Saturday, February 14, 2015

SC- PIL cannot be used as an instrument to satisfy personal vendetta –Delay of 8 years in filing a ground for dismissal – Construction cannot be held to be illegal in absence of original coloured plan

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5577 OF 2004

SAI KRIPA MANGAL KARYALAYA & ORS. … APPELLANTS

VERSUS

NAGPUR MUNICIPAL CORPORATION & ORS. … RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

This appeal has been preferred by the appellants against the judgment and order dated 30th April, 2002 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition No.1485 of 1984. By the impugned judgment, the High Court allowed the writ petition filed by respondent nos.5 and 6 and held as follows:

(i) The building permits granted by Nagpur Municipal Corporation to the land belonging to respondent No.4- Gorakshan Sabha, a Public Trust are unauthorized and illegal and hence buildings put up pursuant to such building permits are liable to be demolished

(ii) The parties may make fresh applications seeking building permits within one month from the date of judgment in accordance with revised sanctioned 1Page 2 development plan of 2000-2001 and the Planning Authority shall dispose of such applications within four months.

(iii) The Planning Authority shall demolish the said structures if they were found not in conformity with the revised sanctioned plan of 2000-2001.

2. The factual matrix of the case is as follows:

2.1 One Shri Dhondiba Diwadkar gifted land bearing Survey No. 471, admeasuring 18.25 acres situated at Mouza Lendhra, Tahsil, District Nagpur to respondent No. 4 - Gorakshan Sabha, a Public Trust. The said land was on the outskirts of Town of Nagpur and with the passage of time is now within the Municipal limits of City of Nagpur.

2.2 In the year 1936, the Nagpur Improvement Trust Act (For short, ‘1936’ Act) was enacted with a view to make provisions for the improvement and expansion of the then town of Nagpur. Under the 1936 Act a Trust namely Nagpur Improvement Trust (hereinafter referred to as ‘N.I.T’ for short) was constituted and N.I.T was empowered to frame various improvement schemes specified u/s 27 of the 1936 Act for any area and on such scheme being sanctioned by the State Government, the N.I.T. was to implement the scheme, if necessary by acquiring the land as contemplated under the 1936 Act.

