Renuka Dey . vs Naresh Chandra Gope (D) Thr.Lrs. . on 2 November, 2020


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Supreme Court of India

Renuka Dey . vs Naresh Chandra Gope (D) Thr.Lrs. . on 2 November, 2020

Author: Aniruddha Bose

Bench: N.V. Ramana, Surya Kant, Aniruddha Bose

                                                             NON­REPORTABLE

                                      IN THE SUPREME COURT OF INDIA
                                       CIVIL APPELLATE JURISDICTION


                                    CIVIL APPEAL NO. 6264 OF 2013

                         SMT. RENUKA DEY & ORS.                 …APPELLANTS

                                                  VERSUS

                         NARESH CHANDRA GOPE (D)
                         THR. LRS. & ANR.                       …RESPONDENTS



                                            JUDGMENT

ANIRUDDHA BOSE, J.

The West Bengal Restoration of Alienated Land Act, 1973

contemplates, in substance, return of land to a small land­

holder in a situation such a landholder conveys the same to

raise funds to tide over financially distressed condition. For

restoration of the conveyed land, the concerned landholder is

required to make an application to the authority prescribed

under the said statute. We shall refer to that statute

henceforth as the 1973 Act. This legislation lays down certain
Signature Not Verified

parameters within which a landholder ought to come to invoke
Digitally signed by
SATISH KUMAR YADAV
Date: 2020.11.02
17:13:00 IST
Reason:

the provisions relating to restoration of the land already

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conveyed by him. The nature of land to which the said Act

applies is defined in Section 2 (2) of 1973 Act. Under the said

provision, land means agricultural land and includes

homestead, tank, well and water channel. To be eligible for the

protective umbrella of this statute, the aggregate holding of the

transferor cannot exceed two hectares. The 1973 Act, as

originally framed, applied to any transfer made by a landholder

“in distress” or “in need of money for the maintenance of

himself and his family” or “for meeting the cost of his

cultivation”. There has been subsequent amendment to the Act

by which the words “in distress or” has been omitted. In this

appeal, we are concerned with a deed of conveyance executed

on 26th April, 1968. The transferors of the land forming

subject­matter of that deed applied for restoration thereof on

9th August, 1974. At that point of time, the 1973 Act, as

originally framed was applicable. Section 4 (1) of the Act lays

down the conditions under which a transferor could seek

restoration of conveyed land. Section 4 of the said statute, as

originally enacted, read:­

“4. Procedure for effecting restoration of
lands alienated under certain

2
circumstances.—(1) Where before the
commencement of this Act a person being
the transferor holding not more than 2
hectares of land in the aggregate
transferred the whole or any part of his
land by sale to any person being the
transferee, then, if­

(a) such transfer was made after the expiry
of the year 1967 being in distress or in
need of money for the maintenance of
himself and his family or for meeting the
cost of his cultivation, or

(b) such transfer was made after the expiry
of the year 1967 with an agreement written
or oral, for reconveyance of the land
transferred, to the transferor,
the transferor may, within five years from
the date of such transfer or within two
years, from the date of commencement of
this Act, whichever period expires later,
make an application in the prescribed
manner to the Special Officer having
jurisdiction in the area in which the land
transferred is situate for restoration of
such land to him.

(2) On receipt of such application, the
Special Officer shall cause a notice thereof
to be served in the prescribed manner on
the transferee.

(3) On the date fixed in the notice for
hearing such application or on any
subsequent date to which the hearing may
be adjourned by the Special Officer, the
Special Officer shall receive such evidence
as may be adduced by the transferor and
the transferee.

3

(4) If after considering such evidence and
hearing the parties the Special Officer is
satisfied that such transfer was made by
the transferor within the time, and for the
purpose, referred to in clause (a) of sub­
section (1), or, as the case may be, within
the time, and under the conditions,
referred to in clause (b) of that sub­section,
the Special Officer shall make an order in
writing restoring the land transferred to the
transferor and directing the transferor to
pay, in such number of equal instalments
not exceeding ten and by such dates as
may be specified in the order, the amount
of the consideration which was actually
paid by the transferee to the transferor for
such transfer, together with interest on
such amount at the rate of four per
centum per annum from the date of his
receipt of such consideration and the
amount of any compensation for
improvements effected to such land,
allowed by the Special Officer and
determined by him in the manner
prescribed, less the amount determined in
the manner prescribed of the net income
from such land of the person in possession
of such land as a result of such transfer.

