Farasgaon who has deposed in his examination-in-chief that tender is called when purchase of material is valued more than twenty thousand and tender will be allotted to the lowest quoted persons. As per office of Block Education Officer there is no mention about payment to plaintiff in cash or through cheque, if any material is received in the office then it has to be mentioned in the stock register. He has further stated that plaintiff has not given any bill to Block Education Officer, Farasgaon and purchase order has not been issued by the office. The witness was cross examined and in the cross examination he has denied that any order was given to the plaintiff. He has also denied that cheque (Ex.P-5) has been issued from the office. He has denied that plaintiff

is entitled to get interest on the some dues and he has stated that since no record is available in the office he has given this statement.

It is well settled legal position, that the genuineness of the document has to be proved by the plaintiff who relies upon the document and thereafter it is for the defendants to dislodge the

credibility of the document as fake, sham and bogus document. In the present case, the plaintiff has failed to establish that the work order was issued in his favour and genuineness of the challan has also not been proved. It is incumbent upon the plaintiff to examine the witnesses who has delivered the goods and thereafter the concerning officer has put his signature on the challan, no witnesses was examined by the plaintiff in his support. It is well settled practice in the government department that supply order is always made in writing but no

work order has been placed by the plaintiff before the trial Court. 

19. In the light of the law laid down by Hon'ble Supreme Court and considering the fact that the plaintiff has failed to prove that he has supplied the material despite this, the learned trial Court has held that plaintiff has supplied material to the defendants and he is entitled to receive Rs. 60,000/- along with interest @ 6% per annum from 2004 till the payment is actual made is perverse, contrary to record and deserves to be set aside by this Court.

HIGH COURT OF CHHATTISGARH, BILASPUR

FA No. 120 of 2007

State of Chhattisgarh  Vs M/s. Hindustan Supply Agency, 

Hon'ble Shri Justice Narendra Kumar Vyas

Judgment Delivered on 20/04/2022

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Whether government can remove any government servant at any time on the basis of doctrine of pleasure?

 As observed above, no reason has been

set out by the State Government for removal of

petitioner, when the admitted position is that

the removal of the petitioner is on account of

Doctrine of Pleasure. The law laid down by the

Hon’ble Apex Court in case of B.P. Singhal

(supra) would clearly apply to the facts of case

that withdrawal of pleasure cannot be at the

sweet will, whim and fancy of the authority but

can only be for valid reasons. Mere using the

word public interest can not become a ground for

removal of petitioner from the Board. There

should be valid reasons for removal. {para 18}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.2852 OF 2020

Sanjay S/o Kisanrao Kenekar Vs The State of Maharashtra

CORAM : S.V. GANGAPURWALA AND S.G. DIGE, JJ.

PRONOUNCED ON : 04th MARCH, 2022

JUDGMENT (PER S.G. DIGE, J) :

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Whether State Government can invoke the writ jurisdiction against the action of the Wakf Board to declare the land as wakf property?

 Thus, the State Government, as a juristic entity, has a right to protect its property through the writ court, just as any individual could have invoked the jurisdiction of the High Court. Therefore, the State Government is competent to invoke the writ jurisdiction against the action of the Wakf Board to declare the land measuring 1654 acres and 32 guntas as wakf property.

{Para 125}

(3) Whether the State is estopped to challenge the notification inter-alia on the ground that Government Pleader was present before the Nazim Atiyat and before the High Court in proceedings against the order passed by Nazim Atiyat and that the notification was published in State Government Gazette?

129. It is to be noted that the presence of the Government Pleader before the Nazim Atiyat was for a limited purpose as the grants were to be paid by State Government. The State was not a party either before the Nazim Atiyat or before the High Court. The State would be bound by the orders, if it was impleaded as party as it is likely to be affected on account of the orders passed. The liability of State for payment of grant was not in dispute but the question was as to whom the grants would be payable. Thus, the presence of Government Pleader was for the limited purpose of facilitating the implementation of the orders passed.

