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(ii)
NOMINAL-INDEX
VOLUME-I, PART-I
JANUARY, 2011
Mahabir Prasad & Another v. State .......................................................... 166
Sardar Gurdial v. Dr. Sandeep Sharma .................................................... 193
Pages
EX-Const. Vijender Singh v. Union of India and Ors. ............................. 200
National Insurance Co. Ltd. v. Raj Kumari & Ors. ..................................... 1
ABW Infrastructures Ltd. & Anr. v. Rail Land
Development Authority ...................................................................... 216
Director of Income Tax (Exemption) v. M/s. Bagri Foundation ................. 6
Chanchal Bhatti & Ors. v. State (NCT of Delhi) ..................................... 243
Sh. Tilak and Others v. Smt. Veena ........................................................... 15
M/s Kundan Infrastructures v. NDMC & Anr. ....................................... 253
Commissioner of Income Tax v. Dhanpat Rai .......................................... 20
The Commissioner of Income Tax v. M/s Harparshad &
Company Ltd. ...................................................................................... 22
Machine Tools (India) Ltd. v. The Employees
State Insurance Corporation .............................................................. 268
Morgan Tectronics Ltd. v. CBI .................................................................. 29
M/s. Genesis Printers v. Shri Rati Ram Jatav Presiding
Officers & Ors. ................................................................................. 279
Vijay Verma v. State (NCT) of Delhi & Anr. ............................................. 36
Shahid Parvez v. Union of India & Ors. .................................................. 297
Ex. L/NK Mahabir Prasad v. UOI and Ors. ............................................... 43
M/s. South Delhi Maternity & Nursing Home (P) Ltd. v.
MCD & Others .................................................................................. 309
Sanjay Bhardwaj & Ors. v. The State & Anr. ........................................... 58
The Vaish Coop. Adarsha Bank Ltd. v. Sudhir Kumar Jain & Ors. ........ 321
UOI v. Anil Puri .......................................................................................... 63
Neena Shad v. MCD & Ors. .................................................................... 342
J.K. Sawhney v. Punjab National Bank ...................................................... 79
Ram Chander Singh Prem Dutt Sharma v. CBI ....................................... 372
Vikas Saksena v. Union of India and Others .............................................. 84
Samiuddin @ Chotu v. The State of NCT Delhi ...................................... 399
Alpine Agencies Pvt. Ltd. v. Commissioner of
Value Added Tax & Others ............................................................... 108
Const. Seth Pal Singh v. UOI & Ors. ...................................................... 404
Govt. of NCT of Delhi & Ors. v. Naresh Kumar .................................... 132
Praveen Kumar Wadhwa v. M/s Endure Capital (P) Ltd. ........................ 421
Vinod Kumar Kanojia v. UOI and Ors. .................................................... 151
Parveen Singh @ Kalia v. State of NCT of Delhi ..................................... 426
Dharmendra Kr. Lila v. Registrar of Companies ...................................... 158
Raju Sharma & Ors. v. Union of India & Anr. ........................................ 431
Dr. Rajiva Kumar Tiwari v. Union of India & Ors. ................................. 161
(i)
Mrs. Indira Rai v. Shri Bir Singh ............................................................. 442
(iv)
SUBJECT-INDEX
VOLUME-I, PART-I
JANUARY, 2011
ADMINISTRATIVE TRIBUNAL ACT, 1985—Section 19,20 &
21—Aggrieved petitioners by orders of Administrative
Tribunal filed writ petitions—As Per, Petitioners who are
husband and wife, they were appointed as Medical Officers
on contractual basis by MCD from time to time MCD
extended their term of appointment and their remuneration also
enhanced—Petitioner no. 1 filed three complaints, levelling
sexual harassment allegations against colleague and seniors—
Sexual Harassment Committee dismissed those complaints and
also recommended strict disciplinary action against both the
petitioners—Accordingly, Commissioner MCD vide office
letter, took decision not to continue with engagement of
petitioners with MCD—Aggrieved by said office order
petitioner no. 1 filed writ petition which was dismissed and
appeal preferred by her also dismissed—Thereafter petitioner
no. 1 filed another writ petition which was also dismissed—
On the other hand, petitioner no. 2 after dismissal of
application of petitioner no. 1 filed application before
Administrative Tribunal which was dismissed and review filed
by him also dismissed—Petitioners urged in writ petitions
MCD discriminated against petitioners by not extending their
term of appointment as term of other Medical Officers who
were similarly placed and also who were juniors to petitioners
were granted extension of term—Also MCD, did not hold
inquiry in terms of Article 311 (2) before issuing office order.
Held : In the case of an appointment to a permanent post in a
government service on probation or on an officiating basis,
the servant so appointed does not acquire any substantive right
to the post and consequently cannot complain, any more than
a private servant employed on probation or on an officiating
basis can do, if his service is terminated at any time—Likewise,
an appointment to a temporary post in a government service
(iii)
may be substantive or on probation or on an officiating basis—
The servant so appointed acquires no right to the post and
his service can be terminated at any time except in one case
when the appointment to a temporary post is for a definite
period—A person appointed on contractual basis does not
enjoy the protection of Article 311 (2) as he is not a member
of a Civil Service of the Union or a All India Services or a
Civil Services of a State or holds a civil post under the Union
or a State.
Neena Shad v. MCD & Ors. .......................................... 342
BORDER SECURITY FORCE ACT, 1968—Section 117(2)—
Border Security Force Rules, 1969—Rule 142—Petitioner
charged with attempt to commit suicide—Respondents
contend petitioner entered plea of guilty before Summary
Security Force Court (SSFC) and dismissed him from
service—Order challenged in High Court—Plea taken,
petitioner had never pleaded guilty to charge—Per contra, plea
taken petitioner had prayed for mitigation of punishment—
Held—Proceedings of court do not contain signatures of
petitioner at any place at all in SSFC which militate against
petitioner having so pleaded—Court is required to test legality
and validity of findings returned by SSFC based on material
before court and conviction of petitioner cannot be premised
on any thing which may have come before them
subsequently—Record made by hospital authority and police
does not support charge for which petitioner was arraigned—
Petitioner reinstated with all consequential benefits.
EX-Const. Vijender Singh v. Union of
India and Ors. ................................................................. 200
BORDER SECURITY FORCE RULES, 1969—Rule 142—
Petitioner charged with attempt to commit suicide—
Respondents contend petitioner entered plea of guilty before
Summary Security Force Court (SSFC) and dismissed him
(v)
from service—Order challenged in High Court—Plea taken,
petitioner had never pleaded guilty to charge—Per contra, plea
taken petitioner had prayed for mitigation of punishment—
Held—Proceedings of court do not contain signatures of
petitioner at any place at all in SSFC which militate against
petitioner having so pleaded—Court is required to test legality
and validity of findings returned by SSFC based on material
before court and conviction of petitioner cannot be premised
on any thing which may have come before them
subsequently—Record made by hospital authority and police
does not support charge for which petitioner was arraigned—
Petitioner reinstated with all consequential benefits.
EX-Const. Vijender Singh v. Union of India
and Ors. ........................................................................... 200
CCS PENSION RULES, 1972—Rule 9—CCS (CCA) Rules,
1965—Rule 14—Charge Sheet issued to respondent set aside
by Administrative Tribunal on grounds of delay, being mere
formality as decision was already taken to punish the
respondent and as respondent had already retired, penalty
under Rule 9 could not be inflicted—Order challenged in High
Court—Held—Starting point while considering delay is not
date or period when misdemeanour took place but when
department gains knowledge of relevant facts constituting
misdemeanour—40% time consumed by respondent and noting
steps taken by department in pursuing matter, no delay in
issuing charge sheet—Advice of UPSC that considering nature
and seriousness of charge it was case of major penalty is prima
facie view and not final view which must await evidence being
brought on record and findings returned by IO—Under Rule
9, order which can be passed is to recover pecuniary loss
caused to government or impose a cut in pension payable of
gratuity or both in full or part upon proof of guilt but
pertaining to grave misconduct or negligence—With rampant
abuse and disabuse of financial power, it cannot be said if
(vi)
proved, such kind of misadventures are not grave
misconduct—Order of Tribunal quashed.
UOI v. Anil Puri ............................................................... 63
CCS (TEMPORARY SERVICE) RULES, 1965—Rule 5—Indian
Penal Code, 1860—Section 363/366/376—Respondents
appointed on probation against temporary post of Warder
Prison in Tihar—Pursuant to registration FIR, respondents
sent to judicial custody—Competent Authority terminated
services by non stigmatic orders of discharge simpliciter—
Representations made to appointing authority to re-induct
respondents in service after their acquittal in criminal trial
rejected—Representations styled as appeals also rejected—
Impugned orders challenged before Administrative Tribunal to
set aside order of termination—Plea taken, order terminating
services being penal in nature, department was obliged to hold
enquiry—Administrative Tribunal allowed application—Order
of Tribunal challenged in High Court—Plea taken, applications
before Tribunal were time barred—Respondents being accused
of serious offences and arrest was motive and not foundation
of order terminating their services—Held, Non statutory
representation can never extend limitation—Merely by labelling
representation as appeal and said work being reflected in order
communicating rejection of representation would not make
representation appeal—It is substance which matters not
label—Representations questioning order terminating services
were highly belated and barred by limitation before Tribunal—
Employer has legal right to dispense with services of employee
without anything more during or at end of prescribed period—
Where no findings are arrived at any inquiry or no inquiry is
held but employees chooses to discontinue services of
employee against whom complaints are received it would be
a case of complaints motivating action and would not be bad—
Order of Tribunal quashed.
Govt. of NCT of Delhi & Ors. v. Naresh Kumar ......... 132
(vii)
CENTRAL CIVIL SERVICE (PENSION) RULES—Rule 41—
Application of petitioner for grant of compassionate allowance
rejected on ground of his dismissal after disciplinary enquiry
as petitioner was delinquent of disobedient nature and habitual
of being absent—Compassionate allowance admissible only in
those cases where delinquent had been honest and dedicated
during whole service period—Order challenged in High
Court—Held—Conduct of petitioner for purposes of award
of compassionate allowance has to be evaluated by authority
considering such application taking totality of record into
consideration and cannot be premised on isolated instances
or specific instances of misconduct for which employee may
have been penalized—Commendations, rewards and positive
comments in ACR have not been taken into consideration—
Respondents erred in passing impugned order and failed to
exercise discretion conferred upon them in accordance with
law and applicable rules—Petitioner entitled to award of
compassionate allowance in terms of applicable rules and
guidelines.
Ex. L/NK Mahabir Prasad v. UOI and Ors. ................... 43
CENTRAL CIVIL SERVICES (CLASSIFICATION,
CONTROL AND APPEAL) RULES, 1957—Rule 15 (1)—
Inquiry officer absolved petitioner of charges—Disciplinary
authority held that enquiry was not properly conducted and
directed de novo inquiry by new IO—Petitioner absolved of
first charge and found guilty of second charge—Disciplinary
authority held petitioner guilty of both charges—Notice with
copy of report of IO served on petitioner—After considering
representation, Disciplinary authority imposed penalty of
removal from service—On revision, penalty modified from
removal from service to compulsory retirement—Order
Challenged in High Court—Plea taken, action of respondents
in directing second inquiry is without legal competence and
jurisdiction—Disciplinary authority had arrived at a conclusion
(viii)
that petitioner was guilty of both charges—Notice to petitioner
after arriving at such conclusion calling upon petitioner to
submit representation was meaningless—Held No rule or
regulation prescribe second inquiry on identical charges by
concerned authority—Disciplinary authority failed to follow
a procedure prescribed by law - It was open to disciplinary
to record further evidence or call material which had been
ignored by IO to be produced after giving full opportunity to
petitioner or IO could have been asked to record further
evidence—Direction to conduct second enquiry was
unwarranted and illegal—Disciplinary authority is required to
record its tentative reasons for such disagreement and give
opportunity to charged officer to represent before it records
its findings—Communication communicating conclusions
already drawn by disciplinary authority gives no real
opportunity to petitioner to make a representation in respect
of either points of disagreement or proposed punishment—
Opportunity to represent against points of disagreement has
to be meaningful—Impugned order not sustainable—Petitioner
directed to be reinstated in service with national seniority but
without back wages.
Const. Seth Pal Singh v. UOI & Ors. ........................... 404
CENTRAL SALES TAX ACT, 1956—Section 8—Appellant/
assessee a Private limited company, traded in electric,
electronic and refrigeration items which were notified to be
first point items U/s 5 of the Act—As per, assessee/appellant,
it purchased these goods from registered dealers and was not
first seller of the goods, therefore had no liability to pay sales
tax—Assessee/appellant had put up said claim before Assessing
Officer for assessment for year 1996-97—Assessment done
both under Delhi Sales Tax Act as well as Central Sales Tax
Act and demand of Rs. 3679144 and Rs. 90172 respectively
raised under the Acts—Assessee/appellant preferred two
rounds of appeal but failed to get full relief—Ultimately, last
(ix)
order of Income Tax Appellant Tribunal resulted in writ petition
in which appellant/assessee agitated the plea, registered dealers
from whom it purchased goods had paid sales tax—Therefore,
not necessary for assessee to charge sales tax on those very
items of goods when assessee sold same to consumers—
Assessee/appellant failed to produce original books of accounts
or invoices before Assessing Officer as same were lost for
which FIR was lodged—Percontra, respondent pleaded
appellant/assessee not entitled to relief in absence of original
invoices. Held : provisions of Delhi Sales Tax Act and rules
framed thereunder were mandatory in nature and it was
necessary to construe them strictly in order to avoid misuse—
Rule 9 requires the dealer to produce a declaration in or ST-3
duly filled in and signed by the dealer selling the goods which
has to be produced in original—No doubt when these original
forms ST-3 are lost or destroyed because of circumstances
beyond the control of the assessee he should not be punished
and denied the benefit - To avail the benefit the dealer has to
necessarily seek exemption in the manner as provided in the
rules - As the appellant failed to file satisfactory proof in the
manner provided under the Act and rules, not entitled to the
benefit as claimed.
Alpine Agencies Pvt. Ltd. v. Commissioner of Value Added
Tax & Others .................................................................. 108
CODE OF CIVIL PROCEDURE, 1908—Order 12 Rule 6—
Execution Proceedings Applicability—Respondent filed suit for
recovery of possession and arrears of rent—Decree in petition
against appellant, judgment debtor—Respondent filed
objections—Appellant contended that decree under Order 12
Rule 6 could not have been passed—Issue of ownership
pending—Held—Respondent has filed objections to ward off
warrants of attachment of property—Objections in the
execution proceedings would not in any manner affect the
relationship of landlord and tenant—Section 116 of Indian
(x)
Evidence Act creates an estoppel—Findings concurrent and
called for no interference.
Praveen Kumar Wadhwa v. M/s Endure
Capital (P) Ltd. .............................................................. 421
— Order IX Rule 13—Industrial Disputes Act, 1947—Section
11—Labour Court by ex parte award directed reinstatement
of workman with back wages and dismissed application of
petitioner for setting aside exparte award—Orders challenged
in HC—Plea taken, counsel without any reason stopped
appearing in the case—Held—Ex parte award can be set aside
on account of giving valid reasons for non appearance—A
client can not be made to suffer for fault of his advocate—
This can not be a general rule and facts of each case have to
be seen—There is no grave prejudice in setting aside ex parte
proceedings as at best on setting aside exparte proceedings
case will be decided considering respective merits—Impugned
order set aside.
M/s. Genesis Printers v. Shri Rati Ram Jatav Presiding
Officers & Ors. ............................................................... 279
CODE OF CRIMINAL PROCEDURE, 1973—Framing of
charge—Indian Penal Code, 1860—Sections 420, 468, 471,
120-B—Accused company falsified accounts to show lesser
liability and induced complainant Bank to sanction credit
facility—Company did not pay back and cheated bank of more
than Rs 6 crores—Trial Court framed charges against
petitioner company u/sections 420, 468, 471 read with 120B IPC—Whether company being a juristic person can have
mens rea for the purpose of Section 120 B—Held, Company
acts through its Board of Directors—If company can enter
into contracts and perform other legal obligations it can also
be party to criminal acts—If the company can have a right
to do things through its Board of Directors it can have
necessary mens rea also through its Board of Directors—Mens
(xi)
rea can be fastened on the company if it is an essential element
of crime on the ground that mens rea was present in the
officers of the company who were acting as mind of the
company—Just because offence u/s 420, 468 and 471 IPC
included the punishment of imprisonment does not mean
company cannot be prosecuted as court can always resort to
punishment of imposition of fine—Petition dismissed.
Morgan Tectronics Ltd. v. CBI ........................................ 29
— Section 482—Indian Companies Act, 1956—Quashing of
criminal complaint filed by the Registrar of Companies u/s 62
r/w section 68 of Companies Act in court of ACMM—
Allegation that petitioners were signatories to prospectus
containing misstatement of facts—Company had collected Rs
210 lakhs from public issue but had failed to accomplish the
promises made in the prospectus—Held, compensation in
respect of violation of Section 62 can be claimed by filing
appropriate civil suit and no criminal complaint under Section
62 would be maintainable—U/s 68 prior sanction of the
competent authority is required before launching prosecution
which was not done in the case—Petition allowed and
proceedings pending before ACMM quashed.
Dharmendra Kr. Lila v. Registrar of Companies .......... 158
— Section 200, 397, 401—Indian Penal Code, 1860—Section
500—Quashing of order of ASJ upholding order of MM
dismissing the complaint filed by the petitioner u/s 200 Cr.PC
against the respondent for defaming him—Mother of petitioner
had filed criminal complaint against respondent and others u/
s 133 Cr. PC before SDM—Responsdent vide a notice was
called upon to reply—In response to notice respondent
submitted reply which was considered as defamatory by the
petitioner—Complaint u/s 200 filed before MM—Complaint
dismissed—Contention of petitioner that the court below could
not have gone into the merits of the case, as at the stage of
(xii)
presummoning, statement made by the petitioner have to be
accepted as true and correct—Held, eight exception to Section
499 IPC applicable—Reply filed by respondent in proceedings
initiated by the mother of the Petitioner u/s 133 Cr.PC were
filed in the Court of Law which had authority over subject
matter in dispute—Reply was filed in good faith to get
complaint dismissed—Not case of petitioner that apart from
filing on record the reply was circulated to any person—No
infirmity in order—Petition dismissed.
Sardar Gurdial v. Dr. Sandeep Sharma ......................... 193
— Section 2(h), 468, 469, 470, 472, 473 & 482—Limitation for
taking cognizance—Quashing of FIR—Setting aside of order
issuing NBW and order initiating proceedings u/s 82 and 83—
FIR 107/2003 u/s 379 regd on receiving complaint of one car
being stolen—Petitioners arrested in another case along with
stolen car—Intimation of arrest given to police station with
reference to FIR 107/2003—Possession of stolen car taken
by IO and warrants issued by MM—Petitioners could not be
arrested—No further steps taken to arrest or conduct
investigation in case till subsequent IO wrote note dated
5.06.2006 to ACP informing that earlier IO had not carried
out any proceedings and seeking permission to reinvestigate—
Application made before MM for issue of NBWs—NBWs
issued returned unexecuted—Process u/s 82/83 commenced—
Contention of petitioners that Section 397 IPC punishable with
imprisonment of three years, so in view of Section 468 Cr
PC MM not competent to take cognizance after expiry of three
years since barred u/s 468 Cr PC so no NBWs could be issued
or process u/s 82/83 initiated—Held, Section 468 deals with
cognizance of offences and does not prescribe any limitation
period for investigation of offences—It does not bar
investigation of offences by the police even if the period of
limitation prescribed u/s 468 for taking cognizance has
expired—Till chargesheet is filed the stage of taking
(xiii)
cognizance does not arise and it is at the stage of taking
cognizance that court decides whether or not to condone delay
u/s 473—Investigation cannot be stopped and FIR quashed
on ground of delay—Petition dismissed.
Chanchal Bhatti & Ors. v. State (NCT of Delhi) ......... 243
CONSTITUTION OF INDIA, 1950—Article 21 and 226—
Appellant requested for reimbursement of medical expenses
incurred after his retirement, on heart problem—Request
declined as there was no such Scheme for retired employees—
Writ challenging order of rejection dismissed by Ld. Single
Judge—Order assailed in appeal—Held—Though it is
constitutional obligation of state to safeguard right to life of
every person and such right is right to lead healthy life and
not a life of animal existence, but no law mandates that every
citizen is entitled to free medical treatment without any
limitation on the amount that can be claimed as
reimbursement—Formation of a policy is within exclusive
domain of executive and Courts should shy away from issuing
directions for formation of policy which has financial,
economic and other implications, which at best should be left
to wisdom of executive.
J.K. Sawhney v. Punjab National Bank .......................... 79
— Article 226—Scope of interference—Appellant filed writ
petition alleging manipulation in marks awarded in answer
sheets—Learned Single Judge dismissed petition—Held that
mere overwriting need not mean manipulation or fudging—
Hence Present appeal—Held—Revaluation of answer sheet not
permissible unless rules of conducting organization allow for
the same—Concerned Rules do not permit revaluation. Indian
Evidence Act—Section 73: Held not applicable to writ
proceedings—Nonetheless answer sheets scrutinized—Change
of marks with regard to a particular question is normal and
not indicative of malice or manipulation—Appellant failed to
(xiv)
name even one officer of Respondent No. 3 who was inimical
towards Appellant—Appeal dismissed.
Dr. Rajiva Kumar Tiwari v. Union of India & Ors. .... 161
— Order passed by Ld. Single Judge in Writ Petition (C)
Challenged by appellants as their prayer for issuance of
mandamus to respondent to agree to suggestions and
amendments proposed by them to draft agreement,
dismissed—Respondent urged, petitioner awarded project for
development of plot being highest bidder with stipulation that
bid amount was to be paid in installments—Appellants did not
pay the first installment and only gave a performance guarantee
and made payments towards interest and success fee—This
resulted in series of breach on part of appellants, hence,
termination of contract took place—Appellants filed writ
petition in which respondent directed to abide by the contract
- Even thereafter appellants did not pay first installment but
approached respondent for amendment of tender terms and
also sought renegotiation of terms of tender—Thereupon
Respondent vide letter informed appellants, rejecting
suggestions for amendment and modifications and it also
invoked bank guarantee furnished by the appellants—
Aggrieved appellants, then again filed writ petition which was
dismissed by the Ld. Single Judge—According to appellants,
Writ Court has jurisdiction to address itself even with regard
to unfair practice adopted before entering into agreement and
also after entering into the agreement—Held : it may, however,
be true that where serious disputed questions of fact are raised
requiring appreciation of evidence, and, for determination
thereof, examination of witnesses would be necessary; it may
not be convenient to decide the dispute in a proceeding under
Article 226 of the Constitution of India—From the entire
gamut of facts which have been brought on record and
projected, it is well nigh impossible to say whether the
termination of contract and the forfeiture of the earnest money
by the respondent is unreasonable or arbitrary and thereby
(xv)
invites the frown of Article 14 of the Constitution of India—
It is extremely difficult to state that there are no disputed
questions of fact—The petitioner should approach the
appropriate legal forum as advised in law.
ABW Infrastructures Ltd. & Anr. v. Rail Land
Development Authority ................................................... 216
— Petitioner preferred writ petition impugning condition imposed
by respondent NDMC on petitioner to deposit dues of
electricity connection earlier installed in property which was
purchased by petitioner—As per petitioner, after taking
possession of the flat purchased by him, electricity connection
was not found existing and electricity meter detached—
Petitioner applied to NDMC for electricity connection but
NDMC claimed previous dues but petitioner not liable to pay
electricity arrears of earlier owner/occupant of flat—
Respondent NDMC urged duty of petitioner to ascertain about
electricity dues before acquiring property, demand of electricity
arrears reasonable and in public interest and necessary to
prevent dishonest consumers transferring property without
clearing dues. Held : If any statutory rules govern the condition
relating to sanction of a connection or supply of electricity,
the distributor can insist upon fulfillment of requirement of
such rules and regulations—If the rules are silent, can stipulate
such terms and conditions as it deems fit and proper to
regulate its transactions and dealings—So long as such rules
and regulations or the terms and conditions are not arbitrary
and unreasonable, Courts will not interfere with them—The
conditions of Supply whereunder such arrears are demanded
are statutory—The petitioner is liable to pay the dues of the
earlier owner/occupant.
M/s Kundan Infrastructures v. NDMC & Anr. .............. 253
— Article 226 and 227—Code of Civil Procedure, 1908—Order
IX Rule 13—Industrial Disputes Act, 1947—Section 11—
(xvi)
Labour Court by ex parte award directed reinstatement of
workman with back wages and dismissed application of
petitioner for setting aside exparte award—Orders challenged
in HC—Plea taken, counsel without any reason stopped
appearing in the case—Held—Ex parte award can be set aside
on account of giving valid reasons for non appearance—A
client can not be made to suffer for fault of his advocate—
This can not be a general rule and facts of each case have to
be seen—There is no grave prejudice in setting aside ex parte
proceedings as at best on setting aside exparte proceedings
case will be decided considering respective merits—Impugned
order set aside.
M/s. Genesis Printers v. Shri Rati Ram Jatav Presiding
Officers & Ors. ............................................................... 279
— Article 12, 226, 227 & 331—Administrative Tribunal Act,
1985 section 19,20 & 21—Aggrieved petitioners by orders of
Administrative Tribunal filed writ petitions—As Per, Petitioners
who are husband and wife, they were appointed as Medical
Officers on contractual basis by MCD from time to time MCD
extended their term of appointment and their remuneration also
enhanced—Petitioner no. 1 filed three complaints, levelling
sexual harassment allegations against colleague and seniors—
Sexual Harassment Committee dismissed those complaints and
also recommended strict disciplinary action against both the
petitioners—Accordingly, Commissioner MCD vide office
letter, took decision not to continue with engagement of
petitioners with MCD—Aggrieved by said office order
petitioner no. 1 filed writ petition which was dismissed and
appeal preferred by her also dismissed—Thereafter petitioner
no. 1 filed another writ petition which was also dismissed—
On the other hand, petitioner no. 2 after dismissal of
application of petitioner no. 1 filed application before
Administrative Tribunal which was dismissed and review filed
by him also dismissed—Petitioners urged in writ petitions
MCD discriminated against petitioners by not extending their
(xvii)
term of appointment as term of other Medical Officers who
were similarly placed and also who were juniors to petitioners
were granted extension of term—Also MCD, did not hold
inquiry in terms of Article 311 (2) before issuing office order.
Held : In the case of an appointment to a permanent post in a
government service on probation or on an officiating basis,
the servant so appointed does not acquire any substantive right
to the post and consequently cannot complain, any more than
a private servant employed on probation or on an officiating
basis can do, if his service is terminated at any time—Likewise,
an appointment to a temporary post in a government service
may be substantive or on probation or on an officiating basis—
The servant so appointed acquires no right to the post and
his service can be terminated at any time except in one case
when the appointment to a temporary post is for a definite
period—A person appointed on contractual basis does not
enjoy the protection of Article 311 (2) as he is not a member
of a Civil Service of the Union or a All India Services or a
Civil Services of a State or holds a civil post under the Union
or a State.
Neena Shad v. MCD & Ors. .......................................... 342
— Article 309—Indian Foreign Services Branch ‘B’
(Recruitment, cadre, Seniority and Promotion) Rules, 1964 Rule 3 and 12—Indian Foreign Service, Branch ‘B’
(Stenographers Cadre, Principal Private Secretary Posts)
Recruitment Rules, 1992—Rule 7—Composition of Foreign
Service divided into ‘General cadre’ and Stenographers
cadre—Officers of both cadres were eligible to be promoted
to Grade I of General Cadre—Officers in Stenographers cadre
in post of Private Secretary had option to choose whether they
desired promotion to post of Grade I in General Cadre or to
post of Principal Private Secretary Grade of Stenographers
Cadra—Petitioners had exercised option for promotion to post
in Grade I of General cadre—Option exercised was final and
(xviii)
change of option was not permitted—Rules amended by virtue
of which officers of Stenographer cadre were not eligible for
promotion to Grade—I of General Cadre and could earn
promotion only to higher post in stenographer cadre—
Petitioners in stenographers cadre working as Private Secretary
sought promotion to Grade-I of General Cadre—
Representation of petitioners not successful at departmental
level—Administrative Tribunal also dismissed their
application—Order challenged in High Court—Plea taken,
principle of promissory estoppel applied since options were
pursuant to statutory provision, exercise of option by
petitioners resulted in a contract—Held—A civil servant does
not have any vested or statutory right to be promoted—Only
right is to be considered for promotion as per recruitment
rules—To apply promissory estoppel it has to be shown that
person concerned has altered his position on a representation
made by opposite party—No person junior to petitioners has
been promoted as Principal Private Secretary in Stenographer
Cadre—Promotional avenues not denied to Petitioners—Two
avenues of promotion stands restricted to only one - Rule
continuing to permit option to petitioners for being considered
for promotion to Grade - I of General Cadre in absence of
promotional avenue to them in General Cadre rendered
meaningless.
Raju Sharma & Ors. v. Union of India & Anr. ........... 431
— Article 16—Public employment—Selection process—Change
in process—Respondent issued advertisement dated
12.11.2009 inviting applications for, inter alia post of Deputy
Commandment (Law) in the Indian Coast Guard Service—
Said advertisement also contained selection procedure—
Petitioners applied for said post—Issued call letter for
appearance before preliminary and final selection board—
Peitioners cleared preliminary and Final selection board
(FSB)—Last step required Petitioners to appear before Base
(xix)
Hospital, Delhi Cantt. For medical examination—After leaving
premises of selection board—Petitioners telephonically
informed to have word with Chief Law Officer, Coast Guard
Head Quarters (“CLO”)—Prescribed procedure does not
mention role of CLO—Petitioners then told to appear before
new selection board chaired by CLO—Also told to undertake
written test as well as interview on same day—Petitioners did
not clear the same—Petitioners made representations in
protest—No action taken on said representation—Hence
present petitions—Interim application also filed for directions
to Respondent to keep one post vacant for each Petitioner—
Admitted position that advertisement did not mention any
further testing/interview after clearing FSB—Records
produced by Respondent do not support averment that
Proficiency Competency Board for those candidates
recommended by FSB had due approval—Nothing made on
18.12.2009 proposes for first time a further interview after
FSB—No specific decision taken—Proposal for short test and
interview made on 21.12.2009—Said proposal not placed
before any higher authority and entire decision taken by
Deputy Director General himself—Held—Appointing authority
has no jurisdiction to change or vary selection, process after
its commencement—Supreme Court in NT Devin Katti's case
held that selection only to be made in terms of rules applicable
at time of commencement of selection process—Respondents
had not only notified Petitioners of selection procedure through
advertisement dated 12.11.2009—Respondent had also
completed the said procedure—Procedure to only consist of
two phases and nothing further—Even if Deputy Director
General competent to approve “Professional competency and
suitability” assessment—Such approval only made on
21.12.2009—Same clearly lacks jurisdiction or authority of
law—Petitioners not informed of prescribed syllabi for new
test—Not given opportunity to prepare—Professional
competency assessed on subjects mentioned in “desirable
qualifications” that too without notice—Pleas set up
(xx)
Respondents falsified by records and documents issued to
Petitioner as well as records produced before the Court—
Nothing on record to even suggest reference to manner in
which testing and evaluation of professional competency
would be effected—No disclosure on method of testing—
Decision to adopt new procedure not made by authority
competent to do so—Strong view taken with respect to false
and misleading pleas taken by Respondent and attempt to
conceal correct record—However since vacant seats
remain—Possible to ensure justice without taking this matter
further—Selection process taken by Professional Competency
Board set aside—If Petitioners found medically fit, Respondent
to complete appointment of Petitioners to post of Deputy
Commandant (Law) with consequential benefits from date of
recommendation of FSB—Costs of rupees 25,000/- awarded
to each petitioner.
Vikas Saksena v. Union of India and Others .................. 84
— Article 226—Public Interest Litigation—Petition filed on behalf
of Hindustan Kanojia Organisation—Said organization a
community of “Dhobis”, a scheduled caste—Community's
feelings affected by use of “Dhobi Ghat” as name of film—
Alleging that the said name is violative of Section 3(1)(x) of
the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 (“1989 Act”) Held—Failed to see how
naming of movie/film can be offensive to caste in question—
Cinema is public medium to communicate to the society—
Governed by Cinematograph Act and Rules framed
thereunder—Said Act prohibits use and presentation of visual
or words contemptuous of racial or religious groups—Use of
“Dhobi Ghat” cannot be construed to violate provisions of
1989 Act—Public interest litigation—Reliance on ratio of
Ashok Kumar Pandey case—Present litigation initiated marely
to satisfy one's own egoism or megalomania—A public cause
is required to be espoused in public interest litigation—Present
(xxi)
litigation is abuse of the process of the Court—Defeats basic
concept of public interest litigation for public good—Petition
dismissed with costs of Rs. 25,000/-.
