# Society, Nagpur v. M/s Swaraj Developers

- **Citation:** (2012) 3 ILRA 1382
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-01
- **Bench:** Prakash Krishna, Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/society-nagpur-v-m-s-swaraj-developers-42422
- **Pages:** 9

## Headnote

Sri R.K. Misra
Sri B.D. Sharma
Sri R.A. Shukla
Sri R.N. Maurya
Sri Radha Mohan Pandey
Sri Sudhir Kr. Srivatava

Workman's Compensation Act, Section
30-Appeal by insurer against award of
commissioner-on
ground
although
3 All] The New India Assurance Co.Ltd., Bareilly V. Smt. Usha Devi (Kumari) and others

1383
Tractor
involve
in
accident
bears
comprehensive insurance-but except the
driver-owner-insurer's
no
liabilityadmittedly
both
deceased
labor
employed for loading sugarcane by the
owner vehicle-can not be termed as
stranger-commissioner
rightly
fixed
liability
upon
the
appellant-after
verification of record-no interference
called for-appeal dismissed.

Held: Para-25 and 27

In view of the fact that the insurance
policy
in
the
present
case
being
comprehensive insurance it would cover
all risk insurance except loss caused by
fraudulent act by the insured. The
burden was upon the insurer to produce
copy of insurance policy to show that the
case on hand, was under the except
clause, if any. It was neither pleaded nor
proved by the insurer that they are not
liable
to
compensate
the
claimants
notwithstanding the fact that it is a case
of comprehensive insurance.

The upshot of the above discussion is
that the appellant is liable to satisfy the
award
passed
by
the
Workmen's
Compensation
Commissioner
and
to
indemnify the insured person.
Case Law discussed:
1994 (1) T.A.C. 679; 2007 (3) T.A.C. 895
(H.P.); 2003 (2) T.A.C. 849 (Ker.); 2006 (1)
T.A.C. 321; (2007) 13 SCC 446; JT 1998 (2)
SC 484

## Text

1382 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

raising them would oust the jurisdiction of
the Court, and so, an erroneous decision on
these pleas can be said to be concerned
with questions of jurisdiction which fall
within the purview of Section 115 of the
Code. But an erroneous decision on a
question of law reached by the subordinate
Court which has no relation to questions of
jurisdiction of that Court, cannot be
corrected by the High Court under Section
115."

6. This view has been reiterated by the
Hon'ble Apex Court in Prem Bakshi v.
Dharam Deo, reported in AIR 2002 SC
559. Again in Gayatri Devi and others v.
Shashi Pal Singh reported in 2005 (2) AWC
1072 (SC), it was held that revision under
Section 115 of the Code of Civil Procedure
is not maintainable against an interim order.

7. In Shiv Shakti Co-op. Housing
Society, Nagpur v. M/s Swaraj Developers
and others, reported in AIR 2003 SC 2434,
it was held:-

"It is fairly a well settled position in
law that the right of appeal is a substantive
right. But there is no such substantive right
in making an application under S. 115.
Section 115 is essentially a source of power
for the High Court to supervise the
subordinate courts. It does not in any way
confer a right on a litigant aggrieved by any
order of the subordinate court to approach
the High Court for relief. The scope for
making a revision under S. 115 is not linked
with a substantive right."

8. In view of the above, revision is not
maintainable and deserves to be dismissed.
However it is made clear that the Hon'ble
Apex Court in the case of National
Insurance Co. Ltd. v. Swaran Singh and
others, (2004) 3 SCC 297 and in many
other cases has repeatedly held that if the
person driving a motor vehicle, at the time
of accident, was not having a valid driving
licence, the insurance company has to
compensate the claimant, with a right to
recover it from the owner.

9. In view of the settled law on the
point, the learned Tribunal shall take into
consideration while preparing the award and
even when the execution is moved. This
aspect can well be considered by the
Tribunal at subsequent stages as mentioned
hereinabove.