Supreme Court

JUSTICE HEMANT GUPTA JUSTICE V. RAMASUBRAMANIAN

STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) Vs. A. P. STATE WAKF BOARD & ORS.

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Whether government can refuse to grant disability pension to employee if he has waived his right to claim disability pension?

 As held by this Court, a Right to Equality guaranteed

under Article 14 of the Constitution of India would also apply

to a man who has no choice or rather no meaningful choice,

but to give his assent to a contract or to sign on the dotted

line in a prescribed or standard form or to accept a set of

rules as part of the contract, however unfair, unreasonable

and unconscionable a clause in that contract or form or rules

may be. We find that the said observations rightly apply to

the facts of the present case. Can it be said that the mighty

Union of India and an ordinary soldier, who having fought for

the country and retired from Regular Army, seeking reemployment

in the Territorial Army, have an equal

bargaining power. We are therefore of the considered view

that the reliance placed on the said document would also be

of no assistance to the case of the respondents.

25. The respondents herein are directed to grant disability

pension to the appellant in accordance with the rules and

regulations as are applicable to the Members of the

Territorial Army with effect from 1st January 2012. The

respondents are directed to clear arrears from 1st January

2012 within a period of three months from the date of this

judgment with interest at the rate of 9% per annum. {Para 23}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2275 OF 2019

PANI RAM  Vs  UNION OF INDIA 

Author: B.R. GAVAI, J.

Dated: DECEMBER 17, 2021.

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Whether the court can refer a dispute to arbitration in the absence of an arbitration clause in construction agreement relying on Government policy?

A full Bench of the Kerala High Court in Southern Structurals Ltd. Vs. Kerala State Electricity Board declared that a decision of the Division Bench in Koshy Varghese V. Hindustan Paper Corporation Ltd. MANU/KE/0510/2000 : 2000(2) KLT 329 wherein the Division Bench held that a Court sitting under Article 226 of the Constitution can direct the parties to go for arbitration under the ACA even in the absence of an arbitration agreement between the parties, did not lay down the correct law. It was held that the Court cannot compel a party to agree for arbitration.

58. The parties cannot be forced to arbitrate by issuance of a writ of this Court as this also would not only be contrary to the entire concept of what is conceived as an arbitration agreement as defined under Section 7 of the ACA but also as noted above it would be in the teeth of Section 10 of the Indian Contract Act which requires free consent of the parties to have a legal and valid contract. It cannot be overlooked that lack of valid arbitration agreement is one of the basic grounds available to the parties for setting aside an arbitral award. Thus to foist an arbitration agreement on a party is nothing short of imposing an illegality.

59. Even otherwise, as to whether a public law remedy, would be available to the petitioners when the nature of the contract between the MSRDC and the petitioners is non statutory, the position in law is no more res integra. In Bareli Development Authority vs. Ajay Pal Singh, the Supreme Court has recognized as a settled position in law that when a contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India.A full Bench of the Kerala High Court in Southern Structurals Ltd. Vs. Kerala State Electricity Board declared that a decision of the Division Bench in Koshy Varghese V. Hindustan Paper Corporation Ltd. MANU/KE/0510/2000 : 2000(2) KLT 329 wherein the Division Bench held that a Court sitting under Article 226 of the Constitution can direct the parties to go for arbitration under the ACA even in the absence of an arbitration agreement between the parties, did not lay down the correct law. It was held that the Court cannot compel a party to agree for arbitration.

 IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 1699 and 2337 of 2019

Decided On: 06.11.2020

MEP RGSL Toll Bridge Pvt. Ltd. and Ors. Vs. Maharashtra State Road Development Corporation Ltd. and Ors.

Hon'ble Judges/Coram:

Dipankar Datta, C.J. and G.S. Kulkarni, J.

Author: G.S. Kulkarni, J.

Citation: MANU/MH/1871/2020

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Whether government is liable to pay interest to government servant on gratuity if there is delay in payment of gratuity?