Vinod Kumar Kanojia v. UOI and Ors. ........................ 151
DELHI MUNICIPAL CORPORATION ACT, 1957—Section
126,129 and 346- Aggrieved petitioner filed Writ Petition
against order of Joint Assessor & Collector of MCD fixing
ratable value of his property—Petitioner urged upon
completion of construction of his building he gave notice to
Respondent MCD and applied for grant of occupancy
certificate which was rejected—Subsequently MCD issued
notice to petitioner under Section 126 of the Act for enhancing
ratable value—Objections filed by petitioner were dismissed—
Petitioner contended without issuance of Occupancy
Certificate and till when property was occupied, no property
tax as of completed building could be levied—As per
Respondent, under Section 129, liability for property tax
accrues from date when notice of completion or occupation
whichever is earlier, is given irrespective of grant of
occupancy certificate—Also petitioner itself gave notice of
completion, cannot be heard to contend that property is not
assessable from date of notice—Question which arose for
determination is whether notice of completion under building
bye-law 7.5.2 can be treated as notice of completion under
Section 129. Held:- The two notices cannot be equated and
the notice under building Bye-Law 7.5.2 Cannot be a notice
under Section 129—While the provision under the Building
Bye-Law 7.5.2 is of “completion of works” under the Building
Permit, the notice under Section 129 is of “completion of
building”—Issuance of a notice of completion coupled with
an application for Occupancy Certificate made under Bye Law
7.5.2 is not a notice of completion under Section 129 so as
to make the property liable for property tax—The guiding
factor has to be a building which is fit for being occupied
(xxii)
both factually and in law before it can attract the incidence
of tax.
M/s South Delhi Maternity & Nursing Home (P)
Ltd. v. MCD & Others ................................................... 309
DELHI RENT CONTROL ACT, 1958—Section 14(1)(e) and
25B—Shop let out for non residential purposes—Bona fide
required back by landlady for running kirana shop by son—
Tenant's contention that additional commercial/business
accommodation available with landlady not tenable—Held—
Landlady is the master of her choice and it is for her to decide
as to what business she wants to run in her shop—Tenant
has no right to dictate to the landlord about the suitability of
the premises.
Sh. Tilak and Others v. Smt. Veena ................................. 15
— Section 14(1)(b), 16 & 39—Subletting—ARCT allowed
appeal and set aside eviction order of additional Rent controller
of u/s 14(1)(b)—Question of law: Whether the bequest of
tenancy rights by way of Will (by tenant) to only one heir
out of many heirs, whereby the other heirs are ousted and
only one heir is granted the tenancy rights, amounts to
subletting?—Held, tenancy rights in a property can be inherited
by legal heirs which is let out for a commercial purpose, in
accordance with the provisions of Hindu Succession Act after
the death of tenant—In case of commercial tenancy,
bequeathing the tenancy rights in such tenancy by a tenant,
contractual or statutory, only in favour of one of the legal heirs
who was otherwise going to succeed such rights in tenanted
premises after the death of deceased tenant would not
constitute subletting to attract Section 14(b)—A cause of
action u/s 14(1)(b) arises only if a stranger (who would not
inherit according to law of succession) is put in possession
of suit property to the exclusion of the tenant who divests
himself of the possession of the suit either in full or in part—
(xxiii)
Since in present case tenant had willed property to one of the
heirs, it did not amount of subletting—Appeal dismissed.
The Vaish Coop. Adarsha Bank Ltd. v. Sudhir Kumar Jain
& Ors. ............................................................................. 321
DELHI SALES TAX ACT, 1975—Section 5,43 (6), 45—Central
Sales Tax Act, 1956, Section 8—Appellant/assessee a Private
limited company, traded in electric, electronic and refrigeration
items which were notified to be first point items U/s 5 of the
Act—As per, assessee/appellant, it purchased these goods
from registered dealers and was not first seller of the goods,
therefore had no liability to pay sales tax—Assessee/appellant
had put up said claim before Assessing Officer for assessment
for year 1996-97—Assessment done both under Delhi Sales
Tax Act as well as Central Sales Tax Act and demand of Rs.
3679144 and Rs. 90172 respectively raised under the Acts—
Assessee/appellant preferred two rounds of appeal but failed
to get full relief—Ultimately, last order of Income Tax
Appellant Tribunal resulted in writ petition in which appellant/
assessee agitated the plea, registered dealers from whom it
purchased goods had paid sales tax—Therefore, not necessary
for assessee to charge sales tax on those very items of goods
when assessee sold same to consumers—Assessee/appellant
failed to produce original books of accounts or invoices before
Assessing Officer as same were lost for which FIR was
lodged—Percontra, respondent pleaded appellant/assessee not
entitled to relief in absence of original invoices. Held :
provisions of Delhi Sales Tax Act and rules framed thereunder
were mandatory in nature and it was necessary to construe
them strictly in order to avoid misuse—Rule 9 requires the
dealer to produce a declaration in or ST-3 duly filled in and
signed by the dealer selling the goods which has to be produced
in original—No doubt when these original forms ST-3 are lost
or destroyed because of circumstances beyond the control of
the assessee he should not be punished and denied the benefit
(xxiv)
- To avail the benefit the dealer has to necessarily seek
exemption in the manner as provided in the rules - As the
appellant failed to file satisfactory proof in the manner provided
under the Act and rules, not entitled to the benefit as claimed.
Alpine Agencies Pvt. Ltd. v. Commissioner of Value Added
Tax & Others .................................................................. 108
EMPLOYEES STATE INSURANCE ACT, 1948—Section 45A,
82—Aggrieved appellant, challenged judgment passed by ESI
court, urging appellant though registered as Establishment
under Delhi Shops & Establishment Act, but is not a shop as
not covered by notification dt.30.09.1988—Therefore—
appellant cannot be assessed under Section 45A of the Act—
Also, less than 20 employees working in Establishment which
was not involved in any manufacturing activity—As per
Respondent, appellant covered within purview of Act w.e.f.
02.10.1988 and appellant failed to furnish complete and correct
particulars in Form—01, thus liable to be assessed under
Section 48-Held: It is not that a place where goods are sold
is only a shop—A place where services are sold on retail basis
is also a shop—When services are being sold, it becomes a
commercial activity—Since the Act is intended for social
benefit of the workers, it has to be given an extended
meaning—Petitioners are not providing anything for free—
Petitioner also admitted the strength of their employees on a
particular day as 65, thus they are covered under the Act.
Machine Tools (India) Ltd. v. The Employees State Insurance
Corporation ..................................................................... 268
INCOME TAX ACT, 1961—Section 260(A), 263—Held—Twin
conditions for invoking Section 263 of IT Act-One order is
erroneous; two order is prejudicial to the interest of the
revenue—Conditions not met out-No case made out for
invoking jurisdiction u/s 263.
Commissioner of Income Tax v. Dhanpat Rai ................. 20
(xxv)
— Section 11(1)(a), 11(2) 260(A)—Whether a trust can donate
its entire income to another trust—Whether “Explanation”
appended under Section 11(2) and inserted by the Finance Act
applies to accumulations mentioned in Section 11(1) (a) of
the IT Act—Held—Explanation applies only to Section 11(2)
and not to Section 11(1) of the IT act.
Director of Income Tax (Exemption) v. M/s. Bagri
Foundation .......................................................................... 6
— Section 256, 271—Assessee/Respondent filed assessment for
year 1979-80 and also raised claim for payment of commission
to Mrs. Ritu Nanda, Director of Respondent Company
amounting to Rs. 2,74,617/- —Assessing Officer found
services not rendered by Mrs. Ritu Nanda for which she was
purportedly given commission @3% of Contract Value—Also,
at relevant time for which payment of commission claimed,
Mrs. Ritu Nanda not found to be Director of Company—Thus,
AO held claim for Ritu Nanda bogus and imposed penalty of
Rs. 1,05,730/- on Respondent—Assessee/Respondent
challenged order of penalty in appeal before CIT (Appeal) but
dismissed—In further appeal to Income Tax Appellate
Tribunal, assessee succeeded as order of penalty set aside—
Appellant/Revenue Authority moved petition under Section 256
(2) of the Act seeking reference, “Whether the Tribunal was
correct in law in deleting the penalty imposed under the
Income-Tax Act, 1961?”—Held: The penalty on the ground
of concealment of particulars of non-disclosure of full
particulars can be levied only when in the accounts/return an
item has been suppressed dishonestly or the item has been
claimed fraudulently or a bogus claim has been made—When
facts are clearly disclosed in the return of income, penalty
cannot be levied and merely because an amount is not allowed
or taxed to income it cannot be said that the assessee had filed
inaccurate particulars or concealed any income chargeable to
tax—Further, conscious concealment is necessary—Even if
(xxvi)
some deduction or benefit is claimed by the assessee wrongly
but bona fide and no malafide can be attributed, the penalty
would not be levied—Even if there is no concealment of
Income or furnishing of in accurate particulars, but on the
basis there of the claim which is made ex facie bogus, it may
still attract penalty provision—Order of Assessing Officer
imposing penalty was without any blemish.
The Commissioner of Income Tax v. M/s Harparshad &
Company Ltd. .................................................................... 22
INDIAN COMPANIES ACT, 1956—Quashing of criminal
complaint filed by the Registrar of Companies u/s 62 r/w
section 68 of Companies Act in court of ACMM—Allegation
that petitioners were signatories to prospectus containing
misstatement of facts—Company had collected Rs 210 lakhs
from public issue but had failed to accomplish the promises
made in the prospectus—Held, compensation in respect of
violation of Section 62 can be claimed by filing appropriate
civil suit and no criminal complaint under Section 62 would
be maintainable—U/s 68 prior sanction of the competent
authority is required before launching prosecution which was
not done in the case—Petition allowed and proceedings pending
before ACMM quashed.
Dharmendra Kr. Lila v. Registrar of Companies .......... 158
INDIAN EVIDENCE ACT, 1972—Section 45—Reliance on
expert witness—Suit filed by plaintiff to recover entire sale
consideration paid for purchase of land—Alleged as per
Agreement to Sell entered into defendant failed to handover
possession—Defendant inter-alia submitted Agreement to Sell
to be forged—Plaintiff examined handwriting expert, who
deposed in favour of plaintiff—Court found as there was no
close friendship between the parties factum of making entire
payment even before possession unnatural—Held, expert
witness agreed to support case of a party which engaged
(xxvii)
them—Hence not much reliance can be placed on them—
Taking into consideration inherent improbabilities of case set
up by the plaintiff, no reliance placed on opinion of expert.
Mrs. Indira Rai v. Shri Bir Singh .................................. 442
INDIAN PENAL CODE, 1860—Sections 397/392/457—
Appellant convicted by trial court u/s 397/392/457 and
sentenced to RI for 7 years and fine of Rs 500/—For offence
u/s 397 r/w 392 IPC and RI for 3 years and fine of Rs 500/
—for offence u/s 457 IPC—Allegation that appellant along
with three others committed robbery in house of
complainant—Contention of appellant that Section 397 not
applicable since in the absence of recovery of knife purportedly
used by appellant, it cannot be presumed that it was a deadly
weapon and so charge u/s 397 could not be established and
conviction could only be u/s 392—Held, since knife not
recovered or produced during trial appellant could not be
sentenced u/s 397 but only u/s 392—Order on sentence
modified to one u/s 392 awarding RI for four years—Appeal
partly allowed.
Samiuddin @ Chotu v. The State of NCT Delhi ........... 399
— Section 363/366/376—Respondents appointed on probation
against temporary post of Warder Prison in Tihar—Pursuant
to registration FIR, respondents sent to judicial custody—
Competent Authority terminated services by non stigmatic
orders of discharge simpliciter—Representations made to
appointing authority to re-induct respondents in service after
their acquittal in criminal trial rejected—Representations styled
as appeals also rejected—Impugned orders challenged before
Administrative Tribunal to set aside order of termination—Plea
taken, order terminating services being penal in nature,
department was obliged to hold enquiry—Administrative
Tribunal allowed application—Order of Tribunal challenged in
High Court—Plea taken, applications before Tribunal were
(xxviii)
time barred—Respondents being accused of serious offences
and arrest was motive and not foundation of order terminating
their services—Held, Non statutory representation can never
extend limitation—Merely by labelling representation as appeal
and said work being reflected in order communicating rejection
of representation would not make representation appeal—It
is substance which matters not label—Representations
questioning order terminating services were highly belated and
barred by limitation before Tribunal—Employer has legal right
to dispense with services of employee without anything more
during or at end of prescribed period—Where no findings are
arrived at any inquiry or no inquiry is held but employees
chooses to discontinue services of employee against whom
complaints are received it would be a case of complaints
motivating action and would not be bad—Order of Tribunal
quashed.
Govt. of NCT of Delhi & Ors. v. Naresh Kumar ......... 132
— Sections 420, 468, 471, 120-B—Accused company falsified
accounts to show lesser liability and induced complainant Bank
to sanction credit facility—Company did not pay back and
cheated bank of more than Rs 6 crores—Trial Court framed
charges against petitioner company u/sections 420, 468, 471
read with 120-B IPC—Whether company being a juristic
person can have mens rea for the purpose of Section 120 B—
Held, Company acts through its Board of Directors—If
company can enter into contracts and perform other legal
obligations it can also be party to criminal acts—If the
company can have a right to do things through its Board of
Directors it can have necessary mens rea also through its
Board of Directors—Mens rea can be fastened on the company
if it is an essential element of crime on the ground that mens
rea was present in the officers of the company who were
acting as mind of the company—Just because offence u/s
420, 468 and 471 IPC included the punishment of
(xxix)
imprisonment does not mean company cannot be prosecuted
as court can always resort to punishment of imposition of
fine—Petition dismissed.
Morgan Tectronics Ltd. v. CBI ........................................ 29
— Section 500—Quashing of order of ASJ upholding order of
MM dismissing the complaint filed by the petitioner u/s 200
Cr.PC against the respondent for defaming him—Mother of
petitioner had filed criminal complaint against respondent and
others u/s 133 Cr. PC before SDM—Responsdent vide a notice
was called upon to reply—In response to notice respondent
submitted reply which was considered as defamatory by the
petitioner—Complaint u/s 200 filed before MM—Complaint
dismissed—Contention of petitioner that the court below could
not have gone into the merits of the case, as at the stage of
presummoning, statement made by the petitioner have to be
accepted as true and correct—Held, eight exception to Section
499 IPC applicable—Reply filed by respondent in proceedings
initiated by the mother of the Petitioner u/s 133 Cr.PC were
filed in the Court of Law which had authority over subject
matter in dispute—Reply was filed in good faith to get
complaint dismissed—Not case of petitioner that apart from
filing on record the reply was circulated to any person—No
infirmity in order—Petition dismissed.
Sardar Gurdial v. Dr. Sandeep Sharma ......................... 193
— Section 120-B—Trial Court convicted appellants u/s 120-B
IPC r/w Section 7,13(2), and 13(1)(d) of PC Act and also
for substantive offences u/s 7 and 13(2) r/w Section 13(1)(d)
of the PC Act and passed sentence—Allegation that appellants
who were in police had picked up the complainant and two
others and on being released the appellants demanded bribe
of Rs 5,000/- from complainant—The complainant lodged
complaint—Appellant Ram Chander was caught pursuant to
the trap—Contention of appellants that trial court wrongly relied
(xxx)
upon statement of the complainant which was contradictory,
also he was an accomplice, the two independent witnesses
had also not supported the prosecution—Held, when
appreciating evidence minor discrepancies on trivial matters
which do not affect the core of the prosecution case should
not weigh with the court to reject evidence—Discrepancies
in testimony of complainant few and so testimony cannot be
discarded as the same is supported by other evidence on
record—No doubt two independent witnesses declared hostile
but have still partially corroborated the complainant—Enough
evidence on record to hold that appellant Ram Chander caught
red handed at the spot with bribe money after he demanded
money from complainant—Conviction and sentence of Ram
Chander upheld—Allegation of conspiracy of demanding bribe
against appellant Prem Dutt Sharma doubtful since he not
specifically named in testimony of complainant, he did not
come to the place fixed for payment of bribe and not at the
spot at the time of the trap—Also although evidence similar
third person named by complainant i.e. one ASI Ram Babu
and appellant Prem Dutt Sharma, the former was not
prosecuted—No evidence to show that the scooter used by
Ram Chander belonged to appellant Prem Dutt Sharma—Prem
Dutt Sharma given benefit of doubt and acquitted.
Ram Chander Singh Prem Dutt Sharma v. CBI ............ 372
INDIAN SUCCESSION ACT, 1925—Intention of testator in
propounding the Will—Which interferes or disturbs the natural
line of succession—Mere fact some heirs excluded is not a
ground to conclude that Will was executed in suspicious
circumstances—When all facts point to a valid Will—Delay
in overall circumstances—Not fatal.
Mahabir Prasad & Another v. State ............................. 166
INDUSTRIAL DISPUTES ACT, 1947—Section 2(oo) and 25
F—Services of workman were terminated vide termination
(xxxi)
letter service of which is not disputed—Plea of workman that
action of requiring workman to come and collect dues instead
of sending amount due alongwith letter is illegal—Per contra.
plea of petitioner is that this technical defect is not such that
any huge benefit would have accrued as to employer if
provision of payment of dues was to have been complied
with—Held—It is discretion of courts as to whether facts of
case justify reinstatement or compensation would be adequate
relief—Reinstatement is not automatic and facts of each case
have to be seen to whether reinstatement should be granted
or compensation is adequate remedy—Various factors such
as industry in question, financial capacity of employer, peculiar
circumstances of each case, nature and period of employment
have to be seen—Employment of workman was towards
working on printing machine which was sold—Plea of
workman that there is no inherent right to retrenchment and
valid reasons must be given for retrenchment rejected—Only
requirement for retrenchment is it must be of type falling under
Section 2 (oo) and letter must be accompanied by amount
which would be 15 days pay for each year of service and a
30 days notice pay—There is indeed retrenchment but there
is a technical violation in that instead of sending amount
alongwith termination letter, workman was asked to collect
amount—Employment is not of a very large number of
years—Award set aside in that it directs reinstatement—
Instead of reinstatement, workman should receive a sum of
Rs. 1 lac as compensation for illegal retrenchment.
M/s. Genesis Printers v. Shri Rati Ram Jatav Presiding
Officers & Ors. ............................................................... 279
— Section 17B—Payment under Section 17B can not be treated
as subsistence allowance, if workman is having other sources
of income—Workman directed to file affidavit alongwith
copies of his bank accounts that he had no other source(s)
of income during period he received payment pursuant to order
(xxxii)
under section 17B so that there is no need of any recovery
from him.
M/s. Genesis Printers v. Shri Rati Ram Jatav Presiding
Officers & Ors. ............................................................... 279
LIMITATION ACT, 1963—Applicability to Probate Petitions—
Testator bequeathed his property entirely to petitioner—
Contention of other heirs—Will not genuine and fabricatedTestator was an old and infirm man-did not possess
testamentary capacity—Delay of seven years in propounding
the Will—Held—The Limitation Act mention applicability to
applications, suits and appeals but it does not mention Petition
in form of probate claims or any proceedings under the Indian
Succession Act.
Mahabir Prasad & Another v. State ............................. 166
MOTOR VEHICLE ACT, 1988—Section 166—Appeal against
award of compensation by MACT—Fatal Accident—
Gratuitous passenger—Fake driving licence—Deceased aged
about 35 yrs.—Motor Mechanic—Left behind widow, three
daughters and son-5 dependents-salary Rs. 4500—No
documentary proof of income—Tribunal took income as per
minimum wage Rs. 3000—Applied multiplier of 16—Deducted
one third towards personal expenses—Respondent examined
its Director—Proved driving licence issued in the name of
Sonpal in December, 1998 for motorcycle plus light motor
vehicle—Endorsed for heavy transport vehicle in April, 2010—
DL valid upto April, 2007 and proved verification report—
Appellant examined DTO Gurgaon-deposed—DL not issued
from their office in the name of Rajvir Singh—Tribunal held
appellant not led evidence in respect to DL issued from
Mathura, therefore, DL valid—No evidence led to prove
deceased gratuitous passenger—Held—Findings of Tribunal
upheld—Valid driving licence—Deceased not gratuitous
(xxxiii)
passenger—Award upheld.
National Insurance Co. Ltd. v. Raj Kumari & Ors. ......... 1
NARCOTIC DRUGS AND PHYCHOTROPIC SUBSTANCES
ACT, 1985—Section 68-I (3) & 68-A (2) (d) & 68-B(g)—
Writ petition by petitioner against order passed by Appellant
Tribunal for forfeiture of property, dismissing petitioner's
appeal against order passed by Competent Authority U/s 68I (3) of Act—Petitioner urged his brother detained for indulging
in illicit trafficking of drugs and subsequently order of
detention passed against him for period of two years—
Property belonging to petitioner frozen by police on ground
that petitioner being brother of detenu also covered under
section 68-A (2) (d) of Act—Police suspected source of said
property as well as another shop belonging to petitioner illegal
acquired properties of detenu, brother of petitioner—Detenu
filed writ petition challenging order of detention—Only initial
period of detention of three months sustained and subsequent
period of detention held to be vitiated—As per petitioner, for
operation of section 68-A (2) (d) of Act subsisting valid order
of detention required and as order of detention of his brother,
declared void ab initio and only initial period of detention of 3
months sustained, therefore property of petitioner not liable
to be forfeited —Also, respondent failed to discharge initial
burden of showing nexus between properties acquired by
petitioner with alleged illicit earnings of his brother—
Respondent argued entire detention order not held to be illegal
thus burden shifted on petitioner to show property was
acquired by him from his own source of income. Held, If there
is a violation of Article 22 (5) in not informing the detenu that
he had an opportunity to represent to the declaring authority,
upon the Court quashing the Section 9 declaration, the order
is impliedly declared void from its inception and on that basis,
the benefit of extension of the period of 5 weeks to 4 months
and 2 weeks, and the benefit of extention of 11 weeks to 5
(xxxiv)
month and 3 weeks in Section 9 (2), cease to apply—As the
period of 3 months of detention was held valid, the detention
order was itself held to be void ab initio and the show cause
notice was issued to the petitioner thereafter when there was
no valid detention order against his brother—Consequently the
essential condition for invoking section 68-A of the Act had
been rendered non-existent.
Shahid Parvez v. Union of India & Ors. ...................... 297
NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES
ACT, 1985—Section 21, 20—Trial Court convicted appellant
u/s 21—Appellant along with others apprehended on tip off
about supply of drugs—Appellant given notice u/s 50—On
checking drugs found on the person of accused—Contention
that notice u/s 50 not as per law as appellant not informed of
his right to be searched in the presence of a Magistrate or
Gazetted Officer—Perusal of notice u/s 50 and testimony of
IO showed that appellant was only informed about the option
and not about his right of being searched before a Magistrate
or a Gazetted Officer—Appellant thus entitled to be acquitted—
Appeal allowed.
Parveen Singh @ Kalia v. State of NCT of Delhi ....... 426
PREVENTION OF CORRUPTION ACT, 1988—Section 7, 13
(2) & 13(1)(d) 20- Indian Penal Code, 1860—Section 120-B—
Trial Court convicted appellants u/s 120-B IPC r/w Section
7,13(2), and 13(1)(d) of PC Act and also for substantive
offences u/s 7 and 13(2) r/w Section 13(1)(d) of the PC Act
and passed sentence—Allegation that appellants who were in
police had picked up the complainant and two others and on
being released the appellants demanded bribe of Rs 5,000/from complainant—The complainant lodged complaint—
Appellant Ram Chander was caught pursuant to the trap—
Contention of appellants that trial court wrongly relied upon
(xxxv)
statement of the complainant which was contradictory, also
he was an accomplice, the two independent witnesses had also
not supported the prosecution—Held, when appreciating
evidence minor discrepancies on trivial matters which do not
affect the core of the prosecution case should not weigh with
the court to reject evidence—Discrepancies in testimony of
complainant few and so testimony cannot be discarded as the
same is supported by other evidence on record—No doubt
two independent witnesses declared hostile but have still
partially corroborated the complainant—Enough evidence on
record to hold that appellant Ram Chander caught red handed
at the spot with bribe money after he demanded money from
complainant—Conviction and sentence of Ram Chander
upheld—Allegation of conspiracy of demanding bribe against
appellant Prem Dutt Sharma doubtful since he not specifically
named in testimony of complainant, he did not come to the
place fixed for payment of bribe and not at the spot at the
time of the trap—Also although evidence similar third person
named by complainant i.e. one ASI Ram Babu and appellant
Prem Dutt Sharma, the former was not prosecuted—No
evidence to show that the scooter used by Ram Chander
belonged to appellant Prem Dutt Sharma—Prem Dutt Sharma
given benefit of doubt and acquitted.
Ram Chander Singh Prem Dutt Sharma v. CBI ............ 372
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE
ACT, 2005 (DV ACT)—Section 12—Petitioner NRI was
working in Luanda, Angola Africa as Manager—Wife had
done MA and MBA and was working with a Multinational
company—Metropolitan Magistrate allowed maintenance of Rs
5000/- per month to the wife against petitioner—Appeal against
order dismissed—Held, maintenance awarded without
considering that petitioner had lost his job in Angola and was
unemployed in India—Maintenance can be fixed under the DV
act as per the prevalent law regarding providing of maintenance
(xxxvi)
by the husband to the wife as per which husband is to
supposed to maintain his un-earning spouse out of the income
which he earns—No law provides that a husband has to
maintain a wife living separately from him irrespective of the
fact whether he earns or not—Court cannot tell husband that
he should beg borrow or steal but give maintenance to the
wife; more so when the husband and wife are almost equally
qualified and almost equally capable of earning and both claim
to be gainfully employed before marriage—Order fixing
maintenance with out even prima facie proof of the husband
being employed in India and with clear proof of fact that his
passport was seized and he was not permitted to leave the
country is contrary to law—Petition allowed.
Sanjay Bhardwaj & Ors. v. The State & Anr. ................ 58
— Section 2 (f) & 12—Domestic relationship—Application u/s
12 filed by petitioner against her brother and his wife for
allowing her to stay in her parents house whenever she visited
India from the USA—Metropolitan Magistrate held there was
no ground to pass interim order of residence—Appeal
dismissed by ASJ—Held, Act cannot be misused to settle
property disputes—Where a family member leaves the shared
household, to establish his own household and actually
establishes his own household he cannot claim to have a right
to move an application u/s 12 on the basis of domestic
relationship—Domestic relationship comes to an end once the
son along with his family moved out of joint family and
establishes his own household or when a daughter gets married
and establishes her own household with her husband—Such
son, daughter, daughter-in-law or son-in-law if they have any
right in the property because of coparcenary or because of
inheritance such right can be claimed by an independent civil
suit and an application under the DV act cannot be filed by a
person who has established his separate household and ceased
to have domestic relationship—Petitioner had settled in USA,
(xxxvii)
doing a job there, she was living separately and ceased to be
in a domestic relationship with her brother—No relief can be
under the DV Act—Petition dismissed.
Vijay Verma v. State (NCT) of Delhi & Anr. ................. 36
RAILWAY PROTECTION FORCE ACT, 1957— Section 1 (i)Railway Protection Rules, 1987- Rule 153—Central Civil
Services (Classification, Control and Appeal) Rules, 1957—
Rule 15 (1)—Inquiry officer absolved petitioner of charges—
Disciplinary authority held that enquiry was not properly
conducted and directed de novo inquiry by new IO—Petitioner
absolved of first charge and found guilty of second charge—
Disciplinary authority held petitioner guilty of both charges—
Notice with copy of report of IO served on petitioner—After
considering representation, Disciplinary authority imposed
penalty of removal from service—On revision, penalty
modified from removal from service to compulsory
retirement—Order Challenged in High Court—Plea taken,
action of respondents in directing second inquiry is without
legal competence and jurisdiction—Disciplinary authority had
arrived at a conclusion that petitioner was guilty of both
charges—Notice to petitioner after arriving at such conclusion
calling upon petitioner to submit representation was
meaningless—Held No rule or regulation prescribe second
inquiry on identical charges by concerned authority—
Disciplinary authority failed to follow a procedure prescribed
by law - It was open to disciplinary to record further evidence
or call material which had been ignored by IO to be produced
after giving full opportunity to petitioner or IO could have been
asked to record further evidence—Direction to conduct second
enquiry was unwarranted and illegal—Disciplinary authority
is required to record its tentative reasons for such
disagreement and give opportunity to charged officer to
represent before it records its findings—Communication
communicating conclusions already drawn by disciplinary
(xxxviii)
authority gives no real opportunity to petitioner to make a
representation in respect of either points of disagreement or
proposed punishment—Opportunity to represent against points
of disagreement has to be meaningful—Impugned order not
sustainable—Petitioner directed to be reinstated in service with
national seniority but without back wages.
Const. Seth Pal Singh v. UOI & Ors. ........................... 404
National Insurance Co. Ltd. v. Raj Kumari & Ors. (J.R. Midha, J.)
1
ILR (2011) I DELHI 1
MAC
NATIONAL INSURANCE CO. LTD.
....APPELLANT
A
A
B
B
(B) To prove the licence to be fake the insurance company
is required to lead evidence.
APPEARANCES:
....RESPONDENTS
(J.R. MIDHA, J.)
MAC APP. NO. : 350/2007
ILR (2011) I Delhi
[Gu Si]
VERSUS
RAJ KUMARI & ORS.
Indian Law Reports (Delhi)
2
C
FOR THE APPELLANT
:
Ms. Manjusha Wadhwa, Advocate.
FOR THE RESPONDENTS
:
Ms. Hemangi Saikia, Advocate for
Respondent No. 1. Mr. Deepak
Aggarwal, Proxy Counsel for R-1.
C
DATE OF DECISION: 4.6.2010
RESULT: Appeal dismissed.
Motor Vehicle Act, 1988—Section 166—Appeal against
award of compensation by MACT—Fatal Accident—
Gratuitous passenger—Fake driving licence—
Deceased aged about 35 yrs.—Motor Mechanic—Left
behind widow, three daughters and son-5 dependentssalary Rs. 4500—No documentary proof of income—
Tribunal took income as per minimum wage Rs. 3000—
Applied multiplier of 16—Deducted one third towards
personal expenses—Respondent examined its
Director—Proved driving licence issued in the name
of Sonpal in December, 1998 for motorcycle plus light
motor vehicle—Endorsed for heavy transport vehicle
in April, 2010—DL valid upto April, 2007 and proved
verification report—Appellant examined DTO Gurgaondeposed—DL not issued from their office in the name
of Rajvir Singh—Tribunal held appellant not led
evidence in respect to DL issued from Mathura,
therefore, DL valid—No evidence led to prove
deceased gratuitous passenger—Held—Findings of
Tribunal upheld—Valid driving licence—Deceased not
gratuitous passenger—Award upheld.
Important Issue Involved: (A) In the absence of evidence
the passenger cannot be held to be gratuitous.
D
D J.R. MIDHA, J.
1. The appellants have challenged the award of the learned Tribunal
whereby compensation of Rs.4,30,000/- has been awarded to the
claimants/respondents No.1 to 5.
E
F
G
H
I
E
2. The accident dated 25th/26th September, 2003 resulted in the
death of Daksh Kumar. The deceased was travelling in Truck bearing
No.HR-55A-9393 which met with an accident with another truck bearing
No.HR-38D-6701. The deceased was survived by his widow, three
F daughters and one son, who filed the claim petition before the learned
Tribunal.
3. The deceased was aged 35 years at the time of the accident and
was working as a motor mechanic earning Rs.4,500/- per month. In the
G
absence of proof of income, the learned Tribunal took the minimum
wages of Rs.3,000/- per month, deducted 1/3 towards personal expenses
of the deceased and applied the multiplier of 16 to compute the loss of
dependency at Rs.3,85,000/-. Rs.5,000/- have been awarded towards
H medical expenses, Rs.10,000/- towards pain and suffering, Rs.20,000/towards loss of love and affection, Rs.5,000/- towards funeral expenses
and Rs.5,000/- towards loss of estate. The total compensation awarded
is Rs.4,30,000/-.
I
4. The learned counsel for the appellants has urged the following
grounds at the time of hearing of this appeal:(i)
The driver of the offending vehicle was holding a fake
National Insurance Co. Ltd. v. Raj Kumari & Ors. (J.R. Midha, J.)
3
driving licence at the time of the accident.
(ii)
Indian Law Reports (Delhi)
4
A
The deceased was a gratuitous passenger in the offending
vehicle and, therefore, the appellant is not liable.
5. With respect to the driving licence, respondent No.2 examined B
the its Director as R2W1 who deposed that the driving licence No.1/410/
MTR/98 was initially issued on 22nd December, 1998 for motorcycle
plus light motor vehicles and was thereafter endorsed for heavy transport
vehicle on 6th April, 2010 in the name of Son Pal. The driving licence
was valid upto 5th April, 2007. The verification report was exhibited as C
Ex.R2W2/1.
6. The appellant examined Licencing Clerk, DTO, Gurgaon as RW3 who deposed that driving licence No.1023/G/02 in the name of Rajbir
D
Singh was not issued by their office. The photocopy of the driving
licence was marked as R3W1/1. The appellant also examined its Assistant
as RW-3 who proved the investigation report as Ex.R3W2/2.
7. The Claims Tribunal considered the evidence of the appellant as E
well as the respondent No.7 and held that the driver of the offending
vehicle was holding a valid driving licence to drive the HTV issued by
Mathura Authority and there is no ground for avoiding the liability by the
appellant. The appellant did not led any evidence with respect to driving
licence No.1/410/MTR/98 proved by R2W1 and, therefore, the finding of F
the Claims Tribunal holding that the driver was holding a valid driving
licence is correct and is upheld.