2.3 With the gradual development of "Town of Nagpur" into the "City of Nagpur", the city of Nagpur Corporation Act, 1948 (for short, 'the Corporation Act') was enacted with a 2Page 3 view to make special legislative provisions to consolidate and amend the law relating to the Municipal affairs of the City of Nagpur. Section 2 of the Corporation Act specifically provides that the N.I.T constituted under the 1936 Act shall in the city of Nagpur continue to exercise the powers and perform duties conferred and imposed under the 1936 Act. Section 3(5) of the Corporation Act provides that all the provisions of 1936 Act shall apply to the city of Nagpur. Section 5(10) of the Corporation Act defines "City of Nagpur" means the larger urban area specified in the notification issued under Clause (2) of Article 243(Q) of the Constitution of India. With the enactment of the Corporation Act, certain amendments to the 1936 Act were carried out. As a result of amendment to section 1(2) of the Trust Act, the jurisdiction of N.I.T. was extended to the area comprised within the limits of the city and to such other area outside these limits as the State Government may declare from time to time by notification. Section 2(m) of 1936 Act which was amended in 1952 provides that all references to anything required to be done under the 1936 Act shall include anything required to be done under the Corporation Act which the N.I.T by virtue of 1936 Act has power to enforce. Thus, both the Nagpur Municipal Corporation ('N.M.C' for short) constituted under the Corporation Act and the N.I.T constituted under the 1936 Act were entrusted with the responsibility of the orderly development of the city of Nagpur. 3Page 4 2.4 In the year 1966, the State Government enacted the Maharashtra Regional and Town Planning Act, 1966 ('T.P. Act' for short) inter alia, with a view to make provisions for planning the development and use of lands in the regions established for that purpose and for the constitution of Regional Planning Boards thereof for the creation of new towns by the Development Authorities. Section 2(15) of the T.P. Act defines the local authority, to include inter alia, the N.M.C. under the Corporation Act, 1948 and the N.I.T. constituted under the 1936 Act, which, on being permitted by the State were entitled to exercise the powers of a Planning Authority under the T.P. Act for any area under its jurisdiction. Section 2(19) of the T.P. Act defines 'Planning Authority', as local authority which includes such other authorities as prescribed under the Act. Under the T.P. Act, it is obligatory on the part of the Planning Authority to survey a region and prepare an existing land-use map and prepare a draft development plan for the area within its jurisdiction in accordance with a regional plan or in such other manner as may be prescribed. Section 22 of the T.P. Act provides that a development plan shall generally indicate the manner in which the use of the land in the area of a Planning Authority shall be regulated, and also indicate the manner in which the development of a plan shall be carried out. It is further provided in Section 22 of the T.P. Act that the development plan in particular shall provide for proposals 4Page 5 for allocating the use of land for the purposes, such as residential, industrial, commercial, agricultural, recreational and proposals for designation of land for public purpose, such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment or public assembly, museums, art galleries, religious building and Government and other public buildings as may from time to time be approved by the State Government. The T.P. Act provides for modification of the draft plan on receiving objections and suggestions from the general public. Section 31 of the T.P. Act provides for sanction to the draft development plan by the State Government and on the final development plan coming into force it is binding on the Planning Authority. Section 42 of the T.P. Act provides that on the coming into operation of any plan or plans referred to Chapter III of T.P. Act, it shall be the duty of every Planning Authority to take such steps as may be necessary to carry out the provisions of such plan or plans. Section 43 of the T.P. Act provides restriction on the development of a land after the date on which the declaration of intention to prepare a development plan for area is published in the Official Gazette. Thus, once declaration of intention to prepare draft development for any area or a notification specifying any undeveloped area as a notified area, or any area designated as a site for 5Page 6 a new town is published in the Official Gazette, no person shall change the use of the land or carry out any development of the land without the permission in writing of the Planning Authority except as permitted under proviso appended thereto.

2.5 By a notification dated 6th October, 1967 the State Government permitted N.I.T. to exercise the powers of a Planning Authority under section 2(15) of the T.P. Act for the entire area under its jurisdiction. 2.6 In accordance with the aforesaid provisions, the N.I.T. on 12th December, 1972 published draft development plan of the city of Nagpur and the same was published in the Government Gazette on 28th December, 1972. After considering the objections and suggestions, modifications to the draft development plan were made on 20th October, 1973 and the same were published on 17th January, 1974. Subsequently the draft development plans as further modified by the N.I.T. were forwarded to the State Government for sanction under section 30(1) of the T.P. Act on 23rd October, 1974. The State Government extended the period for sanctioning such plan and ultimately with minor modification the draft development plan was approved by the State Government. Thus, the final development plan for the city of Nagpur, as sanctioned by the State Government, came into force on 3rd June, 1976.

3. It appears that final development plan came into effect from 3rd June, 1976. Both N.M.C and N.I.T were granting 6Page 7 development permission in their respective areas and later, Government noticed the problems created due to the existence of two sets of regulations in the Municipal Corporation Area. For the said reason, Deputy Secretary to the Government, Urban Development Department Mantralaya, Bombay, vide letter dated 1st January, 1993 intimated the Municipal Commissioner, N.M.C, Nagpur about Government decision that draft byelaws published by the N.M.C u/s 169 of the T.P. Act read with Section 115 and other sections of the Corporation Act, 1948 will not be operated and the N.M.C like N.I.T will follow the draft Development Control Rules and Building Byelaws prepared by the N.I.T as submitted to Government on 12th October, 1990 which are under scrutiny of Government until further orders. The aforesaid letter being relevant reads as follows:-

“Confidential No.TPS 2490/1504/CR-101/UD-9 Urban Development Department Mantralaya, Bombay-400 032. Dated: 1st January, 1993.