In State of U.P. and others v. Dhirendra Pal Singh, MANU/SC/1479/2016 : 2016(4) UPLBEC 2881, the Apex Court relying upon State of Kerala and others v. M. Padmanabhan Nair, MANU/SC/0296/1984 : (1985) 1 SCC 429, held that the pension and gratuity are no longer bounty to be distributed by the Government to its employees but rather valuable rights in their hands and any culpable delay in distribution thereof must visit with penalty with interest.

19. In Y.K. Singla v. Punjab National Bank and others, MANU/SC/1109/2012 : (2013) 3 SCC 472, the Apex Court, after discussing the issue relating to interest payable on the amount of gratuity not paid within time, directed that interest at the rate of 8% per annum shall be paid on the amount of gratuity.

20. In view of the above decision, as there was no justification on the part of the respondents for withholding the payment of 90% of the enhanced gratuity admissible to the petitioner, we are of the opinion that the petitioner is entitle to be compensated for the loss by way of payment of interest. Accordingly, the communications dated 6.9.2012 and 13.12.2012 (Annexures 5 and 7 to the writ petition) stand quashed and the respondents are directed to pay 90% of the enhanced gratuity to the petitioner with interest at the rate of 8% per annum from the date the enhanced gratuity became due and payable i.e. 4th November, 2010 till the date of its payment.

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Writ Petition No. 937 of 2013

Decided On: 23.10.2017

 Radhey Shyam Chaubey  Vs.  High Court of Judicature and Ors.

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Supreme Court: Govt & Statutory authorities should act Model litigant and should not put forth false, frivolous, vexatious, technical plea

This Court, has time and again held, that the State should act as a model litigant. In this respect, we can gainfully refer to the following observations made by this Court in Urban Improvement Trust, Bikaner v. Mohan Lal MANU/SC/1817/2009 : (2010) 1 SCC 512:

6. This Court has repeatedly expressed the view that Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf.

7. In Dilbagh Rai Jarry v. Union of India [MANU/SC/0270/1973 : (1974) 3 SCC 554 : 1974 SCC (L & S) 89] this Court extracted with approval the following statement [from an earlier decision of the Kerala High Court (P.P. Abubacker case [Ed.: P.P. Abubacker v. Union of India MANU/KE/0029/1972 : AIR 1972 Ker 103 : ILR (1971) 2 Ker 490 : 1971 Ker LJ 723] AIR pp. 107-08, para 5)] : (SCC p. 562, para 25)

25.... '5.... The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1600 of 2020 

Decided On: 14.02.2020

 Popatrao Vyankatrao Patil  Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.A. Bobde, C.J.I., B.R. Gavai and Surya Kant, JJ.

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Whether government is liable to pay stamp duty on documents executed in its behalf?

Section 3 in The Indian Stamp Act, 1899

3. Instruments chargeable with duty.—Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefore, respectively, that is to say—

(a) every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in ²⁰ [India] on or after the first day of July, 1899;

(b) every bill of exchange ²¹ [payable otherwise than on demand] ²² [***] or promissory note drawn or made out of ²⁰ [India] on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred or otherwise negotiated, in ²⁰ [India]; and

(c) every instrument (other than a bill exchange ²² [***] or promissory note) mentioned in that Schedule, which, not having been previously executed by any person, is executed out of ²⁰ [India] on or after that day relates to any property situate, or to any matter or thing done or to be done, in ²⁰[India] and is received in ²⁰ [India]: Provided that no duty shall be chargeable in respect of—

(1) any instrument executed by, or on behalf of, or in favour of, the Government in cases where, but for this exemption, the Government would be liable to pay the duty chargeable in respect of such instrument;

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Whether government should recover damage rent from employee for overstaying in government quarter without issuing show cause notice?