8. The second ground raised by the appellant is that the deceased
G
was a gratuitous passenger in the offending vehicle. The appellant has
also not led any evidence to prove the same and, therefore, the plea of
the appellant is rejected.
9. The deceased was a labourer and is survived by the claimants H
who are widow, three daughters and one son. The claimants were
examined by this Court on 26th February, 2010. Respondent No.1 is a
daily wager and respondents No.2 to 5 are minor children. The
respondents are staying in a rented accommodation on a monthly rent of
I
Rs.1,000/- and their condition has been found to be very pathetic. This
case relates to the accident dated 25th/26th September, 2003 in respect
of which the claim petition was filed on 12th February, 2004 and the
ILR (2011) I Delhi
A claimants are without compensation despite lapse of more than six years
after the accident.
10. For all the aforesaid reasons, the appeal is dismissed.
B
11. The appellant has deposited the entire award amount with UCO
Bank in terms of order dated 28th January, 2010 and the said amount is
lying in fixed deposit.
12. UCO Bank is directed to release 10% of the amount to respondent
C No.1 by transferring the same to her savings bank account. The remaining
amount be kept in the fixed deposit in the following manner:-
D
E
(i)
Fixed deposit in respect of 10% of the amount in the
name of respondent No.1 for a period of one year.
(ii)
Fixed deposit in respect of 10% of the amount in the
name of respondent No.1 for a period of two years.
(iii) Fixed deposit in respect of 10% of the amount in the
name of respondent No.1 for a period of three years.
(iv) Fixed deposit in respect of 10% of the amount in the
name of respondent No.1 for a period of four years.
(v)
F
Fixed deposit in respect of 10% of the amount in the
name of respondent No.1 for a period of five years.
(vi) Fixed deposit in respect of 10% of the amount in the
name of respondent No.2 for a period of six years.
G
(vii) Fixed deposit in respect of 10% of the amount in the
name of respondent No.3 for a period of seven years.
(viii) Fixed deposit in respect of 10% of the amount in the
name of respondent No.4 for a period of eight years.
H
(ix) Fixed deposit in respect of 10% of the amount in the
name of respondent No.5 for a period of nine years.
13. The interest on the aforesaid fixed deposits of appellants shall
be paid monthly by automatic credit of interest in the Savings Account
of appellant No.1.
I
14. Withdrawal from the aforesaid account of appellant No.1 shall
be permitted after due verification and the Bank shall issue photo Identity
Card to appellants No.1 to facilitate identity.
National Insurance Co. Ltd. v. Raj Kumari & Ors. (J.R. Midha, J.)
5
15. No cheque book be issued to appellant No.1 without the permission A
of this Court.
16. The Bank shall issue Fixed Deposit Pass Book instead of the
FDRs to the appellants and the maturity amount of the FDRs be
B
automatically credited to the Saving Bank Account of the beneficiary at
the end of the FDR.
17. No loan, advance or withdrawal shall be allowed on the said
fixed deposit receipts without the permission of this Court.
C
A
B
ILR (2011) I DELHI 6
I.T.A.
DIRECTOR OF INCOME TAX (EXEMPTION)
M/S. BAGRI FOUNDATION
C
20. The appellants shall furnish all the relevant documents for opening
of the Saving Bank Account and Fixed Deposit Account to Mr. M.M.
Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New
E
Delhi.
21. The appellant is directed to disclose on affidavit within four
weeks whether the statutory amount of Rs.25,000/- has been adjusted
while depositing the award amount. If the statutory amount has been so F
adjusted, the same be transferred to UCO Bank and the UCO Bank is
directed to release the said amount to respondent No.1. On the other
hand, if the statutory amount has not been adjusted, it may be refunded
to the appellant through counsel. If the appellant fails to file the affidavit
G
within four weeks, the Registry shall put up the matter before Court on
5th July, 2010 for directions along with the calculation by the Accounts
Department.
22. Copy of the order be given dasti to counsel for both the parties
H
under the signatures of the Court Master.
I
....APPELLANT
D
E
F
....RESPONDENT
(BADAR DURREZ AHMED AND RAJIV SAHAI ENDLAW, JJ.)
I.T.A. NO. : 19/2010
19. On the request of appellants, the Bank shall transfer the Savings
Account to any other branch according to the convenience of appellants. D
ILR (2011) I Delhi
VERSUS
18. Half yearly statement of account be filed by the Bank in this
Court.
23. Copy of this order be also sent to Mr. M.M. Tandon, MemberRetail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.
09310356400) through the UCO Bank, High Court Branch under the
signature of Court Master.
Indian Law Reports (Delhi)
6
DATE OF DECISION: 02.07.2010
Income Tax Act, 1961—Section 11(1)(a), 11(2) 260(A)—
Whether a trust can donate its entire income to
another trust—Whether “Explanation” appended under
Section 11(2) and inserted by the Finance Act applies
to accumulations mentioned in Section 11(1) (a) of the
IT Act—Held—Explanation applies only to Section 11(2)
and not to Section 11(1) of the IT act.
The Revenue in the appeal before us inter alia raised a
question as to whether the “Explanation” appended under
Section 11(2) and inserted by the Finance Act, 2002 w.e.f.
1st April, 2003, applies to accumulations mentioned in
Section 11(1)(a) of the Act. The following question was
framed for adjudication:-
G
H
I
“Whether the explanation after Section 11(2) is
applicable in respect of the accumulation upto fifteen
percent referred to in Section 11(1)(a) also, as distinct
from the accumulation out of eighty-five percent as
referred to in Section 11(2) of the Income Tax Act,
1961?”
(Para 6)
Ordinarily, the “explanation” having been appended to Section
11(2), is intended to explain 11(2) only and not Section
11(1). There is nothing to indicate that the explanation
though placed after sub-Section (2) is intended to explain
Director of Income Tax (Exemption) v. Bagri Foundation (Rajiv Sahai Endlaw, J.)
7
Section 11(1)(a) also. The Finance Act, 2002 vide which the A
said explanation was added and/or the objects and reasons
thereto do not throw any light as to the reason or purpose
of the said explanation or that the same is/was intended to
apply even to accumulation to the extent of 15% under B
Section 11(1)(a).
(Para 10)
A
B
The question of law framed is answered accordingly.
(Para 16)
D
[An Ba]
APPEARANCES:
ILR (2011) I Delhi
6.
M.K. Salpekar vs. Sunil Kumar Shamsunder Chaudhari
AIR 1988 SC 1814.
7.
Mohanlal Hargovinddas vs. State of M.P. AIR 1967 SC
1022.
8.
M.P.V. Sundararamier & Co. vs. State of Andhra Pradesh
AIR 1958 SC 468.
RESULT: Appeal dismissed.
C
Important Issue Involved: “Explanation” appended under
Section 11(2) and inserted by the Finance Act applies to
accumulations mentioned in Section 11(2) and not to Section
11(1)(a) of the IT Act.
Indian Law Reports (Delhi)
8
E
FOR THE APPELLANT
:
Ms. P.L. Bansal with Mr. Paras
Chaudhary and Mr. Anshul Sharma,
Advocates.
FOR THE RESPONDENT
:
Mr. Salil Aggarwal with Mr. Prakash F
Kumar, Advocates.
CASES REFERRED TO:
1.
Commissioner of Income Tax vs. Shri Ram Memorial
G
Foundation (2004) 269 ITR 35.
2.
The Commissioner of Agricultural Income Tax vs. The
Plantation Corporation of Kerala Ltd. AIR 2000 SC 3714.
3.
S.RM.M.CT.M. Tiruppani Trust vs. The Commissioner of H
Income-Tax (1998) 230 ITR 636 (SC).
4.
Addl. Commissioner of Income Tax vs. A.L.N. Rao
Charitable Trust [1995] 216 ITR 697 (SC).
5.
M/s. Patel Roadways Ltd. vs. M/s. Prasad Trading Co.
AIR 1992 SC 1514.
I
C RAJIV SAHAI ENDLAW, J.
1. This appeal has been preferred against the order dated 27th
February, 2009 of the Income Tax Appellate Tribunal (ITAT) dismissing
the appeal of the Revenue against the order dated 18th June, 2007 of the
D Commissioner of Income Tax (Appeals) [CIT(A)] allowing the appeal of
the Assessee against the order dated 23rd March, 2006 of the Income
Tax Officer (ITO) assessing the income of the Assessee, a Trust duly
registered under Section 12AA and duly recognized under Section
E 80G(5)(vi) of the Income Tax Act, 1961 for the Assessment Year 200304 at Rs.31,38,840/- and initiating penalty proceedings against the Assessee
for furnishing inaccurate particulars of its income.
2. The Assessee for the relevant year filed return declaring „Nil.
F income. The case though processed under Section 143(1) was selected
for scrutiny. The Assessee had shown the gross total income for the
relevant year as Rs.6,92,453/- and deducted therefrom the amount applied
for charitable purposes to the extent of Rs.27,28,001/-. The Assessee
G had made application of income by donation of Rs.26,66,000/- comprising
of donation of Rs.25 lacs to BLB Trust as corpus donation and
Rs.1,66,000/- to others. The source of the balance amount over and
above the income of Rs.6,92,453/- was from FDR encashment, MIP
units and MIP-97 encashment which was the accumulation of income of
H the past and encashment made out of these accumulations/funds.
I
3. The ITO found that that donation of Rs.25 lacs as corpus
donation to BLB Trust was not from current year’s income but out of
accumulations from the income of earlier years. The ITO, being of the
opinion that owing to the explanation appended to Section 11(2) w.e.f.
the Assessment Year 2003-04, any donation made out of income
accumulation or set apart during the period of accumulation or thereafter
Director of Income Tax (Exemption) v. Bagri Foundation (Rajiv Sahai Endlaw, J.)
9
10
to any trust or institution registered under Section 12AA, as BLB Trust A
was, was liable to be added in the income of the donor trust, accordingly
computed the income as aforesaid of the Assessee.
4. It was inter alia the contention of the Assessee before the CIT
B
(A) that the ITO should in any case have given credit of Rs.6,92,453/
- being the income of the current year. The CIT (A) found merit in the
said contention. It was also the contention of the Assessee before the
CIT (A) that the explanation appended to Section 11(2) was not applicable
in the facts of the case because the donation to BLB Trust was not out C
of the accumulations within the meaning of Section 11(1)(a) but out of
the free reserves. The CIT (A) accepted the said contention of the
Assessee and held the donation by the Assessee of Rs.26,66,000/- aforesaid
including the donation of Rs.25 lacs to BLB Trust to have been made out D
of excess of income over expenditure and not out of amount accumulated
under Section 11(1)(a) of the Act. The appeal was accordingly allowed
and the Assessee was held to have not violated the provisions of Section
11(1)(a) or 11(2)(a) of the Act.
E
5. The ITAT affirmed the order of the CIT (A) and held that the
Revenue has not been able to make out any case to controvert or rebut
the finding of the CIT(A) of the donation in question having been made
by the Assessee out of free reserves and income for the year under
F
consideration and not out of accumulations.
6. The Revenue in the appeal before us inter alia raised a question
as to whether the “Explanation” appended under Section 11(2) and inserted
by the Finance Act, 2002 w.e.f. 1st April, 2003, applies to accumulations G
mentioned in Section 11(1)(a) of the Act. The following question was
framed for adjudication:“Whether the explanation after Section 11(2) is applicable in
respect of the accumulation upto fifteen percent referred to in H
Section 11(1)(a) also, as distinct from the accumulation out of
eighty-five percent as referred to in Section 11(2) of the Income
Tax Act, 1961?”
7. Section 11(1)(a) is as under:“11. Income from property held for charitable or religious
purposes - (1) Subject to the provisions of sections, 60 to 63,
I
A
Indian Law Reports (Delhi)
the following income shall not be included in the total income of
the previous year of the person in receipt of the income (a)
B
C
D
E
F
G
H
I
ILR (2011) I Delhi
income derived from property held under trust wholly
for charitable or religious purposes, to the extent to
which such income is applied to such purposes in India;
and, where any such income is accumulated or set apart
for application to such purposes in India, to the extent
to which the income so accumulated or set apart is not
in excess of fifteen per cent of the income from such
property.”
Thus the income applied for charitable purposes is not to be included
in the total income for the relevant year. A Division Bench of this Court,
of which one of us was a member, in Commissioner of Income-Tax
v. Shri Ram Memorial Foundation (2004) 269 ITR 35 has held that
when a donor trust which is itself a charitable and religious trust donates
its income to another trust, the provisions of Section 11(1)(a) can be said
to have been met by such donor trust and the donor trust can be said
to have applied its income for religious and charitable purposes,
notwithstanding the fact that the donation is subjected to a condition that
the done trust will treat the donation as towards its corpus and can only
utilize the accruing income from the donated corpus for religious and
charitable purposes. From the same, it follows that if the Assessee trust
either itself uses any part of its income for charitable purposes or donates
the same to any other charitable trust, such income is exempt from
inclusion in the total income of the Assessee trust for the relevant year.
The emphasis is on utilizing the income in the relevant year and
accumulation is permitted only to a maximum extent of 15%. As long as
such accumulation is not more than 15%, such accumulation is also
exempt from inclusion in the total income. However, if more than 15%
of the income is accumulated, under Section 11(1)(a) the same would
not be exempt from inclusion in the total income for the relevant year.
8. No conditions are prescribed for the accumulation of up to 15%
permitted under Section 11(1)(a). Section 11(2) permits accumulation in
excess of 15% also but subject to certain conditions and with which we
are not concerned at present. However, the explanation appended w.e.f.
1st April, 2003 to Section 11(2) is as under:-
Director of Income Tax (Exemption) v. Bagri Foundation (Rajiv Sahai Endlaw, J.)
11
12
“Explanation. – Any amount credited or paid, out of income A
referred to in clause (a) or clause (b) of sub-section (1), read
with the Explanation to that sub-section, which is not applied,
but is accumulated or set apart, to any trust or institution registered
under Section 12AA or to any fund or institution or trust or any B
university or other educational institution or any hospital or other
medical institution referred to in sub-clause (iv) or sub-clause
(v) or sub-clause (vi) or sub-clause (via) of clause (23C) of
Section 10, shall not be treated as application of income for
charitable or religious purposes, either during the period of C
accumulation or thereafter.”
9. What follows is that the amount accumulated cannot be donated
to another trust. However, the said explanation does not place a total
D
embargo on donations by one trust to another. It does not prohibit the
trust from donating its entire income in a relevant year to another trust,
as is the law as noticed in the Division Bench judgment in Shri Ram
Memorial Foundation (supra). The embargo is only on the income of
the trust not applied in the relevant year but accumulated or set apart E
being donated to another trust. The question which arises is whether
such prohibition/embargo is only on the accumulations in excess of 15%
with which Section 11(2) deals or extends even to accumulation to the
extent of 15% under Section 11(1)(a).
F
10. Ordinarily, the “explanation” having been appended to Section
11(2), is intended to explain 11(2) only and not Section 11(1). There is
nothing to indicate that the explanation though placed after sub-Section
(2) is intended to explain Section 11(1)(a) also. The Finance Act, 2002 G
vide which the said explanation was added and/or the objects and reasons
thereto do not throw any light as to the reason or purpose of the said
explanation or that the same is/was intended to apply even to accumulation
to the extent of 15% under Section 11(1)(a).
H
11. The Supreme Court in M.P.V. Sundararamier & Co. Vs.
State of Andhra Pradesh AIR 1958 SC 468 and in Mohanlal
Hargovinddas Vs. State of M.P. AIR 1967 SC 1022 held that the
context and setting of the enactment governs the scope of the
“explanation”. In M.K. Salpekar Vs. Sunil Kumar Shamsunder
Chaudhari AIR 1988 SC 1814, the scope of the “explanation” was
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A construed again in the light of the scheme of the enactment. In M/s.
Patel Roadways Ltd. Vs. M/s. Prasad Trading Co. AIR 1992 SC 1514,
the question was whether the explanation to Section 20 of the CPC was
to clause (a) only. The Supreme Court decided, taking into consideration
B the circumstances and the history of the legislation. The Supreme Court
in The Commissioner of Agricultural Income Tax Vs. The Plantation
Corporation of Kerala Ltd. AIR 2000 SC 3714 was concerned with
whether the “explanation” at the bottom of Section 5 of the Agricultural
Income Tax Act applied to the entire section or to only one of the clauses
C thereof. It was held that an explanation below a particular clause/sub
section is intended to be an explanation to that specific or particular
clause/sub section but when at the bottom of the section, is generally
meant to explain the entire section.
D
12. The question whether the conditions prescribed in Section 11(2)
with respect to accumulation in excess of 15%, apply also to accumulation
to the extent of 15% under Section 11(1)(a) arose for consideration in
Addl. Commissioner of Income Tax v. A.L.N. Rao Charitable Trust
E [1995] 216 ITR 697 (SC). The Supreme Court explained the scheme of
Section 11 (1)(a) and Section 11(2) as under:-
F
G
H
I
“ A mere look at Section 11(1)(a) as it stood at the relevant time
clearly shows that out of total income accruing to a trust in the
previous year from property held by it wholly for charitable or
religious purpose, to the extent the income is applied for such
religious or charitable purpose, the same will get out of the tax
net but so far as the income which is not so applied during the
previous year is concerned at least 25% of such income or Rs.
10,000/- whichever is higher, will be permitted to be accumulated
for charitable or religious purpose and it will also get exempted
from the tax net. Then follows Sub-section (2) which seeks to
lift the restriction or the ceiling imposed on such exempted
accumulated income during the previous year and also brings
such further accumulated income out of the tax net if the
conditions laid down by Sub-section (2) of Section 11 are, fulfilled
meaning thereby the money so accumulated is set apart to be
invested in the Government securities etc. as laid down by Clause
(b) of Sub-section (2) of Section 11 apart from the procedure
Director of Income Tax (Exemption) v. Bagri Foundation (Rajiv Sahai Endlaw, J.)
13
14
laid down by Clause (a) of Section 11(2) being followed by the A
assesee-trust.”
13. It was held that the exemption under Section 11(1)(a) (then to
the extent of 25% and which was reduced to 15%, also by the Finance
Act, 2002) is unfettered and not subject to any conditions and is an
absolute exemption. It was further held that if the conditions contained
in Section 11(2) are read as applicable to the exemption of up to 15%
under Section 11(1)(a) also, then what is an absolute and unfettered
exemption of accumulated income guaranteed by Section 11(1)(a) would
become a restricted exemption as laid down in Section 11(2). Section
11(2) was held to not operate to whittle down or to cut across the
exemption provision contained in Section 11(1)(a). In this regard, it was
further noticed that Section 11(2) does not contain any non obstante
clause like “notwithstanding the provisions of the sub-Section (1)”.
Consequently, it was held that after Section 11(1)(a) has had full play
and still if any accumulated income of the previous year is left to be dealt
with and to be considered for the purpose of income exemption, subSection (2) of Section 11 can be pressed in service and if it is complied
with then such additional accumulated income beyond 15% (then 25%)
can also earn exemption from income tax on compliance of the conditions
laid down by Section 11(2). Section 11(2) while enlarging the scope of
exemption by removing the restriction imposed by Section 11(1)(a) was
held not to take away the exemption allowed by Section 11(1)(a).
B
C
D
E
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A did not do so. Even after the insertion of the “explanation”, if a trust
donates its entire income for a year to another charitable trust, it would
still be entitled to exemption under Section 11(1)(a). It defies logic as to
why such donations cannot be permitted out of 15% accumulation
B permitted under Section 11(1)(a) itself. There is however rationale for
imposing the restriction as contained in the “explanation” (supra) to
accumulations in excess of 15%. Such accumulations, but for the
conditions imposed in Section 11(2) and in the explanation aforesaid,
would have been eligible to be taxed. One of the conditions in Section
C
11(2)(a) is that the purpose for which accumulation in excess of 15%
is being made is to be notified; another condition is of the accumulation
being permitted for a period not exceeding 10 years; yet another condition
is as to the modes in which the accumulation can be invested. There are
D no such restrictions on accumulation under Section 11(1)(a). The scheme
of the section indicates that the additional condition by way of the aforesaid
“explanation” is also intended to apply only to accumulations in excess
of 15% under Section 11(2) and not to accumulations upto 15% under
E Section 11(1)(a). The explanation is not found to be intended to take
away something from the accumulation upto 15% permitted without any
conditions whatsoever under Section 11(1)(a).
16. The question of law framed is answered accordingly.
F
14. The same view was followed in S.RM.M.CT.M. Tiruppani
Trust v. The Commissioner of Income-Tax (1998) 230 ITR 636 (SC).
G
15. The “explanation” appended after Section 11(2) is nothing but
an additional condition attached to accumulation in excess of 15% permitted
under Section 11(2). We are unable to hold it as a condition on
accumulation up to 15% as provided for in Section 11(1)(a) also. We are
unable to find any rational classification for imposing the restriction as H
contained in the “explanation” to the accumulation of up to 15% also
when there is no such restriction to donating the entire income of a year
to another charitable trust. If the legislature intended to completely ban/
discourage inter se donation between trusts, it would have changed the I
position as existing in law as noticed in the Division Bench judgment of
this Court in Shri Ram Memorial Foundation aforesaid. The legislature
F
17. It also follows that even if the donations by the Assessee herein
were to be out of accumulations from previous years. and not out of
surplus reserves, the same would still not be liable to be included in the
total income as assessed by the Income Tax Officer and the order of
G CIT and ITAT would still be upheld. It is nobody's case that the said
accumulations were beyond the accumulation of 15% permitted in Section
11(1)(a).
H
The appeal is accordingly dismissed.
No order as to costs.
I
Sh. Tilak and Others v. Smt. Veena (V.B. Gupta, J.)
15
ILR (2011) I DELHI 15
RCR
SH. TILAK AND OTHERS
....PETITIONERS
A
A
B
B
VERSUS
SMT. VEENA
Indian Law Reports (Delhi)
16
decide as to what business she wants to run in her shop.
Tenant has no right to dictate to the landlord about the
suitability of the premises.
(Para 16)
In Satyawati Sharma (Dead) by LRS. Vs. Union of India
and Another, (2008) 5 Supreme Court Cases 287 it was
observed that;
....RESPONDENT
(V.B. GUPTA, J.)
C
C
D
Delhi Rent Control Act, 1958—Section 14(1)(e) and
25B—Shop let out for non residential purposes—Bona
fide required back by landlady for running kirana shop
by son—Tenant's contention that additional commercial/
business accommodation available with landlady not E
tenable—Held—Landlady is the master of her choice
and it is for her to decide as to what business she
wants to run in her shop—Tenant has no right to
dictate to the landlord about the suitability of the F
premises.
D
RCR NO. : 142/2010 AND
C.M. NO. : 11531/2010
“Even a premises let out for commercial purposes can
be got vacated for bona fide requirement and making
distinction between residential and commercial
purposes as envisaged under Section 14 (1 ) (e) of
the Act, has been held ultra virus of the Constitution”.
(Para 17)
DATE OF DECISION: 08.07.2010
It is contended by learned counsel for the petitioners that
respondent, her son, her husband and her father-in-law are
members of one joint family and all are living together, doing G
business together and earning together. Trial court failed to
deal with this ground, which the petitioners have been taken
in their leave application.
(Para 8)
H
Lastly, it is contended that further additional commercial/
business accommodation is available with the respondent
and trial court did not deal with this aspect of the defence
in the impugned order.
(Para 11)
I
In this respect it may be pointed out, that it is well settled law
that landlady is the master of her choice and it is for her to
ILR (2011) I Delhi
[An Ba]
APPEARANCES:
E
F
FOR THE APPELLANTS
:
Mr. Chetan Sharma, Sr, Advocate
with Mr. Manoj Kr. Garg and Mr.
Nitin Gupta, Advocates.
FOR THE RESPONDENT
:
Nemo.
CASE REFERRED TO:
1.
G
Satyawati Sharma (Dead) by LRS. vs. Union of India
and Another, (2008) 5 Supreme Court Cases 287.
RESULT: Petition dismissed.
V.B.GUPTA, J.
1. Present revision petition has been filed against judgment and
order dated 15th March, 2010, passed by Additional Rent Controller,
H Delhi, vide which respondent's eviction petition under Section 14 (1) (e)
read with section 25B of Delhi Rent Control Act, 1958, (for short as
‘Act’) was allowed.
I
2. Brief facts of this case are that one shop situated on ground floor
bearing no. 1786-A, Lal Quan, Delhi was let out by respondent to the
petitioners for non residential purposes and the same is required bonafide
by the respondent. Respondent is the owner of the shop in question and
Sh. Tilak and Others v. Smt. Veena (V.B. Gupta, J.)
17
18
she needs the same for running a shop by her son as neither she nor her A
son has any other reasonably suitable accommodation in Delhi for the
said purpose. The premises in dispute was let out long back to the
predecessor in interest of the petitioners for non residential purposes. In
the shop in dispute, son of respondent will run a Kirana shop.
B
3. Respondent is also the owner of one half share in property no.
9/26, Kailash Nagar, Gandhi Nagar, Delhi. There are three rooms on the
ground floor of the said property and one hall each on the first floor and
second floor portions of the said property. One room on the ground floor C
of the said premises has been let out by respondent to a tenant and in
the other room Smt. Anita-the sister of the husband of respondent is
residing and in the third room situated on the ground floor Smt. Anita is
running a shop. The first floor and second floor portions of the said
D
property are also in occupation of tenants.
4. The area of Kailash Nagar, Gandhi Nagar, Delhi is not suitable
for running the said business as there is no market for that business in
that area and also because no space is available in the aforesaid house of E
the respondent for the said purpose.
5. The shop in dispute is more suitable for running the business of
sale of spices and dry fruits etc. as the shop in dispute is situated in a
commercial market and is also near to the wholesale market of Khari
Baoli, Delhi where business of wholesale and retails with respect to
Kirana goods, spices and dry fruits etc. is being carried on by large
number of shopkeepers.
F
6. As far as the accommodation available on the back side of the G
shop in dispute is concerned, the same is being used by the father-in-law
and the husband of the respondent for grinding of spices since a long
time and a grinding machine is installed in the said space and the spices
which are being grinded at that place are sold by the father-in-law of the H
respondent and her husband in the shop which is being run by the fatherin-law of the respondent in Khari Baoli, Delhi. For running the aforesaid
business by the son of the respondent about Rs.2,00,000/- would be
needed, respondent and her husband have got necessary funds for the
I
said purpose.
A
Indian Law Reports (Delhi)
ILR (2011) I Delhi
7. Petitioner filed an application for leave to contest, which was
dismissed by the Additional Rent Controller.
8. It is contended by learned counsel for the petitioners that
respondent, her son, her husband and her father-in-law are members of
B one joint family and all are living together, doing business together and
earning together. Trial court failed to deal with this ground, which the
petitioners have been taken in their leave application.
C
D
E
9. Other contention is that respondent including her son, have their
one more shop at Khari Baoli, Delhi, where admittedly family business is
being operated by the respondent. The Court below failed to deal with
this ground also.
10. Other contention is that the scope of business of Kiryana and
investment and employment in this business at any shop including the
shop of respondent at Khari Baoli, Delhi is unlimited and area in which
the suit premises is situated has no scope for Kiryana business. The trial
court also did not deal with this aspect of the matter.
11. Lastly, it is contended that further additional commercial/business
accommodation is available with the respondent and trial court did not
deal with this aspect of the defence in the impugned order.
F
12. Coming to the contentions of learned counsel for the petitioners
that respondent, her son and her husband and father-in-law are doing
business together and are earning together is just a vague statement.
There is no material on record to show that all of them are doing joint
G business.
13. Regarding other contention, that respondent is having one more
shop in Khari Baoli, Delhi, where family business is operated by the
respondent. There is nothing on record to show that any family business
H is being operated at Khari Baoli Shop.
14. In fact, the case of the respondent is that, her father-in-law has
been running a shop in Khari Baoli, Delhi, which is in his tenancy, which
has not been rebutted by the petitioner.
I
15. Other ground taken by petitioners is that there is no scope for
Kirana business in the area where suit property is situated.
Sh. Tilak and Others v. Smt. Veena (V.B. Gupta, J.)
19
Indian Law Reports (Delhi)
20
16. In this respect it may be pointed out, that it is well settled law A
that landlady is the master of her choice and it is for her to decide as
to what business she wants to run in her shop. Tenant has no right to
dictate to the landlord about the suitability of the premises.
A
17. In Satyawati Sharma (Dead) by LRS. Vs. Union of India B
and Another, (2008) 5 Supreme Court Cases 287 it was observed that;
B COMMISSIONER OF INCOME TAX
C
18. Thus, after going through the record, I find that no triable
D
issues have been raised by the petitioners in their leave application.
D
DHANPAT RAI
....APPELLANT
....RESPONDENT
(DIPAK MISRA CJ. AND MANMOHAN, JJ.)
I.T.A. NO. : 837/2010
19. There is no infirmity. illegality or ambiguity in the impugned
judgment passed by the Additional Rent Controller.
E
DATE OF DECISION: 13.07.2010
Income Tax Act, 1961—Section 260(A), 263—Held—Twin
conditions for invoking Section 263 of IT Act-One
order is erroneous; two order is prejudicial to the
interest of the revenue—Conditions not met out-No
case made out for invoking jurisdiction u/s 263.
Important Issue Involved: Twin conditions for invoking
Section 263 of IT Act-1 order is erroneous 2 order is
prejudicial to the interest of the revenue.
21. No order as to costs.
22. Copy of this judgment sent to trial Court.
CM NO. 11531/2010.
ILR (2011) I DELHI 20
I.T.A.
VERSUS
“Even a premises let out for commercial purposes can be got
vacated for bona fide requirement and making distinction between
residential and commercial purposes as envisaged under Section C
14 (1 ) (e) of the Act, has been held ultra virus of the
Constitution”.
20. Hence, present petition being not maintainable is hereby dismissed. E
ILR (2011) I Delhi
F
F
[An Ba]
23. Dismissed.
APPEARANCES:
G
G FOR THE APPELLANT
FOR THE RESPONDENT
:
Ms. Prem Lata Bansal, Advocate.
:
Mr. Sanat Kapoor, Advocate.
CASES REFERRED TO:
H
I
H
I
1.
Malabar Industrial Co. Ltd. vs. Commissioner of Income
Tax, (2000) 243 ITR 83 (SC).
2.
CIT vs. Gabriel India Ltd., (1993)203 ITR 108 Bom.
3.
Gee Vee Enterprises vs. Additional Commissioner of
Income Tax, Delhi-I 99 ITR 375.
RESULT: Appeal dismissed.
Commissioner of Income Tax v. Dhanpat Rai (Manmohan, J.)
21
MANMOHAN, J. (Oral)
A
1. The present appeal has been filed under Section 260A of Income
Tax Act, 1961 (for brevity “Act 1961”) challenging the order dated 24th
April, 2009 passed by the Income Tax Appellate Tribunal (in short
B
“ITAT”), for the assessment year 2006-2007.
2. Ms. Prem Lata Bansal, learned counsel for revenue stated that
ITAT erred in law in setting aside the order passed by the Commissioner
of Income Tax (Appeal) under Section 263 of Act, 1961 and restoring
the assessment order passed by the Assessing Officer. In this connection, C
Ms. Prem Lata Bansal, learned counsel for revenue relied upon certain
observations made by this Court in Gee Vee Enterprises vs. Additional
Commissioner of Income Tax, Delhi-I 99 ITR 375.
D
3. The ITAT in the impugned order has held as under:“12. In the present case, since the Ld. CIT has not pointed out
any error in the order of the AO but merely directed to reexamine the issue, we hold that the Ld. CIT was incorrect in E
terming the assessment order as erroneous insofar as it is
prejudicial to the interest of Revenue. The AO having examined
the matters and having adopted the course which is legally
permissible has not committed any error. We, consequently, set
F
aside the impugned order passed by the Ld. CIT and restore that
of the AO.”
4. In our opinion, Section 263 of the Act, 1961, does not visualize
a case of substitution of judgment by the Commissioner for that of the
G
Assessing Officer who passed the order. The Commissioner on perusal
of records may be of the opinion that the estimate made by the Assessing
Officer is on the lower side, but that would not vest the Commissioner
with the power to re-assess the accounts and determine the income at
a higher figure. This is because the Assessing Officer exercises quasi H
judicial power vested in him in accordance with law and arrives at a
conclusion.
5. It is settled law that two conditions have to be fulfilled before
the Commissioner can invoke his power under Section 263 of the Act,
1961 namely, the order should be erroneous and further the assessing
officer’s order should be prejudicial to the interest of Revenue. (Refer to
Indian Law Reports (Delhi)
22
I
ILR (2011) I Delhi
A Malabar Industrial Co. Ltd. vs. Commissioner of Income Tax, (2000)
243 ITR 83 (SC), CIT vs. Gabriel India Ltd., (1993)203 ITR 108
Bom.). Even in the case of Gee Vee Enterprises (supra), this Court did
not say that the aforesaid conditions precedent need not be fulfilled.
B
6. In the present case, we have perused the order passed by the
Commissioner of Income Tax ( Appeal) under Section 263 of the Act,
1961 and we find that in the said order the CIT(A) has neither found the
order passed by the assessing officer to be erroneous or prejudicial to the
C interest of the revenue.