To, The Municipal Commissioner, Nagpur Municipal Corporation, Nagpur.

 Sub: Regulation of Building Control Activity and implementation of Development Control Rules and Building Bye-Laws in Nagpur City.

Sir, The Nagpur Improvement Trust (N.I.T) is a planning Authority for the city of Nagpur in terms of the Maharashtra Regional & Town Planning Act, 1956. Accordingly if prepared the development plan alongwith building regulations and Development Control Rules were approved by Government vide 7Page 8 Notification No.:TPS 2476/478/UD-5, dated the 3rd July, 1976. With a view to standing the I.C. rules and building Bye-laws, Government had directed all the Municipal Corporations i.e. the Planning Authorities (Nagpur Improvement Trust in this case) to undertake modification under Section 37 of the Act and follow standardized Development Control Rules and Building byelaws and has forwarded the proposal for government approval on 12th October, 1990.


2. The Nagpur Municipal Corporation (N.M.C) has framed the building Byelaws under City of Nagpur Corporation Act, 1948 which were approved by the Government vide notification No.N.M.C 5365/33770, dated the 24th June, 1965. Subsequently, the Nagpur Municipal Corporation in exercise of the powers conferred under section 159 of the Maharashtra Regional Town Planning Act, 1966 read with Section 415 and other relevant sections of the City of Nagpur Corporation Act, 1948 published draft revised byelaws. Those byelaws have been sent to Government for approval vide letter No.GAD/18/G, dated 24th February, 1987 and they are yet to be approved. Both the Nagpur Municipal Corporation and Nagpur Improvement Trust are granting Development permission in their respective areas. Thus there has been no uniformity in the matter of the (not eligible) There have been two sets of regulations operated in the Municipal Corporation area and has been admittedly creating certain serious problems.

3. Government has examined the matter and after careful examination is pleased to issue directions under section 154 of the Maharashtra Regional Town Planning Act, 1956 as follows: “Pending the approval of Government for the proposal of Development Control Rules and Building Byelaws submitted by the Nagpur Improvement Trust vide its letter No.D/630, dated 12th October, 1990. i) The draft Byelaws published by the Nagpur Municipal Corporation under section 169 of the Maharashtra Regional Town Planning Act, 1956 read with Section 115 and other sections of the City of Nagpur Corporation Act 1948 will not be operated. ii) The Nagpur Municipal Corporation like Nagpur Improvement Trust should follow the provisions 8Page 9 in the draft Development Control Rules and Building Byelaws prepared by the Nagpur Improvement Trust as submitted to Government on 12th October, 1990 which are under scrutiny of Government until further orders.

4. The action taken may please be intimated to government. Yours faithfully, (C.S.Pentabalekungri) Deputy Secretary to Government” 4. Between 1973 and 1983 lands were leased to the appellants by respondent no.4 and building plans were sanctioned by the N.M.C. The N.M.C was empowered to issue NOC during the said period as evident from letter dated 15th September, 1981 written by Circle Engineer (P1), N.I.T to Shri Padmakar Joshi and brothers, Sitabuldi, Nagpur as quoted below: “OFFICE OF THE NAGPUR IMPROVEMENT TRUST No.Sch/NOC/2017 Nagpur, dated the 15.9.1981. To Shri Padmakar Joshi & Bros. Sitabuldi, Nagpur. Subject:-No Objection Certificate for Petrol Pump. Reference:-Your application dated 29.6.1981. With reference to above, I have to inform that the Nagpur Municipal Corporation is empowered to issue no objection certificate in conformity with proposals of Development Plan of Nagpur. You may, 9Page 10 therefore, approach Nagpur Municipal Corporation, Nagpur in this matter. Sd/- Circle Engineer (P1) Nagpur Improvement Trust.”

From the aforesaid letter, it is clear that inspite of draft Development Plan which was published on 25th December, 1972 followed by final Draft Plan on 3rd June, 1976, the N.I.T abdicated its authority and delegated it in favour of N.M.C by stating that N.M.C is empowered to issue NOC in conformity with proposals of Development Plan of Nagpur.