Provided that the first of the instalments
provided in the order made under this sub
section shall be payable within three
months of the date of the order.

Explanation­Subject to the other provisions
of this section,­

(i) the word “transferor” referred to in this
Act means the first transferor between the

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expiry of the year 1967 and the date of
commencement of this Act and includes
the heirs of such first transferor;

(ii) the word “transferee” shall mean where
the land is in the possession of any person
other than the first transferee by virtue of a
subsequent transfer such subsequent
transferee; and

(iii) the expression “consideration which
was actually paid by the transferee to the
transferor” shall mean where there was
more than one transfer, the amount which
was paid by the first transferee to the first
transferor.

(5) Notwithstanding anything contained in
the Indian Evidence Act, 1872 (1 of 1872)
any evidence adduced by a transferor
varying, adding to, or subtracting from, the
terms of the sale deed to prove the
necessity or purpose for which the transfer
was made or the amount of consideration
actually paid by the transferee to the
transferor, shall be admitted.

(6) When the special Officer makes an
order for payment under sub­section (4), he
shall direct that­

(a) where such land has been sold before or
after such order is made, in execution of a
decree or of a certificate under the Bengal
Public Demands Recovery Act, 1913,
(Bengal Act III of 1913) against the
transferee the whole of the amount payable
under the said order or such part of it as
may then remain due, shall,
notwithstanding anything contained in
such order become due and payable at
once and on such payment being made,
such sale in execution of the decree or the
certificate shall be set aside and the
amount paid shall be applied towards
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satisfaction of the decree or the certificate,
as the case may be;

(b) in the case where such land has been
alienated by the transferee before the date
of such order by means of a bonafide lease
for valuable consideration or a
usufructuary mortgage, such payment
shall be made to the transferee and the
person in possession of such land as a
result of such transfer in such proportion
and in such manner as may be determined
by the Special Officer and specified in the
order; and

(c) in other cases, such payment shall be
made to the transferee;

Provided that if such land is subject to a
bonafide mortgage other than a
usufructuary mortgage and such mortgage
was executed after the transfer of such
land referred to sub­section (1), the Special
Officer shall direct that such instalments
shall first be paid to the mortgagee until
the amount due under the mortgage as
determined by the special Officer is paid off
and that the thereafter any such
instalments or part thereof still remaining
due shall be paid in the manner provided
in clause (a), clause (b) or clause (c) of this
sub­section as the case may be.

(7) the amount ordered to be paid by
instalments under sub­section (4) shall be
a charge on the land in respect of which
the order under that sub­section has been
made.

(8) Where any land, in respect of which an
order under sub­section (4) is made, is
after the date on which such order takes
effect under sub­section (1) of section 5,
sold in execution of a decree or of a
certificate filed under the Bengal Public
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Demands Recovery Act, 1913, against the
transferor to whom restoration had been
made, or otherwise transferred by him, the
whole of the amount payable under such
order then remaining due shall,
notwithstanding anything contained in
such order, at once become due and
payable, and the person to whom such
amount is payable shall be entitled to
recover it under Section 6.”

2. Malina Bala Dey (since deceased), Smt. Bebi and Renuka

Dey (the first appellant) before us had conveyed approximately

31 decimals of land to Naresh Chandra Gope (since deceased) in

the district of Burdwan in West Bengal by a deed executed on

26th April, 1968 for a consideration of Rs. 9,500/­. So far as

Renuka Dey is concerned, she conveyed the land for self and on

behalf of her two minor sons and also a daughter. The land

forming the subject of the sale transaction included parts of a

pond (tank) and garden. In the deed itself, it has been recorded

that the first vendor (i.e. Malina Bala Dey) was effecting transfer

for buying other property whereas the second vendor (Smt. Bebi

also spelt as Baby on certain documents) wanted the sale

proceeds to be applied for repaying loan obtained for marriage of

her sister. The third vendor (Smt. Renuka Dey), also

representing her two minor sons and daughter declared in the

deed that the sale was being effected for meeting the

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educational costs of her two minor sons and also for repaying

loans obtained for (i) marriage of her daughter (ii) obtained by

her husband and (iii) for buying “some paddy land for our food,

cash is required” (quoted from the copy of the deed forming part

of the paper book, at page 50). On the very same date the

subject­land was conveyed, Malina Bala Dey and Smt. Renuka

Dey purchased another piece of immovable property for a

consideration of Rs. 5,000/­.