7. Consequently, as the two conditions for invoking jurisdiction
under Section 263 of the Act, 1961, are not made out, the CIT(A), in
our opinion, could not have exercised the said power. Accordingly, the
D present petition being devoid of merits is dismissed in liminie but with
order as to costs.
E
ILR (2011) I DELHI 22
ITR
F
THE COMMISSIONER OF INCOME TAX
....APPELLANT
VERSUS
G
M/S HARPARSHAD & COMPANY LTD.
.....RESPONDENT
(A.K. SIKRI AND REVA KHETRAPAL, JJ.)
ITR NO. : 243/1991
DATE OF DECISION: 04.08.2010
H
I
Income Tax Act, 1961—Section 256, 271—Assessee/
Respondent filed assessment for year 1979-80 and
also raised claim for payment of commission to Mrs.
Ritu Nanda, Director of Respondent Company
amounting to Rs. 2,74,617/- —Assessing Officer found
services not rendered by Mrs. Ritu Nanda for which
she was purportedly given commission @3% of Contract
Commnr. of Income Tax v. Harparshad & Company Ltd. (A.K. Sikri, J.) 23
Value—Also, at relevant time for which payment of
commission claimed, Mrs. Ritu Nanda not found to be
Director of Company—Thus, AO held claim for Ritu
Nanda bogus and imposed penalty of Rs. 1,05,730/- on
Respondent—Assessee/Respondent challenged order
of penalty in appeal before CIT (Appeal) but
dismissed—In further appeal to Income Tax Appellate
Tribunal, assessee succeeded as order of penalty set
aside—Appellant/Revenue Authority moved petition
under Section 256 (2) of the Act seeking reference,
“Whether the Tribunal was correct in law in deleting
the penalty imposed under the Income-Tax Act,
1961?”—Held: The penalty on the ground of
concealment of particulars of non-disclosure of full
particulars can be levied only when in the accounts/
return an item has been suppressed dishonestly or
the item has been claimed fraudulently or a bogus
claim has been made—When facts are clearly disclosed
in the return of income, penalty cannot be levied and
merely because an amount is not allowed or taxed to
income it cannot be said that the assessee had filed
inaccurate particulars or concealed any income
chargeable to tax—Further, conscious concealment is
necessary—Even if some deduction or benefit is
claimed by the assessee wrongly but bona fide and no
malafide can be attributed, the penalty would not be
levied—Even if there is no concealment of Income or
furnishing of in accurate particulars, but on the basis
there of the claim which is made ex facie bogus, it may
still attract penalty provision—Order of Assessing
Officer imposing penalty was without any blemish.
The explanations appended to Section 272 (1) (c) of the IT
Act entirely indicates the element of strict liability on the
assessee for concealment or for giving inaccurate particulars
while filing return. The judgment in Dilip N. Shroof’s case
(supra) has not considered the effect and relevance of
Section 276C of the I.T.Act. Object behind enactment of
Section 271 (1) (c) read with Explanations indicate that the
Indian Law Reports (Delhi)
24
A
A
B
B
C
C
D
D
E
E
ILR (2011) I Delhi
said section has been enacted to provide for a remedy for
loss of revenue. The penalty under that provisions is a civil
liability. Willful concealment is not an essential ingredient for
attracting civil liability as is the case in the matter of
prosecution under Section 276C of the I.T. Act. (Para 12)
Important Issue Involved: The penalty on the ground of
concealment of particulars of non-disclosure of full
particulars can be levied only when in the accounts/return
an item has been suppressed dishonestly or thse item has
been claimed fraudulently or a bogus claim has been made.
When the facts are clearly disclosed in the return of income,
penalty cannot be levied and merely because an amount is
not allowed or taxed to income it cannot be said that the
assessee had filed inaccurate particulars or concealed any
income chergeable to tax.
[Sh Ka]
APPEARANCES:
F
F
FOR THE PETITIONER
:
Ms. Prem Lata Bansal, Advocate.
FOR THE RESPONDENT
:
None.
CASES REFERRED TO:
1.
G
H
G
H
2.
3.
4.
5.
6.
Union of India and Ors. vs. Dharmendra Textile Processors
and Ors. (2008) 13 SCC 369, 306 ITR 277 (SC).
Commissioner of Income Tax vs. Vidyagauri Natverlal
and Ors. 238 ITR 91.
Krishna vs. CIT, 217 ITR 645.
Rajaram vs. CIT, 193 ITR 614.
CIT vs. M. Habibulla 136 ITR 760 (AU).
CIT vs. Escorts Finance Ltd. 226 CTR (Del) 105.
RESULT: Reference answered against assessee and in favour of Revenue.
I
I
A.K. SIKRI, J. (Oral)
1. Nobody appeared on behalf of the assessee inspite of service.
Even today, there is no appearance. In these circumstances, we have no
Commnr. of Income Tax v. Harparshad & Company Ltd. (A.K. Sikri, J.) 25
option but to proceed with the matter in the absence of the assessee. We A
have heard Mrs. Prem Lata Bansal, Advocate for the revenue at length.
2. The Assessing Officer, in the proceedings initiated by him under
Section 271 (1) (c ) of the Income Tax Act has imposed penalty upon
the assessee herein for the concealment of income ˇin respect of B
assessment year 1979-1980. The CIT (Appeal) had affirmed this penalty.
However, Income Tax Appellate Tribunal has set-aside the penalty order.
The Revenue has approached this Court by moving petition under Section
256 (2) of the Act seeking reference, which petition was allowed vide C
order dated 07.01.1991 and direction was given to the Tribunal to draw
a statement of case and refer the following question of law for the
opinion of this Court:“Whether the Tribunal was correct in law in deleting the penalty D
imposed by the Income-tax Officer under section 271 (1) (c )
of the Income-tax Act, 1961?”
3. This question arises in the following factual backdrop. While
passing the assessment order, the Assessing Officer was of the view that E
the aforesaid claim of payment of commission of Mrs. Ritu Nanda was
bogus and could not be substantiated by the assessee even when the
opportunity in this behalf was given to it. Therefore, the Assessing
Officer chose to serve show cause notice upon the assessee under F
Section 271(1) (c) of the Act for imposition of penalty. After eliciting the
reply of the assessee to the said show cause notice and given hearing,
order dated 15.07.1985 was passed by the Assessing Officer thereby
imposing penalty in the sum of Rs.1,05,730/-. The assessee has approached
G
the CIT (Appeal) challenging the order of penalty, but unsuccessfully, as
the appeal was dismissed on 05.03.1986. In further appeal to the ITAT,
however, the assessee succeeded as order of penalty was set-aside by
the Tribunal vide order dated 11.02.1988. Before we take note of the
considerations which weighed with the Assessing Officer and the CIT H
(A) on the one hand in imposing the penalty and the ITAT on the other
hand in deleting the said penalty, it would be in fitness of things to deal
with the claim for commission preferred by the assessee in the return of
income filed by it and the reasons because of which the said claim was I
disallowed.
4. We have already taken note of the reasons given by the Assessing
26
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A Officer in disallowing the claim. To recapitulate in brief, the Assessing
Officer found that no services were rendered by Mrs. Ritu Nanda as
alleged for which she was purportedly given commission @ 3% of the
contract value. Further more, though the payment of commission was
B claimed as given to Mrs. Ritu Nanda as Director of the Company, at the
relevant time when this contract from Iran was signed by the assessee,
she was not even the Director. In the appeal filed by the assessee, CIT
had disallowed part of the commission. Total commission which was
claimed to have been paid to Mrs. Ritu Nanda was in the sum of
C Rs.2,74,617/- and the entire amount was disallowed by the AO. However,
CIT (Appeal) disallowed the payment of commission to the extent of
Rs.1,83,978/-. Order of CIT (Appeal) in these quantum proceedings has
been perused by us. Reading thereof would bring out certain additional
D facts which are as under:-
E
F
G
H
I
5. Amount of Rs.2,74,617/- which was paid to Mrs. Ritu Nanda as
commission represented 3% of the contract value. Mrs. Ritu Nanda in
turn had made payment to the extent of 1% to M/s Jupiter Trading
Corporation. It was found that, in fact, it was M/s Jupiter Trading
Corporation which had rendered the requisite services. Instead of paying
the commission to M/s Jupiter Trading Corporation directly, the assessee
had paid 3% of the contract value as commission to Mrs. Ritu Nanda,
who out of this commission paid 1% thereof to M/s Jupiter Trading
Corporation. It is for this reason that for the 1% commission which was
paid to M/s Jupiter Trading Corporation against the services actually
rendered, the CIT (Appeal) had allowed the deduction. Otherwise, in so
far as payment made to Mrs. Ritu Nanda is concerned specific and
categorical finding of the CIT (Appeal) was that she had not rendered
any services for which commission was paid to her. It would be of
interest to note that the Income Tax Appellate Tribunal also put its stamp
of approval to the aforesaid findings. The relevant portion of the ITAT
order reads as under:“In fact no services has been rendered by Smt. Ritu Nanda and
that expenditure by the way of commission leaving apart that
portion which had been paid to M/s Jupiter Trading Corpn., was
not incurred for the purposes of business.”.
6. It was also observed that the payment was made to Smt. Ritu
Nanda who was daughter-in-law of the Managing Director of the Company
Commnr. of Income Tax v. Harparshad & Company Ltd. (A.K. Sikri, J.) 27
and, thus, it was a bogus payment without any consideration.
7. We have examined the penalty proceedings keeping in view the
aforesaid aspects in mind and we are of the opinion that the order of the
Assessing Officer imposing penalty was without any blemish and there
was no cause for interference in it by the Tribunal. The reasons given
by the Tribunal in quashing these penalty proceedings are totally irrelevant,
not germane to the issue and rather the Tribunal has lost sight of the
aforesaid aspects, which had been conclusively established in the quantum
proceedings. In the first instance, the Tribunal has observed that when
part claim was allowed by the CIT (Appeal) and only part claim was
disallowed, claim for commission was not bogus but was only excessive.
This is an observation which is contrary to record. The Tribunal has
failed to take note of the fact that part claim as commission was allowed
to the assessee not because of the reason that Mrs. Ritu Nanda had
rendered any services. It was because of the fact that M/s Jupiter Trading
Corporation had rendered services for which it was paid 1% of the
commission by Mrs. Ritu Nanda out of 3% received by her. However,
the penalty was imposed for putting a bogus claim of payment of
commission purportedly paid to Mrs. Ritu Nanda. As far as commission
to her is concerned, it was accepted by the ITAT in quantum proceedings
that she did not render any services at all.
28
A
B
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A of any facts material to the computation to the total income of that
person under Income-tax Act. The assessee had failed to offer any
explanation in respect of the addition of Rs.1,83,078/-, and it could be
deemed to have concealed the particulars of income or furnished inaccurate
B particulars thereof, by virtue of this explanation.
9. In CIT Vs. Escorts Finance Ltd. 226 CTR (Del) 105, principle
of law was resettled in the following words:-
C
C
D
D
E
E
8. The second reason given by the Tribunal, which flows from the F
first, is that it was not for the Assessing Officer to substitute its own
wisdom or business same with that of the assessee and in case assessee
chose to give excessive commission to Mrs. Ritu Nanda, that would call
for penalty. Again, while making these observations, the Tribunal was G
swayed by the wrong fact that Mrs. Ritu Nanda had rendered services
and the claim was not bogus but excessive. The findings given in
assessment proceedings are relevant and have probative value. Where the
assessee produces no fresh evidence or presents any additional or fresh H
circumstance in penalty proceedings, he would be deemed to have failed
to discharge the onus placed on him and the levy of penalty could be
justified (CIT Vs. M. Habibulla 136 ITR 760 (AU). Explanation (1)
below section 271 (1) (c) suggests that the assessee would be deemed
to have failed to furnish full and accurate particulars of income, if it I
failed to offer an explanation, or offers the explanation, which is found
by the ITO to be false or it has not been able to substantiate it, in respect
F
G
“It is repeatedly held by the Courts that the penalty on the
ground of concealment of particulars of non-disclosure of full
particulars can be levied only when in the accounts/ return an
item has been suppressed dishonestly or the item has been claimed
fraudulently or a bogus claim has been made. When the facts are
clearly disclosed in the return of income, penalty cannot be
levied and merely because an amount is not allowed or taxed to
income as it cannot be said that the assessee had filed inaccurate
particulars or concealed any income chargeable to tax. Further,
conscious concealment is necessary. Even if some deduction or
benefit is claimed by the assessee wrongly but bona fide and no
malafide can be attributed, the penalty would not be levied. A
fortiorari, if there is a deliberate concealment and false/inaccurate
return was filed, which was revised after the assessee was
exposed of the falsehood, it would be treated as concealment of
income in the original return and would attract penalty even if
revised return was filed before the assessment is completed.
Likewise, where claim made in the return appears to be ex facie
bogus, it would be treated as case of concealment or inaccurate
particulars and penalty proceedings would be justified”
10. The law has developed to the extent that even if there is no
concealment of income or furnishing of inaccurate particulars, but on the
H basis thereof the claim which is made is ex facie bogus, it may still
attract penalty provision. Cases of bogus hundi loans or bogus sales or
purchases have been treated as that of concealment or inaccuracy in
particulars of income by the judicial pronouncements.( See Krishna Vs.
I CIT, 217 ITR 645, Rajaram Vs. CIT, 193 ITR 614 and Beena Metals
240 ITR 222).
11. Immediately thereafter, in Commissioner of Income Tax Vs.
Morgan Tectronics Ltd. v. CBI (Shiv Narayan Dhingra, J.)
29
30
Vidyagauri Natverlal and Ors. 238 ITR 91, Gujarat High Court made A
a distinction between wrong claim as opposed to false claim and held that
if the claim is found to be false, the same would attract penalty. We may
also take note of the following observations of the Supreme Court in the
case of Union of India and Ors. Vs. Dharmendra Textile Processors B
and Ors. (2008) 13 SCC 369, 306 ITR 277 (SC).
12. The explanations appended to Section 272 (1) (c) of the IT Act
entirely indicates the element of strict liability on the assessee for
concealment or for giving inaccurate particulars while filing return. The C
judgment in Dilip N. Shroof’s case (supra) has not considered the effect
and relevance of Section 276C of the I.T.Act. Object behind enactment
of Section 271 (1) (c) read with Explanations indicate that the said
section has been enacted to provide for a remedy for loss of revenue.
D
The penalty under that provisions is a civil liability. Willful concealment
is not an essential ingredient for attracting civil liability as is the case in
the matter of prosecution under Section 276C of the I.T. Act.
A
B
C
D
13. Thus, we answer the question as formulated in the negative that E
is against the assessee and in favour of the Revenue.
E
F
F
ILR (2011) I DELHI 29
WP
MORGAN TECTRONICS LTD.
....PETITIONER
G
G
H
H
VERSUS
CBI
....RESPONDENT
(SHIV NARAYAN DHINGRA, J.)
WP (CRL) NO. : 65/2010
CRL.A. NO. : 581/2010
DATE OF DECISION: 11.08.2010
I
Criminal Procedure Code, 1973—Framing of charge—
Indian Penal Code, 1860—Sections 420, 468, 471, 120-
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
B—Accused company falsified accounts to show lesser
liability and induced complainant Bank to sanction
credit facility—Company did not pay back and cheated
bank of more than Rs 6 crores—Trial Court framed
charges against petitioner company u/sections 420,
468, 471 read with 120-B IPC—Whether company being
a juristic person can have mens rea for the purpose
of Section 120 B—Held, Company acts through its
Board of Directors—If company can enter into contracts
and perform other legal obligations it can also be
party to criminal acts—If the company can have a right
to do things through its Board of Directors it can have
necessary mens rea also through its Board of
Directors—Mens rea can be fastened on the company
if it is an essential element of crime on the ground
that mens rea was present in the officers of the
company who were acting as mind of the company—
Just because offence u/s 420, 468 and 471 IPC included
the punishment of imprisonment does not mean
company cannot be prosecuted as court can always
resort to punishment of imposition of fine—Petition
dismissed.
Where a company produced falsified accounts to the bank
and obtained benefit from the bank on the basis of falsified
accounts and induced the bank to part with huge amount of
funds, I consider that a company can be prosecuted for the
offence committed by it and mens rea can be fastened on
the company, if it is an essential element of the crime, on
the ground that mens rea was present in the officers of the
company who were acting as mind of the company.
(Para 5)
The other argument raised by the petitioner was that since
the sentence prescribed for the offence under Section 420,
468 and 471 IPC included offence of imprisonment and
company could not be incorporated, therefore, company
cannot be prosecuted. The Supreme Court in Velliappa
Textiles (Supra) had observed that since company cannot
Morgan Tectronics Ltd. v. CBI (Shiv Narayan Dhingra, J.)
31
be sentenced to imprisonment, the court has to resort to A
punishment of imposition of compensation/fine which is also
a prescribed punishment. The observations of Supreme
Court are as under:
A
“If the custodial sentence is the only punishment B
prescribed for the offence, this plea is acceptable, but
when the custodial sentence and fine are the
prescribed mode of punishment, the court can impose
the sentence of fine on a company which is found C
guilty as the sentence of imprisonment is impossible
to be carried out. It is an acceptable legal maxim that
law does not compel a man to do that which cannot
possibly be performed impotentia excusat legem.” D
(para 61)
B
“As the company cannot be sentenced to
imprisonment, the court has to resort to punishment
of imposition of fine which is also a prescribed E
punishment. As per the scheme of various enactments
and also the Indian Penal Code, mandatory custodial
sentence is prescribed for graver offences. If the
appellants' plea is accepted, no company or corporate F
bodies could be prosecuted for the graver offences
whereas they could be prosecuted for minor offences
as the sentence prescribed therein is custodial
sentence or fine. We do not think that the intention of
the Legislature is to give complete immunity from G
prosecution to the corporate bodies for these grave
offences.”(Para 62)
“… but when imprisonment and fine is the prescribed H
punishment the court can impose the punishment of
fine which could be enforced against the company.
Such discretion is to be read into the Section so far
as the juristic person is concerned. Of course, the
court cannot exercise the same discretion as regards I
a natural person. Then the court would not be passing
the sentence in accordance with law. As regards
Indian Law Reports (Delhi)
32
company, the court can always impose a sentence of
fine and the sentence of imprisonment can be ignored
as it is impossible to be carried out in respect of a
company. This appears to be the intention of the
legislature and we find no difficulty in construing the
statute in such a way. We do not think that there is a
blanket immunity for any company from any
prosecution for serious offences merely because the
prosecution would ultimately entail a sentence of
mandatory imprisonment. The corporate bodies, such
as a firm or company undertake series of activities
that affect the life, liberty and property of the citizens.
Large scale financial irregularities are done by various
corporations. The corporate vehicle now occupies
such a large portion of the industrial, commercial and
sociological sectors that amenability of the corporation
to a criminal law is essential to have a peaceful
society with stable economy.”
(Para 6)
C
D
E
F
ILR (2011) I Delhi
Important Issue Involved: Company can be charged for
the offence of cheating, forgery and criminal conspiracy as
mens rea can be fastened on the company on the ground
that mens rea was present in the officers of the company
who were acting as the mind of the company.
[Ad Ch]
G
APPEARANCES:
FOR THE PETITIONER
:
Mr. Vijay Aggarwal, Advocate.
FOR THE RESPONDENT
:
Ms. Suchiti Chandra for Mr. Vikas
Pahwa, Standing Counsel for CBI.
H
CASES REFERRED TO:
1.
Standard Chartered Banks vs. Directorate of Enforcement,
(2005) 4 SCC 530.
2.
Assistant Commissioner vs. Velliappa Textiles Ltd., 2003
(11) SCC 405.
I
Morgan Tectronics Ltd. v. CBI (Shiv Narayan Dhingra, J.)
3.
33
Kalpnath Rai vs. State, AIR 1998 SC 201.
34
A
RESULT: Petition dismissed.
SHIV NARAYAN DHINGRA, J.
1. By the present petition, the petitioner has assailed an order dated B
12th August, 2008 passed by learned Special Judge, CBI, whereby the
learned Special Judge framed charges against the petitioner company
charging the company under section 420, 468, 471 IPC read with Section
120-B IPC. The only contention raised by the petitioner before this Court C
is that a company being a juristic person cannot have mens rea necessary
for committing offence of criminal conspiracy as required under section
120-B IPC. It was contended that criminal conspiracy was a personal act
and company being a non living person and only a juristic person cannot
D
have the requisite mens rea. Reliance was placed by the petitioner on
Kalpnath Rai Vs. State, AIR 1998 SC 201 and Standard Chartered
Banks Vs. Directorate of Enforcement, (2005) 4 SCC 530 and other
similar cases.
E
2. This issue was raised before the Trial Court as well and the Trial
Court has dealt with this issue at length. In the present case it would be
relevant to note that initially the banker of this company was Indian Bank
and this company was enjoying various facilities and limits there. The
Indian Bank refused to extend further credits to this company on the F
ground of RBI restrictions. Thereafter the company switched over to
Punjab & Sind Bank and it falsified its accounts and presented the same
before Punjab & Sind Bank in order to obtain various credit limits &
other facilities from this bank. The company showed lesser liabilities and G
concealed the facts regarding true liabilities. Due to this concealment of
the facts, the company and its officials induced the Punjab & Sind Bank
to sanction credit facilities to the tune of Rs. 618.51 lacs. Ultimately the
company did not pay the amount and cheated the bank of more than Rs. H
6.00 crores resulting into registration of this case.
3. No doubt, the company is a juristic person but the company has
its own personality and it acts through its Board of Directors. Action of
Board of Directors is considered the action of the company. If Board of
Directors, in order to benefit the company, does something then such an
act is to be considered as the act of the company. If the argument that
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A a company can have no guilty mind is accepted, then the next logical
thing is that a company can have no mind at all. If the argument of the
counsel is accepted, the very existence of the companies will have to be
negated. Board of Directors of a company is considered its mind and
B acting arms. Where for the benefit of company Board of Directors
decides to create false documents, falsify the balance sheet; it is an act
of the company as well, as a legal person, apart from the act of individuals
involved in the act. For every act, whether civil or criminal thought and
action, both are necessary. If company can enter into contracts & perform
C other legal obligations; it can also be party to criminal acts. Several Laws
hold companies responsible for offences committed by it through its
Board of Directors. If the company can have a right to do things through
its Board of Directors, it can have necessary mens rea also through its
D Board of Directors.
4. In Assistant Commissioner Vs. Velliappa Textiles Ltd., 2003
(11) SCC 405, the Supreme Court held that it was permissible to prosecute
a company for offences that require mens rea or knowledge as an essential
E element for the reason that the acts and state of mind of the officer or
agent of a company, who functions as the directing mind and will of the
body corporate and controls its functions, shall, in law, be considered to
be the acts and state of mind of the company.
F
5. Where a company produced falsified accounts to the bank and
obtained benefit from the bank on the basis of falsified accounts and
induced the bank to part with huge amount of funds, I consider that a
company can be prosecuted for the offence committed by it and mens
G rea can be fastened on the company, if it is an essential element of the
crime, on the ground that mens rea was present in the officers of the
company who were acting as mind of the company.
6. The other argument raised by the petitioner was that since the
H sentence prescribed for the offence under Section 420, 468 and 471 IPC
included offence of imprisonment and company could not be incorporated,
therefore, company cannot be prosecuted. The Supreme Court in Velliappa
Textiles (Supra) had observed that since company cannot be sentenced
I to imprisonment, the court has to resort to punishment of imposition of
compensation/fine which is also a prescribed punishment. The observations
of Supreme Court are as under:
Morgan Tectronics Ltd. v. CBI (Shiv Narayan Dhingra, J.)
35
“If the custodial sentence is the only punishment prescribed for A
the offence, this plea is acceptable, but when the custodial
sentence and fine are the prescribed mode of punishment, the
court can impose the sentence of fine on a company which is
found guilty as the sentence of imprisonment is impossible to be B
carried out. It is an acceptable legal maxim that law does not
compel a man to do that which cannot possibly be performed
impotentia excusat legem.” (para 61)
A
“As the company cannot be sentenced to imprisonment, the C
court has to resort to punishment of imposition of fine which is
also a prescribed punishment. As per the scheme of various
enactments and also the Indian Penal Code, mandatory custodial
sentence is prescribed for graver offences. If the appellants' plea
D
is accepted, no company or corporate bodies could be prosecuted
for the graver offences whereas they could be prosecuted for
minor offences as the sentence prescribed therein is custodial
sentence or fine. We do not think that the intention of the
Legislature is to give complete immunity from prosecution to the E
corporate bodies for these grave offences.”(Para 62)
C
“… but when imprisonment and fine is the prescribed punishment
the court can impose the punishment of fine which could be
enforced against the company. Such discretion is to be read into F
the Section so far as the juristic person is concerned. Of course,
the court cannot exercise the same discretion as regards a natural
person. Then the court would not be passing the sentence in
accordance with law. As regards company, the court can always G
impose a sentence of fine and the sentence of imprisonment can
be ignored as it is impossible to be carried out in respect of a
company. This appears to be the intention of the legislature and
we find no difficulty in construing the statute in such a way. We H
do not think that there is a blanket immunity for any company
from any prosecution for serious offences merely because the
prosecution would ultimately entail a sentence of mandatory
imprisonment. The corporate bodies, such as a firm or company
undertake series of activities that affect the life, liberty and I
property of the citizens. Large scale financial irregularities are
done by various corporations. The corporate vehicle now occupies
Indian Law Reports (Delhi)
36
ILR (2011) I Delhi
such a large portion of the industrial, commercial and sociological
sectors that amenability of the corporation to a criminal law is
essential to have a peaceful society with stable economy.”
7. In view of my above discussion, I find that this petition is not
B maintainable and is hereby dismissed.
ILR (2011) I DELHI 36
CRL.MC.
D VIJAY VERMA
....PETITIONER
VERSUS
STATE (NCT) OF DELHI & ANR.
E
(SHIV NARAYAN DHINGRA, J.)
CRL. MC. NO. : 3878/2009
F
G
H
I
....RESPONDENTS.
DATE OF DECISION: 13.08.2010
Protection of Women from Domestic Violence Act,
2005 (DV Act)—Section 2 (f) & 12—Domestic
relationship—Application u/s 12 filed by petitioner
against her brother and his wife for allowing her to
stay in her parents house whenever she visited India
from the USA—Metropolitan Magistrate held there was
no ground to pass interim order of residence—Appeal
dismissed by ASJ—Held, Act cannot be misused to
settle property disputes—Where a family member
leaves the shared household, to establish his own
household and actually establishes his own household
he cannot claim to have a right to move an application
u/s 12 on the basis of domestic relationship—Domestic
relationship comes to an end once the son along with
his family moved out of joint family and establishes his
own household or when a daughter gets married and
Vijay Verma v. State (NCT) of Delhi & Anr. (Shiv Narayan Dhingra, J.)37
38
establishes her own household with her husband— A
Such son, daughter, daughter-in-law or son-in-law if
they have any right in the property because of
coparcenary or because of inheritance such right can
be claimed by an independent civil suit and an B
application under the DV act cannot be filed by a
person who has established his separate household
and ceased to have domestic relationship—Petitioner
had settled in USA, doing a job there, she was living
separately and ceased to be in a domestic relationship C
with her brother—No relief can be under the DV Act—
Petition dismissed.
A
A perusal of this provision makes it clear that domestic
relationship arises in respect of an aggrieved person if the
aggrieved person had lived together with the respondent in
a shared household. This living together can be either soon
before filing of petition or ‘at any point of time’. The problem
arises with the meaning of phrase “at any point of time”.
Does that mean that living together at any stage in the past
would give right to a person to become aggrieved person to
claim domestic relationship? I consider that “at any point of
time” under the Act only means where an aggrieved person
has been continuously living in the shared household as a
matter of right but for some reason the aggrieved person
has to leave the house temporarily and when she returns,
she is not allowed to enjoy her right to live in the property.
However, “at any point of time” cannot be defined as “at any
point of time in the past” whether the right to live survives
or not. For example if there is a joint family where father has
several sons with daughters-in-law living in a house and
ultimately sons, one by one or together, decide that they
should live separate with their own families and they establish
separate household and start living with their respective
families separately at different places; can it be said that
wife of each of the sons can claim a right to live in the house
of father-in-law because at one point of time she along with
her husband had lived in the shared household. If this
D
D
E
E
F
F
G
G
H
H
I
I
B
C
Indian Law Reports (Delhi)
ILR (2011) I Delhi
meaning is given to the shared household then the whole
purpose of Domestic Violence Act shall stand defeated.
Where a family member leaves the shared household to
establish his own household, and actually establishes his
own household, he cannot claim to have a right to move an
application under Section 12 of Protection of Women from
Domestic Violence Act on the basis of domestic relationship.
Domestic relationship comes to an end once the son along
with his family moved out of the joint family and established
his own household or when a daughter gets married and
establishes her own household with her husband. Such son,
daughter, daughter-in-law, son-in-law, if they have any right
in the property say because of coparcenary or because of
inheritance, such right can be claimed by an independent
civil suit and an application under Protection of Women from
Domestic Violence Act cannot be filed by a person who has
established his separate household and ceased to have a
domestic relationship. Domestic relationship continues so
long as the parties live under the same roof and enjoy living
together in a shared household. Only a compelled or
temporarily going out by aggrieved person shall fall in
phrase ‘at any point of time’, say, wife has gone to her
parents house or to a relative or some other female member
has gone to live with her some relative, and, all her articles
and belongings remain within the same household and she
has not left the household permanently, the domestic
relationship continues. However, where the living together
has been given up and a separate household is established
and belongings are removed, domestic relationship comes
to an end and a relationship of being relatives of each other
survives. This is very normal in families that a person
whether, a male or a female attains self sufficiency after
education or otherwise and takes a job lives in some other
city or country, enjoys life there, settles home there. He
cannot be said to have domestic relationship with the
persons whom he left behind. His relationship that of a
brother and sister, father and son, father and daughter,
father and daughter-in-law etc. survives but the domestic
Vijay Verma v. State (NCT) of Delhi & Anr. (Shiv Narayan Dhingra, J.)39
40
relationship of living in a joint household would not survive A
& comes to an end.
(Para 6)
Important Issue Involved: Where a family member leaves
the shared household, to establish his own household and
actually establishes his own household he cannot claim to
have a right to move an application u/s 12 on the basis of
domestic relationship.
[Ad Ch]
B
C
APPEARANCES:
FOR THE PETITIONER
:
Mr. K.K. Manan, Mr. Tarun
Goomber, Mr. Nipun Bhardwaj , Mr. D
Pankaj Mandiratta and Mr. Ashish
George, Advocate.
FOR THE RESPONDENTS
:
Mr. Sunil Sharma, APP for the State,
Mr. Sunil Sethi, Mr. Sumit Sethi & E
Mr. B.C. Mishra, Advocates for R2.
CASES REFERRED TO:
F
1.
“Indra Warman vs. Kishan Kumar Verma”, CS(OS) No.
2137 of 2006.
2.
Vijay Verma vs. Kishan Kumar Verma & Ors.” CS(OS)
No. 2028 of 2009.
G
RESULT: Petition dismissed.
SHIV NARAYAN DHINGRA, J.
1. This petition has been filed under Section 482 Cr. P.C. assailing H
order of learned A.S.J. dated 7th September, 2009, upholding the order
of learned M.M. dated 11th July, 2009.
2. Brief facts relevant for the purpose of deciding this petition are
that the petitioner herein had filed an application under Section 12 of
Protection of Women from Domestic Violence Act making her brother
and his wife as respondents. She sought an interim order from the Court
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A of M.M. for immediate residence rights and police protection so that she
could stay at premises No. A-181, Defence Colony, Delhi, whenever she
visited India. The petitioner is a permanent resident of USA and is living
in USA since year 2000. She came to India on a visit on 15th July, 2008
B and alleged that when she went to her parental house on 16th July, 2008,
she was not allowed to enter her parental house and hence the application.
3. Learned MM in her order observed that in this case the petition
was more in a nature of claiming right in the property. The whole dispute
C seemed to be property dispute between the parties and there was no
ground to pass an interim order of residence. The learned ASJ upheld
this contention in appeal.
4. It is not disputed that father of the petitioner is not alive. Property
D No. A-181, Defence Colony, New Delhi, was owned by the father of the
petitioner and respondent No. 2. Petitioner claimed right in the property
alleging that she had a right in her father’s property whereas respondent
No. 2 relied upon a Will executed by father bequeathing his rights and
E share in the property in favour of his grandson. The respondent also
relied upon an affidavit earlier executed by the petitioner showing that she
had received her share in the property. It is also not disputed that a suit
for partition titled as “Indra Warman Vs. Kishan Kumar Verma”,
being CS(OS) No. 2137 of 2006, filed by the sister of petitioner was
F pending in the High Court wherein the petitioner was one of the defendants
and the petitioner herself also filed a suit for partition in the High Court
being CS(OS) No. 2028 of 2009, titled as “ Vijay Verma Vs. Kishan
Kumar Verma & Ors.”