10. With these observations, revision
petition is dismissed in limine.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2012

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

First Appeal From Order No. - 248 of 2002

The
New
India
Assurance
Co.Ltd.,
Bareilly

 ...Petitioner
Versus
Smt. Usha Devi (Kumari) and others

 ...Respondents

Counsel for the Petitioner:
Sri Rakesh Bahadur

Counsel for the Respondents:
Sri R.K. Misra
Sri B.D. Sharma
Sri R.A. Shukla
Sri R.N. Maurya
Sri Radha Mohan Pandey
Sri Sudhir Kr. Srivatava

Workman's Compensation Act, Section
30-Appeal by insurer against award of
commissioner-on
ground
although
3 All] The New India Assurance Co.Ltd., Bareilly V. Smt. Usha Devi (Kumari) and others

1383
Tractor
involve
in
accident
bears
comprehensive insurance-but except the
driver-owner-insurer's
no
liabilityadmittedly
both
deceased
labor
employed for loading sugarcane by the
owner vehicle-can not be termed as
stranger-commissioner
rightly
fixed
liability
upon
the
appellant-after
verification of record-no interference
called for-appeal dismissed.

Held: Para-25 and 27

In view of the fact that the insurance
policy
in
the
present
case
being
comprehensive insurance it would cover
all risk insurance except loss caused by
fraudulent act by the insured. The
burden was upon the insurer to produce
copy of insurance policy to show that the
case on hand, was under the except
clause, if any. It was neither pleaded nor
proved by the insurer that they are not
liable
to
compensate
the
claimants
notwithstanding the fact that it is a case
of comprehensive insurance.

The upshot of the above discussion is
that the appellant is liable to satisfy the
award
passed
by
the
Workmen's
Compensation
Commissioner
and
to
indemnify the insured person.
Case Law discussed:
1994 (1) T.A.C. 679; 2007 (3) T.A.C. 895
(H.P.); 2003 (2) T.A.C. 849 (Ker.); 2006 (1)
T.A.C. 321; (2007) 13 SCC 446; JT 1998 (2)
SC 484

(Delivered by Hon'ble Prakash Krishna, J.)

1. These two appeals filed under
Section 30 of Workmen's Compensation
Act were heard together and are being
disposed of by a common judgment.
Learned counsel for the parties jointly stated
that common questions of law and facts are
involved in both the appeals.

2. Tractor bearing registration no. UP25-B/8706 owned by the respondents no. 2
to 4 jointly was insured with the present
appellant for own goods. The owners had
employed two labourers, namely, Rakesh
Kumar S/o Buddh Sen and Rakesh Kumar
s/o Bihari Lal. The owners on 25th
November, 1995 send the tractor along with
aforesaid two labourers to bring sugarcane
and when the tractor reached on Brijpuri
railway crossing, a coming train hit the
tractor which caused fatal injuries to
aforesaid two labouers. They died during
the course of employment and each one of
them was getting Rs.1,800/- per month as
wages. This led to filing two claim petitions
being
Case
Nos.
49/WCA/99
and
50/WCA/99
before
the
Workmen's
Compensation Commissioner.

3. Therein, besides the owners,
Insurer-appellant herein were impleaded as
respondents in the claim proceedings. They
contested the claim petitions by filing
separate replies. It was not disputed by the
Insurance Company that the tractor in
question was not insured with them on the
fateful day. They came out with the case
that the driver of the tractor was not holding
valid and effective driving license. The
insurance policy covers the risk of paid
driver of the tractor only and it does not
cover the risk of labourers of the said
tractor. It
was further pleaded that
registration certificate of the vehicle in
question would show that the sitting
capacity of the said vehicle is only one.

4. The claimants led evidence in
support of their claim petitions. They were
cross examined by the Insurer. The
Workmen's Compensation Commissioner
has awarded a sum of Rs.2,01,600/- in Case
Nos. 49/WCA/99, Smt. Usha Devi versus
M/s New India Insurance Co. Ltd. and
others and Rs.1,90,61/- in Case No.
50/WCA/99, Smt. Shakuntala Devi versus
1384 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

M/s New India Insurance Co. Ltd. and
others as compensation amounts.