The CAT has referred to the decision of this Court in K.B. Yadav vs. Union of India (W.P. No. 1885 of 2003 decided on 19.9.2003), in which, it is held that the action of recovery of damage rents without issuance of Show Cause Notice or compliance with principles of natural justice deserves to be set aside. To the same effect are the observations made by this court in case of Shri. N.C. Sharma vs. Union of India - MANU/MH/0301/2004 : 2004 (1) ATJ 481, where again it was held that the principles of natural justice have to be adhered and an opportunity will have to be given to the concerned employee before the recovery or adjustment are effected on the ground of any alleged unauthorised occupation of the Railway quarters. Since, the view taken by the CAT is in consonance with the ruling of the Division Benches of this Court, there is no good ground made out to interfere.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3327 of 2006

Decided On: 30.08.2018

 Union of India Vs. Sayed Naimuddin

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and M.S. Sonak, JJ.

Citation: 2019(1) MHLJ 653

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How to prove adverse possession against government?

 It would be clearly evident from the aforesaid pleadings that the claim put-forth by the petitioner is that his grandfather came in possession of the land in question in the year 1951 and thereafter constructed a "Dhara-cum-house" in the year 1951-52 and has been coming in continuous, peaceful, uninterrupted and hostile possession ever since. The petitioner has not cared to mention the date from which his possession actually became adverse and, therefore, such plea falls short of legal requirement as per law as expounded in Dr. Mahesh Chand Sharma vs. Raj Kumari Sharma MANU/SC/0231/1996 : (1996) 8 SCC 128 wherein it was held that a person who claims adverse possession has to show:

(a) on what date he came into possession;

(b) what was the nature of his possession;

(c) whether the factum of possession was known to the other party;

(d) how long his possession is continued; and

(e) his possession was open and undisturbed.

15. It has to be remembered that a person pleading adverse possession has no equity in his favour since he has tried to defeat the right of the true owner, therefore, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. Further, whenever an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the Government to immovable property and give upper hand to the encroachers, unauthorized occupants or land grabbers.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWP No. 274 of 2016

Decided On: 03.07.2017

Satpal Nahar Vs. Union of India and Ors.

Hon'ble Judges/Coram:

Sanjay Karol, Actg. C.J. and Tarlok Singh Chauhan, J.

Citation:AIR 2017(NOC) 821 HP

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What is duty of court while deciding suit for declaration of title against government?

Nature of proof required in suits for declaration of title against the Government

15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963 which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.

16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession - authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).

17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.
IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1588-1589 of 2008

Decided On: 24.02.2010

R. Hanumaiah and Anr. Vs. Secretary to Government of Karnataka, Revenue Department and Ors.

Hon'ble Judges/Coram:
R.V. Raveendran and Swatanter Kumar, JJ.
Citation:(2010) 5 SCC 203

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Whether contract to influence government to secure particular order is enforceable?

The G.V.K. Committee Report was considered by a Division Bench of the Karnataka High Court in the case of Narayana Reddy v. State of Karnataka ILR 1991 Kar 2248, wherein it was held as under:

39. As regards the Agreements entered into between the six Respondent-Societies and their agents, inter alia, for the purpose of influencing the Government and to procure the preliminary and the final notifications Under Section 4 and 6 of the Land Acquisition Act, which they did procure and which are subject matter of challenge in these Petitions, the questions which arises for consideration is, if the agreements are hit by Section 23 of the Contract Act on the ground that they were opposed to public policy whether the impugned notifications are liable to be quashed on the grounds that they were the result of exercise of influence by the agents on the Government which submission of the Petitioners stand substantiated by the approval given for acquisition is all such cases which has made the Government itself to realise that it has totally bungled in the matter as is evident from the G.V.K. Rao Committee ..... As far as the question that the agreements in question are opposed to public policy is concerned, it is seen that the real purpose of the Agreement entered into between the Respondent-Societies and their agents was that the agent should get the preliminary and the final notifications from the Government and for that purpose huge amounts were paid or agreed to be paid. Any power conferred on the Government under a statute like the power conferred Under Section 4 and 6 of the Act has to be exercised bona fide and for the purpose for which it is conferred, therefore an agreement under which a party to the agreement is required to influence the statutory authority and to procure a decision favourable to the other party, is certainly opposed to public policy.