G
5. Filing of a petition under Protection of Women from Domestic
Violence Act by the petitioner taking shelter of domestic relationship and
domestic violence needs to be considered so that this Act is not misused
to settle property disputes. Domestic relationship is defined under the Act
H in Section 2(f) as under:
I
“(f) ‘domestic relationship’ means a relationship between two
persons who live or have, at any point of time, lived together in
a shared household, when they are related by consanguinity,
marriage, or through a relationship in the nature of marriage,
adoption or are family members living together as a joint family.”
Rs.5.00 lakhs
Vijay Verma v. State (NCT) of Delhi & Anr. (Shiv Narayan Dhingra, J.)41
6. A perusal of this provision makes it clear that domestic relationship
arises in respect of an aggrieved person if the aggrieved person had lived
together with the respondent in a shared household. This living together
can be either soon before filing of petition or ‘at any point of time’. The
problem arises with the meaning of phrase “at any point of time”. Does
that mean that living together at any stage in the past would give right
to a person to become aggrieved person to claim domestic relationship?
I consider that “at any point of time” under the Act only means where
an aggrieved person has been continuously living in the shared household
as a matter of right but for some reason the aggrieved person has to
leave the house temporarily and when she returns, she is not allowed to
enjoy her right to live in the property. However, “at any point of time”
cannot be defined as “at any point of time in the past” whether the right
to live survives or not. For example if there is a joint family where father
has several sons with daughters-in-law living in a house and ultimately
sons, one by one or together, decide that they should live separate with
their own families and they establish separate household and start living
with their respective families separately at different places; can it be said
that wife of each of the sons can claim a right to live in the house of
father-in-law because at one point of time she along with her husband
had lived in the shared household. If this meaning is given to the shared
household then the whole purpose of Domestic Violence Act shall stand
defeated. Where a family member leaves the shared household to establish
his own household, and actually establishes his own household, he cannot
claim to have a right to move an application under Section 12 of Protection
of Women from Domestic Violence Act on the basis of domestic
relationship. Domestic relationship comes to an end once the son along
with his family moved out of the joint family and established his own
household or when a daughter gets married and establishes her own
household with her husband. Such son, daughter, daughter-in-law, sonin-law, if they have any right in the property say because of coparcenary
or because of inheritance, such right can be claimed by an independent
civil suit and an application under Protection of Women from Domestic
Violence Act cannot be filed by a person who has established his separate
household and ceased to have a domestic relationship. Domestic relationship
continues so long as the parties live under the same roof and enjoy living
together in a shared household. Only a compelled or temporarily going
out by aggrieved person shall fall in phrase ‘at any point of time’, say,
42
A
B
C
D
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A wife has gone to her parents house or to a relative or some other female
member has gone to live with her some relative, and, all her articles and
belongings remain within the same household and she has not left the
household permanently, the domestic relationship continues. However,
B where the living together has been given up and a separate household is
established and belongings are removed, domestic relationship comes to
an end and a relationship of being relatives of each other survives. This
is very normal in families that a person whether, a male or a female
attains self sufficiency after education or otherwise and takes a job lives
C in some other city or country, enjoys life there, settles home there. He
cannot be said to have domestic relationship with the persons whom he
left behind. His relationship that of a brother and sister, father and son,
father and daughter, father and daughter-in-law etc survives but the
D domestic relationship of living in a joint household would not survive &
comes to an end.
E
E
F
F
G
G
H
H
I
I
7. This meaning of domestic relationship has sense when we come
to definition of domestic violence and the purpose of the Act. The
purpose of the Act is to give remedy to the aggrieved persons against
domestic violence. The domestic violence can take place only when one
is living in shared household with the respondents. The acts of abuses,
emotional or economic, physical or sexual, verbal or nonverbal if
committed when one is living in the same shared household constitute
domestic violence. However, such acts of violence can be committed
even otherwise also when one is living separate. When such acts of
violence take place when one is living separate, these may be punishable
under different provisions of IPC or other penal laws, but, they cannot
be covered under Domestic Violence Act. One has to make distinction
between violence committed on a person living separate in a separate
household and the violence committed on a person living in the shared
household. Only violence committed by a person while living in the
shared household can constitute domestic violence. A person may be
threatening another person 100 miles away on telephone or by messages
etc. This may amount to an offence under IPC, but, this cannot amount
to domestic violence. Similarly, emotional blackmail, economic abuse and
physical abuse can take place even when persons are living miles away.
Such abuses are not covered under Domestic Violence Act but they are
liable to be punished under Penal laws. Domestic Violence is a violence
Ex. L/NK Mahabir Prasad v. UOI and Ors. (Gita Mittal, J.)
43
44
which is committed when parties are in domestic relationship, sharing A
same household and sharing all the household goods with an opportunity
to commit violence.
8. I therefore consider that the application filed by the petitioner
under Section 12 of Domestic Violence Act was not at all maintainable. B
The petitioner had settled her separate house in America, her Passport
was issued in America, she is doing job in America, she was adult and
able to take care of herself, take her own decisions. She decided to live
in America after leaving her parents here. If she has any right in her C
father’s property, she has already filed a suit for partition. An application
under Section 12 of Domestic Violence Act was nothing but a gross
misuse of the Act and I consider that she was rightly denied the interim
relief of residence in the property left by her father.
D
The petition is hereby dismissed.
A
B
C
D
E
E
F
F
G
G
H
H
I
I
ILR (2011) I DELHI 43
WP
EX. L/NK MAHABIR PRASAD
....PETITIONER
VERSUS
UOI AND ORS.
....RESPONDENTS
(GITA MITTAL AND J.R. MIDHA, JJ.)
WP (C) NO. : 2556/2010
DATE OF DECISION: 26.08.2010
Central Civil Service (Pension) Rules—Rule 41—
Application of petitioner for grant of compassionate
allowance rejected on ground of his dismissal after
disciplinary enquiry as petitioner was delinquent of
disobedient nature and habitual of being absent—
Compassionate allowance admissible only in those
cases where delinquent had been honest and
Indian Law Reports (Delhi)
ILR (2011) I Delhi
dedicated during whole service period—Order
challenged in High Court—Held—Conduct of petitioner
for purposes of award of compassionate allowance
has to be evaluated by authority considering such
application taking totality of record into consideration
and cannot be premised on isolated instances or
specific instances of misconduct for which employee
may have been penalized—Commendations, rewards
and positive comments in ACR have not been taken
into consideration—Respondents erred in passing
impugned order and failed to exercise discretion
conferred upon them in accordance with law and
applicable rules—Petitioner entitled to award of
compassionate allowance in terms of applicable rules
and guidelines.
As against this, the same service record of the petitioner
shows that he was awarded a commendation in 1977 for his
hard work. In 1981 and 1982, the petitioner was awarded
cash rewards. Again in 1994 he was the recipient of a
commendation for the work done and the performance of
duties during a bye election. The petitioner was also awarded
the 25th Independence Anniversary medal. The record also
discloses that the petitioner was awarded the Sangram
medal. The annual confidential reports of the petitioner
show that his work has been continuously assessed as
good. In fact, there are several remarks endorsing his
honesty and hard work in the character and service roll of
the petitioner which has been placed before us. The conduct
of the petitioner for the purposes of award of compassionate
allowance has to be evaluated by the authority considering
such application taking a totality of the record into
consideration and cannot be premised on isolated instances
or specific instances of misconduct for which the employee
concerned may have been penalized.
(Para 9)
On an application of the principle laid down in the
aforenoticed judgments, it has to be held that the respondents
have erred in passing the order dated 11th March, 2010
Ex. L/NK Mahabir Prasad v. UOI and Ors. (Gita Mittal, J.)
45
and have failed to exercise discretion conferred upon them
in accordance with law and the applicable rules. The
respondents have failed to take into consideration the
relevant factors relating to the service of the petitioner. The
petitioner was dismissed from service as back as on 28th
October, 1995 after 23 years of service and a long period
of almost 15 years has passed since his dismissal. There is
no material denial to the submissions relating to the
petitioner’s penury and financial hardship on the part of the
respondents. The commendations, rewards and the positive
comments about his service in the petitioner’s ACRs have
not been taken into account. Nothing has been pointed out
which would disentitle the petitioner in the light of the
guidelines dated 22nd April, 1940.
(Para 22)
Important Issue Involved: The conduct of the petitioner
for the purposes of award of compassionate allowance has
to be evaluated by the authority considering such application
taking a totality of the record into considering and cannot
be premised on isolated instances or specific instances of
misconduct for which the employee concerned may have
been penalized.
A
B
C
Mr. A.K. Trivedi, Advocate.
FOR THE RESPONDENTS
:
Ms. Kailash Golani, Advocate.
(2004)IIILLJ191.
A
5.
Mithlesh Sharan Sharma vs. The State of Rajasthan &
Ors. 2004 (3) SLR 485.
6.
Thankappan Nair vs. State of Kerala 2001 (3) Ker 464
(W.A. No. 2966/2000) decided on 03.10.2001.
7.
Anna Deoram Londhe (deceased by L.Rs) vs. State of
Maharashtra : 1998 5 SLR 480.
B
C RESULT: Allowed.
1. Rule DB.
2. With the consent of both parties and having regard to the short
controversy involved in the present writ petition, the same is taken up for
consideration.
D
D
E
The petitioner assails an order dated 11th March, 2010 passed by
E the respondents rejecting his application praying for grant of compassionate
allowance to him.
3. The facts giving rise to the petition are not only in a narrow
campus but are admitted.
F
APPEARANCES:
:
ILR (2011) I Delhi
GITA MITTAL, J. (Oral)
[Ar Bh]
FOR THE PETITIONER
Indian Law Reports (Delhi)
46
G
CASES REFERRED TO:
1.
Shadi Ram (Ex.ASI) vs. Government of NCT of Delhi & H
Ors. 2008 V AD(Delhi) 3.
2.
Idan Puri vs. Union of India and Ors. RLW (2007) 1 Raj
471.
3.
Md. Abdul Samad vs. General Manager, South Central
Railways and Ors.: 2007(3)ALD722.
4.
R.S. Sharma vs. Union of India and Anr. :
I
F
4. The petitioner was recruited into the Central Reserve Police
Force on 19th January, 1971 in the post of Constable. The petitioner is
stated to have absented without leave on 4th August, 1994 which he
resumed on 23rd September, 1994 and again deserted the camp laws of
G
the CRPF on 26th September, 1994 without permission. The respondents
framed articles of charges against the petitioner and conducted a disciplinary
inquiry against him. These proceedings culminated in imposing of the
punishment of dismissal from service with effect from 28th October,
H 1995 upon the petitioner.
5. It is noteworthy that this order of dismissal was passed after the
petitioner had rendered 23 years of service.
I
6. The petitioner appears to have waited 15 years to pass before he
made a representation to the Directorate General of the CRPF on 27th
November, 2009 requesting for grant of compassionate allowance from
the date of his dismissal from service. The reason for the request and
Ex. L/NK Mahabir Prasad v. UOI and Ors. (Gita Mittal, J.)
47
the explanation for the delay in making the representation are both explained A
on grounds of poor economic conditions. This representation was
considered and rejected by the Director General vide the order dated 11th
March, 2010 on the ground that the petitioner had been dismissed after
holding a disciplinary enquiry against him in accordance with the applicable B
rules and that the conduct of the petitioner disclosed that he was a
“delinquent of disobedient nature and habitual of being absent”. The
Director General had construed rule 41 of the Central Civil Service
(Pension) Rules and arrived at a conclusion that compassionate allowance
was admissible only in those cases where the delinquent had been honest C
and dedicated during the whole service period which was not so, so far
as the petitioner was concerned.
Aggrieved by this rejection of his prayer for compassionate
D
allowance, the petitioner has filed the present writ petition.
7. The writ petition has been opposed by Ms. Kailash Golani, learned
counsel for the respondents again on the very ground on which the
impugned order is premised. It is contended that compassionate allowance E
is not to be awarded as a matter of right and can be granted only after
a careful consideration of the entire service record of the petitioner. In
this regard, learned counsel has drawn our attention to the provisions of
Rule 41 of the Central Civil Service (Pension) Rules as well as the
Government decisions and guidelines which govern exercise of discretion F
for award or grant of compassionate allowance.
8. We have considered the rival contentions. The respondents have
also made available to us the entire service record of the petitioner. The
G
record would disclose that the petitioner had served with the respondents
for the period from 19th January, 1971 till termination of his services on
28th October, 1995 by the intervention of the order of dismissal. So far
as his conduct during this period of 23 years is concerned, on account
of satisfactory rendition of service on 1st July, 1985, the petitioner was H
promoted as a Lance Naik. He was awarded a censure on some count
in 1986. There is also an entry of his having been suspended on 14th
November, 1989 for absent without permission for 16 days. The record
also discloses reversion of the petitioner to the post of Constable for a I
period from 16th April, 1990 to 15th April, 1991. However, the petitioner
was restored to the rank of Lance Naik with effect from 16th April,
48
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A 1991. There is no allegation against the petitioner till his absence without
leave in the year 1994 which has been noted hereinabove which culminated
in his being dismissed from service with effect from 28th October, 1995.
9. As against this, the same service record of the petitioner shows
B that he was awarded a commendation in 1977 for his hard work. In 1981
and 1982, the petitioner was awarded cash rewards. Again in 1994 he
was the recipient of a commendation for the work done and the
performance of duties during a bye election. The petitioner was also
C awarded the 25th Independence Anniversary medal. The record also
discloses that the petitioner was awarded the Sangram medal. The annual
confidential reports of the petitioner show that his work has been
continuously assessed as good. In fact, there are several remarks endorsing
his honesty and hard work in the character and service roll of the
D
petitioner which has been placed before us. The conduct of the petitioner
for the purposes of award of compassionate allowance has to be evaluated
by the authority considering such application taking a totality of the
record into consideration and cannot be premised on isolated instances
E or specific instances of misconduct for which the employee concerned
may have been penalized.
F
10. For the purposes of the present adjudication, we may usefully
extract the applicable rule 41 of the Central Civil Service (Pension) Rules
which has been relied upon by both counsels before us :“41. Compassionate Allowance
G
H
I
(1) A Government servant who is dismissed or removed from
service shall forfeit his pension and gratuity:
Provided that the authority competent to dismiss or remove
him from service may, if the case is deserving of special
consideration, sanction a Compassionate Allowance not exceeding
two-thirds of pension or gratuity or both which would have been
admissible to him if he had retired on compensation pension.
(2) A Compassionate Allowance sanctioned under the proviso to
sub-rule (1) shall not be less than the amount of (Rupees three
hundred and seventy-five) (Rupees three thousand five hundred
from 1-1-2006.)”
Ex. L/NK Mahabir Prasad v. UOI and Ors. (Gita Mittal, J.)
49
50
11. Mr. Trivedi, learned counsel for the petitioner has also placed A
reliance on the government of India decision which has been captioned
as Government Instruction Office Memo No. 3(2)-R-II/40 dated 22nd
April, 1940 below Rule 41 in Swamy’s Compilation of the CCS(Pension)
Rules and reads as follows :B
“(1) Guiding principles for the grant of Compassionate
Allowance –It is practically impossible in view of the wide
variations that naturally exist in the circumstances attending each
case, to lay down categorically precise principles that can
uniformly be applied to individual cases. Each case has, therefore,
to be considered on its merits and a conclusion has to be reached
on the question whether there were any such extenuating features
in the case as would make the punishment awarded, though it
may have been necessary in the interests of Government, unduly
hard on the individual. In considering this question, it has been
the practice to take into account not only the actual misconduct
or course of misconduct which occasioned the dismissal or
removal of the officer, but also the kind of service he has
rendered. Where the course of misconduct carries with it the
legitimate inference that the officer’s service has been dishonest,
there can seldom be any good case for a Compassionate
Allowance. Poverty is not an essential condition precedent to the
grant of a Compassionate Allowance, but special regard is also
occasionally paid to the fact that the officer has a wife and
children dependent upon him, though this factor by itself is not,
except perhaps in the most exceptional circumstances, sufficient
for the grant of a Compassionate Allowance.”
C
D
E
F
G
12. Learned counsel for the petitioner has also placed reliance on
judicial precedents reported at 1998 5 SLR 480 Anna Deoram Londhe
(deceased by L.Rs) vs. State of Maharashtra : 2004 (3) SLR 485 H
Mithlesh Sharan Sharma vs. The State of Rajasthan & Ors. and
2008 V AD(Delhi) 3 Shadi Ram (Ex.ASI) vs. Government of NCT of
Delhi & Ors. wherein the courts were concerned with record to the
manner in which discretion to grant compassionate allowance had arisen
I
for consideration.
13. We find that a Division Bench of the Bombay High Court in
Anna Deoram Londhe (deceased by L.Rs) vs. State of Maharashtra
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A (supra) was called upon to consider the case of a petitioner who had
been removed from service for misconduct on account of his conviction
under section 325 of the Indian Penal Code. It was observed that such
conduct was not connected with the discharge of his duties. The petitioner
B had put in more than 30 years of service and as such was found otherwise
eligible for superannuation or retiring pension. It was held that merely
because the petitioner was removed from service for such misconduct,
that alone would not furnish a ground to deny him the benefit of
compassionate pension. The court had set aside the order rejecting the
C application for compassionate pension of the employee and held that he
was entitled to the compassionate pension. Consequential orders directing
the respondents to pay the compassionate allowance to the legal heirs of
the deceased employee were made.
D
14. The decision of the Rajasthan High Court in 2004 (3) SLR 485
Mithlesh Sharan Sharma vs. The State of Rajasthan & Ors. (supra)
is similar. In this case, the employee served as a sepoy since 17th
November, 1949 till 17th April, 1979 when he was removed from service.
E As a result, this petitioner had served for approximately 30 years which
was more than qualifying service for pension. The court also noticed the
fact that he was 75 years old on the date of consideration of the writ
petition and might be burdened with numerous liabilities as being head of
F the family. It is noteworthy that the services of this petitioner had been
also terminated on grounds of unauthorized absence from duty. In this
background, the court had directed that it would be in the interest of
justice to allow compassionate allowance on a special consideration to
the petitioner.
G
15. At this stage, we may notice the authoritative pronouncement
of a Division Bench of this court which is reported at 2008 V AD(Delhi)
3 Shadi Ram (Ex.ASI) vs. Government of NCT of Delhi & Ors.
H (supra) which authoritatively lays down the applicable principles so far
as the manner in which discretion for granting compassionate allowance
in terms of rule 41 of the CCS(Pension) Rules and the Guidelines
thereunder, has to be exercised. The observations and the findings of the
court relevant for the present adjudication may usefully be extracted and
I read as follows :“13. In its judgment, particularly in paragraph 15 thereof, the
learned Tribunal has agreed with the respondents' contention to
Ex. L/NK Mahabir Prasad v. UOI and Ors. (Gita Mittal, J.)
51
the effect that the main ground emphasized by the Guidelines
against grant of Compassionate Allowance under Rule 41, is
dishonesty, and the main reason for the petitioner's dismissal
was also dishonesty, therefore, the petitioner's case cannot be
said to be one that deserves special consideration. To put it
differently, the Tribunal has concluded that the Guidelines
peremptorily disentitle officers whose dismissal happens to be
occasioned by misconduct involving dishonesty, to Compassionate
Allowance. To my mind, this is clearly misconceived. The relevant
portion of Rule 41 provides that the Competent Authority may,
"if the case is deserving of special consideration, sanction a
compassionate allowance..." (emphasis added). Nothing more is
specified under the Rule. It is thus evident that the sole criterion
is that the, "case", must be, "deserving of special consideration".
The word, "case" here has clearly been used to denote, the 'state
of affairs', or "the circumstances involved", [refer to the Concise
Oxford Dictionary of current English, 8th edition], while the
words, "deserving of" are defined as, "showing qualities worthy
of...help etc"; and, "consideration," is defined as, "a fact or
circumstance to be taken into account" (the Shorter Oxford
English Dictionary, 3rd Edition). Therefore, in the context, the
phrase, "if the case is deserving of special consideration", can
only mean that if the state of affairs or the circumstances involved
bring out qualities that are worthy of help or assistance, the
applicant should be granted Compassionate Allowance. For
arriving at this conclusion, the field is left wide open for the
Competent Authority. All that is required for the Competent
Authority to entertain the matter, and to apply its mind thereto,
is that the applicant must have been dismissed from service and
his pension and gratuity forfeited. In particular, there is nothing
whatsoever in Rule 41 to suggest that the application of any
officer who has been dismissed for misconduct involving
dishonesty, is to be rejected peremptorily.
14. In addition to Rule 41, on 22.4.1940, the Government of
India has issued the aforesaid Guidelines which have been
reproduced by me in paragraph 9 above. They are titled, "Guiding
Principles for the Grant of Compassionate Allowance". They
have obviously been issued with a view to ensuring uniformity
52
Indian Law Reports (Delhi)
ILR (2011) I Delhi
in application and decision-making under Rule 41. At their very
outset, the Guidelines make it clear that while each case has to
be considered on its own merits, the question which is to be
decided by the Competent Authority in every case is, whether
the case has any such extenuating features that would make the
punishment awarded unduly hard on the dismissed officer. They
also seek to facilitate the task of decision-making entrusted to
the Competent Authority under the said Rule by laying down
certain principles for their application. Every aspect that is referred
to in the Guidelines is aimed at determining the same question,
i.e., whether the punishment awarded has been unduly hard on
the dismissed officer. This approach is in consonance with the
mandate of the Rule 41 that has been analysed by me above,
which authorizes the Competent Authority to sanction
Compassionate Allowance if the case is deserving of special
consideration. It is in this context that the Guidelines have stated
the following:
A
A
B
B
C
C
D
D
E
E
“In considering this question, it has been the practice to
take into account not only the actual misconduct or course
of misconduct which occasioned the dismissal or removal
of the officer, but also the kind of service he has rendered.”
F
F
G
G
Immediately after this, and in the same context, that is, to
examine and to see whether the punishment awarded has been
unduly hard on the dismissed officer, a caution is added by the
Guidelines qua those cases where the officer's dismissal was
occasioned by a, "course of misconduct". This states as follows:
H
“Where the course of misconduct carries with it legitimate
inference that the officer's service has been dishonest,
there can seldom be any good case for a compassionate
allowance.”
H
I
I
Unfortunately, the Tribunal appears to have taken this caution
to mean that if the dismissal was the result of an incident that
had an element of dishonesty, the Competent Authority is obliged
to refuse the application peremptorily.
To my mind, the word, "service", has been used in both the
portions of the Guidelines extracted above, to denote, "a state or
Ex. L/NK Mahabir Prasad v. UOI and Ors. (Gita Mittal, J.)
53
period of employment to work for an individual or organization",
(refer the Concise Oxford Dictionary of current English, 8th
edition). At the same time, the phrase, "kind of service", denotes
that it is the nature of the service rendered by the officer during
his entire tenure that needs to be assessed, and is not confined
to the incident that led to his dismissal. It follows therefore that
the Guidelines enjoin the authority to look at the officer's entire
service record and then decide whether the punishment awarded
has been unduly hard on the officer, and this requirement for the
officer's service to be looked at from the point of view whether
the punishment awarded has been unduly hard on him, cannot be
peremptorily dispensed with on the ground that his dismissal was
based on an incident of misconduct which had an element of
dishonesty. Unfortunately, both the Competent Authority, as well
as the learned Tribunal, appear to have overlooked this aspect.
54
A
A
B
B
C
C
ILR (2011) I Delhi
making involved in disposing of an application for grant of
Compassionate Allowance. As the title suggests, it is an application
seeking a, "compassionate" allowance. It is a plea whereby the
authorities might be moved to show "compassion" for a former
employee in straitened circumstances. I need hardly add that
justice tempered with mercy always has a lasting effect.
Furthermore, even in decisions taken by an Administrative
Authority, there must be an element of uniformity and rationality.
The power to grant or refuse Compassionate Allowance cannot
be exercised on the mere whim of the officer who is designated
as the Competent Authority at the relevant time.”
(Outlining by us)
D
33. I also agree with the submission of the petitioner's counsel
that the punishment of dismissal from service is employed only
in the most grievous cases of misconduct by an officer, and the E
provision contemplating the grant of Compassionate Allowance
can be invoked only by someone who have been dismissed from
service. It is obvious that conduct that leads to an officer's
dismissal is bound to be of a kind that tends to tarnish the image F
of his employer. After all, that is also one of the reasons for his
dismissal. For the Competent Authority to thereafter say that he
doesn't deserve Compassionate Allowance because he lowered
his employer's image by the very act, or acts, that led to his
G
dismissal, is to render the provision otiose. Furthermore, in the
light of foregoing analysis of Rule 41 as well as the Guidelines,
the issue before the Competent Authority is only whether the
punishment imposed has been unduly hard on the officer. That
is the point of view from which the whole thing is to be examined. H
That the dismissed officer's conduct has tarnished the image of
the Force is irrelevant to the issue at hand. Such an approach on
the part of the Competent Authority shows a lack of understanding
of the object and purpose of the rule and the circumstances I
under which it is invoked.
34. I might add that, in my view, there is an element of decision-
Indian Law Reports (Delhi)
D
E
F
G
H
I
16. The Division Bench also considered the respondents’ objection
that the writ petition was grossly delayed in the following terms :“31. In addition to this, the learned Tribunal has also upheld the
impugned order of the third respondent on the ground that the
petitioner has applied for grant of Compassionate Allowance nearly
17 years after his dismissal, and that such a long lapse of time,
demonstrates that the petitioner has managed to survive all this
while without pension, and therefore he could not possibly require
this allowance henceforth. In other words, the fact of the petitioner
applying after nearly 17 years, has persuaded the Tribunal to
conclude that the penalty of dismissal, and the consequent
forfeiture of his pension and gratuity, was not unduly hard on
him. To my mind, this is a completely erroneous approach.
People manage to survive the most oppressive circumstances in
life. That does not mean that since their adverse circumstances
have not actually killed them, and they have managed to somehow
survive, therefore it must be presumed that the circumstances
through which they have passed have not been unduly harsh.
Similarly, simply because the petitioner managed to stay alive all
these years after his dismissal bereft of pension and gratuity,
doesn't automatically warrant the conclusion that the punishment
was not unusually harsh on him. It is entirely possible that the
applicant has struggled all these years to make ends meet and felt
ashamed to beg for a Compassionate Allowance, but his current
circumstances have reduced him to such a state that he had no
Ex. L/NK Mahabir Prasad v. UOI and Ors. (Gita Mittal, J.)
55
56
alternative but to throw himself at the mercy of his former A
employer's compassion. It is also conceivable that for some
years after his dismissal, the petitioner was not so badly off, and
that his condition has deteriorated only much later.
32. In Thankappan Nair v. State of Kerala 2001 (3) Ker 464
(W.A. No. 2966/2000) decided on 03.10.2001, the Division Bench
of High Court of Kerala thought fit to direct reconsideration of
a dismissed officer's request for Compassionate Allowance for
which he had applied 28 years after this dismissal. Similarly a
Division Bench of Bombay High Court in R.S. Sharma v. Union
of India and Anr. : (2004) IIILLJ 191 Bom directed
reconsideration of a dismissed officer's request for Compassionate
Allowance for which he had applied 11 years after his dismissal.
Only recently, in a case where the dismissed officer happened to
apply for Compassionate Allowance 30 years after his dismissal,
the Andhra Pradesh High Court has set aside the order rejecting
his application and directed reconsideration, see Md. Abdul Samad
v. General Manager, South Central Railways and Ors.:
2007(3)ALD722 . However, in the case of Idan Puri v. Union
of India and Ors. RLW (2007) 1 Raj 471, a Single Judge of the
Rajasthan High Court thought fit to reject a petition challenging
refusal to grant Compassionate Allowance to a dismissed officer
on the ground that his claim was hit by delay and laches because
he had applied for the same nearly 20 years after his dismissal.
Be that as it may, as I have already concluded, it was inappropriate
on the part of the learned Tribunal to have stepped into the shoes
of the Competent Authority to decide whether the applicant's
case is deserving of special consideration warranting the sanction
of Compassionate Allowance. By the same line of reasoning,
these questions are not for this Court to decide. Suffice to say
that it is open to the Competent Authority to apply itself to every
aspect and, while taking a decision on the matter, there is nothing
to prevent the Competent Authority from fixing not only the
quantum of allowance, but also the date from which it will be
payable.”
17. In view of the principles laid down in the judicial pronouncements
noted hereinabove especially the binding adjudication in Shadi Ram (Ex.
B
C
D
E
F
G
H
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A ASI) vs. Government of NCT of Delhi & Ors. (supra), it is apparent
that the respondents could not have premised the rejection of grant of
compassionate allowance to the petitioner herein solely on his absence
from duty in the year 1994 for which he stood dismissed from service.
B We may note that Shadi Ram (supra) had been dismissed from service
on allegations of having accepted illegal gratification, certainly a very
serious charge. The judicial precedents noted above are concerned with
the employees who have been involved in serious offences and yet were
found deserving compassionate allowance.
C
18. We may note that the order of dismissal from service imposed
by the respondents upon the petitioner was not assailed by him. There
is no allegation of the petitioner ever having been involved in any
misdemeanour or misconduct involving moral turpitude.
D
19. The petitioner states that he belongs to a poor family, is not
highly educated and is suffering from social backwardness as well. He
explains that he was therefore not in a position to avail any proper
E remedies. It is only during the visit of the Poorva Sainik Sewa Parishad,
Rajasthan (Regd.) in his village that the petitioner had sought legal advice
from them and was advised to approach the authorities for grant of
compassionate allowance.
F
As a result of this advice the petitioner approached an advocate
who advised him to make a representation to the authorities for grant of
the compassionate allowance.
It is averred that the petitioner and his wife have no land or property
G and are without any source of income to earn his day to day livelihood.
He is passing hard days doing hard labour and surviving at the mercy of
his relatives.
20. Learned counsel for the petitioner submits that on account of
H the intervention of the dismissal order, despite having been put in 23
years of pensionable service, the petitioner stands deprived of his monetary
and retirement benefits. Furthermore for want of the finances as well as
legal assistance, the petitioner was unable to take legal remedies to assail
I the order of dismissal and denial of the benefits of the fruit of his service.
21. We find that the petitioner had made the representation dated
27th November, 2009 to the Director General, CRPF. The office of the
Ex. L/NK Mahabir Prasad v. UOI and Ors. (Gita Mittal, J.)
57
Director General forwarded the petitioner’s representation under cover A
of a communication dated 4th January, 2010 to the Inspector General of
Police, Middle Sector, CRPF, Lucknow with the directions to examine
and investigate the case as per the rules and to intimate the position to
the petitioner and Director General, Headquarters, New Delhi by 4th B
February, 2010. It is pointed out by learned counsel for the petitioner that
instead of informing the Director General as directed, the Deputy Inspector
General of Police proceeded to examine the representation of the petitioner
and rejected the same by the impugned order dated 11th March, 2010.
C
22. On an application of the principle laid down in the aforenoticed
judgments, it has to be held that the respondents have erred in passing
the order dated 11th March, 2010 and have failed to exercise discretion
conferred upon them in accordance with law and the applicable rules.
D
The respondents have failed to take into consideration the relevant factors
relating to the service of the petitioner. The petitioner was dismissed
from service as back as on 28th October, 1995 after 23 years of service
and a long period of almost 15 years has passed since his dismissal.
There is no material denial to the submissions relating to the petitioner’s E
penury and financial hardship on the part of the respondents. The
commendations, rewards and the positive comments about his service in
the petitioner’s ACRs have not been taken into account. Nothing has
been pointed out which would disentitle the petitioner in the light of the F
guidelines dated 22nd April, 1940.
23. We find that not only the respondents have failed to exercise
the discretion but the consideration is not even by a person to whom the
representation has been made by the petitioner. None of the facts and G
circumstances brought out by the petitioner in his representation and
noted hereinabove nor the service record of the petitioner has been
considered by the authority who has passed the order dated 11th March,
2010.
H
(i) The respondents shall make the appropriate order in accordance
with rule 41 of the CCS(Pension) Rules of the amount and period for
I
ILR (2011) I Delhi
A which the compassionate allowance is admissible to him within a period
of eight weeks from today. The order which is passed shall be
communicated to the petitioner immediately on the same being made.
(ii) The respondents shall effect payment of all arrears of the
B compassionate allowance to the petitioner and the amount which may be
due to him within a period of four weeks thereafter.
This writ petition is allowed in the above terms.
C
Dasti to parties.
D
E
ILR (2011) I DELHI 58
CR. MC
SANJAY BHARDWAJ & ORS.
....APPELLANT
VERSUS
THE STATE & ANR.
F
G
H
I
....RESPONDENTS
(SHIV NARAYAN DHINGRA, J.)
CRL. MC NO. : 491/2009
In this background, in the peculiar facts and circumstances of the
case, we hold that the petitioner is entitled to award of compassionate
allowance in terms of the applicable rules and guidelines.