3. It has been urged on behalf of the appellants, (who are the

original transferors Renuka Dey, Baby Basu Mallick as also the

two sons and daughter of Renuka Dey and legal

representative(s) of Malina Dey) that simultaneous with the deed

of conveyance, another agreement of reconveyance of the land

was also executed by and between the same set of parties. The

time period by when the agreement was to be executed, as

specified in that agreement itself, was broadly two years. We are

quoting below relevant extracts from that agreement :­

“Now I enter into an agreement with you
that within the month of Chaitra, 1377 B.S
you shall pay me back Rs. 9500/­ (which I
paid to you today) at a time and I shall sell
to you the property described in the

8
schedule below and execute and register a
deed of sale in your favour.

But if do not sell to you the aforesaid
property inspite of receiving from you Rs.
9500/­ at a time within the aforesaid
period then you, by this Ekrarnama, shall
get the aforesaid property executed and
registered through Court.

And if you fail to pay me Rs. 9500/­ at a
time within the aforesaid period then this
Ekrarnama shall be cancelled and after
expiry of the aforesaid period you shall not
be entitled to make any claim for
purchasing the aforesaid property and even
if done the same shall be rejected.” (quoted
verbatim)

4. The transferors applied for restoration of the subject

property on 09th August 1974 before the Special Officer having

jurisdiction over the subject land. It was urged before the

Special Officer that the subject land was sold in distress and the

deed of conveyance was coupled with a reconveyance

agreement. Before the set of proceedings giving rise to this

appeal had originated, there was an earlier round. The

proceedings in the earlier round had also reached the High

Court at Calcutta, in its constitutional writ jurisdiction. The

original transferors were the petitioners before the High Court,

as their application for restoration of land stood rejected by the

Special Officer as also by the appellate authority. The writ
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petition before the High Court was registered as Civil Rule No.

8574 (w) of 1983. By a judgment delivered on 18 th March, 1993,

a Single Judge of the High Court had set aside the two orders

passed by the statutory fora under the 1973 Act and the matter

was remanded to the Special Officer. Hearing the matter on

remand, the Special Officer sustained the application for

restoration by an order passed on 14 th March, 1995. Corollary

directions were passed for refund of the consideration money

and interest to the purchaser. The computation of the sum to be

paid to the purchaser was specified in the order of the Special

Officer. The latter authority found the application for restoration

to be in order on technical points. On the point as to whether

the applicants fulfilled the criteria specified in Section 4 (1) of

the 1973 Act, the Special Officer found that at the time of

effecting sale, Renuka Dey was unemployed widow and

employment of the son of Malina Bala Dey was also not

established. As regards purchase of 1.33 acres of land out of

sale proceeds, it was the applicant’s stand that the said paddy

land was originally purchased for maintaining the family and

this land also had to be sold after four years, in the year 1972

at a reduced price to meet further debt. The Special Officer

10
specifically came to the finding that transfer of the subject land

was made in need of money for maintenance of the family of the

vendors. The subsistence of agreement for reconveyance within

two years from 26th April, 1968 was also recorded in the said

order, which was made on 14th March, 1995.