5. Shri Rakesh Bahadur, learned
counsel for the appellant submitted that
Insurer is not liable to indemnify the owners
of the tractor as two labourers were
unauthorizedly travelling in the tractor.
Tractor was being driven against terms of
insurance policy. He also submitted that the
tractor is 'goods vehicle' and insurer is not
liable to pay compensation in respect of
such labourers whose risk was not covered
under insurance policy. It was also
submitted that the registration certificate of
the insurance policy of the tractor itself
shows that the sitting capacity of the said
vehicle was only one and accordingly the
insurer took insurance of one paid driver
amounting to Rs.15/- only which is
mentioned in the insurance policy.

6. In reply, learned counsel for the
claimants submitted that the insurance
policy was a comprehensive insurance
policy as found by the Workmen's
Compensation Commissioner also, the
insurer is liable to pay compensation
amount to the claimants notwithstanding
anything. Accident occurred during the
course of employment and the labourers
were on duty on the fateful day. These two
unfortunate labourers were in the tractor.
They were on duty and were carrying out
the order of their employer to bring
sugarcane on the tractor. It was also
submitted that only such pleas are available
to the insurer which are available to the
owners
under
the
Workmen's
Compensation Act.

7.

Considered
the
respective
submissions of the learned counsel for the
parties and perused the record.

8. At the very outset, it may be noted
that on the pleadings of the parties,
Workmen's Compensation Commissioner
had framed six issues for determination. All
issues have been decided in favour of the
claimants-respondents. The dispute sought
to be raised in the present appeal is with
regard to the liability of the insurer to
indemnify the owners of the tractor. In this
regard, issue no. 2 was framed before the
Workmen's Compensation Commissioner
and the findings returned thereunder are
important. Issue no. 2 is to the effect―
whether Tractor No. UP-B/8706 of the
opposite parties no. 2 to 4 was validly
insured with opposite party no. 1 the New
India Assurance Co. Ltd., on the date of
accident i.e. on 25th November, 1995.
Under the said issue, it has been found that
the tractor was validly insured with the
appellant. To this extent, there appears to be
no dispute between the parties. Contention
of the insurer that only the risk of driver was
insured, has been negatived on the finding
that from the insurance cover in addition to
the risk of driver, the person responsible for
upkeep of the tractor were also covered
under the insurance policy. This is the core
issue for decision in these appeals.

9. Learned counsel for the appellant
referred the following cases in support of
proposition that there is no liability of
insurance company in respect of death or
injury to such persons who were travelling
in a tractor. Tractor is a goods vehicle and
in view of the provisions of Motor Vehicle
Act, no liability could be fastened on the
insurer for death of the person who was
travelling in the tractor. The referred cases
are as follows:

1. New India Assurance Co. Ltd.
versus Smt. Tarawati and others, 1994 (1)
T.A.C. 679;
3 All] The New India Assurance Co.Ltd., Bareilly V. Smt. Usha Devi (Kumari) and others

1385

2. New India Assurance Company Ltd.
versus Sudesh Kumari and others, 2007 (3)
T.A.C. 895 (H.P.); and

3. National Insurance Co. Ltd. versus
Kottam, 2003 (2) T.A.C. 849 (Ker.).

10. All these decisions were rendered
in regard to the claim petitions filed under
the Motor Vehicles Act and were decided in
the light of the provisions of that Act.

11. The said argument may hold good
in a proceeding under the Motor Vehicle
Act. To what extent such argument can be
accepted in proceeding under Workmen's
Compensation Act is a different question.

