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2003(6) Supreme 957
SUPREME COURT OF INDIA
(From Allahabad High Court)
V.N. Khare, CJI., S.B. Sinha, J.
M/s. Continental Construction Ltd. -Appellant
versus
State of U.P. -Respondent
Civil Appeal No. 8431 of 1997
With
Civil Appeal No. 8453 of 1997
Decided on 22-9-2003
Counsel for the Parties :
For the Appellant : Shiv Kumar Suri, Advocate.
For the Respondent : Subodh Markandeya, Sr. Advocate, Ashok K. Srivastava, Advocate.
Held : Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record is that the accused was owner of the premises. It has not even been remotely suggested that somebody else kept the articles, without his knowledge. (Para 22)
Held further : It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 5 is not attracted. The expression possession is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes. The word conscious means awareness about a particular fact. It is a state of mind which is deliberate or intended. As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control. The word possession means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his firearm in his mother s flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD). Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. (Paras 23 to 28)
Held on evidence : There is no reason to discard the evidence of PW-4, and The confessional statement. (Para 31)
Held finally : In S.N. Dube v. N.B. Bhoir and Ors. (2000 (2) SCC 254) it was held that neither Section 15 of the TADA Act nor Rule 15 contemplates recording of confessional statement in two parts or giving time to the person making a confession to think over and re-consider whether he still wants to make the statement in spite of being told that he is not bound to make it and that it can be used against him. The ratio of this decision has full application to the facts of the present case. In view of these findings, it is not necessary to go into the other question whether the past transactions come within the umbrella of Section 5, though prima facie that appears to be the correct position. That being the position, the appeal is without merit and deserves dismissal, which we direct. (Para 32)
JUDGMENT
S.B. Sinha, J.-These two appeals involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.
Facts :
2. The parties hereto entered into a contract dated 20th August, 1964 for the purpose of construction of Obra dam, Power house, structures and appurtenant works. Disputes and differences having arisen between the parties as regard supply of extra quantity of earth and rock, the matter was referred to an arbitrator.
3. As far back as on 23.8.1972, the appellant herein invoked the arbitration agreement contained in Clause 17 of the contract in connection with earthfill and rockfill which was recorded from 53rd running bill upto the 88th running bill. One Shri J.S. Pujji was appointed as an arbitrator by the appellant. As the respondent did not appoint any arbitrator the appellant requested the said arbitrator to proceed in the matter as a sole arbitrator whereupon he entered into a reference. The respondent herein filed application before the Court of District Judge purported to be in terms of Sections 33 and 9 of the Arbitration Act, 1940 which was allowed. Being aggrieved by and dissatisfied with the judgment of the District Judge, the appellant filed appeal before the High Court of Allahabad. The High Court by an order dated 17.4.1980 directed that both the contractor and the State Government shall nominate their respective arbitrators for resolving the disputes with regard to the claim for extra charges for earth and rock work made by the contractor for the period subsequent to 28.12.1967 and 15.6.1968 respectively. The parties thereafter filed their respective statements of claim, statements of defence and replications before the arbitrators. However, no award could be made by the learned arbitrator within the statutory period as the disputes and differences were referred to the Umpire in accordance with the arbitration agreement.
4. The Umpire was appointed by the Court of Civil Judge, Sonebhadra with the consent of the parties.
5. The appellant herein filed a statement of claim for a sum of Rs. 43,50,958,48 on extra quantity of 8,45,319.471 cu.m. of earthfill excavated from the external sources obtained from borrow areas at the rate of Rs. 880.91 per 100 cu.m. It also made a claim of Rs. 26,47,746,34 for extra quantity of 1,66,524,927 cu.m. of rock excavated from the external sources/quarries at the rate of Rs. 1590/- per 100 cu.m. The Umpire appointed for determination of disputes between the parties who was a retired Engineer-in-chief of the respondent herein awarded a sum of Rs. 7,29,764.00 in respect of the claim for extra quantity of earthfill and a sum of Rs. 8,74,256,00 in relation to its claim for rockfill. The appellant herein filed applications for making the said award as rule of the Court. Respondent, however, filed objections thereto in terms of Section 30 of the Arbitration Act, 1940. By reason of an order dated 23.8.1995 the said applications of the respondent were allowed and the awards were set aside by the Civil Judge, (Senior Division) Mirzapur. The appellant herein preferred appeals thereagainst which were dismissed by the High Court inter alia on the ground that in terms of the provisions of the contract the appellant herein could not make any extra claim for supply of earth or rock.
Submissions :
6. Mr. Shiv Kumar Suri, the learned counsel appearing on behalf of the appellant would inter alia submit that the question as to whether the claim as regards extra item of earth and rock work can be claimed or not was considered by the Allahabad High Court in FAFO No. 155 of 1975 (M/s. Continental Construction (P) Ltd. vs. State of Uttar Pradesh & Others) disposed of on 17th April, 1980 holding that such claim is maintainable. It was contended that the award being a non-speaking one, the learned Civil Judge, Mirzapur and the High Court must be held to have acted illegally and without jurisdiction in entering into the merit of the matter. Th
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