5. The appeal of the purchaser (whose successors are

respondents before us) against the restoration order was also

dismissed by the Sub­Divisional Land and Land Reforms

Officer. The appellate authority sustained the finding of the

Special Officer. It was held by the West Bengal Land Reforms

and Tenancy Tribunal (the Tribunal), which heard the

application of the purchaser against the restoration Order, while

dismissing such application :­

“To establish that the transferor was
financially sound at the material time the
applicant has again baselessly submitted
that the husband of Renukabala was a
railway employee, that Renukabala was a
school teacher, that the son of Malinabala,
another transferors was a School teacher,
that transferors purchased on the same
date 1.33 acre of land. All these points
were raised before the Special Officer who
after due consideration rejected them as
baseless. The husband of Renukabala died
in 1957, that is long ago. Renukabala got
an appointment as a teacher after the
transfer was made. The son of laminable
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was a student of Higher Secondary at the
material time. The transferors got deep into
debt because there was no earning member
in the family. Because of the marriage of
the sister and daughter they had to incur
further debt. Hence, they had to sell the
lands in the urban area. With half the
consideration money they purchased the
paddy land which also they could not hold
on for more than 4 years. They were
compelled to sell the land.

It is therefore, evident that the
applicant has not only raised the same
questions of fact which were decided by the
authorities on sound grounds but also that
all the contentions are totally baseless. The
authorities have rightly decided the
questions, and there is no illegally
committed by them.” (quoted verbatim)

6. The purchasers subsequently invoked writ jurisdiction of

High Court at Calcutta and their petition was registered as

W.P.L.R.T No. 630 of 2003. Before the High Court however, the

main point which was urged on behalf of the

purchaser/respondents was that the land in question was

homestead non­agricultural land and hence the said Act would

not be applicable so far as the subject­transaction was

concerned. The factum of the character of the transaction being

distress sale was also contested before the High Court. The High

Court decided the issue in favour of purchaser, holding that the

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Tribunal or the other statutory fora never addressed the

question as to whether the land in question came within the

purview of the 1973 Act or not. The High Court also went

against the applicants on the aspect of “distress sale”. It was

held by the High Court :­

“Now the next question that arises for our
consideration is of utmost importance. The
Scheme of the said Act deals with
restoration of the land sold by a person in
need of money for his maintenance or that
of his family or meeting the cost of his
cultivation. In the present case, we feel
none of the said criterions has been
fulfilled.

The deed, which was prepared for the
purpose of sale, clearly mentioned that the
land was required to be sold for the
purpose of meeting the loan incurred for
the Sister’s marriage and for the purpose of
education of the minor child.

On the one hand, we find that the reasons
for sale cannot bring the transaction within
the purview of the said Act and on the
other hand, we find that on the very same
day the petitioner had purchased certain
agricultural land. This is an undisputed
position.

If that be so, it cannot be said to be a
distress sale. This Act primarily intends to
provide relief to the Agriculturists in
respect of distress sale or the like and

13
when from the very recitals of the deeds it
appears that transferors’ own case was to
meet the need of money for other purpose,
obviously, it cannot be called a distress
sale within the purview of Section 4 of the
said Act. In this context the Division Bench
decision of this Court in Prosad Kumar
Dhara vs. Kamala Kanta Dikshit & Ors
.

(supra) cited by Shri Basu is fully
applicable.”

7. The order of the Tribunal was set aside by the High Court

mainly relying on a Division Bench decision of the same court in

the case of Prosad Kumar Dhara v. Kamala Kanta Dikshit

[AIR 1982 Cal 532]. In this judgment, while analysing the

definition of land, it was held by the Division Bench that the

1973 Act did not profess to reopen all transfers of all properties

and it was intended to give relief to agriculturists in respect of

distress sales or the likes and in the definition clause land has

been defined to be limited to agricultural land. Referring to

homestead land, the Division Bench took the view that

homestead land when included within the meaning of the term

“land” in 1973 Act means homestead of an agriculturist and not

any and every structure on non­agricultural land. The High

Court further held in the judgment under appeal before us:­

14
“In view of the fact the basic question,
which we have found, has remained
unanswered by all the fora including the
Tribunal and as the same decides a
preliminary issue. We feel the order
passed, which has been brought before
this court in this application is required
to be set aside.

Accordingly, we allow the application.
Order dated 13.06.2003 passed by the
West Bengal Land Reforms and Tenancy
Tribunal in T.A. No. 571 of 2002 (LRTT)
is set aside.”