(Emphasis laid by this Court)

The principle of law that an agreement under which a party to an agreement is required to influence a statutory authority and to procure a decision favourable to the other party, is certainly opposed to public policy, has been elaborated by this Court in the case of Rattan Chand Hira Chand v. Askar Nawaz Jung MANU/SC/0587/1991 : (1991) 3 SCC 67, wherein it was held as under:

The contract such as the present one which is found by the City Civil Court as well as the High Court to have been entered into with the obvious purpose of influencing the authorities to procure a verdict in favour of the late Nawab was obviously a "carrier" contract. To enforce such a contract although its tendencies to injure public wealth is manifest is not only to abdicate one's public duty but to assist in the promotion of a pernicious practice of procuring decisions by influencing authorities when they should abide by the law. To strike down such contracts is not to invent a new head of public policy but to give effect to its true implications. A democratic society is founded on the Rule of law and any practice which seeks to subvert or circumvent the law strikes at its very root. When the Court discountenances such practice, it only safeguards the foundation of the society. Even assuming, therefore, that the Court finds a new head of public policy to strike down such practice, its activism is not only warranted but desired.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 9091-9119 of 2016 (Arising out of SLP (C) Nos. 13656-13684 of 2004), 

Decided On: 15.09.2016

R. Rajashekar and Ors. Vs. Trinity House Building Co-operative Society and Ors.

Hon'ble Judges/Coram:

V. Gopala Gowda and A.K. Goel, JJ.

Citation:(2016) 16 SCC 46.

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Whether exemption from rent law is in respect of premises or with respect to parties?

From the aforesaid it is graphically clear that an Insurance Company is not protected under the 1999 Act. Once it is held that Defendant No. 1, the New India Assurance Company, the original tenant, is not protected, the question would be whether a subtenant can be protected under the Act. In the case of Bhatia Co-operative Housing Society Ltd. (supra), it has been clearly laid down that Section 4(1) of the 1947 Act applies to premises and not to parties or their relationship. Section 3 uses the term 'premises'. The provision commences with the non-obstante clause that the Act does not apply to any premises belonging to the Government or a local authority. Sub-Section 3(1)(b) makes it clear that the Act does not apply to any bank, public sector undertaking or certain other categories of tenants. The Insurance Company is covered under Section 3(1)(b). Thus, as a logical corollary, the Act does not apply to the premises held by the Insurance Company who is a tenant.

23. The learned Single Judge has allowed protection to the Government Department on the foundation that it has become a tenant. We are disposed to think that the analysis is fundamentally erroneous. When the Act does not cover the tenant, namely, the Insurance Company as basically the exemption applies only to premises and not to any relationship, the subtenant who becomes a deemed tenant cannot enjoy a better protection or privilege by ostracizing the concept of premises which is the spine of the provision.
IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3356-3357/2012 (Arising out of SLP (C) Nos. 3273-327 of 2011)

Decided On: 03.04.2012

 Kesri Commissariat and Ors. Vs. Ministry of Food and Civil Supplies, Govt. of Maharashtra, Mumbai and Anr.

Hon'ble Judges/Coram:

Dalveer Bhandari and Dipak Misra, JJ.
Citation: AIR 2012 SC 1271: 2012(5) MHLJ 212(SC)

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Whether bombay rent Act is applicable to land belonging to government or local authority?

In Kanji Manji v. The Trustees of the Port of Bombay [1962] Su. 3 S.C.R. 461 this Court took the view that if the Government or a local authority wants to evict a person from land belonging to the Government or a local authority, the provisions of the Bombay Rent Act do not come in the way. For the same reason, the suit for ejectment does not have to be filed in the Court of Small Causes as required by the Rent Control Act but in the City Civil Court. If the original lessees took on lease not only the land but also the building, it is not open to their assignees to claim that the ownership of the Government extended only to the land and not to the buildings. 