24. In view of the above, we direct the respondents as follows :-
Indian Law Reports (Delhi)
58
DATE OF DECISION: 27.08.2010
Protection of Women from Domestic Violence Act,
2005 (DV Act)—Section 12—Petitioner NRI was working
in Luanda, Angola Africa as Manager—Wife had done
MA and MBA and was working with a Multinational
company—Metropolitan
Magistrate
allowed
maintenance of Rs 5000/- per month to the wife against
petitioner—Appeal against order dismissed—Held,
maintenance awarded without considering that
petitioner had lost his job in Angola and was
unemployed in India—Maintenance can be fixed under
the DV act as per the prevalent law regarding providing
of maintenance by the husband to the wife as per
which husband is to supposed to maintain his un-
Sanjay Bhardwaj & Ors. v. The State & Anr. (Shiv Narayan Dhingra, J.) 59
earning spouse out of the income which he earns—No A
law provides that a husband has to maintain a wife
living separately from him irrespective of the fact
whether he earns or not—Court cannot tell husband
that he should beg borrow or steal but give B
maintenance to the wife; more so when the husband
and wife are almost equally qualified and almost equally
capable of earning and both claim to be gainfully
employed before marriage—Order fixing maintenance
with out even prima facie proof of the husband being C
employed in India and with clear proof of fact that his
passport was seized and he was not permitted to
leave the country is contrary to law—Petition allowed.
D
A perusal of Domestic Violence Act shows that Domestic
Violence Act does not create any additional right in favour
of wife regarding maintenance. It only enables the Magistrate
to pass a maintenance order as per the rights available
under existing laws. While, the Act specifies the duties and E
functions of protection officer, police officer, service providers,
magistrate, medical facility providers and duties of
Government, the Act is silent about the duties of husband or
the duties of wife. Thus, maintenance can be fixed by the F
Court under Domestic Violence Act only as per prevalent
law regarding providing of maintenance by husband to the
wife. Under prevalent laws i.e. Hindu Adoption & Maintenance
Act, Hindu Marriage Act, Section 125 Cr.P.C - a husband is G
supposed to maintain his un-earning spouse out of the
income which he earns. No law provides that a husband has
to maintain a wife, living separately from him, irrespective of
the fact whether he earns or not. Court cannot tell the
husband that he should beg, borrow or steal but give H
maintenance to the wife, more so when the husband and
wife are almost equally qualified and almost equally capable
of earning and both of them claimed to be gainfully employed
before marriage. If the husband was BSc. and Masters in I
Marketing Management from Pondicherry University, the
wife was MA (English) & MBA. If the husband was working as
Indian Law Reports (Delhi)
60
A
B
C
D
ILR (2011) I Delhi
a Manager abroad, the wife with MBA degree was also
working in an MNC in India. Under these circumstances,
fixing of maintenance by the Court without there being even
a prima facie proof of the husband being employed in India
and with clear proof of the fact that the passport of the
husband was seized, he was not permitted to leave country,
(the bail was given with a condition that he shall keep
visiting Investigating Officer as and when called) is contrary
to law and not warranted under provisions of Domestic
Violence Act.
(Para 4)
Important Issue Involved: Court cannot tell husband that
he should beg borrow or steal but give maintenance to the
wife when there was no prima facie proof that husband
was currently employed and they both were almost equally
qualified and equally capable of earning and both claimed to
be gainfully employed before marriage.
E
[Ad Ch]
APPEARANCES:
F
FOR THE APPELLANTS
:
Dr. Naipal Singh, Advocate.
FOR THE RESPONDENT
:
Mr. O.P. Saxena, APP for the State
with Mr. Gajraj Singh, SI Mr. K.C.
Jain, Advocate. for the Complainant/
wife.
G
RESULT: Petition is allowed.
SHIV NARAYAN DHINGRA, J.
H
I
1. The present petition under Section 482 Cr.P.C. assails an order
of interim maintenance under The Protection of Women from Domestic
Violence Act, 2005 (in short Domestic Violence Act) passed by the
learned MM on 16th January, 2008 and confirmed by the learned Additional
Sessions Judge in appeal by order dated 29th February, 2008.
2. The petitioner was a Non-Resident Indian, working in Luanda,
Angola in Africa as a Manager. He came to India taking leave from his
Sanjay Bhardwaj & Ors. v. The State & Anr. (Shiv Narayan Dhingra, J.) 61
62
A
A
B
B
C
C
D
D
3. It is not relevant for the purpose of this petition to go into the E
details of allegations and counter allegations made by each other. Suffice
it to say that the learned MM passed an order dated 16th January, 2008
directing husband to pay an interim maintenance of Rs. 5000/- pm to the
wife. He fixed this maintenance without considering the contentions raised F
by the husband (as is stated in the order) that the husband lost his job
in Angola (Africa) where he was working before marriage because his
passport was seized by police and he could not join his duties back. After
marriage he remained in India, he was not employed. In the appeal,
G
learned Additional Session Judge noted the contentions raised by the
husband that he had become jobless because of the circumstances as
stated by him and he had no source of income, he was not even able to
maintain himself and had incurred loan, but observed that since the
petitioner had earlier worked abroad as Sales Manager and in view of the H
provisions of Domestic Violence Act, he had the responsibility to maintain
the wife and monetary relief was necessarily to be provided to the
aggrieved person i.e. wife. He observed that the wife was not able to
maintain herself therefore husband, who earned handsomely in past while I
working abroad, was liable to pay Rs. 5000/- pm to the wife as fixed by
the learned MM.
E
job for marriage. Marriage between the petitioner and respondent no.2/
wife was settled through matrimonial advertisement. The respondent wife
was MA (English) and MBA. As per her bio-data sent before marriage,
she was doing job with a Multinational Company. The marriage between
the parties was solemnized on 14th May, 2007 at a Farmhouse in Vasant
Kunj and was got registered on 25th May, 2007. The parties lived together
for a limited period of 10 days i.e. from 15th May, 2007 to 19th May,
2007 and from 2nd June to 6th June, 2007. While the allegations of
husband are that marriage failed within 3 weeks since the wife was
suffering from a chronic disease about which no information was given
to him before marriage and a fraud was played. The allegations made by
wife were as usual of dowry demand and harassment. Since the marriage
did not succeed, the husband/petitioner filed a petition under Section 12
of Hindu Marriage Act for declaring the marriage as null and void and
the wife first filed an FIR against the husband under Section 498A/406
IPC and then filed an application under Section 12 of Domestic Violence
Act.
F
G
Indian Law Reports (Delhi)
ILR (2011) I Delhi
4. A perusal of Domestic Violence Act shows that Domestic Violence
Act does not create any additional right in favour of wife regarding
maintenance. It only enables the Magistrate to pass a maintenance order
as per the rights available under existing laws. While, the Act specifies
the duties and functions of protection officer, police officer, service
providers, magistrate, medical facility providers and duties of Government,
the Act is silent about the duties of husband or the duties of wife. Thus,
maintenance can be fixed by the Court under Domestic Violence Act only
as per prevalent law regarding providing of maintenance by husband to
the wife. Under prevalent laws i.e. Hindu Adoption & Maintenance Act,
Hindu Marriage Act, Section 125 Cr.P.C - a husband is supposed to
maintain his un-earning spouse out of the income which he earns. No
law provides that a husband has to maintain a wife, living separately from
him, irrespective of the fact whether he earns or not. Court cannot tell
the husband that he should beg, borrow or steal but give maintenance to
the wife, more so when the husband and wife are almost equally qualified
and almost equally capable of earning and both of them claimed to be
gainfully employed before marriage. If the husband was BSc. and Masters
in Marketing Management from Pondicherry University, the wife was
MA (English) & MBA. If the husband was working as a Manager abroad,
the wife with MBA degree was also working in an MNC in India. Under
these circumstances, fixing of maintenance by the Court without there
being even a prima facie proof of the husband being employed in India
and with clear proof of the fact that the passport of the husband was
seized, he was not permitted to leave country, (the bail was given with
a condition that he shall keep visiting Investigating Officer as and when
called) is contrary to law and not warranted under provisions of Domestic
Violence Act.
5. We are living in an era of equality of sexes. The Constitution
provides equal treatment to be given irrespective of sex, caste and creed.
H An unemployed husband, who is holding an MBA degree, cannot be
treated differently to an unemployed wife, who is also holding an MBA
degree. Since both are on equal footing one cannot be asked to maintain
other unless one is employed and other is not employed. As far as
I dependency on parents is concerned, I consider that once a person is
grown up, educated he cannot be asked to beg and borrow from the
parents and maintain wife. The parents had done their duty of educating
them and now they cannot be burdened to maintain husband and wife as
UOI v. Anil Puri (Pradeep Nandrajog, J.)
63
64
A
A
6. It must be remembered that there is no legal presumption that
behind every failed marriage there is either dowry demand or domestic
violence. Marriages do fail for various other reasons. The difficulty is
B
that real causes of failure of marriage are rarely admitted in Courts. Truth
and honesty is becoming a rare commodity, in marriages and in averments
made before the Courts.
B
both are grown up and must take care of themselves.
7. I therefore find that the order dated 16th January, 2008 passed C
by the learned MM and order dated 29th February, 2008 passed by the
learned Additional Sessions Judge fixing maintenance without there being
any prima facie proof of the husband being employed are not tenable
under Domestic Violence Act. The petition is allowed. The orders passed
D
by Metropolitan Magistrate and learned Additional Sessions Judge are
hereby set aside.
C
E
E
D
ILR (2011) I DELHI 63
WP
UOI
F
F
G
G
H
H
I
I
....PETITIONER
VERSUS
ANIL PURI
....RESPONDENT
(PRADEEP NANDRAJOG AND MOOL CHAND GARG, JJ.)
WP (C) NO. : 9493/2009
DATE OF DECISION: 30.08.2010
CCS Pension Rules, 1972—Rule 9—CCS (CCA) Rules,
1965—Rule 14—Charge Sheet issued to respondent
set aside by Administrative Tribunal on grounds of
delay, being mere formality as decision was already
taken to punish the respondent and as respondent
had already retired, penalty under Rule 9 could not be
Indian Law Reports (Delhi)
ILR (2011) I Delhi
inflicted—Order challenged in High Court—Held—
Starting point while considering delay is not date or
period when misdemeanour took place but when
department gains knowledge of relevant facts
constituting misdemeanour—40% time consumed by
respondent and noting steps taken by department in
pursuing matter, no delay in issuing charge sheet—
Advice of UPSC that considering nature and
seriousness of charge it was case of major penalty is
prima facie view and not final view which must await
evidence being brought on record and findings
returned by IO—Under Rule 9, order which can be
passed is to recover pecuniary loss caused to
government or impose a cut in pension payable of
gratuity or both in full or part upon proof of guilt but
pertaining to grave misconduct or negligence—With
rampant abuse and disabuse of financial power, it
cannot be said if proved, such kind of misadventures
are not grave misconduct—Order of Tribunal quashed.
Thus it could be said that the word misconduct though not
capable of precise definition, on reflection, receives its
connotation from the context, the delinquency in its
performance and its effect on the discipline and nature of
the duty. It may involve moral turpitude, it must be improper
or wrong behaviour; unlawful behaviour, willful in character,
forbidden act, a transgression of established and definite
rule of action or code of conduct but not mere of judgment,
carelessness or negligence in performance of the duty; the
act complained of bears forbidden quality or character. Its
ambit has to be construed with reference to the subject
matter and the context wherein the term occurs, regard
being had to the scope of the statute and the public
purpose it seeks to serve. The police service is a disciplined
service and it requires to maintain strict discipline. Laxity in
this behalf erodes discipline in the service causing serious
effect in the maintenance of law and order.
(Para 29)
UOI v. Anil Puri (Pradeep Nandrajog, J.)
65
Important Issue Involved: (A) The starting point while
considering the delay in issuing charge sheet is not the date
or the period when the misdemeanour alleged took place.
The starting point is when the department gains knowledge
of the relevant facts constituting misdemeanour.
Indian Law Reports (Delhi)
66
A
B
A
B
ILR (2011) I Delhi
7.
State of Punjab vs. Chaman Lal Goyal 1995 (2) SCC
570.
8.
State Bank of Punjab & Ors. vs. Ram Singh Ex. Constable,
1992 (4) SCC 54.
9.
State of MP vs. Banni Singh AIR 1990 SC 1308.
RESULT: Allowed.
(B) Advice of UPSC after considering the charge about
nature of penality to be levied is with reference to the prima
facie view which one takes with reference to the allegations
in the charge sheet and cannot ever be the final view which
must await the evidence being brought on record and the
findings returned by an Inquiry Officer.
PRADEEP NANDRAJOG, J.
C
D
(C) With rampant abuse and disabuse of financial power
which is spreading like cancer in public life, it cannot be
said that if proved, such kind of misadventures are not
grave misconduct.
E
[Ar Bh]
APPEARANCES:
F
FOR THE PETITIONER
:
Mr. H.K. Gangwani, Advocate.
FOR THE RESPONDENT
:
Mr. D.S. Mehandru, Advocate. Ms.
Surbhi Popli, Advocate.
G
CASES REFERRED TO:
1.
Union of India vs. Dr. V.T. Prabhakaran, W.P.(C)
No.2292/2010.
2.
DDA vs. D.P. Bambah & Anr. LPA No.39/1999.
3.
State of AP vs. N. Radhakishan 1998 (4) SCC 154.
4.
Government vs. K. Munniappan 1997 (4) SCC 255.
5.
Deputy Registrar Cooperative Societies Faizabad vs.
Sachindra Nath Pandey & Ors 1995 (3) SCC 134.
6.
B.C. Chaturvedi vs. UOI 1995 (6) SCC 749.
H
I
C
1. Vide impugned judgment and order dated 19.9.2008 the Central
Administrative Tribunal has allowed OA No.1915/2007 filed by the
respondent and has quashed the charge sheet issued against the respondent
on the ground that there has been delay in initiating the disciplinary
D proceedings, secondly that it is a case where a decision has already been
taken to punish the respondent and the proposed disciplinary proceedings
are a mere ruse and lastly that the misdemeanour alleged against the
respondent did not attract moral turpitude and since the respondent had
E retired from service penalty as contemplated by Rule 9 of the CCS
Pension Rules 1972 could not be inflicted.
2. It may be noted at the outset that the Inquiry Officer was yet
to complete the inquiry when the proceedings got interdicted as a result
F of the respondent petitioning the Central Administrative Tribunal.
3. Employed as a Superintending Engineer (Electrical) certain lapses
pertaining to the working of the respondent and one Sh.O.P.Nayer,
Executive Engineer came to the notice of the superior authorities in the
G year 1998. The alleged lapses pertained to certain decisions taken by the
respondent on 5.5.1993. Accordingly, the matter was scrutinized at the
departmental level resulting in a memo dated 4.9.1998 being served upon
the respondent seeking his explanation regarding approval granted by him
H on 5.5.1993 for procurement of Mirror Optics Fluorescent Fittings alleging
that existing fittings in working condition were unnecessarily replaced by
purchasing expensive fittings and that too without examining the technical/
financial stability. It was further alleged against the respondent that on
8.6.1993, 7.7.1993 and 25.8.1993 he accorded five approvals to five
I
estimated works totaling Rs.9,52,516/- in contravention of Section 1.8 of
CPWD Manual Vol. II. The respondent was called upon to furnish
explanation within 10 days.
UOI v. Anil Puri (Pradeep Nandrajog, J.)
67
68
Indian Law Reports (Delhi)
ILR (2011) I Delhi
4. The respondent did not furnish any explanation within the stipulated A
period of 10 days. Reminders were sent to him on 16.10.1998, 4.12.1998,
15.1.1999, 1.2.1999, 1.3.1999, 8.4.1999, 1.6.1999, 24.6.1999, 13.7.1999
and 9.12.1999.
A of the charges warranted an inquiry for major penalty proceedings. On
24.1.2006 a charge sheet was issued under Rule 14 of the CCS (CCA)
Rules 1965 alleging the following article of charge:-
5. It was only on 18.7.2000 that the respondent furnished a reply B
in which he gave what according to him was his justification for what
he did.
B
6. Suffice would it be to note that the petitioner consumed one
year, ten months and fourteen days to furnish a reply to the memorandum C
dated 4.9.1998.
7. The reply furnished by the respondent was analyzed and the file
was sent to the Ministry of Urban Development on 25.1.2001 for first
D
stage advice from the Central Vigilance Commission and after processing
the file the Commission recommended initiation of minor penalty
proceedings against the respondent which led to a charge sheet dated
6.2.2002 being issued to the respondent requiring his response to be
E
submitted within 10 days.
8. The charge sheet was served upon the respondent on 28.2.2002
and vide letter dated 30.5.2002 he sought inspection of certain documents
stating that the same was necessary for his defence. The respondent was
F
intimated that he could inspect the documents on 28.6.2002. He did not
do so. Reminder was sent to him on 20.9.2002 to inspect the documents,
inspection whereof was sought by him. A further reminder was sent to
him on 1.10.2002 to do the needful. Another reminder was sent on
6.1.2003. Another reminder was sent on 4.11.2003. Vide letter dated G
25.11.2003 the respondent requested for two months, time to file a
response to the charge sheet. The time was extended at the request of
the respondent and he finally submitted the response on 28.5.2004.
9. Relevant would it be to note that in this manner the respondent H
delayed the matter by one year and eleven months.
10. Along with the charge sheet and the reply filed by the respondent,
containing the comments of the department on the reply filed by the
respondent the file was sent to the Nodal Ministry on 10.8.2004 which
referred the same to the Union Public Services Commission for a second
stage advice and this resulted in the commission advising that the gravity
I
C
D
E
F
G
H
I
“The said Shri Anil Puri, Superintending Engineer (E) accorded
approval on the note dated 1.5.93 of Executive Engineer (E),
ECD-III for procurement of expensive (i) 2032 nos. of 2 x 40w
and Iii) 672 nos. of 1 x 40w fluorescent mirror optic fittings
costing approximately Rs.23,36,864/- out of which 1510 nos.
mirror optics fittings worth Rs.13,44,540/- were procured ad
installed in the CGO Complex by the Executive Engineer (Elect.)/
ECD-III.
3 Nos. Supply Order as per detail given in Appendix-I were
placed by Executive Engineer (E), ECD-III for 1550 Nos. mirror
optic fittings costing Rs.13,84,540/- out of which sanction for
40 Nos. fittings (12 Nos. surface and 28 Nos. recessed type 4
x 20 w fitting costing Rs.40,000/-) was only available. Thus
unwarranted & unauthorized large scale purchases of 1510 nos.
mirror optics fittings (excluding 12 nos. surface and 28 nos.
recessed type 4 x 20 w fittings) during 1993-94 were made
without any requisition and without obtaining Administrative
Approval and Expenditure Sanction from the competent authority,
through THREE supply orders, as per details given in Appendix
I.
The said Shri Anil Puri, Superintending Engineer (Electrical) allowed
mass scale replacement of existing 1510 Nos. of box type
fluorescent electrical fittings in CGO complex which were installed
during 1982-83 as indicated in the five detailed estimates for
special repairs amounting to Rs.9,52,516/-, by way of approving
the estimates prepared by Executive Engineer (E), ECD-III, as
per details given in Appendix II. Such mass scale replacement of
fittings, which were in working order and were within 10 years
of their installed life was uncalled for without preparing any
detailed justification for such a replacement. More importantly,
Shri Anil Puri allowed such a mass replacement of fittings without
making any cost analysis to see whether the cost involved is
justified by the better illumination provided and without considering
whether the design based on which the light fittings were originally
UOI v. Anil Puri (Pradeep Nandrajog, J.)
69
provided was adequate or not.
70
A
The said Shri Anil Puri allowed the procurement of mirror optics
fittings costing Rs.13,44,540/- besides the labour cost involved
in replacing the fittings being charged to “Special Repairs” to EI
& Fans at CGO Complex, New Delhi. The mass scale replacement B
of existing/working box type fittings with twice expensive mirror
optics fittings, by charging the expenditure to “Special Repairs”
to EI & fans at CGO Complex, New Delhi, is not in order. Since
the replacement of existing box type fittings in bulk, resulted in C
increase in the capital cost of the buildings, the expenditure
should have been charged to “Original Works”. Even if the
replacement was warranted, Shri Anil Puri should have followed
proper procedure and not formal Administrative Approval and
D
Expenditure Sanction from the competent authority. Thus Shri
Anil Puri contravened the provisions of Para 1.8 & para 2.2. of
CPWD Manual Vol.II (1988 Edition).
By his above acts, Shri Anil Puri, Superintending Engineer (Elect.) E
exhibited lack of devotion to duty thereby contravening Rule 3
(1) (ii) of CCS (Conduct) Rules, 1964.”
11. Inquiry Officer was appointed who fixed 22.9.2006 as the date
for preliminary hearing which was not attended to by the respondent in F
spite of prior intimation. The Inquiry Officer directed the respondent to
submit list of defence documents latest by 31.2.2006, which was not
done. Only on 24.11.2006 the respondent furnished the list of defence
documents. Thereafter, the respondent got the matter repeatedly postponed
G
on ground of poor health and finally he filed a petition before the Central
Administrative Tribunal praying that the disciplinary proceedings be
quashed.
12. It be noted that in the meanwhile the respondent superannuated H
on 31.1.2006.
I
ILR (2011) I Delhi
15. At the outset it may be recorded by us that the starting point
while considering delay is not the date or the period when the
misdemeanour alleged took place. The starting point, as observed by the
Supreme Court in the decision reported as AIR 1990 SC 1308 State of
B MP Vs. Banni Singh (para 4) is when the department gains knowledge
of the relevant facts constituting misdemeanour.
A
16. In the instant case this date is somewhere in the year 1996. The
charge sheet, as noted above was finally issued on 24.1.2006. Nearly ten
C years were consumed.
D
E
F
G
H
13. This is the factual backdrop relevant to be noted to decide the
issues involved in the instant writ petition.
14. Let us deal with the issue of delay as a ground held as a good
ground by the Tribunal to quash the charge sheet.
Indian Law Reports (Delhi)
I
17. We have already noted hereinabove that for two different periods,
firstly when he was called upon to submit a reply to the memo dated
4.9.1998 the respondent delayed the matter by one year and ten months
and secondly when the earlier charge sheet was served for a minor
penalty proceedings the respondent consumed one year and eleven months.
Thus, out of nearly ten years, time the respondent consumed nearly four
years. The remaining nearly six years were consumed by the department
and in respect thereof, what route was chartered by the file has been
noted by us. As observed by the Supreme Court in the decision reported
as 1995 (2) SCC 570 State of Punjab Vs. Chaman Lal Goyal the
department has to be fair to its employee and must investigate the
correctness or otherwise of the allegation against its employee before
resorting to a departmental action and should not rush to the same. As
observed in the decision reported as 1995 (6) SCC 749 B.C.Chaturvedi
Vs. UOI the department must collect the necessary material in this
regard and thus sufficient ply has to be given to the department in the
time consumed to verify the correctness of the allegations against an
employee and requisite time taken to collect the relevant material. In the
decision reported as 1998 (4) SCC 154 State of AP Vs. N.Radhakishan
it was observed that the delay caused by the employee has to be duly
considered. It was observed that if the delay is unexplained or prejudice
to the employee is writ large on the face of it, these alone would justify
the disciplinary proceedings to be terminated. In the decision reported
1995 (3) SCC 134 Deputy Registrar Cooperative Societies Faizabad
Vs. Sachindra Nath Pandey & Ors. as also the decision reported as
1997 (4) SCC 255 Secretary to Government Vs. K. Munniappan it
was observed that where charges were serious, notwithstanding delay,
the inquiry must be permitted to be taken to its logical conclusion.
UOI v. Anil Puri (Pradeep Nandrajog, J.)
71
72
18. In the decision dated 29.10.2003 deciding LPA No.39/1999 A
DDA Vs. D.P.Bambah & Anr. a Division Bench of this Court after
taking note of the aforesaid decisions, summarized the legal position as
under:-
A
“15. In our opinion the legal position, when an action is brought B
seeking quashing of a charge-sheet on grounds of issuance of
the charge-sheet or grounds of inordinate delay in completion of
the disciplinary inquiry may be crystalised as under:(i) Unless the statutory rules prescribe a period of limitation for C
B
initiating disciplinary proceedings, there is not period of limitation
for initiating the disciplinary proceedings;
(ii) Since delay in initiating disciplinary proceedings or concluding
D
the same are likely to cause prejudice to the charged employee,
courts would be entitled to intervene and grant appropriate relief
where an action is brought;
(iii) If bone fide and reasonable explanation for delay is brought E
on record by the disciplinary authority, in the absence of any
special equity, the court would not intervene in the matter;
(iv) While considering these factors the court has to consider
that speedy trial is a part of the facet of a fair procedure to F
which every delinquent is entitled to vis-a-vis the handicaps which
the department may be suffering in the initiation of the proceedings.
Balancing all the factors, it has to be considered whether prejudice
to the defence on account of delay is made out and the delay is
G
fatal, in the sense, that the delinquent is unable to effectively
defend himself on account of delay.
(v) In considering the factual matrix, the court would ordinarily
lean against preventing trial of the delinquent who is facing grave H
charges on the mere ground of delay. Quashing would not be
ordered solely because of lapse of time between the date of
commission of the offence and the date of service of the chargesheet unless, of course, the right of defence is found to be
I
denied as a consequences of delay.
(vi) It is for the delinquent officer to show the prejudice caused
Indian Law Reports (Delhi)
ILR (2011) I Delhi
or deprivation of fair trial because of the delay.
(vii) The sword of damocles cannot be allowed to be kept hanging
over the head of an employee and every employee is entitled to
claim that the disciplinary inquiry should be completed against
him within a reasonable time. Speedy trial is undoubtedly a part
of reasonableness in every disciplinary inquiry.”
19. 40% time has been consumed by the respondent and discounting
the same the period attributable to the department is about six years and
C noting the steps taken by the department in pursuing the matter, we are
afraid, we cannot accord our imprimatur to the impugned decision with
respect to its reasoning predicated on the issue of delay.
D
20. As regards the finding in para 10 that the advice from UPSC
has to be treated as the final decision of the President to hold the
respondent guilty and thus the departmental proceedings are a mere
formality requiring the same to be quashed, we wonder as to wherefrom
can the said conclusion be drawn.
E
21. As noted hereinabove the matter was sent to UPSC for second
stage advice pertaining to the response of the respondent to the charge
sheet dated 16.2.2002 when proceeding for minor penalty were initiated.
UPSC opined that considering the gravity and the seriousness of the
F
charge it was not a case to levy a minor penalty but was a case attracting
major penalty. This advice is obviously with reference to the prima facie
view which one takes with reference to the allegations in the charge
sheet and cannot ever be the final view which must await the evidence
G being brought on record and the findings returned by an Inquiry Officer.
22. Thus, the impugned order, with reference to the second line of
reasoning adopted by the Tribunal, is liable to be set aside.
H
I
23. It then remains to be answered whether the charge is ex facie
not grave misconduct and hence the proceedings have to be dropped for
the reason the respondent superannuated with effect from 31.1.2006 and
the only penalty which can be levied upon him is a cut in pension and
that too not merely for being found guilty of a misconduct, but found
guilty of a serious misconduct.
24. Rule 9 of the CCS (Pension) Rules 1972 (here- in-after referred
Ahmad, J.)
UOI v. Anil Puri (Pradeep Nandrajog, J.)
73
to as the Rules) reads as under:-
A
A
"9. Right of President to withhold or withdraw pension
(1) The President reserves to himself the right of withholding a
pension or gratuity, or both, either in full or in part, or withdrawing B
a pension in full or in part, whether permanently or for a specified
period, and of ordering recovery from a pension or gratuity of
the whole period, and of ordering recovery from a pension or a
gratuity of the whole or part of any pecuniary loss caused to the
Government, if, in any departmental or judicial proceedings, the C
pensioner is found guilty of grave misconduct or negligence
during the period of service, including service rendered upon reemployment after retirement: Provided that the Union Public
Service Commission shall be consulted before any final orders D
are passed:
Provided further that where a part of pension is withheld or
withdrawn, the amount of such pensions shall not be reduced
below the amount of rupees three hundred and seventy-five per E
mensem.
2(a) The departmental proceedings referred to in sub- rule (1),
if instituted while the Government servant was in service whether
F
before his retirement or during his re-employment, shall, after
the final retirement of the Government servant, be deemed to be
proceedings under this rule and shall be continued and concluded
by the authority by which they are commenced in the same
manner as if the Government servant had continued in service: G
B
H
C
D
(ii) shall not in respect of any event which took place more than
four years before such institution, and
(iii) shall be conducted by such authority and in such place as
the President may direct and in accordance with the procedure
applicable to departmental proceedings in which an order of
dismissal from service could be made in relation to the Government
servant during his service.
(4) In the case of Government servant who has retired on attaining
the age of superannuation or otherwise and against whom any
departmental or judicial proceedings are instituted or where
departmental proceedings are continued under sub- rule (2), a
provisional pension as provided in Rule 69 shall be sanctioned.
(5) Where the President decided not to withhold or withdraw
pension but orders recovery of pecuniary loss from pension, the
recovery shall not ordinarily be made at a rate exceeding onethird of the pension admissible on the date of retirement of a
Government servant.
E
(6) For the purpose of this rule, -
F
(a) departmental proceedings shall be deemed to be instituted on
the date on which the statement of charges is issued to the
Government servant or pensioner, or if the Government servant
has been placed under suspension from an earlier date, on such
date; and
(b) judicial proceedings shall be deemed to be instituted
G
H
(b) The departmental proceedings, if not instituted while the
Government servant was in service, whether before his retirement,
or during his re-employment, I
ILR (2011) I Delhi
(3) Deleted.
Provided that where the departmental proceedings are instituted
by an authority subordinate to the President, that authority shall
submit a report recording its findings to the President.
(i) shall not be instituted save with the sanction of the President,
Indian Law Reports (Delhi)
74
I
(i) in the case of criminal proceedings, on the date on which the
complaint or report of a police officer, of which the Magistrate
takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is
presented in the Court."
25. A bare reading of the Rule shows that the order which can be
passed under the Rule is to recover the pecuniary loss caused to the
government or impose a cut in the pension payable or gratuity or both,
in full or in part, upon proof of guilt but pertaining to a grave misconduct
or negligence.
UOI v. Anil Puri (Pradeep Nandrajog, J.)
75
26. Misconduct, has been defined in Black’s Law Dictionary, Sixth A
Edition at page 999, thus:
…..“A transgression of some established and definite rule of
action, a forbidden act, a dereliction from duty, unlawful behaviour,
willful in character, improper or wrong behaviour, its synonyms B
are misdemeanour, misdeed, misbehaviour, delinquency,
impropriety, mismanagement, offence, but not negligence or
carelessness.
Misconduct in office has been defined as: “Any unlawful behaviour C
by a public officer in relation to the duties of his office, willful
in character. Term embraces acts which the office holder had no
right to perform, acts performed improperly, and failure to act
in the face of an affirmative duty to act.” In P.Ramanatha Aiyar's D
Law Lexicon, 3rd Edition, at page 3027, the term ‘misconduct’
has been defined as under:The term “misconduct” implies, a wrongful intention, and not
involving error of judgment. Misconduct is not necessarily the E
same thing as conduct involving moral turpitude. The word
“misconduct” is a relative term, and has to be construed with
reference to the subject matter and the context wherein the term
occurs, having regard to the scope of the Act or statute which F
is being construed. “Misconduct” literally means wrong conduct
or improper conduct.”
27. The word misconduct is a relative term, and has to be construed
with reference to the subject matter and the context wherein the term G
occurs, having regard to the scope of the Act or statute which is being
construed. Misconduct literally means wrong conduct or improper conduct.
28. In the decision reported as 1992 (4) SCC 54 State Bank of
Punjab & Ors. Vs. Ram Singh Ex. Constable, discussing misconduct H
the Supreme Court spoke thus: in usual parlance, misconduct means
transgression of some established and defined rule of action, where no
discretion is left, except that necessity may demand and carelessness,
negligence and unskilfulness are transgressions of some established, but I
indefinite, rule of action, where, some direction is necessarily left to the
actor. Misconduct is a violation of definite law; carelessness or abuse of
76
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A discretion under an indefinite law. Misconduct is a forbidden act;
carelessness, a forbidden quality of an act, and is necessarily indefinite.
Misconduct in office may be defined as unlawful behaviour or neglect by
a public officer, by which the rights of a party have been affected.
B
29. Thus it could be said that the word misconduct though not
capable of precise definition, on reflection, receives its connotation from
the context, the delinquency in its performance and its effect on the
discipline and nature of the duty. It may involve moral turpitude, it must
C be improper or wrong behaviour; unlawful behaviour, willful in character,
forbidden act, a transgression of established and definite rule of action
or code of conduct but not mere of judgment, carelessness or negligence
in performance of the duty; the act complained of bears forbidden quality
or character. Its ambit has to be construed with reference to the subject
D
matter and the context wherein the term occurs, regard being had to the
scope of the statute and the public purpose it seeks to serve. The police
service is a disciplined service and it requires to maintain strict discipline.
Laxity in this behalf erodes discipline in the service causing serious effect
E in the maintenance of law and order.
F
G
H
I
30. Deciding W.P.(C) No.2292/2010 Union of India vs
Dr.V.T.Prabhakaran, on 26.7.2010 we had discussed whether lack of
moral turpitude is an essential ingredient of a grave misconduct and had
opined in the negative. Discussing various judgments, in para 33 and 34
of the said decision, we had observed as under:“33. Acts of moral turpitude, acts of dishonesty, bribery and
corruption would obviously be an aggravated form of misconduct
because of not only the morally depraving nature of the act but
even the reason that they would be attracting the penal laws.