8. This judgment has been assailed before us on behalf of the

applicants for restoration or their legal representatives. Our

attention has been drawn to the definition of land, contained in

section 2(2) of the 1973 Act, which reads:­

“2(2) ­ “land” means agricultural land and
includes homestead, tank, well and water­
channel;”

Mr. Bhattacharya, learned advocate appearing for the

appellants, has argued that the definition of land includes

homestead, tank, well and water channel. So far as the land

involved in this appeal is concerned, we find from the schedule

to the deed that what was sold was a pond, which can mean

15
tank, as also highland trees as part of fishery. We quote below

the said schedule from Annexure R­1 of the counter affidavit

filed on behalf of the respondents :­

“Schedule­I

Under District and District Registry
Burdwan, P.S. – and Sub­Registry Kalna,
Pargana Raipur, within Kalna Municipality,
J.L. No. 166, Mouza – Madhuban, Touzi
No. 135, R.S. No. 948, Khatian No. 47, Jot
Khatian Nmo. 53, Dag No. 156 Pond
named Galakata Pond, total 24 satak
except of 26 satak of 2/7, part of 87 satak
total: (10th page).

7 Satak excepting 1 Satak of 8 Shatak of
1/7th part of 54 Satak Garden in Dag No.

168. Total 31 Shatak with high land trees
and part of fishery with all rights and titles
thereof and the annual tax of it is 2.31
paisa total 1.59 shatak tax 6.765 paisa
payable to collector Burdwan on behalf of
Government of West Bengal thorough
J.L.R.O. Kalna, Burdwan.”

9. Mr. Bhattacharya has sought to justify the restoration

order on the ground that alienation was effected for

maintenance of vendors and their family and further the deed

was coupled with an agreement for reconveyance which was

proved before the fact­finding statutory fora. He has cited a

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decision of Calcutta High Court in the case of Chitta Ranjan

Ghosh v. State of West Bengal, reported in (1976) 2 CLJ 180.

In this judgment, a Division Bench of the High Court upheld the

constitutional validity of the 1973 Act. The Bench has opined

that liberal construction of the word “distress” ought to be

given. We quote below the relevant passage from this

judgment :­

“33. It is true that the word “distress” has
got divergent meanings. But where the
purpose of the Act is to give relief to the
poor raiyats, the word, distress, must have
only one meaning, i.e. “economic distress”.
The cost of cultivation of an owner of less
than two hectares of land, obviously, does
not include the cost of either of a costly
tractor or the cost of diesel or electric
pumps for the purpose of irrigation. In
West Bengal the cost of cultivation varies
from one district to another. It depends
upon the nature and character of the soil,
the availability of the labour, facilities of
irrigation, cost of menures and similar
other factors.

34. So, it is impossible for the legislature to
lay down the detailed items of cost. Flexible
powers have been conferred by the Act
upon the Special Officer to meet the
exigencies of the situation.” (quoted
verbatim).

17

10. In a later judgment, Habu Mondal v. Collector, Bankura

[1983 C.W.N. 728] a Single Judge of the said High Court held

that either of the two conditions specified under Section 4(1)(a)

and (b) of the 1973 Act can justify invoking the provisions for

restoration contemplated under that statute.

11. On behalf of the respondents, who are successors of the

original purchaser, Mr. Abhishek Manchanda, learned advocate

has defended the judgment under appeal. It is his submission

that the said statute does not apply to non­agricultural land. He

has also emphasised that the enactment was meant to benefit

only the people engaged in agriculture who had to resort to

distress sale and not every transfer of immovable property could

come within the purview of the statute. In support of this

argument, he has relied upon the decision in the case of Prosad

Kumar Dhara (supra).

12. In our opinion, the mere fact that part of the sale proceeds

has been utilised for purchasing another agricultural land

would not per se disentitle a transferor from invoking the

restoration provision contained in the 1973 Act, provided of

course, the transaction sought to be repudiated otherwise

18
attracts the provisions of the said statute. In the given facts of

this case, substantial part of the sale proceeds was to be applied

to meet the maintenance need of the vendors and their family.

This was the finding of fact returned by all the three statutory

fora. Fresh purchase of land, covering little over half of the

consideration sum received from sale of the subject­land was

also for the purpose of maintaining the necessities of the

vendors. This appears from submissions recorded in the order

of the authority of first instance.