We can only observe that if the intention of the Legislature is that the protection should be given to the sub-lessee against the lessee in a building taken on lease by the lessee from the Government or a local authority, it is for the Legislature concerned to make appropriate amendments in the Bombay Rent Act and it is not open for us to rewrite the provisions of Sub-section (4)(a) of Section 4 of the Bombay Rent Act on the ground of any such intention as suggested by Dr. Chitale.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4248 of 1986

Decided On: 04.05.1988

Nagji Vallabhji and Company Vs. Meghji Vijpar and Company and Anr.

Hon'ble Judges/Coram:

R.S. Pathak, C.J. and M.H. Kania, J.

Citations: 1988 AIR 1313, 1988 SCR (3) 906

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Whether high court can reject representation of Judicial officer/Judge without sending it to government?

Claiming that petitioner was having 2 years of service as on the date on which she submitted application for leave, she submitted a representation produced as Ext. P9 dated 16.01.2014 in W.P.(C) No. 13556 of 2014, through proper channel requesting to convert the same as an application under Rule 91 of Part I KSR, as she had availed it for higher studies in law which is beneficial for the Judicial Service. By Ext. P10 representation dated 16.1.2014, she requested the District Judge to forward it to Government, through proper channel. It was followed by another representation dated 16.1.2014 (Ext. P11) stating that there was some mistake in the number of days to be converted as leave under Rule 91. By Ext. P12 letter from the High Court she was informed that the administrative committee of the High Court had already rejected her request in representation for protection of seniority and that request for commutation of leave as one under Rule 91 of Part I KSR, as per Rule 89 was also rejected, as the High Court was not in a position to forward the request to Government without offering remarks, as it will affect the settled seniority in respect of other officers.

32. When the authority which granted leave to petitioner was the Government, the request for commutation of that leave was to be considered by Government. The 2nd respondent was not therefore right in rejecting her representation, without forwarding it under the guise of the circular issued in 1986 or on the reasons stated in Ext. P12. When petitioner's request was one made in terms of the statutory provisions in KSR, even if the High Court is of the view that it is not liable to be granted or converted as requested, the 2nd respondent ought to have forwarded the representation, for consideration by the competent authority. Therefore the order Ext. P12 to the extent it rejected the representation of petitioner without forwarding it to the Government is unsustainable and hence it is quashed accordingly. The 2nd respondent shall forward the same to Government without any further delay; at any rate within a period of 3 weeks from the date of receipt of a copy of this judgment.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

W.P.(C) Nos. 9440 of 2012 (R) and 13556 of 2014

Decided On: 28.04.2017

 V.G. Anupama Vs.  State of Kerala and Ors.

Hon'ble Judges/Coram:

P.V. Asha, J.

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Supreme Court Upholds “Neutrality Of Arbitrator” In Public Sector Contracts

Before we part with, we deem it necessary to make certain comments on the procedure contained in the arbitration agreement for constituting the arbitral tribunal. Even when there are number of persons empaneled, discretion is with the DMRC to pick five persons therefrom and forward their names to the other side which is to select one of these five persons as its nominee (Though in this case, it is now done away with). Not only this, the DMRC is also to nominate its arbitrator from the said list. Above all, the two arbitrators have also limited choice of picking upon the third arbitrator from the very same list, i.e., from remaining three persons. This procedure has two adverse consequences. In the first place, the choice given to the opposite party is limited as it has to choose one out of the five names that are forwarded by the other side. There is no free choice to nominate a person out of the entire panel prepared by the DMRC. Secondly, with the discretion given to the DMRC to choose five persons, a room for suspicion is created in the mind of the other side that the DMRC may have picked up its own favourites. Such a situation has to be countenanced. We are, therefore, of the opinion that sub-clauses (b) & (c) of clause 9.2 of SCC need to be deleted and instead choice should be given to the parties to nominate any person from the entire panel of arbitrators. Likewise, the two arbitrators nominated by the parties should be given full freedom to choose third arbitrator from the whole panel.