12. The Apex Court in the case of
National Insurance Co. Ltd. versus
Mastan and another, 2006 (1) T.A.C. 321,
has considered the provisions of Motor
Vehicle
Act
vis-a-vis
Workmen's
Compensation Act. It has noticed that
Chapter-X of Motor Vehicle Act will have
effect on the proceedings before Workmen's
Compensation
Commissioner
notwithstanding anything contained in the
provisions of the said Act or any other law
for the time being enforced. Chapter-X of
Motor Vehicle Act deals with liability
without fault in certain cases. In para-14 of
the report, it has been stated that
Applicability of the provisions of the 1988
Act in a proceeding under the 1923 Act is
confined to a matter coming within the
purview of Chapter X only. It cannot be
stretched any further. For the sake of
convenience, paras-13 & 14 are reproduced
below:

"13. Section 143 occurs in Chapter X
of the 1988 Act. Section 144 contains a
non-obstante
clause
stating
that
the
provisions of the said chapter shall have
effect notwithstanding anything contained
in any other provisions of the said Act or of
any other law for the time being in force.
Chapter X deals with liability without fault
in certain cases. Chapter X, therefore, will
have no application in relation to a claim
made in terms of Chapter XI of the 1988
Act.

14. Applicability of the provisions of
the 1988 Act in a proceeding under the
1923 Act is confined to a matter coming
within the purview of Chapter X only. It
cannot be stretched any further."

13. It has been further laid down that
an insurer, subject to the terms and
conditions of contract of insurance, is bound
to indemnify the insured under the
Workmen's Compensation Act also under
the Motor Vehicle Act. Keeping in view the
nature and purport of the two statutes, the
pleas which be raised by the insurer being
different, the scope and ambit of appeal are
also different. The relevant paras are
reproduced below:

"21. An insurer, subject to the terms
and conditions of contract of insurance, is
bound to indemnify the insured under the
1923 Act as also the 1988 Act. But as
noticed hereinbefore, keeping in view the
nature and purport of the two statutes, the
defences which can be raised by the insurer
being different, the scope and ambit of
appeal are also different.

22. Under the 1988 Act, the driver of
the vehicle is liable but he would not be
liable in a case arising under the 1923 Act.
If the driver of the vehicle has no licence,
the insurer would not be liable to indemnify
the insured. In a given situation, the
Accident Claims Tribunal, having regard to
its rights and liabilities vis-`-vis the third
1386 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

person may direct the insurance company to
meet the liabilities of the insurer, permitting
it to recover the same from the insured. The
1923 Act does not envisage such a situation.
Role of Reference by incorporation has
limited application. A limited right to
defend a claim petition arising under one
statute cannot be held to be applicable in a
claim petition arising under a different
statute unless there exists express provision
therefor. Section 143 of the 1988 Act makes
the provisions of the 1923 Act applicable
only in a case arising out of no fault
liability, as contained in Chapter X of the
1988 Act. The provisions of Section 143,
therefore, cannot be said to have any
application in relation to a claim petition
filed under Chapter XI thereof. A fortiori in
a claim arising under Chapter XI, the
provisions of the 1923 Act will have no
application. A party to a lis, having regard
to the different provisions of the two Acts
cannot enforce liabilities of the insurer
under both the Acts. He has to elect for one.

23. Section 167 of the 1988 Act
statutorily provides for an option to the
claimant stating that where the death of or
bodily injury to any person gives rise to a
claim for compensation under the 1988 Act
as also the 1923 Act, the person entitled to
compensation may without prejudice to the
provisions of Chapter X claim such
compensation under either of those Acts but
not under both. Section 167 contains a nonobstante clause providing for such an option
notwithstanding anything contained in the
1923 Act."

14.

The
ratio
of
the
above
pronouncement is that a claimant has an
option to claim the compensation either
under Motor Vehicle Act or under
Workmen's Compensation Act but not
under both Acts.