13. We do not accept the finding of the High Court contained

in the judgment under appeal that the said transaction per se

did not constitute distress sale. The reasons cited by the

vendors for selling the land definitely show that they were in

need of money. Under Section 4 (1) (a) of the Act three

situations have been contemplated as alternative conditions to

enable a land holder to seek restoration of land already

conveyed by him. These are “in distress” or “in need of money

for the maintenance of himself and his family” or “for meeting

the cost of his cultivation”. These are interconnected situations

and the vendors’ reasons for transfer, spelt out in the

conveyance deed itself, in our view, comes within the broad
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terms expressed in the statute. We set aside this part of the

finding of the High Court. We, however, are unable to find

sufficient reason to upset the finding of the High Court that the

nature or character of land was never gone into. In our view

that would be the determinant factor for invoking the provisions

of Section 4 of the 1973 Act in the factual context of this case.

In Prosad Kumar Dhara (supra), it was held by the Division

Bench of the High Court, that homestead land, when included

within the meaning of the term ‘land’ means homestead of the

agriculturist and not any or every structure of non­agricultural

land. We approve this view, as expressed in the said judgment.

This proposition has been laid down on interpretation of a State

Law by the jurisdictional High Court. The said judgment has

held the field since 1982. On the basis of reasoning contained in

the judgment of the High Court in the case of Prosad Kumar

Dhara (supra), we are of the opinion that even waterbodies like

pond or tank should also have some connection with

agricultural land or the occupation of the transferor as

agriculturist to come within the purview of the 1973 Act.

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14. We find from the schedule to the deed of conveyance dated

26th April, 1968 that there is reference to Kalna municipality in

description of the land. It is a fact that on a reading of the

orders of the Special Officer, Appellate Authority, and the

Tribunal, it does not appear to us that the issue relating to the

character of the land conveyed was raised before any of these

three fora. All the three fora proceeded on the basis that the

subject land attracted the provisions of 1973 Act. This being a

question of fact, we would have had avoided entertaining that

question at this stage. But that point was argued before the

High Court and the High Court has upset the findings of three

statutory fora on this count. The materials available before us

do not clearly establish that the land came within the purview of

the said Act. To that extent, we are of the view that the High

Court’s opinion is correct. Moreover, this question goes to the

root of the matter in controversy. But because of this lacuna, we

do not think the applicants ought to have been altogether non­

suited from the restoration proceeding, particularly since this

point does not appear to have had been raised before the

statutory fora by the original purchaser. There is no reflection of

such argument in the said three orders. In our opinion, this is a

21
crucial point which should have been determined before

foreclosing the applicants’ restoration plea.

15. For this reason, we modify the judgment under appeal and

remand the matter to the Tribunal, as this is the highest fact­

finding forum, with a direction to the Tribunal to undertake the

exercise of determining the nature of the land with the object of

finding out if the same came within the purview of the 1973 Act

or not. Needless to add, such adjudication shall be done upon

giving opportunity of hearing to the opposing parties or their

learned advocates, as the case may be. We also request the

Tribunal to complete the process of adjudication on this point

within a period of four months.

16. In the event the Tribunal finds the land to be covered by

the said statute, the order of the authority of first instance

passed on 14th March, 1995 shall stand revived and the

Tribunal shall make appropriate order for refund of the sum

received as sale proceeds with interest upon making

computation in terms of the statutory provisions. We have

already discussed the reasons as to why such a course ought to

be taken. If, on the other hand, it is found that the land did not

22
come within the purview of the said Act on the date of execution

of the deed in the year 1968, then the Appellants shall have no

right or claim under the 1973 Act for restoration of the land

conveyed and the deed executed on 26th April, 1968 shall

remain effective, without any interference from the authorities

constituted under the 1973 Act.

17. The appeal stands partly allowed in the above terms.

Pending applications, if any, shall stand disposed of. Parties to

bear their own costs.

…………………………..J.

(Sanjay Kishan Kaul)

.………………………..J.

(Aniruddha Bose)

…..…………………..J.

(Krishna Murari)

New Delhi
2nd November, 2020

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