5. Respondent nos.5 and 6 preferred a Public Interest Litigation under Article 226 of the Constitution of India before the Bombay High Court Bench at Nagpur inter alia, seeking a direction to N.M.C and N.I.T to remove the structures standing on the lands owned by respondent no.4- Trust on the ground that the same are contrary to the building regulations and the development plan sanctioned by the State Government under the T.P. Act. In the said writ petition, the impugned judgment was passed on 30th April, 2002 as noticed in the opening paragraph.

6. Learned counsel for the appellants while referring to the facts, as narrated above, submitted that the writ petition was filed by respondent no.5 after inordinate delay to vent out their personal vendetta. The said writ petition 10Page 11 cannot be termed to be Public Interest Litigation as respondent nos.5 and 6 vented out their private dispute.

7. Learned counsel for the appellants further submitted that the said writ petition was primarily filed by respondent no.5 claiming to be a member of respondent no.4- Trust and respondent no.6 a member of the locality alleging mismanagement by the said Trust in leasing lands to the appellants. Apart from the aforesaid fact the respondent nos.5 and 6 did not disclose the nature of public interest involved. A personal grudge of respondent no.5 is clear as he was claiming to be a member of the Trust which was not accepted by the Trust. It was further submitted that the writ petitioners having not approached the Court with clean hands and it being a private dispute between respondent no.5 and Trust the said writ petition was not maintainable. It is further contended that in absence of challenge to the sanctioned layout the High Court ought not to have declared them unauthorized and illegal.

8. Learned counsel for the parties relied upon Section 2 (15) (c) (ii) (iii), Section 2(19), 20 and 154 of the T.P. Act. Reliance was also placed on final Development Plan dated 3rd June, 1976 sanctioned by the State Government. A photocopy of True copy of Resolution dated 3rd June, 1976 enclosing copy of the notification issued under the letter head of N.I.T alongwith part Development Plan of Nagpur City was also produced separately for perusal. 11Page 12

9. Respondent nos.5 and 6 have taken similar pleas as were taken before the High Court. Counsel for respondent no.4 also supported the case of respondent nos.5 and 6.


10. We have heard the rival contentions raised by the parties and perused the record.

11. It is not in dispute that the respondent no.4-Trust has leased the property in favour of the appellants. Respondent no.5 was claiming to be a member of the Trust and Respondent no.6 claims to be a member of the locality and as noticed above they filed the writ petition before the High Court alleging mismanagement by the Trust in leasing lands to the appellants. But what we find is that the respondent no.4- Trust is now supporting respondent nos.5 and 6.


12. The aforesaid fact clearly shows that writ petition filed by respondent nos.5 and 6 was not bona fide but it was filed only on account of personal disputes between the parties i.e. inter se between the members of the respondent no.4-Trust indirectly affecting the appellants-tenants. Respondent no.4-Trust in its reply before the High Court supported the appellants but before this Court their learned counsel supported the case of respondent nos.5 and 6.


13. There is no dispute that no such notification was issued by the State Government empowering the N.M.C to exercise the power of Planning Authority. By letter dated 1st January, 1993, the State Government asked the N.M.C to follow the 12Page 13 draft development Rules framed by the N.I.T there being conflict between two draft Rules one drafted by the N.M.C and another by N.I.T. The State Government on 27th February, 2002 has rescinded/withdrawn the notification dated 6th October, 1967 and permitted N.M.C to exercise the powers of a Planning Authority in the area under its jurisdiction except the areas in which the N.I.T has improvement schemes as more particularly set out in the said notification. Thus, prior to 1967 N.M.C was the authority to exercise the same power sanctioning the plan and since 27th February, 2002 the N.M.C was again empowered to sanction the plan. During the period from 1967 till 2002, though N.I.T was the Planning Authority for the city of Nagpur, it abdicated its power, delegated it in favour of N.M.C and did not sanction any building plan which is also clear from letter dated 15th September, 1981 issued by N.I.T to one Shri Padmakar Joshi & Bros., Sitabuldi, Nagpur as quoted above.