There would be no problem in understanding the gravity of such
kind of offences. But that would not mean that only such kind
of indictments would be a grave misconduct. A ready example
to which everybody would agree with as a case of grave
misconduct, but within the realm of failure to maintain devotion
to duty, would be where a fireman sleeps in the fire office and
does not respond to an emergency call of fire in a building which
ultimately results in the death of 10 persons. There is no
dishonesty. There is no acceptance of bribe. There is no
UOI v. Anil Puri (Pradeep Nandrajog, J.)
77
Indian Law Reports (Delhi)
78
ILR (2011) I Delhi
corruption. There is no moral turpitude. But none would say that A
the act of failure to maintain devotion to duty is not of a grave
kind.
A expenditure could be adjusted i.e. the charge suggests that the respondent
knew that what he was doing was wrong for only then would he have
contrived to do what he did.
34. It would be difficult to put in a strait jacket formula as to
what kinds of acts sans moral turpitude, dishonesty, bribery and
corruption would constitute grave misconduct, but a ready
touchstone would be where the ‘integrity to the devotion to
duty’ is missing and the ‘lack of devotion’ is gross and culpable
it would be a case of grave misconduct. The issue needs a little
clarification here as to what would be meant by the expression
‘integrity to the devotion to duty’. Every concept has a core
value and a fringe value. Similarly, every duty has a core and a
fringe. Whatever is at the core of a duty would be the integrity
of the duty and whatever is at the fringe would not be the
integrity of the duty but may be integral to the duty. It is in
reference to this metaphysical concept that mottos are chosen
by organizations. For example in the fire department the
appropriate motto would be: ‘Be always alert’. It would be so
for the reason the integrity of the duty of a fire officer i.e. the
core value of his work would be to be ‘always alert’. Similarly,
for a doctor the core value of his work would be ‘duty to the
extra vigilant’. Thus, where a doctor conducts four operations
one after the other and in between does not wash his hands and
change the gloves resulting in the three subsequent patients
contacting the disease of the first, notwithstanding there being
no moral turpitude involved or corruption or bribery, the doctor
would be guilty of a grave misconduct as his act has breached
the core value of his duty. The example of the fireman given by
us is self explanatory with reference to the core value of the
duty of a fireman to be ‘always alert’.”
32. The charge has yet to be investigated. The Inquiry Officer has
B yet to submit a report and thus the correctness or otherwise thereof
cannot be commented upon at this stage. However, with rampant abuse
and disabuse of financial power which is spreading like a cancer in public
life, it cannot be said that if proved, such kind of misadventures are not
C grave misconduct.
31. Having noted the misdemeanour alleged against the respondent,
the gravamen is of unwarranted and unauthorized large scale purchase of
mirror optic fittings without any requisition or administrative approval or
expenditure sanctioned. The financial implication is Rs.13,84,540/-. It is
alleged that mass scale replacement of fittings which were in working
order and were within ten years of their installed life was uncalled for.
It is alleged that the respondent manipulated the head under which the
B
C
33. We may note that upon the co-delinquent, O.P.Nayer Executive
Engineer penalty levied is 15% cut in pension for a period of five years.
D
E
F
34. Thus, disagreeing with all three reasons given by the Tribunal
and reciting the mantra that nothing said by us would be treated as an
expression on the merits of the charge sheet issued against the respondent
and that our observations with respect to the charge sheet are prima facie
and are the result of the question which we have to answer: if proved,
E would the misconduct be a grave misconduct, we allow the writ petition
and quash the impugned order dated 24.1.2006.
D
35. Noting that the matter has been sufficiently delayed, it is hoped
and expected that Inquiry Officer would conclude the inquiry as
F
expeditiously as possible, of course subject to the condition that the
respondent cooperates.
36. No costs.
G
G
H
H
I
I
J.K. Sawhney v. Punjab National Bank (Manmohan, J.)
79
ILR (2011) I DELHI 79
LPA
J.K. SAWHNEY
....PETITIONER
A
A
B
B
C
C
D
D
VERSUS
PUNJAB NATIONAL BANK
....RESPONDENT
(DIPAK MISRA, CJ. AND MANMOHAN, J.)
LPA NO. : 437/2010
DATE OF DECISION: 06.09.2010
Constitution of India, 1950—Article 21 and 226—
Appellant requested for reimbursement of medical
expenses incurred after his retirement, on heart
problem—Request declined as there was no such
Scheme for retired employees—Writ challenging order
of rejection dismissed by Ld. Single Judge—Order
assailed in appeal—Held—Though it is constitutional
obligation of state to safeguard right to life of every
person and such right is right to lead healthy life and
not a life of animal existence, but no law mandates
that every citizen is entitled to free medical treatment
without any limitation on the amount that can be
claimed as reimbursement—Formation of a policy is
within exclusive domain of executive and Courts
should shy away from issuing directions for formation
of policy which has financial, economic and other
implications, which at best should be left to wisdom of
executive.
ILR (2011) I Delhi
Important Issue Involved: (A) Though it is the
constitutional obligation of the State under Article 21 of the
Constitution of India to safeguard the right to life of every
person and such right to lead healthy life and not a life of
animal existence, but no law mandates that every citizen is
entitled to free medical treatment without any limitation on
the amount that can be claimed as reimbursement.
(B) Formulation of a policy is within the exclusive domain
of executive and the Courts should shy away from issuing
directions for formulation of a policy which has financial,
economic and other implications, which at the best should
be left to the wisdom of the executive.
[Ar Bh]
E
F
G
H
Moreover, it is imperative to emphasise that the formulation
of a policy is within the exclusive domain of executive and
the Courts ˇshould shy away from issuing directions for
formulation of a policy which has financial, economic and
other implications, which at the best should be left to the
wisdom of the executive.
(Para 6)
Indian Law Reports (Delhi)
80
E
F
APPEARANCES:
FOR THE PETITIONER
:
Mr. Piyush Sharma, Advocate.
FOR THE RESPONDENT
:
Mr. Rajat Arora, Advocate.
CASES REFERRED TO:
1.
Cannanore District Muslim Educational Association vs.
State of Kerala , (2010) 6 SCC 373.
2.
Food Corporation of India & Ors. vs. Parashotam Das
Bansal & Ors., (2008) 5 SCC 100.
3.
State of Punjab & Ors. vs. Ram Lubhaya Bagga & Ors.
(1998) 4 SCC 117.
G
H
RESULT: Dismissed.
MANMOHAN, J.
CM 11563/2010
I
I
Allowed, subject to all just exceptions.
LPA 437/2010
1. The present Letters Patent Appeal has been filed challenging the
J.K. Sawhney v. Punjab National Bank (Manmohan, J.)
81
82
judgment and order dated 19th April, 2010 passed by the learned Single A
Judge in W.P.(C) No.6744/2007 whereby the learned Single Judge has
dismissed the writ petition filed by the appellant.
2. The brief facts of the case are that the appellant was an employee
of the respondent-Bank and he retired from services on 05th February, B
2006. After his retirement, he developed acute heart problem and incurred
expenses of Rs.3,14,487/-on his treatment at Escorts Heart Institute. The
appellant requested for reimbursement of medical expenses from the
respondent-Bank which was declined on the ground that there was no C
such scheme for reimbursement of medical expenses to the retired
employees of the respondent-Bank.
3. Mr. Piyush Sharma, learned counsel for the appellant submitted
that the right to health and medical care is an integral part of right to life D
which is a fundamental right of every citizen under Article 21 of the
Constitution of India. He further submitted that the powers of the High
Court to issue writ of mandamus are of wide import and they must be
available to reach injustice wherever it is found. According to him, E
technicalities should not come in the way of granting relief under Article
226 of the Constitution. He submitted that it is within the competence of
the High Court to direct the respondent-Bank to formulate a scheme for
reimbursement of the medical expenses to the retired employees of the
respondent-Bank. In this context, Mr. Sharma placed reliance upon Apex F
Court’s decisions in Food Corporation of India & Ors. Vs. Parashotam
Das Bansal & Ors., (2008) 5 SCC 100 and Cannanore District Muslim
Educational Association vs. State of Kerala , (2010) 6 SCC 373.
G
4. Mr. Rajat Arora, learned counsel for the respondent-Bank
submitted that appellant has no legal right to enforce his claim for grant
of medical reimbursement by approaching this Court in writ jurisdiction.
According to him, the appellant is governed by the bipartite settlement
under which in lieu of absence of any scheme for reimbursement of H
medical claims after retirement, neither the appellant nor the other
employees can claim the same.
5. Having heard learned counsel for the parties as well as having
perused the paper book, we are of the opinion that though it is the
constitutional obligation of the State under Article 21 of the Constitution
of India to safeguard the right to life of every person and such right is
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A a right to lead healthy life and not a life of animal existence, but no law
mandates that every citizen is entitled to free medical treatment without
any limitation on the amount that can be claimed as reimbursement. In
fact, even serving bank employees are governed by regulations put in
B place by the respondent-Bank keeping in view the financial and economic
considerations. In this context, we may refer to a decision of the Apex
Court in State of Punjab & Ors. Vs. Ram Lubhaya Bagga & Ors.
(1998) 4 SCC 117 wherein the Supreme Court observed as under :
C
D
E
“26. ………Since it is one of the most sacrosanct and valuable
rights of a citizen and equally sacrosanct sacred obligation of the
State, every citizen of this welfare State looks towards the State
for it to perform its this obligation with top priority including by
way of allocation of sufficient funds. This in turn will not only
secure the right of its citizen to the best of their satisfaction but
in turn will benefit the State in achieving its social, political and
economical goal. For every return there has to be investment.
Investment needs resources and finances. So even to protect this
sacrosanct right finances are an inherent requirement. Harnessing
such resources needs top priority.
xxxx xxxx xxxx xxxx
F
G
H
29. No State or any country can have unlimited resources to
spend on any of its project. That is why it only approves its
projects to the extent it is feasible. The same holds good for
providing medical facilities to its citizen including its employees.
Provision of facilities cannot be unlimited. It has to be to the
extent finance permit. If no scale or rate is fixed then in case
private clinics or hospitals increase their rate to exorbitant scales,
the State would be bound to reimburse the same. Hence we
come to the conclusion that principle of fixation of rate and scale
under this new policy is justified and cannot be held to be violative
of Article 21 or Article 47 of the Constitution of India.
xxxx xxxx xxxx xxxx
I
31. The next question is whether the modification of the policy
by the State by deleting its earlier decision of permitting
reimbursement at the Escort and other designated hospital's rate
is justified or not? This of course will depend on the facts and
J.K. Sawhney v. Punjab National Bank (Manmohan, J.)
83
Indian Law Reports (Delhi)
84
circumstances. We have already held that this court would not A
interfere with any opinion formed by the government if it is
based on relevant facts and circumstances or based on expert
advice.
B
32. Any State endeavor for giving best possible health facility
has direct co-relation with finances. Every State for discharging
its obligation to provide some projects to its subject requires
finances. Article 41 of the Constitution gives recognition to this
aspect. 'Article 41: Right to work, to educate and to public C
assistance in certain cases: The State shall, within the limits of
its economic capacity and development, make effective provisions
for securing the right to work, to education and to public
assistance in cases of unemployment, old age sickness and D
disablement, and in other cases of undeserved want’”
A
B
I
ILR (2011) I DELHI 84
W.P.
VIKAS SAKSENA
....PETITIONER
VERSUS
UNION OF INDIA AND OTHERS
C
D
E
F
G
H
I
....RESPONDENTS
(GITA MITTAL AND J.R. MIDHA, JJ.)
WP (C) NO. : 2674/2010 &
4390/2010
(emphasis supplied)
6. Moreover, it is imperative to emphasise that the formulation of
E
a policy is within the exclusive domain of executive and the Courts
should shy away from issuing directions for formulation of a policy
which has financial, economic and other implications, which at the best
should be left to the wisdom of the executive.
F
7. Consequently, we are in agreement with the learned Single Judge
that it is not for the Court to formulate policies but certainly the Court
can draw attention of the concerned authority to the issue involved so
that appropriate steps can be taken for redressal of the grievances. In the
context, learned Single Judge has rightly suggested that it is for various G
trade unions of the bank and the management of the Bank to make
appropriate provisions in their bipartite settlement to make suitable policy
to take care of the health of the retired employees and for their necessary
medical reimbursement. Accordingly, the appeal, being bereft of merit, is H
dismissed.
ILR (2011) I Delhi
DATE OF DECISION: 13.09.2010
Constitution of India, 1950—Article 16—Public
employment—Selection process—Change in process—
Respondent issued advertisement dated 12.11.2009
inviting applications for, inter alia post of Deputy
Commandment (Law) in the Indian Coast Guard
Service—Said advertisement also contained selection
procedure—Petitioners applied for said post—Issued
call letter for appearance before preliminary and final
selection board—Peitioners cleared preliminary and
Final selection board (FSB)—Last step required
Petitioners to appear before Base Hospital, Delhi Cantt.
For medical examination—After leaving premises of
selection board—Petitioners telephonically informed
to have word with Chief Law Officer, Coast Guard
Head Quarters (“CLO”)—Prescribed procedure does
not mention role of CLO—Petitioners then told to
appear before new selection board chaired by CLO—
Also told to undertake written test as well as interview
on same day—Petitioners did not clear the same—
Petitioners made representations in protest—No action
taken on said representation—Hence present
petitions—Interim application also filed for directions
to Respondent to keep one post vacant for each
Petitioner—Admitted position that advertisement did
Vikas Saksena v. Union of India and Others (Gita Mittal, J.)
85
not mention any further testing/interview after clearing
FSB—Records produced by Respondent do not support
averment that Proficiency Competency Board for those
candidates recommended by FSB had due approval—
Nothing made on 18.12.2009 proposes for first time a
further interview after FSB—No specific decision
taken—Proposal for short test and interview made on
21.12.2009—Said proposal not placed before any higher
authority and entire decision taken by Deputy Director
General himself—Held—Appointing authority has no
jurisdiction to change or vary selection, process after
its commencement—Supreme Court in NT Devin Katti's
case held that selection only to be made in terms of
rules applicable at time of commencement of selection
process—Respondents had not only notified
Petitioners of selection procedure through
advertisement dated 12.11.2009—Respondent had also
completed the said procedure—Procedure to only
consist of two phases and nothing further—Even if
Deputy Director General competent to approve
“Professional competency and suitability” assessment—
Such approval only made on 21.12.2009—Same clearly
lacks jurisdiction or authority of law—Petitioners not
informed of prescribed syllabi for new test—Not given
opportunity to prepare—Professional competency
assessed on subjects mentioned in “desirable
qualifications” that too without notice—Pleas set up
Respondents falsified by records and documents
issued to Petitioner as well as records produced
before the Court—Nothing on record to even suggest
reference to manner in which testing and evaluation
of professional competency would be effected—No
disclosure on method of testing—Decision to adopt
new procedure not made by authority competent to do
so—Strong view taken with respect to false and
misleading pleas taken by Respondent and attempt to
conceal correct record—However since vacant seats
remain—Possible to ensure justice without taking this
Indian Law Reports (Delhi)
86
A
A
B
B
C
C
D
D
ILR (2011) I Delhi
matter further—Selection process taken by
Professional Competency Board set aside—If
Petitioners found medically fit, Respondent to complete
appointment of Petitioners to post of Deputy
Commandant (Law) with consequential benefits from
date of recommendation of FSB—Costs of rupees
25,000/- awarded to each petitioner.
Important Issue Involved: Appointing authority has no
jurisdiction to change or vary selection process after its
commencement—Supreme Court in NT Devin Katti's case
held that selection only to be made in terms of rules applicable
at time of commencement of selection process.
[Sa Gh]
APPEARANCES:
E
E FOR THE PETITIONER
FOR THE RESPONDENTS
F
F
:
Mr. Ajay Kumar Porawali, Advocate.
:
Mr. A.K. Bhardwaj, Advocate with
Mr. A.K. Chauhan, DIG, Chief Law
Officer, Coast Guard, Commandant
G. Singh.
CASES REFERRED TO:
G
H
I
1.
Ramesh Kumar vs. High Court of Delhi & Anr., (2010)
3 SCC 104.
2.
K. Manjushree vs. State of A.P. (2008) 1 SCC (L&S)
841.
3.
Hemani Malhotra vs. High Court of Delhi & Anr. (2008)
2 SCC (L&S) 203
4.
Maharashtra State Road Transport Corporation vs.
Rajendra Bhimrao Mandve MANU/SC/0737/2001 :
(2002)ILLJ819SC.
5.
Maharashtra State Road Transport Corp. & Ors. vs.
Rajendra Bhimrao Mandre & Ors., (2001)10 SCC 51.
6.
S.P.Chengalvaraya Naidu vs. Jagannath & Ors; AIR 1994
G
H
I
Vikas Saksena v. Union of India and Others (Gita Mittal, J.)
87
88
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A
A
7.
N.T. Devin Katti vs. Karnataka Public Service Commission
& Ors., 1992 (2) SLR 379.
8.
Shri Durgacharan Misra vs. State of Orissa and Ors.
B
MANU/SC/0627/1987 : AIR 1987 SC 2267.
the candidates through call up letters by Mid Dec 2009. Candidates
who do not receive call up letter may assume that they have not
come in the zone of short listing. Updated list of short listed
candidates will be hosted on ICG website.
B
(b) The selection process consists of two phases
SC 853.
9.
P. Mahendra and Ors. vs. State of Karnataka and Ors.,
1983(3) Speed Post Judgments 276 (SC).
10.
Dr.Vinay Rampal vs. The State of Jammu & Kashmir &
C
Ors. 1983 (3) SLR 293.
11.
Advocate-General, State of Bihar vs. M/s. Madhya Pradesh
Khair Industries & Anr.; 1980 Crl.LJ 684.
12.
T.Arvandandam vs. T.V. Satyapat ˇ& Anr. (1978) 1 SCR D
742.
C
(ii) Final Selection Board (FSB), It consists of
Psychological Test, Group Testing and Interview
(Personality Test).
D
RESULT: Petition allowed.
GITA MITTAL, J. (Oral)
E
1. These two writ petitions lay a challenge to the change in the
selection process effected by the respondents for appointments to the
post of Deputy Commandant (Law) in the Indian Coast Guard Service
after the notified process stood completed and was at the stage of
F
medical examination of the successful candidates. The petitioners also
assail the denial of appointment to the said post to them despite their
having admittedly successfully qualified in the notified selection process.
2. The undisputed facts giving rise to the writ petitions are noted G
hereafter. The respondents had issued an advertisement dated 12th
November, 2009 inviting applications from Indian citizens for several
posts including the posts of Deputy Commandant (Law) at a pay scale
of Rs. 15,600-39100 (revised) with grade pay Rs. 6600/-.
H
3. So far as the procedure of selection was concerned, the
advertisement has notified the applicants as follows:-
E
I
(c) Selection will be made only on the basis of performance of
the candidate in FSB. Those found medically fit will be placed
in the merit list. The candidates who qualify in the merit list visà-vis number of vacancies available will be issued with
appointment letter.
(d) Medical examination will be held at Delhi.”
(underlining by us)
F
4. Shri Vikas Saxena, petitioner in WP(C)No.2674/2010 and Shri
Nagender Singh, Petitioner in WP(C)No.4390/2010 had fulfilled the
eligibility requirements and submitted applications for undergoing the
selection process and appointment to the said post pursuant to the
G advertisement dated 12th November, 2009. Their applications were found
in order resulting in issuance of a call letter dated 3rd December, 2009
to Shri Vikas Saxena and a call letter dated 30th November, 2009 to the
other writ petitioner for appearance before the preliminary and final selection
H board. The directives contained in this letter as well have a bearing on
the issue raised before this court and read as follows:-
“SELECTION PROCEDURE
(a) Short listed candidates will be called for selection test/interview
at CGSB, Noida (UP). Candidate’s excellence in Academics,
Sports and NCC will be given due weightage whilst short listing
(i) Preliminary Selection Board (PSB), It consists of
General Mental Ability Test in which the candidates will
be tested for General Awareness, General Intelligence and
Reasoning.
I
“4. Only those candidates who are qualified in Preliminary Selection
Board (PSB) will appear in Final Selection Board (FSB) from 1317 DEC 2009 at Coast Guard Selection Board, Noida. Those
candidates who are finally recommended by FSB will undergo
medical examination.”
(underlining by us)
Vikas Saksena v. Union of India and Others (Gita Mittal, J.)
89
90
A
5. It is noteworthy that the Preliminary Selection Board (PSB
hereafter) was conducted by the respondents from 10th December, 2009
and was held for three days. Out of the total of 32 candidates who
appeared in the Preliminary Selection Board, only five candidates including
the petitioners were recommended for appearance in the final selection B
process. It is an admitted fact that the Final Selection Board (‘FSB’
hereafter) was held between 13th and 17th December, 2009. Out of five
candidates who appeared in the Final Selection Board, three candidates,
again including the two petitioners, were declared as successful.
C
6. In terms of the notified procedure, the Commandant (JG) on
17th December, 2009 issued the medical examination forms in the
prescribed format to both the petitioners requiring them to appear before
the Base Hospital, Delhi Cantt. for the medical examination, which was D
the only remaining step of the selection procedure.
7. The petitioners have complained that after leaving the premises
of the Coast Guard Selection Board, they were telephonically informed
to have a word on 18th December, 2009 with the Chief Law Officer at E
the Coast Guard Head Quarter, New Delhi. The submission is that as per
the applicable and prescribed procedure, the Chief Law Officer has no
role in the selection process for appointment to the post of Commandant
(Law).
F
8. In terms of this telephonic direction, the petitioners submit that
they reached the Coast Guard Head Quarter, New Delhi on 18th December,
2009 at 10:00 hrs. when they were directed to return on 21st December,
2009. To their surprise on 21st December, 2009, the petitioners were G
directed to appear before a new selection board chaired by the Chief Law
Officer and undertake a written test as well as an interview on that very
day. The result of this new selection procedure was informed on ˇ23rd
December, 2009 when the petitioners were informed that they had failed H
in the interview which had been conducted, and consequently not selected.
9. The petitioners separately represented against the procedure which
had been adopted and the refusal of the respondents to appoint them to
the post for which they had successfully undertaken the prescribed
selection procedure. Upon failure of the respondents to accept the
representation of the petitioners and do justice to them, Shri Vikas Saxena
filed WP(C)No.2674/2010 on or about 28th March, 2010 seeking a
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A declaration that the selection made by the respondents for the post of
Deputy Commandant (Law) is illegal, arbitrary and violative of Article 14
and 16 of the Constitution of India and issuance of the writ of mandamus
quashing the selection made by the respondents for the said post. A
B further prayer was made for a direction to the respondents to make the
selection in accordance with the notified procedure and for completion
of selection in terms of the notified procedure and permit the petitioner
to undertake the medical examination.
10. We may note that along with the writ petition, the petitioner has
filed an application seeking interim orders against the respondents to keep
one post of Deputy Commandant (Law) vacant so as to enable the
petitioner to get appointment during the pendency of the writ petition.
When the writ petition came up for hearing on 22nd April, 2010, notice
D
was issued to the respondents to show cause and so far as the stay
application was concerned, the following directions were made:C
“CM No.5342/2010 (Stay)
E
F
Notice. Mr. Gaurav Khanna, Advocate for Union of India
accepts notice.
It is directed that appointment, if any, made by the respondents
shall be subject to the final outcome of the writ petition. The
respondents shall inform the appointees in terms of the order
passed by this Court during the pendency of the writ petition.
Dasti to the parties.”
G
11. Shri Nagender Singh has filed WP(C)No.4390/2010 shortly
thereafter also seeking directions to the respondents to act upon the
recommendation of the Final Selection Board in terms of the advertisement
dated 12th November, 2009 and to appoint the petitioner to the post of
H Deputy Commandant (Law) in terms of the notified norms and procedure
with all consequential benefits. In as much as these writ petitions raise
identical questions of law and fact, we have heard them together and
propose to decide them by the single judgment.
I
12. The petitioners have primarily made a grievance that the
respondents had no authority to change the selection process mid way
after its commencement and after the petitioners had successfully
undertaken the entire notified selection process. Mr. G.D. Gupta, learned
Vikas Saksena v. Union of India and Others (Gita Mittal, J.)
91
92
Senior counsel appearing for Shri Nagender Singh has submitted that the A
petitioners had been in fact recommended for appointment and, for this
reason, only the formality of the medical examination was remaining to
be undergone by them. In this behalf reliance has been placed upon the
forms in prescribed format for undergoing the medical examination at the B
Base Hospital, Delhi Cantt. duly signed by the Commandant which had
been handed over to the petitioners on 17th December, 2009.
13. The writ petitions are opposed by the respondents who have
filed counter affidavits taking an identical stand in the matters.
C
14. So far as the procedure which was adopted on 21st December,
2009 is concerned, the respondents have in the counter affidavits stated
that “the decision for appearance of the candidates recommended by the
final selection board for the post of Deputy Commandant (Law) had been D
approved before hand by the competent authority on 24th November,
2009.” It is further stated that in this background, the three candidates
who had been selected in the final selection board were required to
appear before the Professional Competency Board held at the Coast E
Guard Head Quarters on 21st December, 2009.
15. With regard to information to the candidates with regard to the
Professional Competency Board is concerned, in the counter affidavit the
respondents have stated that “before commencement of PSB/FSB, the F
candidates who reported for the Deputy Commandant (Law) selection
were informed during the inaugural address that those qualifying FSB
will have to appear before a Professional Competency Board (PCB) since
Deputy Commandant (Law) is a higher rank.”
G
16. These assertions of the respondents have been vehemently
contested by both the petitioners who have on affidavit submitted that no
such information was given at any stage till they were compelled to
undergo the testing on 21st December, 2009.
H
17. We may notice yet another plea which has been taken in the
counter affidavit. The respondents have further stated that the board
conducted the professional competency assessment through a “short test
of general law and basic maritime law, followed by interview both aimed
at assessing the professional knowledge, legal awareness and suitability
of candidate for induction into the post of Deputy Commandant (Law).”
A further prescription that “it is expected that the candidates would score
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A at least 50% marks in the written test” is mentioned in the counter
affidavit.
18. It is an admitted position that in the advertisement which had
been issued on 12th November, 2009, the respondents did not notify that
B candidates who were successful in the final selection board would be
required to appear before a further professional competency board or the
manner of its testing. No syllabi or distribution of marks was also provided.
19. In view of the pleas which have been set up in the counter
C affidavit, we called upon the respondents to produce the relevant records.
A file bearing No.RT/0103/FAST TRACK captioned as “RECRUITMENT
OF ASST COMDTS-FAST TRACK – 01/2010 BATCH” was produced
before us. This file refers to the advertisement which was issued for fast
D track selection of Assistant Commandants of GD/GD P/N/CPL/Tech
which had been published all over India in national daily newspapers on
10th November, 2009 and telecast on six T.V. channels. Interestingly,
there is not even a reference to any issue involving Deputy Commandants
E in this file.
F
G
H
I
20. In this file, on 18th November, 2009, a Note 9 was recorded
by Shri Braj Kishore Commandant (JG) which included at Sl.No.3 the
proposed schedule for the recruitment of Assistant Commandants (Fast
Track) commencing from the stage of the last date of receipt of
applications till the commencement of basic training on 4th of January,
2010. At Sl.No.4, of Note 9 the following was also proposed:“4. The Preliminary Selection Board of officers for Fast Track
Selection will comprise of total 06 members (one set of 03
assessors including the President and 03 other members as
nominated by the Admin directorate). The Board will conduct
written test (GMAT-verbal and Non-verbal) as well as Stage-I
screening during the PSB. (10-12 Dec 09). On completion of
PSB, the FSB will be conducted at CGSB, Noida w.e.f. 13-17
Dec 09.”
The above schedule was recommended for the DDG's approval on
20th November, 2009 by Shri B.K. Patasahani, DIG, PD (HRD).
21. This file then went up to the Deputy Director General who on
20th November, 2009 called upon the Chief Law Officer to comment
Vikas Saksena v. Union of India and Others (Gita Mittal, J.)
93
thereon. A noting of the Chief Law Officer (`CLO. for brevity) made on A
23rd November, 2009 was relied upon by the respondents before us as
the proposal for assessment by a Professional Competency Board in the
cases in hand and deserves to be considered in extenso. The same reads
as follows:B
-1“Extract of Advt for the Post of Dy. Comdt (Law)-01/2010
Batch - 1A
B
-21. Refer to Encl 1A.
22. This proposal and the file was then on 24th of November, 2009 C
placed before the Deputy Director General who has endorsed the following
comments thereon:“Para 5 of noting 10, and C.L.O. proposal above approved.”
D
23. As noted above, this file relates to the selection for Assistant
Commandants only. Obviously this noting also refers to the same selection.
No other record was placed before the Court. On the contrary, it was
stated before us that the counter affidavit is premised on this record. E
F
G
25. Certain further queries which arose during the hearing could
not be answered on behalf of the respondents and time was sought to
produce further record. It is only in the hearing in the afternoon that the
respondents placed file No.RT/0103/LAW OFFICER captioned H
“RECRUITMENT OF LAW OFFICERS (DY COMDT) – 01/2010 BATCH”
before the court. It is unfortunate that this record was not produced
before this court in the earlier hearing and appears to be an attempt to
deliberately mislead this court. We were not even informed that there is
I
any other record available on the issue.
26. The notings which have been made by the Commandant (JG)
on 18th December, 2009 with regard to the present selection and thereafter
ILR (2011) I Delhi
A on this file deserves to be considered in extenso and reads as follows:-
“Since candidates for Sl(e) of Encl 1A are for higher rank,
propose suitability be assessed by professional board also in
addition.”
24. In view of the noting dated 18th November, 2009 on which this
decision appears to have been taken, it is clearly evident that there is no
issue relating to selection of deputy commandant (law) which was put
up to the Deputy Director General. Therefore, the averment in the counter
affidavit to the effect that the Proficiency Competency Board of those
candidates recommended by the FSB for the post of Deputy Commandant
(Law) had been approved by the competent authority on 24th November,
2009 is not supported by official record and is incorrect.
Indian Law Reports (Delhi)
94
C
D
E
F
G
2. It is submitted that the advertisement was published for
DY. Comdt (Law) as approved by the competent authority. Total
168 applications were received at CGSB. After scrutiny and
vetting, 62 call letters were issued. Only 05 candidates qualified
PSB (comprising GMAT) Verbal and Non Verbal and stage-1)
conducted 10-12 Dec 09 at CGSB Noida.
3. Out of these 05 candidates, 03 have qualified during Final
Selection Board (FSB) conducted w.e.f. 13-17 Dec 09 at CGSB
Noida as follows:
Sl.No. Name
Roll No.
a.
Vaishali Sood
DLW/GEN/1592
b.
Vikas Saxena
DLW/GEN/1451
c.
Nagender Singh
DLW/GEN/1290
4. Since these candidates are likely to be inducted at a relatively
elevated level (Dy. Comdt) in the Law branch It is opined that
their professional competence and suitability, may appropriately
be ascertained by the Directorate of Law, prior to sending them
for the medicals and issuance of appointment letters.
5. Submitted for perusal and approval please.
H
Sd/(Brij Kishore)
I
Comdt (JG)
DD(Rectt)
18 Dec 09
I.Com: 3953”
27. It is evident from the above that no decision at all with regard
Vikas Saksena v. Union of India and Others (Gita Mittal, J.)
95
96
to any further testing of the persons who had successfully qualified the A
final selection board for the post of Deputy Commandant (Law) had been
taken even till 18th December, 2009. In fact, it is proposed for the first
time then. This matter travelled through various authorities in the chain
of command.
B
A
Sd/CLO
21 Dec 09” D
It is clearly evident from the above that the proposal for holding a
test or interview for assessing professional competency of the candidates
was mooted for the first time only on the 21st of December, 2009. The
legal experts guiding the functioning of the respondents would be expected E
to know the well settled applicable legal principles with regard to change
of selection criteria and method after commencement of the selection
process laid down by the Supreme Court in the plethora of judgments
noticed herein as well as the consequences of concealment of material
F
records.
29. The record also shows that matter moved very fast on 21st
December, 2009. On the very same day, the Deputy Director General
proposed to constitute a Board (for the professional competency testing)
G
and recorded the following noting:“1. Further to note 2, it is proposed to constitute a Board (for
Professional Competency Test) comprising of following officers.
Sl.No. Rank Name
No.
a. DIG AKS Chauhan (0161-P
– President
b. Comdt. SS Malik (5002-Q)
– Member
c. Comdt. Donny Michael (0258-L) – Member
2. If approved, the Board is required to assemble on 21 Dec 09,
ILR (2011) I Delhi
at CGHQ. The BPs along with recommendations to be submitted
by 22 Dec 09 to facilitate medical examination of successful
candidates.
3. Submitted for perusal and approval please.
B
28. On the above proposal, we may note here the comments of the
Chief Law Officer dated 21st December, 2009 which read as follows:“It is proposed to conduct a short test and interview for judging
C
professional competence, if approved pl,
Indian Law Reports (Delhi)
C
Braj Kishore
COMDT.(JG)
4082.C
DD(Rectt)
21 Dec -09
I. Com 3953”
30. The above narration of facts also would show that there was
no decision at all to conduct any further test of the candidates till 21st
D December, 2009. So far as the approval of this proposal is concerned,
the file would disclose that the matter was not placed before any higher
authority and the entire decision to conduct the professional competency
test and suitability examination has been taken by the Deputy Director
E General of the service himself.