15. A person who has claimed
compensation under no fault liability under
Motor Vehicle Act cannot subsequently
claim compensation in addition, under
Workmen's
Compensation
Act.
The
claimant is put to election to choose either
of them but not both. A reading of the
above precedent, further shows that under
two Acts, such defences which are available
to insurer may not be available to such
insurer if the proceedings are under
Workmen's Compensation Act. To an
insurer
in
a
proceeding
under
the
Workmen's Compensation Act, only such
defences which are available to the owner
would be available.

16. The aforesaid decision has been
relied upon in Gottumukkala Appala
Narasimha Raju and
others versus
National Insurance Company Limited and
another, (2007) 13 SCC 446. In this case,
after noticing its earlier judgment, the Apex
Court in para-25 of the report has made the
following observations:

"The ingredients for maintaining a
proceeding under 1988 Act and 1923 Act
are different. The purpose for which a
contract of insurance is entered into may be
different, whereas 1988 Act, it will bear
repetition to state, a contract of insurance
would be mandatory; for the purpose of
applicability of the 1923 Act, it will be
optional and as indicated hereinbefore, in
Harshadbhai Amrutbhai Modhiya (supra),
even contracting out is permissible, as under
the 1923 Act, the liability of the insurer is
limited to the claim of the workman. The
liability under Section 147(2)(b) of the 1988
Act, on the other hand, extends to third
party."

17. Section 147 of the Motor Vehicle
Act, 1988 provides for requirements of
3 All] The New India Assurance Co.Ltd., Bareilly V. Smt. Usha Devi (Kumari) and others

1387
policies and limits of liability. For the sake
of convenience, Section 147 of the Motor
Vehicle Act, 1988 and its proviso is
reproduced below which reads as follows:

"147. Requirements of policies and
limits of liability.-- (1) In order to comply
with the requirements of this Chapter, a
policy of insurance must be a policy which-
-

(a) is issued by a person who is an
authorised insurer; and

(b) insures the person or classes of
persons specified in the policy to the extent
specified in sub- section (2)--

(i)against any liability which may be
incurred by him in respect of the death of or
bodily injury to any person or damage to
any property of a third party caused by or
arising out of the use of the vehicle in a
public place;

(ii)against the death of or bodily injury
to any passenger of a public service vehicle
caused by or arising out of the use of the
vehicle in a public place:

Provided that a policy shall not be
required--

(i) to cover liability in respect of the
death, arising out of and in the course of his
employment, of the employee of a person
insured by the policy or in respect of bodily
injury sustained by such an employee
arising out of and in the course of his
employment other than a liability arising
under the Workmen' s Compensation Act,
1923 , (8 of 1923 .) in respect of the death
of, or bodily injury to, any such employee--

(a) engaged in driving the vehicle, or

(b) if it is a public service vehicle
engaged as a conductor

of the vehicle or in examining tickets
on the vehicle, or

(c) if it is a goods carriage, being
carried in the vehicle, or

(ii) to cover any contractual liability.

Explanation.-- For the removal of
doubts, it is hereby declared that the death
of or bodily injury to any person or damage
to any

property of a third party shall be
deemed to have been caused by or to have
arisen out of, the use of a vehicle in a public
place notwithstanding that the person who
is dead or injured or the property which is
damaged was not in a public place at the
time of the accident, if the act or omission
which led to the accident occurred in a
public place.

(2) Subject to the proviso to sub-
section (1), a policy of insurance referred to
in sub- section (1), shall cover any liability
incurred in respect of any accident, up to the
following limits, namely:--

(a) save as provided in clause (b), the
amount of liability incurred;

(b) in respect of damage to any
property of a third party, a limit of rupees
six thousand:

Provided that any policy of insurance
issued with any limited liability and in
force,
immediately
before
the
commencement of this Act, shall continue
to be effective for a period of four months
1388 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

after such commencement or till the date of
expiry of such policy whichever is earlier.

(3) A policy shall be of no effect for
the purposes of this Chapter unless and until
there is issued by the insurer in favour of the
person by whom the policy is effected a
certificate of insurance in the prescribed
form
and
containing
the
prescribed
particulars of any condition subject to which
the policy is issued and of any other
prescribed matters; and different forms,
particulars and matters may be prescribed in
different cases.