14. True copies of notification dated 3rd June, 1976 and Part Development Plan of Nagpur City have been produced wherein respondent no.4-Gorakshan Sabha has been shown within the area of public institutions and offices. In absence of original coloured plan the true copy of the plan cannot be relied upon to hold any construction illegal in view of the fact that the N.M.C which sanctioned building plan supposed to have gone through the original plan. 13Page 14


15. In absence of the sanctioned plan, we are of the view that the High Court was not justified in deciding the disputed question of fact as to whether the building was constructed in accordance with Town Planning Scheme. The High Court ought to have looked into the sanctioned plan to find out whether it was for office (Karyalaya) or for residential or for commercial purpose for coming to a definite conclusion. Further, there being a long delay of eight years in filing the writ petition and in absence of challenge to the plan sanctioned by N.M.C, the High Court was not justified in entertaining the so called Public Interest Litigation filed by persons who had personal dispute with respondent no.4.

16. For the reasons aforesaid, we set aside the impugned judgment and order dated 30th April, 2002 passed by the High Court of judicature at Bombay, Nagpur Bench in Writ Petition No.1485 of 1984 and dismiss the Writ Petition preferred by respondent nos.5 and 6.
The appeal is allowed but there shall be no orders as to cost.


…………………………………………….J. (SUDHANSU JYOTI MUKHOPADHAYA) …………………………………………….J. (PRAFULLA C. PANT) NEW DELHI; FEBRUARY 12, 2015. 14

Thursday, February 5, 2015

High Court Rule requiring mandatory surrender before filing a Revision Petition upheld by SC

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO.61 OF 2012

VIVEK RAI & ANR. …PETITIONERS
VERSUS
HIGH COURT OF JHARKHAND THROUGH REGISTRAR GENERAL & ORS. …RESPONDENTS

 J U D G M E N T ADARSH KUMAR GOEL, J.

1. This writ petition has been filed under Article 32 of the Constitution of India seeking to declare Rule 159 of the High Court of Jharkhand Rules, 2001 as violative of Articles 14 and 21 of the Constitution and provisions of Sections 397 and 401 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”). The rule in question is as follows:

“In the case of revision under Sections 397 and 401 of the Code of Criminal Procedure, 1973 arising out of conviction and sentence of imprisonment, the petitioner shall state whether the petition shall be accompanied by a certified copy of the relevant order. If he has not surrendered the petition shall be accompanied by an application seeking leave to surrender within a specified period. On sufficient cause if shown, the Bench may grant such time and on such conditions as it thinks and proper. No such revision shall be posted for admission unless the petitioner has surrendered to custody in the concerned Court.”

Page 2 Writ Petition (Crl.) No.61 of 2012

2. Case of the petitioners is that they have been convicted and sentenced under Section 498-A of the Indian Penal Code (“IPC”) and Sections 3 and 4 of the Dowry Prohibition Act. Against the said conviction and sentence, their appeal has been dismissed and revision petition was filed before the High Court but the same was not registered on account of impugned Rule 159 as they failed to surrender to custody. It is submitted that this Rule is in conflict with the provisions of Criminal Procedure Code dealing with the statutory revisional jurisdiction of the High Court and even in a fit case, the High Court cannot consider the revision petition and grant bail unless a convicted person covered by the Rules surrenders to custody. The Rule being subordinate legislation could not militate against the substantive statutory provision. Since the Division Bench of the High Court has upheld the validity of the Rule and the special leave petition was dismissed by this Court against the said judgment, the petitioners have no other remedy except to approach this Court under Article 32 as their fundamental rights under Articles 14 and 21 are affected.