29. Some comments are also needed on the clause 9.2(a) of the GCC/SCC, as per which the DMRC prepares the panel of ‘serving or retired engineers of government departments or public sector undertakings’. It is not understood as to why the panel has to be limited to the aforesaid category of persons. Keeping in view the spirit of the amended provision and in order to instil confidence in the mind of the other party, it is imperative that panel should be broad based. Apart from serving or retired engineers of government departments and public sector undertakings, engineers of prominence and high repute from private sector should also be included. Likewise panel should comprise of persons with legal background like judges and lawyers of repute as it is not necessary that all disputes that arise, would be of technical nature. There can be disputes involving purely or substantially legal issues, that too, complicated in nature. Likewise, some disputes may have the dimension of accountancy etc. Therefore, it would also be appropriate to include persons from this field as well.

30. Time has come to send positive signals to the international business community, in order to create healthy arbitration environment and conducive arbitration culture in this country. Further, as highlighted by the Law Commission also in its report, duty becomes more onerous in Government contracts, where one of the parties to dispute is the Government or public sector undertaking itself and the authority to appoint the arbitrator rests with it. In the instant case also, though choice is given by DMRC to the opposite party but it is limited to choose an arbitrator from the panel prepared by the DMRC. It, therefore, becomes imperative to have a much broad based panel, so that there is no misapprehension that principle of impartiality and independence would be discarded at any stage of the proceedings, specially at the stage of constitution of the arbitral tribunal. We, therefore, direct that DMRC shall prepare a broad based panel on the aforesaid lines, within a period of two months from today.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

(Before A.K. Sikri and R.K. Agrawal, JJ.)

M/s. Voestalpine Schienen GMBH v.

Delhi Metro Rail Corporation Ltd. .

Arbitration Petition (Civil) No. 50 of 2016

Decided on February 10, 2017

Citation: 2017 SCC OnLine SC 172

The Judgment of the Court was delivered by

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When government can release water from Dam for religious purpose?

 A Division
Bench of this Court in the aforesaid judgment in PIL No.173 of 2013
and   other   connected   matters   had   an   occasion   to   consider   all   the
relevant laws regarding regulation of water supply in the State.  In the
said judgment, in Paragraph 188, the Division Bench has referred to
Clause 4.0 of the Maharashtra State Water Policy, 2003. Clause 4.0 of
the Maharashtra State Water Policy, 2003 reads thus:
“4.0 Priority of Water UsageWater
resources shall be allocated in accordance with
the following general principles:
(a) Domestic use for drinking, cooling, hygiene and
sanitation needs including livestock;
(b) Industrial,   commercial   use   and   agro­based
industrial use;
(c) Agriculture and hydropower;
(d) Environment and recreation uses;
(e) All other uses.”
9. In Paragraphs 190 and 191, the Division Bench proceeded
to observe thus:

“190. At highest, the use of water for Kumbhmela
and   for   other   religious   purposes   will   be
covered by the last category “e”.  Therefore,
according to  the  Water Policy of  the  State
Government,   if   sufficient   water   cannot   be
allocated for usages in categories (a) to (d)
in that order of preference, there cannot be
any allocation of water for Kumbhmela and
other   religious   purposes.    In   the   National
Water   Policy  of   2012,  in  Paragraph  1.2,  it  is
noted   that   large   parts   of   India   have   already
become water stressed as the issues related to
water   governance   have   not   been   addressed
adequately. It is noted in the said policy that the
mismanagement of water resources has led to a
critical situation in many parts of the country.
191. Needless   to   add   that   in   case   of   scarcity   or
hydrological drought, in view of Clause (c) of
Section 11 of the said Act of 2005, the water
cannot be released from the reservoirs by the
State   for   religious   ceremonies   or   religious
objects   without   the   Regulatory   Authority
deciding   the   issue   of   priority   of   equitable
distribution   of   water.    Therefore,  in  case  of
scarcity or hydrological drought, the State is
not   entitled   to   release   water   from   the
reservoirs   for   such   purposes   without
adjudication being made by the Regulatory
Authority under Clause (c) of Section 11 of
the said Act of 2005.”
                                                          (emphasis added)
10. The Division Bench has categorically held that if sufficient
water cannot be allocated for usages in Categories (a) to (d) in that
order of preference, there cannot be any allocation in those categories
of water for Kumbhmela or for other religious purposes.  Further, it is
held that in case of scarcity or hydrological drought, the State is not
entitled   to   release   water   from   the   reservoirs   in   the   State   for   such
religious   purposes   without   an   adjudication   being   made   by   the