(4) Where a cover note issued by the
insurer under the provisions of this Chapter
or the rules made thereunder is not followed
by a policy of insurance within the
prescribed time, the insurer shall, within
seven days of the expiry of the period of the
validity of the cover note, notify the fact to
the registering authority in whose records
the vehicle to which the cover note relates
has been registered or to such other
authority as the State Government may
prescribe.

(5)
Notwithstanding
anything
contained in any law for the time being in
force, an insurer issuing a policy of
insurance under this section shall be liable
to indemnify the person or classes of
persons specified in the policy in respect of
any liability which the policy purports to
cover in the case of that person or those
classes of persons."

18. A plain reading of the aforesaid
proviso would show that the policy shall
cover liability arisen under the Workmen's
Compensation Act, 1923 in respect of death
of, or bodily injury to, any such employee
(i) engaged in driving the vehicle, or (ii) if it
is a goods carriage, being carried in the
vehicle.

19. Here, it is a case where deaths
were caused due to use of Motor Vehicle
and in the course of employment. The two
persons were in the tractor in the course of
their employments to bring the sugarcanes.

20. It has been found as a fact that
these two unfortunate labourers were
travelling in the tractor which is goods
carriage for the purposes of loading of
sugarcane on the instructions of their
employer. This being so, the risk of injury
or death caused to them in the course of
employment would be covered under the
insurance policy.

21. There is another angle also. We
have examined the original record containing
insurance cover. It is mentioned thereunder
that the insurance policy is comprehensive
policy, the fact which was also pleaded by
the owners in their written statement. In the
insurance cover, it is not mentioned that the
policy is 'Act policy' instead it is 'Comp. Ins'.
It implies that the insurance policy was
comprehensive insurance policy, so also has
been found by the Workmen's Compensation
Commissioner. This being so, obviously the
risk of lives of labourers and bodily injuries
would also be covered under the insurance
policy.

22. Learned counsel for the claimants
argued out that 15% loading was charged. It
is indicative of the fact that it was
comprehensive policy. In reply, learned
counsel for the insurer submits that it relates
to tariff. Be that as it may, we are of the
opinion that the insurance policy being
comprehensive insurance policy, the risk of
third party's injury and death are also covered
. In other words, risk of the life of labourers
3 All] The New India Assurance Co.Ltd., Bareilly V. Smt. Usha Devi (Kumari) and others

1389
who were in the tractor in the course of their
employment
on
instructions
of
their
employer, were also covered and they would
be treated as third party qua the owners of
tractor.

23. 'Comprehensive Insurance' has
been defined in Black's Law Dictionary 5th
edition as 'All risk insurance' which in turn is
defined as follows:-

" Type of insurance policy which
ordinarily covers every loss that may happen,
except by fraudulent acts of the insured.
Miller v. Boston Ins. Co. 218 A. 2d 275, 278,
420 Pa. 566. Type of policy which protects
against all risks and perils except those
specifically enumerated."

24. The aforesaid definition has
been reproduced by the Apex Court in the
case of Amrit Lal Sood & another vs
Smt. Kaushalya Devi Thapar & others,
JT 1998 (2) SC 484. This is a decision
rendered
by
three
Hon'ble
Judges
delivered under the provisions of Motor
Vehicle Act, 1939. The issue involved
therein was whether the insurer, is liable
to satisfy the claim for compensation
made by a person travelling gratuitously
in the car. The insurer had issued
comprehensive insurance, insuring the
car. The Court proceeded to decide this
issue on the footing that the liability of the
insurer in this case depends on the terms
of the contract between the insured and
the insurer as evident from the policy. In
the case before us, insurer (appellant) has
admitted that the tractor was insured with
them. It has not filed the copy of
insurance policy but we find copy of
insurance certificate wherein against the
column 'Limitation As To Use 'Comp.
Ins.' have been mentioned.