3. A counter affidavit has been filed by the Registrar General of the High Court of Jharkhand opposing the prayer for declaring the Rule to be ultra vires. Reliance has been placed on the judgment of the Division Bench of the High Court in Mahadeo Prasad Shrivastav vs. High Court of Jharkhand1 laying down that the Rule could not be 1 2004 Crl.L.J.4392 2Page 3 Writ Petition (Crl.) No.61 of 2012 held to be arbitrary, discriminatory or illegal. Special Leave Petition (Crl.) No.4890 of 2004 filed against the said judgment was dismissed by this Court. It has also been stated that there is an identical provision in Order XXI, Rule 6 of the Supreme Court Rules, 1966 and thus such a provision cannot be held to be arbitrary nor such a provision, in any manner, be held to be inconsistent with Section 389 read with Sections 397 and 401 Cr.P.C. The High Court is competent to frame Rules to regulate its procedure. Reliance has also been placed on a Judgment of this Court in Mayuram Subramanian Srinivasan vs. C.B.I.2 laying down that a convicted person is required to surrender under Rule 6 of Order XXI of the Supreme Court Rules, 1966, unless the Court directs otherwise. 3. We have given due consideration to the rival submissions.

4. We do not find any merit in the challenge to the validity of the Rule. It is well known practice that generally a revision against conviction and sentence is filed after an appeal is dismissed and the convicted person is taken into custody in Court itself. The object of the Rule is to ensure that a person who has been convicted by two courts obeys the law and does not abscond. The provision cannot thus be held to be arbitrary in any manner. The provision is to regulate the procedure of the Court and does not, in any manner, conflict with the substantive provisions of the Cr.P.C. relied upon by the petitioners. A 2 2006 (5) SCC 752 3Page 4 Writ Petition (Crl.) No.61 of 2012 similar provision exists in the Supreme Court Rules, 1966. In K.M. Nanavti vs. State of Bombay3 this Court considered the scope and effect of identical provision of Order XXI Rule 5 of the Supreme Court Rules, then applicable, which read as follows : “When the petitioner has been sentenced to a term of imprisonment, the petition shall state whether the petitioner has surrendered. Unless the court otherwise orders, the petition shall not be posted for hearing until the petitioner has surrendered to his sentence”.

5. It was observed that the Rule only crystalised the pre-existing practice of this Court and the High Courts. Further, question considered was whether the Rule violated Article 161 which conferred power on Governor to suspend the sentence as in that case, the Governor had suspended the sentence but still the convict was required under the Rule to surrender. This Court held that power of the Governor could not regulate procedure of the Court and if the case was to be heard by this Court, unless this Court granted exemption, the Rule prevailed. We are not concerned with the said question in the present case. Relevant observations in the said judgment are : “……..This Rule was, in terms, introduced into the Supreme Court Rules last year and it only crystallized the preexisting practice of this court, which is also the practice in the High Courts. That practice is based on the very sound principle which was recognised long ago by the Full Bench of the High Court of 3 (1961) 1 SCR 497 4Page 5 Writ Petition (Crl.) No.61 of 2012 Judicature, North Western Provinces, in 1870, in the case of The Queen v. Bisheshar Pershad [Vol.2 NWP High Court Reports, p. 441]. In that case no order of conviction had been passed. Only a warrant had been issued against the accused and as the war rant had been returned unserved a proclamation had been issued and attachment of the property of the accused had been ordered, with a view to compelling him to surrender. The validity of the warrant had been challenged before the High Court. The High Court refused to entertain his petition until he had surrendered because he was deemed to be in contempt of a lawfully constituted authority. The accused person in pursuance of the order of the High Court surrendered and after he had surrendered, the matter was dealt with by the High Court on its merits. But as observed above the Rules framed under Article 145 are only in aid of the powers of this court under Article 142 and the main question that falls for consideration is, whether the order of suspension passed by the Governor under Article 161 could operate when this court had been moved for granting special leave to appeal from the judgment and order of the High Court. As soon as the petitioner put in a petition for special leave to appeal the matter became sub judice in this court. This court under its Rules could insist upon the petitioner surrendering to his sentence as a condition precedent to his being heard by this court, though this court could dispense with and in a proper case could exempt him from the operation of that Rule. It is not disputed that this court has the power to stay the execution of the sentence and to grant bail pending the disposal of the application for special leave to appeal. Rule 28 of Order 21 of the Rules does not cover that period, but even so the power of the court under Article 142 of the Constitution to make 5Page 6 Writ Petition (Crl.) No.61 of 2012 such order as is necessary for doing complete justice in this case was not disputed and it would be open to this court even while an application for special leave is pending to grant bail under the powers it has under Article 142 to pass any order in any matter which is necessary for doing complete justice.”