Regulatory Authority under Clause (c) of Section 11 of the said Act of
2005.
11. We have carefully perused the findings recorded by the
Chief Secretary.   In Paragraph 15 of the impugned order, the Chief
Secretary has referred to the categories (a) to (e) which are quoted
above.  In Paragraph 16, he observed that 60 to 70 lakhs pilgrims were
likely to participate in Shahi snan in the Kumbh­mela on 29th  August
2015, 13th September 2015 and 18th September 2015. Therefore, 4.50
TMC water was proposed to be released from Gangapur Dam.   He
observed that if the water was not released, there might have been a
possibility   of   epidemic   and   serious   hygiene   problems.     He   has,
therefore, come to a conclusion that the case was governed by category
(a).  In our view, even assuming that there was a possibility of  law and
order problem being created if  sufficient water was not released for the
Kumbh­mela,   by  no  stretch   of   imagination,  the   release   of   water  to
prevent   such   law   and   order   situation   was   covered   by   any   of   the
categories (a) to (d) of clause 4.0 of the State Water Policy. Though it is
claimed that the water actually released for Kumbhmela for Shahi snan
(holy bath) was less than what was planned, the fact remains that in
the year 2015­-2016 when there was a hydrological drought, the water
was released  by the State Government for the benefit of Shahi snan in
breach of its own water policy.  We are not on the issue of release of

water for drinking purposes for the benefit of pilgrims as it covered by
category (a).   By no stretch of imagination, the release of water for
Shahi snan will be covered by Category (a).  Therefore, release of water
for Shahi snan was completely illegal.  The State was bound by its own
water policy and the State could not have acted contrary to its own
binding policy.   We are not able to accept the strong justification tried
to be offered by the learned Government Pleader for supporting the
impugned order. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
PUBLIC INTEREST LITIGATION NO.154 OF 2015
Hiralal Motilal Desarda. 
Vs
The State of Maharashtra and Others

CORAM  : A.S. OKA & A.A.SAYED, JJ 

DATED    : 22ND DECEMBER 2016

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Duty of government to sensitize people about importance of pre-marital counselling

One should remember that Institution of Marriage , is based on mutual faith and trust where both the bride and the groom are equal partners.  If pre-marital examination of the respondent had been done, the diseases would have been diagnosed and the marriage would have been certainly stopped.  If pre-marital examinations are done, many problems due to medical issues, failure of marriages due to fraud, non-disclosure of health problems etc., could be averted. Therefore, it is appropriate for the Central & State Governments to sensitize the people about the importance of pre-marital counselling atleast, if not premarital examination and the benefits of such counselling by medical experts by proper advertisements in media, short movies, conducting seminars in colleges etc. 
IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05-08-2016

CORAM 

  MR. JUSTICE N.KIRUBAKARAN

Tr.C.M.P.No.435 of 2015 and

M.P.No.1 of 2015


 'A'
vs.


 'B'                                  


Prayer:- Petition filed under Section 24 C.P.C., to transfer F.C.O.P.No.1922 of 2015 pending on the file of the learned XXX Xxxxxxxxx Xxxxx Xxxxx Xxxxx Xxxxxxx to be tried along with H.M.O.P.No.158/2015 pending on the file of the Xxxxxx Xxxxx Xxxxxxxxxxxxxxxx for enquiry and disposal. 

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