25. In view of the fact that the
insurance policy in the present case being
comprehensive insurance it would cover
all risk insurance except loss caused by
fraudulent act by the insured. The burden
was upon the insurer to produce copy of
insurance policy to show that the case on
hand, was under the except clause, if any.
It was neither pleaded nor proved by the
insurer that they are not liable to
compensate the claimants notwithstanding
the fact that it is a case of comprehensive
insurance.

26. In the subsequent decision of the
Apex Court in Oriental Insurance Co.
Ltd. vs Cheruvakkara Nafeessu and
others, JT 2001 (1) SC 341, the decision
given in the case of Amrit Lal Sood
(supra) has been noticed and considered.
It has been held that insurer is liable to
pay the entire award amount to the
claimants. Upon making such payment
the appellant can recover the excess
amount from the insured by executing this
award against the insured to the extent of
such excess as per Section 174 of the
Motor Vehicles Act, 1988.

27. The upshot of the above
discussion is that the appellant is liable to
satisfy
the
award
passed
by
the
Workmen's Compensation Commissioner
and to indemnify the insured person.

28. Argument of the appellant is that
the premium was paid for paid driver only
and normally in the tractor except the
driver there is no seat. Learned counsel
for the appellant in this connection has
filed a document as annexure-4 to the
affidavit filed in support of the stay
application. It is dated 20th February,
2002. It is R.C. Verification Report,
Surveyor & Loss Assessor. The said
1390 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

document should not have been referred
by the appellant as it is not part of record
of
the
Workmen's
Compensation
Commissioner as also it came into
existence after award. The award is dated
20th December, 2001. In all fairness, the
appellant should have sought permission
of the Court to lead additional evidence in
the appeals before referring the said
document in the course of argument. The
argument proceeded on the footing that
the said document found part of record
but on verification from the original
record, we find that it is not so. We
deprecate such practice.

29. Any other point was not pressed.

30. We do not find any merit in the
appeals. Both the appeals are, hereby,
dismissed with costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.09.2012

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

First Appeal No. - 658 of 2005

State of U.P. Thru' The Collector Bijnor
and another

...Applicants
Versus
Ajay Singh and others ...Respondents

Counsel for the Petitioner:
S.C.

Counsel for the Respondents:
Sri R.S. Mishra
Sri B.K. Mishra
Sri S.K. Srivastava

Indian Forest Act, 1927-Section-27- land
once reserved forest land-can be dereserve only by Central Government
notification-not by other process-suit for
permanent
injunction-without
having
any title-suit itself hit by provisions of
Section 27-A.

Held: Para 66

It follows when a reserve forest has
been established through notification, it
shall cease to be a reserve forest only
when there is a notification to this effect
by the State Government in the official
gazette and not by any other process. In
the case on hand, we do not find any
such notification on record. This being
so, it is end of the matter, so far as the
plaintiffs are concerned. The land in
dispute continues to be reserve forest
land and the suit is hit by section 27A, as
added in State of U.P.

(Delivered by Hon'ble Prakash Krishna, J.)

1. It is an unfortunate case. The facts
of the case unveils how some government
servants, here two officials, who were in
possession of revenue record, as part of duty
to protect the government land, colluded
with each other to grab the government
property by forging the revenue record and
entered the names of their wives and sons
who are plaintiffs herein. Thus, they caused
an estimated loss to the extent of Rs.50
crores to the public exchequer as found in
the inquiry report dated 11.4.2002.

2. This is defendants' appeal against
the original judgment and decree dated 30th
of May, 2005.

3. Present first appeal has been filed
by the State of U.P. through Collector,
Bijnor and Forest Range Officer, Amangarh
Range, Bijnor against the judgement and
decree dated 30.5.2005 and 8.7.2005,
respectively, passed by the Additional Civil
Judge (Senior Division),Bijnor by which the
suit has been decreed being O.S. No. 545 of