6. Again in Mayuram Subramanian Srinivasan (supra), validity and effect of identical Rules i.e. Rules 6 and 13-A of Order XXI of Supreme Court Rules, 1966 was considered. It was observed : “7. Order 21 relates to special leave petitions in criminal proceedings and criminal appeals. So far as special leave petitions are concerned, Rule 6 application thereto is in almost identical language as that of Rule 13-A. In both cases it is stipulated that unless the petitioner or the appellant as the case may be has surrendered to the sentence, the petition/the appeal shall not be registered and cannot be posted for hearing unless the Court on written application for the purpose, orders to the contrary. In both cases it is stated that where the petition/appeal is accompanied by such an application that application alone shall be posted for hearing before the Court for orders. Therefore, the position is crystal clear that the criminal appeal cannot be posted unless proof of surrender has been furnished by the appellant who has been convicted. It appears from the various orders which have been filed by learned counsel for the appellant, the effect of Order 21 Rule 13-A has not been dealt with. It may be that the provision was not brought to the notice of the Bench. The requirements of Order 21 Rule 13-A are mandatory in character and have to be complied with except when an order is passed for exemption from surrendering.” 6Page 7 Writ Petition (Crl.) No.61 of 2012

7. In concurring judgment, it was observed : “16. It has been submitted that the statutory provisions of Section 389(3) CrPC have an overriding effect over the Supreme Court Rules and hence once bail has been granted to a convicted person by the trial court, this Court cannot insist that he should surrender to the sentence in terms of Rule 13-A before his appeal can be registered. 17. While such a submission is attractive, it does not stand scrutiny for the simple reason that sub-section (3) of Section 389 CrPC empowers the trial court to release a convicted person on bail for such period as will afford him sufficient time to present an appeal and obtain orders of the appellate court under sub-section (1), namely, release on bail, and it is only for such period that the sentence of imprisonment shall be deemed to be suspended. 18. The basic fallacy of Ms Jaiswal’s submission is that it overlooks the question that grant of bail in the appeal presupposes surrender by the convicted person. 19. The provisions of Section 389 CrPC and that of the Supreme Court Rules, 1966 are independent provisions and will have to be considered on their own standing.”

8. Only further submission put forward is that inherent power of the Court to direct listing of the case by exempting the requirement of surrender has been taken away. It is pointed out that even in Supreme Court Rules prohibition against listing without surrender is not applicable if the Court otherwise directs. Such exception is not to be found in the impugned Rule. 7Page 8 Writ Petition (Crl.) No.61 of 2012

9. It has not been disputed even by the learned counsel for the High Court that the Rule does not affect the inherent power of the High Court to exempt the requirement of surrender in exceptional situations. It cannot thus, be argued that prohibition against posting of a revision petition for admission applies even to a situation where on an application of the petitioner, on a case being made out, the Court, in exercise of its inherent power, considers it appropriate to grant exemption from surrender having regard to the nature and circumstances of a case. Thus, the exception as found in corresponding Supreme Court Rules that if the Court grants exemption from surrender and directs listing of a case, the Rule cannot stand in the way of the Court’s exercise of such jurisdiction, has to be assumed in the impugned Rule.

10. In these circumstances, we do not find any ground to hold that the impugned Rule suffers from any infirmity. The writ petition is accordingly, dismissed.

………………………………………………J. (T.S. THAKUR) ………………………………………………J. (ADARSH KUMAR GOEL) NEW DELHI FEBRUARY 4, 2015 8