31. This is also manifested from the fact that in terms of the
notified procedure, the Commandant had issued the medical examination
forms to the candidates declared selected by the FSB.
F
32. The present case raises a basic question on well settled first
principles. It is trite that the appointing authority has no jurisdiction at all
to change or vary the selection process after its commencement. In view
of the above, the issue raised before this court is the jurisdiction of the
G respondents to vary the selection procedure which they had notified to
the candidates in the advertisement dated 12th November, 2009, more so
after the candidates had undertaken the entire notified selection procedure
and had been declared successful.
H
H
I
I
33. In this regard, reference can usefully be made to the
pronouncements of the Supreme Court on the same issue which have
been placed before us by learned senior counsel for the petitioner.
34. The law in this issue was laid by the Supreme Court as back
as in the judgment reported at 1983 (3) SLR 293, Dr. Vinay Rampal
Vs. The State of Jammu & Kashmir & Ors. in the following terms:“3. If the petitioner's eligibility for admission to the course for
Vikas Saksena v. Union of India and Others (Gita Mittal, J.)
97
98
A
A
B
B
C
C
D
D
E
E
35. In 1992 (2) SLR 379, N.T. Devin Katti Vs. Karnataka Public F
Service Commission & Ors., statutory rules for selection and
appointment were amended after the commencement of the selection
process. The Supreme Court set aside the selection which was effected
pursuant to the amended rules and held that the selection could have been
G
made only in terms of the rules which were in vogue and applicable at
the time of commencement of the selection process. In this regard the
observations of the Court deserve to read in extenso and read as follows:-
F
“11. There is yet another aspect of the question. Where H
advertisement is issued inviting applications for direct recruitment
to a category of posts, and the advertisement expressly states
that selection shall be made in accordance with the existing
Rules or Government Orders, and if it further indicates the extent
of reservations in favour of various categories, the selection of I
candidates in such a case must be made in accordance with the
then existing Rules and Government Orders. Candidates who
H
which he had applied is to be judged on the qualifications as set
out in the advertisement, it is indisputable that he was eligible for
admission under Clause (b)(iv) of the advertisement. Mr. Altaf
Ahmed, however drew our attention to item No. 12 in Notification
No. 4 of 1981 issued by the Government Medical College at
Jammu, which recited that the selection of the candidates will be
made strictly in accordance with the instructions issued by the
Government. That may be so. But can it be urged that
advertisement was issued ignoring Government instruction if any
relevant to the subject. In any event such a vague direction that
the selection of candidates will be made strictly in accordance
with the instructions issued by the Government, in the face of
advertisement, leave us cold because any such instruction must
be in conformity with some rules and if there be rules the same
must be in conformity with the Regulations framed by Indian
Medical Council if its jurisdiction extends to Jammu and Kashmir.
It was never suggested at any point of time that in issuing the
advertisement there was any error. If that be so the College
authority including Principal issuing advertisement and inviting
applications for admission must be held bound by it unless shown
otherwise.xxxxx”
G
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
apply, and undergo written or viva voce test acquire vested right
for being considered for selections in accordance with the terms
and conditions contained in the advertisement, unless the
advertisement itself indicates a contrary intention. Generally, a
candidate has right to be considered in accordance with the
terms and conditions set out in the advertisement as his right
crystalises on the date of publication of advertisement, however
he has no absolute right in the matter. If the recruitment Rules
are amended retrospectively during the pendency of selection, in
that event selection must be held in accordance with the amended
Rules. Whether the Rules have retrospective effect or not, primarily
depends upon the language of the Rules and its construction to
ascertain the legislative intent. The legislative intent is ascertained
either by express provision or by necessary implication, if the
amended Rules are not retrospective in nature the selection must
be regulated in accordance with the Rules and orders which
were in force on the date of advertisement. Determination of this
question largely depends on the facts of each case having regard
to the terms and conditions set out in the advertisement and the
relevant Rules and orders. Lest there be any confusion, we
would like to make it clear that a candidate on making application
for a post pursuant to an advertisement does not acquire any
vested right for selection, but if he is eligible and is otherwise
qualified in accordance with the relevant Rules and the terms
contained in the advertisement, he does acquire a vested right for
being considered for selection in accordance with the Rules as
they existed on the date of advertisement. He cannot be deprived
of that limited right on the amendment of Rules during the
pendency of selection unless the amended Rules are retrospective
in nature.
13. xxxx It is a well accepted principle of construction that a
statutory rule or Government Order is prospective in nature unless
it is expressly or by necessary implication made to have
retrospective effect. Where proceedings are initiated for selection
by issuing advertisement, the selection should normally be
regulated by the then existing rules and Government Orders and
any amendment of the rules or the Government Order pending
the selection should not affect the validity of the selection made
Vikas Saksena v. Union of India and Others (Gita Mittal, J.)
99
100
by the selecting authority or the Public Service Commission A
unless the amended rules or the amended Government orders
issued in exercise of its statutory power either by express provision
or by necessary intendment indicate that amended Rules shall be
applicable to the pending selections. See P. Mahendra and Ors. B
v. State of Karnataka and Ors., 1983(3) Speed Post Judgments
276 (SC).”
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A
additional requirement/qualification that the candidate should also
secure minimum marks in the interview. Therefore, this Court is
of the opinion that prescription of minimum marks by the
respondent at vive-voce, test was illegal.”
B
38. We may note that in the aforenoticed precedents the court
placed reliance on its earlier pronouncement reported at (2008) 1 SCC
(L&S) 841, K. Manjushree Vs. State of A.P. which placed reliance on
an earlier precedent, and in para 32 held as follows:-
36. Mr. G.D. Gupta, learned senior counsel has drawn our attention C
to the following observations in (2001)10 SCC 51, Maharashtra State
Road Transport Corp. & Ors. Vs. Rajendra Bhimrao Mandre &
Ors., which are also instructive and clearly state the position thus:D
“5. xxxx. It has been repeatedly held by this Court that the
games of the rules meaning thereby, that the criteria for selection
cannot be altered by the authorities concerned in the middle or
after the process of selection has commenced.xxx”
E
37. In similar facts, another decision of the Supreme Court reported
at (2008) 2 SCC (L&S) 203, Hemani Malhotra Vs. High Court of
Delhi & Anr. is topical and reads as follows:-
C
“32. In Maharashtra State Road Transport Corporation v.
Rajendra Bhimrao Mandve MANU/SC/0737/2001 :
(2002)ILLJ819SC , this Court observed that "the rules of the
game, meaning thereby, that the criteria for selection cannot be
altered by the authorities concerned in the middle or after the
process of selection has commenced." In this case the position
is much more serious. Here, not only the rules of the game were
changed, but they were changed after the game has been played
and the results of the game were being awaited. That is
unacceptable and impermissible.
“14. It is an admitted position that at the beginning of the F
selection process, no minimum cut off marks for viva-voce
were prescribed for Delhi Higher Judicial Service Examination,
2006. The question, therefore, which arises for consideration of
the Court is whether introduction of the requirement of minimum
G
marks for interview, after the entire selection process was
completed would amount to changing the rules of the game after
the game was played …xxx.”
F
(Underlining by us)
xxxx
“15. There is no manner of doubt that the authority making
rules regulating the selection can prescribe by rules the minimum
marks both for written examination and vive-voce, but if minimum
marks are not prescribed for vive-voce before the commencement
of selection process, the authority concerned, cannot either during
the selection process or after the selection process add an
D
E
G
H
H
I
I
In a judgment reported at (2010) 3 SCC 104, Ramesh Kumar Vs.
High Court of Delhi & Anr., the court was concerned with the situation
where the appointing authority had not prescribed any minimum marks
as the cut off marks in the interview for the selection till long after its
commencement. This action was assailed before the Supreme Court
which held as follows:“13. In Shri Durgacharan Misra v. State of Orissa and
Ors. MANU/SC/0627/1987 : AIR 1987 SC 2267, this Court
considered the Orissa Judicial Service Rules which did not provide
for prescribing the minimum cut-off marks in interview for the
purpose of selection. This Court held that in absence of the
enabling provision for fixation of minimum marks in interview
would amount to amending the rules itself. While deciding the
said case, the Court placed reliance upon its earlier judgments in
B.S. Yadav and Ors. v. State of Haryana and Ors. MANU/
SC/0409/1980 : AIR 1981 SC 561; P.K. Ramachandra Iyer
and Ors. v. Union of India and Ors. MANU/SC/0395/1983 :
AIR 1984 SC 541; and Umesh Chandra Shukla v. Union of
Vikas Saksena v. Union of India and Others (Gita Mittal, J.)
101
102
India and Ors. MANU/SC/0050/1985 : AIR 1985 SC 1351, A
wherein it had been held that there was no "inherent jurisdiction"
of the Selection Committee/Authority to lay down such norms
for selection in addition to the procedure prescribed by the Rules.
Selection is to be made giving strict adherence to the statutory B
provisions and if such power i.e. "inherent jurisdiction" is claimed,
it has to be explicit and cannot be read by necessary implication
for the obvious reason that such deviation from the rules is likely
to cause irreparable and irreversible harm.
C
14. Similarly, in K Manjusree v. State of Andhra Pradesh
and Anr. MANU/SC/0925/2008 : AIR 2008 SC 1470, this Court
held that selection criteria has to be adopted and declared at the
time of commencement of the recruitment process. The rules of
D
the game cannot be changed after the game is over. The competent
authority, if the statutory rules do not restrain, is fully competent
to prescribe the minimum qualifying marks for written examination
as well as for interview. But such prescription must be done at
the time of initiation of selection process. Change of criteria of E
selection in the midst of selection process is not permissible.”
39. Our attention has also been drawn to the Recruitment Rules
which have been notified by the Government of India in exercise of
power conferred under Section 123 of the Coast Guard Act 1978 which
are titled as Coast Guard Officer (Law Officer) Recruitment Rules, 1984.
The advertisement which was issued and published by the respondents
on 12th November, 2009 was in terms of these recruitment rules.
F
G
40. The eligibility conditions which were notified in the advertisement
dated 12th November, 2009 are stated to be in terms of these recruitment
rules. The Supreme Court has struck down the action of the authorities
even in fixing cut off marks or allocating marks for different stages of
H
the selection process as illegal and impermissible.
41. So far as the selection procedure is concerned, we have been
informed by learned counsel for the respondents that the procedure
notified in the advertisement dated 12th November, 2009 was the procedure
which was adopted and followed by the respondents for effecting
appointments for the last 30 years.
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
42. The above discussion would show that the respondents had not
only notified the candidates/applicants seeking appointment to the post of
Deputy Commandant (Law) of the selection procedure in the advertisement
dated 12th November, 2009 but had in fact completed the process pursuant
B thereto.
A
43. The respondents had clearly notified the candidates that the
applicants would undergo scrutiny process when eligible candidates would
be shortlisted and call letters for the entrance test would be issued only
C to such shortlisted candidates. So far as the selection process thereafter
was concerned, the respondents had clearly indicated that the same
would consist of “two phases alone” and nothing further. The two
phases about which the respondents notified the applicants included the
preliminary selection and the final selection. The respondents had
D
unequivocally notified the applicants that the selection would be made
only on the basis of performance of the candidate in the final selection
board. It was further stated that those candidates who were found medically
fit would be placed in the merit list and the merit list would be prepared
E according to the number of vacancies which were available.
44. An admitted position is that the petitioners had successfully
undertaken the Preliminary Selection Board as well as the Final Selection
Board and had been given the prescribed medical forms for undergoing
F the medical examination. It is only thereafter that the respondents mooted
for the first time a proposal to conduct “Professional competency and
suitability” assessment. Even if it was to be assumed the Deputy Director
General was the competent authority for approving such assessment, it
G is noteworthy that such proposal was put up to and approved even by
this authority only on 21st December, 2009. In view of the legal position
noticed hereinabove, it has to be held that such decision and action
requiring the assessment of the competency and suitability long after the
H commencement of the selection process, so much so that the Final
Selection Board stood completed and results declared, is clearly without
jurisdiction or authority of law and not sustainable.
I
45. We may also notice the manner in which the respondents have
conducted the proceedings on 21st December, 2009. It is an admitted
position that the candidates who were so tested and assessed were not
put to notice of the fact that they would be required to undergo such
Vikas Saksena v. Union of India and Others (Gita Mittal, J.)
103
procedure and testing. They were admittedly not informed about the A
prescribed syllabi for the tests and were given no opportunity to get
ready or come prepared for the written test and examination. No syllabus
or schedule was announced. Whereas the advertisement drew a distinction
between ‘essential’ and ‘desirable’ qualifications in the prescripted eligibility B
conditions in the advertisement, the professional competency was assessed
on the 21st of December, 2009 on subjects mentioned in the ‘desirable’
qualifications, that too without notice. On this basis the declared result
has been changed.
C
46. We are informed that Shri Vikas Saxena, (petitioner in
WP(C)No.2674/2010) was placed at the top of the selection list by the
Final Selection Board. He was followed by Shri Nagender Singh, (petitioner
in WP(C)No.4390/2010). Ms. Vaishali Sood, was placed in the third
D
position by the Final Selection Board. This position has been reversed by
the so called Professional Competency Board in its testing and interviews
held and conducted on 21st December, 2009 without opportunity to
prepare to the candidates. In the result declared, the petitioners have been
E
failed, while the third candidate declared as passed.
47. The pleas set up by the respondents in the counter affidavits are
falsified by the records and documents which were issued to the petitioner
as well as the records produced before us. On 30th November, 2009, the
respondents issued a call letter to Shri Nagender Singh whereas this call F
letter was issued to Shri Vikas Saxena on 3rd December, 2009. Even
these call letters refer to only the preliminary and final selection boards
and do not even suggest any professional competency board. These
letters were in the format prescribed for appointment to the post of G
Assistant Commandant with the necessary corrections have been effected
in hand by the respondents.
48. The files produced before us do not contain any noting to the
effect that information about the professional competency board was H
given to the candidates in the inaugural address. It is obvious that no
such information could have been given for the reason that there was no
decision till 21st December, 2009 for the candidates to undergo the
assessment by a “Professional Competency Board.”
I
49. There is nothing on record produced which even suggests a
reference to the manner in which the testing and evaluation of the
104
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A professional competency would be effected. The constitution of the board
was effected by the Deputy Director General on 21st December, 2009
which proceeded to conduct its proceedings on the same day. There is
no disclosure of any decision on or the method of testing. There is no
B prescription of a written test or the nature thereof. The counter affidavit
refers to “short written test” but its nature is not disclosed even in the
counter affidavit. Even this court has been kept in the dark with regard
to the prescribed curriculum and syllabi for the written test and the
authority which had set the question papers thereof.
C
50. So far as the proceedings which were conducted by the above
appointed board are concerned, it appears that this board assembled on
21st December, 2009 and required the three candidates who had
successfully cleared the Final Selection Board to undertake a fresh written
D
test as well as the interview.
51. We may notice that the petitioners contend that they had been
telephonically informed on 17th December, 2009 to contact the Chief
E Law Officer on 18th December, 2009 which they did. The proposal to
conduct such a professional competency test and interview was made
only on 21st December, 2009.
52. The respondents submit that the board subjected the three
candidates
shortlisted by the Final Selection Board, to an initial thirty
F
minutes objective test on general law and basic maritime law followed by
the interview to assess their professional knowledge. The consideration
of the professional competency by the board was based on the
performance of the candidates in the written test and interview. It is also
G
not disclosed anywhere, either in the counter affidavit or in the record
which has been produced before us, as to which was the authority who
set the questions papers and evaluated the same. It is stated before us
that the board which was constituted on 21st December, 2009, has
H followed a unique procedure and itself decided the method of evaluation,
format of testing and set the question papers which the candidates were
required to answer on the same day.
I
53. So far as the questions which were posed to the candidates
during the interview is concerned, the submission before this court is
that these were jointly prepared “in advance” by the president and the
members of the board. The questions were asked by the President with
Vikas Saksena v. Union of India and Others (Gita Mittal, J.)
105
further additional questions being asked by the Members, wherever
necessary, depending on the reply of the candidate. Interestingly this
entire narration in the counter affidavit does not set out as to which was
the authority which had approved this syllabus or the procedure which
was adopted by the board. Admittedly, there was no approval by any
competent authority. This matter was not even examined by any officer
even at the level of Deputy Director General, let alone the appointing
authority under the provisions of Indian Coast Guard Act or by any
person to whom such authority was legally or validly delegated. The
same has been left to the absolute discretion of the board which had been
appointed by him. We are orally informed by Mr. A.K.S. Chauhan, DIG,
Chief Law Officer, Coast Guard, who is present, that this board took all
the decisions and steps and that it also corrected the answer sheets itself,
announced the result and also conducted the interviews apart from making
the recommendations in respect of the result on the same day.
106
A
B
C
D
54. So far as the result or grading of this assessment is concerned,
the respondents said that the professional competency board submitted
its proceedings on 22nd December, 2009 which were approved by the E
“competent authority”. The result was thereafter intimated to the candidates
by the Directorate of Manpower, Recruitment and Training concerned
with the subject. The respondents have contended that the result of the
assessment by this board was declared on 23rd December, 2009 when F
both the petitioners were declared as having failed in the interview while
the third candidate, Ms. Vaishali Sood was found to be the sole candidate
with an average professional competency and was accordingly selected
for appointment to the post of Deputy Commandant (Law) and she was
G
sent for medical examination.
55. Mr. G.D. Gupta, learned senior counsel appearing for Sh.
Nagender Singh has urged that under the provision of Coast Guard Act,
1978, only the Central Government is the competent authority to effect H
appointments to the force. This power stands delegated to the Director
General of the Coast Guard Service and has not been delegated to any
other person or authority within the Coast Guard Service. This position
is not disputed on behalf of the respondents. There appears to be substance
in the objection of the petitioners that the decision to adopt the new I
procedure was not by an authority competent to do so.
56. Before parting with this case, it is necessary to notice one
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A extremely distressing fact. The relevant file was not placed before this
Court till the final stage of hearing. We find that in the counter affidavits
a completely false plea has been taken to the effect that the candidates
who reported for the selection process were further informed during the
B inaugural address that those qualifying the final selection board would
have to appear before such board. According to the respondents, this
address was effected before holding the preliminary selection board. The
above discussion amply shows that the respondents had not even proposed
the holding of a professional competency board on the date when the
C inaugural address was allegedly given to the candidates. Such plea taken
on affidavit filed at the highest level not supported by any record is
reprehensible and deserves to be condemned.
57. We were inclined to take strong view in the matter and proceed
against the authorities concerned in respect of such a plea and the attempt
to conceal the correct record from this Court. (Ref : AIR 1994 SC 853,
S.P.Chengalvaraya Naidu Vs. Jagannath & Ors; 1980 Crl.LJ 684,
Advocate-General, State of Bihar Vs. M/s.Madhya Pradesh Khair
E Industries & Anr.; (1978) 1 SCR 742, T. Arvandandam Vs. T.V.
Satyapat & Anr. and of this Court in 71(1998)DLT 1= 1998(44)DRJ
109, T.Arvandandam Vs. T.V. Satyapat & Anr.) However, our attention
has been drawn to the communication dated 31st March, 2010 addressed
F by DIG B.K. Patasahani to Shri Nagender Singh (petitioner in
WP(C)No.4390/2010) wherein he has been informed that there were five
vacant seats of the post of Deputy Commandant which existed on 31st
December, 2009 for which the selection process was undertaken.
D
G
58. We are informed by Ms. Barkha Babbar, learned counsel on
instructions from the officers present, that the directions made by this
court in the order dated 22nd April, 2010 in W.P.(C)No.2674/2010 have
been complied with by the respondents. We are further informed that the
H respondents have effected one appointment to the post of Deputy
Commandant (Law) following the new procedure which was adopted on
21st December, 2009.
I
59. It is noteworthy that despite our directions made on 22nd April,
2010, no other person has come forward to contest these writ petitions.
60. It is admitted before us that the petitioners have been found
successful in the Final Selection Board in terms of the notified procedure.
Vikas Saksena v. Union of India and Others (Gita Mittal, J.)
107
108
Only the medical examination, for which the requisite medical forms A
have been issued to the petitioners by the competent authority, remained
to be completed. It is an admitted position that other than filling up one
post, the other four posts remain vacant for completing the procedure of
selection pursuant to the advertisement dated 17th December, 2009. It is, B
therefore, possible to ensure justice to the petitioners without taking this
matter further. In view of the order passed by us on 22nd April, 2010
in W.P.(C) No.2674/2010, the respondents are required to effect restitution
in terms of the same.
C
61. In view of the above, we hold and direct as follows:(i)
(ii)
The selection process undertaken by the Professional
Competency Board on 21st December, 2009 and the
result thereof declared on the 23rd of December, 2009 D
are held to be illegal and hereby set aside and quashed.
A
C
(iv) The respondents shall issue necessary orders in terms of
the above including the requisite intimation to the Base G
Hospital, Delhi Cantt. within a period of six weeks from
today with written notice to both the petitioners.
G
I
.....RESPONDENT
(A.K. SIKRI AND REVA KHETRAPAL, JJ.)
S.T.APPEAL NO. : 4/2010 &
CM NO. : 11439/2010
H
.....APPELLANT
VERSUS
COMMISSIONER OF VALUE
ADDED TAX & OTHERS
F
I
ILR (2011) I DELHI 108
ST
D
(iii) The petitioners shall be permitted to undertake the medical
examination in terms of the documents issued to them F
on 17th December, 2009 by the Base Hospital, Delhi
Cantt.,
(vi) The respondents shall ensure that the seniority and any
other consequential benefits of the petitioners shall be
maintained strictly in terms of the recommendation of
the Final Selection Board dated 17th December, 2009.
(vii) Each of the petitioners shall be entitled to costs of 25,000/
- each which shall be paid within a period of four weeks
from today. This writ petition is allowed in the above
terms.
ALPINE AGENCIES PVT. LTD.
E
In case the petitioners are found medically fit, the
respondents shall complete the appointment of the H
petitioners to the post of Deputy Commandant (Law)
within a period of four weeks of the medical examination.
ILR (2011) I Delhi
B
The respondents are directed to complete the selection
process effectuated pursuant to the advertisement dated
12th November, 2009 and to give effect to the result of E
the Final Selection Board conducted between 13th and
17th December, 2009.
(v)
Indian Law Reports (Delhi)
DATE OF DECISION: 14.09.2010
Delhi Sales Tax Act, 1975—Section 5,43 (6), 45—Central
Sales Tax Act, 1956, Section 8—Appellant/assessee a
Private limited company, traded in electric, electronic
and refrigeration items which were notified to be first
point items U/s 5 of the Act—As per, assessee/
appellant, it purchased these goods from registered
dealers and was not first seller of the goods, therefore
had no liability to pay sales tax—Assessee/appellant
had put up said claim before Assessing Officer for
assessment for year 1996-97—Assessment done both
under Delhi Sales Tax Act as well as Central Sales Tax
Act and demand of Rs. 3679144 and Rs. 90172
respectively raised under the Acts—Assessee/
appellant preferred two rounds of appeal but failed to
get full relief—Ultimately, last order of Income Tax
Appellant Tribunal resulted in writ petition in which
Alpine Agencies Pvt. Ltd. v. Comm. of Value Added Tax (A.K. Sikri, J.) 109
appellant/assessee agitated the plea, registered
dealers from whom it purchased goods had paid sales
tax—Therefore, not necessary for assessee to charge
sales tax on those very items of goods when assessee
sold same to consumers—Assessee/appellant failed
to produce original books of accounts or invoices
before Assessing Officer as same were lost for which
FIR was lodged—Percontra, respondent pleaded
appellant/assessee not entitled to relief in absence of
original invoices. Held : provisions of Delhi Sales Tax
Act and rules framed thereunder were mandatory in
nature and it was necessary to construe them strictly
in order to avoid misuse—Rule 9 requires the dealer
to produce a declaration in or ST-3 duly filled in and
signed by the dealer selling the goods which has to
be produced in original—No doubt when these original
forms ST-3 are lost or destroyed because of
circumstances beyond the control of the assessee he
should not be punished and denied the benefit - To
avail the benefit the dealer has to necessarily seek
exemption in the manner as provided in the rules - As
the appellant failed to file satisfactory proof in the
manner provided under the Act and rules, not entitled
to the benefit as claimed.
Indian Law Reports (Delhi)
110
A
A
B
B
C
C
D
D
E
E
F
F
Having regard to the ratio of the judgment of the Supreme
Court in Indian Agencies (Regd.), Bangalore (supra), we G
need to give strict interpretation to the aforesaid provisions.
It would mean that there has to be strict compliance by the
dealer, in order to avail the benefit under these provisions.
Rule 9 of Delhi Sales Tax Rules requires the dealer to
produce a declaration in Form ST-3 duly filled in and signed H
by the dealer selling the goods. This would clearly signify
that Form ST-3 has to be produced in original. No doubt,
when these original Forms ST-3 are lost or destroyed
because of the circumstances beyond the control of the I
assessee, he should not be punished and denied the
benefit. The rule making authority has taken care of such a
ILR (2011) I Delhi
situation, so that no unnecessary hardship is caused. SubRule (3) is specifically added to take care of these
circumstances. Sub-rule (3) is an exception and if the
circumstances contained therein exist, the Commissioner
can exempt a dealer from furnishing original ST 3 From.
However, for doing so the conditions laid down therein are
to be satisfied, which are specifically incorporated in the
provision. To avail the benefit, the dealer has to necessarily
seek exemption in the manner provided therein.
It would be one of the exercises, exercise in the process,
that the other evidence, which is relied upon by the dealer
in the absence of original evidence, is sufficient to show that
the tax has been paid at the first point and the dealer is
entitled to adjustment thereof.
(Para 27)
Important Issue Involved: Provisions of Delhi Sales Tax
Act and rules framed thereunder are mandatory in nature
and it is necessary to construe them strictly in order to
avoid misuse— For claiming deduction the procedure laid
down in the Act and Rules, is to be strictly followed.
[Sh Ka]
APPEARANCES:
FOR THE APPELLANT
G FOR THE RESPONDENT
:
Mr. Rajesh Jain, Advocate.
:
Mr. H.L. Taneja, Advocate.
CASES REFERRED TO:
H
I
1.
CCE vs. Stelko Strips Ltd. [2010 (255) ELT 397 (P&H)].
2.
CCE, Ludhiana vs. Ralson India Ltd.[2006 (202) ELT
759 (P & H).
3.
Kothari General Foods Corpn. Ltd. vs. CCE, Bangalore
[2002 (144) ELT 338 (T)].
4.
B. Narasaiah & Co. vs. State of Andhra Pradesh [2002
(127) STC 606 (AP)].
5.
Shanmuga Traders Etc. vs. State of Tamil Nadu [1999
Alpine Agencies Pvt. Ltd. v. Comm. of Value Added Tax (A.K. Sikri, J.) 111
(114) STC 1 (SC).
112
A
6.
State of Tamil Nadu vs. V. Balu Chettiar [1996 (100)
STC 120 (Mad.).
7.
State of Tamil Nadu vs. Raman & Co. & Ors. [1994 (93)
B
STC 185 (SC).
8.
Manganese Ore (India) Ltd. vs. Commissioner of Sales
Tax, Madhya Pradesh STC Vol.83 1991.
9.
State of Andhra Pradesh vs. Tungbhadra Inds. Ltd. [1986
C
(62) STC 71 (AP).
10.
Dy. Commissioner vs. Saivakumar & Co.[1980 (45) STC
436 (Mad.).
11.
Govindan & Co. vs. Raichael Chacko [1975 (35) STC D
50 (SC).
12.
State of Madras vs. R. Nandlal and Co., : [1967]3SCR645.
13.
Kedarnath Jute Manufacturing Co. vs. Commercial Tax
E
Officer, Calcutta and Ors. [1965]3SCR626.
14.
F
3. The assessment order in question, relating to the local Act is
1996-97. For this assessment year, the assessment orders which were
framed by the Assessing officer were ex-parte and framed on 25th
C February, 2000. The assessment was made applying the best judgment
assessment for want of requisite material given by the assessee who also
did not participate in the proceedings and remained ex-parte. The
assessment was done both under the local Act as well as Central Sales
Tax Act (hereinafter would be referred to as ‘the Central Act’) raising
D
a demand of Rs. 3679144 and Rs. 90172 respectively, under the aforesaid
Acts. This order reads as under:
E
F
A.K. SIKRI, J.
1. This second appeal has been filed by the appellant (hereinafter
referred to as ‘the assessee’) under Section 45 of the Delhi Sales Act, G
1975. The appellant feels aggrieved by the order dated 1st April, 2010
passed by the Appellate Tribunal, Value Added Tax, Delhi under Section
43 (6) of the Delhi Sales Act, 1975. Before we pin-point the substantial
question of law which arises, it would be proper to traverse the facts H
under which the question of law has cropped up.
2. The assessee is a private limited company. It is trading in electric,
electronic and refrigeration items. All these goods in which the appellant
is trading were notified to be the first point items under Section 5 of the
Delhi Sales Act (hereinafter referred to as ‘the Local Act’). The implication
thereof is that liability to pay the sales tax is of the first seller from whom
I
ILR (2011) I Delhi
A the assessee was buying these goods, as the assessee was not the first
seller of the goods. It was in the case of the assessee that it had been
purchasing these goods from the registered dealers namely M/s Videocon
International Ltd., M/s. Whirlpool India Ltd. and M/s. Expo Machinery
B Ltd., etc.
Indian Agencies (Regd.), Bangalore vs. Additional
Commissioner of Commercial Taxes, Bangalore [139 STC
329].
RESULT: Appeal dismissed.
Indian Law Reports (Delhi)
G
“The trader runs AC and Refrigeration work. The quarterly return
were filed late, hence penalty of `1000 for the same is imposed
on the trader. The penalty for the fourth quarterly return has
already been imposed. The tax was also deposited late and interest
thereon is charged. The trader has shown sale of Rs. 2,00,63,689
in the quarterly returns and in the absence of Account Books of
the trader, I declare the total sale of the trader this year at Rs.
2,25,00,000 out of which tax at the rate of 12% in local is levied
on Rs. 2,00,00,000 and interest is also levied on this due tax. On
remaining amount, tax at the rate of 12% under Central Act is
to be levied. The benefit of tax deposited by the trader is allowed
to the trader.”
4. The assessee preferred an appeal against this order before the
First Appellate Authority alongwith the stay application. In the said stay
H application, the First Appellate Authority passed the orders dated 29th
March, 2000 directing the assessee to deposit entire amount of tax as a
condition of hearing the appeal. In appeal, this order was modified by the
Tribunal on 31st January, 2001 directing the assessee to deposit Rs. 10
I lacs under the local Act and Rs. 19,000/- under the Central Act. Still not
satisfied, the assessee challenged that order by filing Writ Petition No.7171
in this Court. This writ petition was decided on 17th January, 2002
whereby order of the Tribunal was further modified allowing the assessee
Alpine Agencies Pvt. Ltd. v. Comm. of Value Added Tax (A.K. Sikri, J.) 113
to now deposit Rs. 1,00,000 under the Local and Rs. 50,000 Under the A
Central Act.
5. The appeal was ultimately heard by the First Appellate Authority
(i.e. Additional commissioner) who vide orders dated 27th March, 2003
remanded the case back to the Assessing Authority for passing fresh B
orders after providing an opportunity to the assessee.
6. At this stage, we may state that the entire controversy relates to
the payment of sales tax on the sales made by the assessee. As pointed
out above, the items in which the assessee deals incurred sales tax at first C
point, thus, according to the assessee, the registered dealers from whom
it had purchased the goods had paid the sales tax. Therefore, it was not
necessary for the assessee to charge the sales tax on those very items
of goods when the assessee sold the same to the consumers. However, D
in order to claim exemption of sales tax liability, it was necessary for the
assessee to produce the invoices vide which it had purchased the goods
from the registered dealers reflecting sales tax having paid to those
registered dealers. Since ex-parte assessment order was made on 25th E
February, 2000, naturally, the assessee had not produced those bills in
the absence whereof tax liability was raised while framing the assessment
order. The plea of the assessee in appeal filed by it and also in the
proceedings arose out of interim orders passed by the First Appellate
Authority and as noted above, was that since sales tax had already been F
paid at the point of first sale, there was no liability on the part of the
assessee to pay this tax and the assessment of sales tax was without
jurisdiction.
G
7. When the matter was remanded back to the Assessing Officer,
the assessee again failed to produce these invoices. According to the
assessee, it lost its books of accounts in September, 2001 for which FIR
was lodged on 9th September, 2001 and, therefore, it was not in possession
of the books of accounts or original invoices. Again the assessee, though, H
attended the proceedings before the Assessing Officer in the beginning
when it was given repeated opportunities to produce the books of accounts,
the assessee did not turn up on 10th January, 2005 which was the final
opportunity given for this purpose. In these circumstances, again an ex- I
parte assessment order was passed confirming the original assessment
order dated 25th February, 2000. The assessee again went in appeal and
also filed stay application. It was again directed to pay the entire amount
114
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A before the appeal could be heard. This controversy again reached this
Court when the assessee filed Writ Petition (C) 4568/2007 challenging
the order of pre-deposit. The order dated 24th September, 2007 was
passed in that writ petition directing the assessee to deposit a sum of `
B 1 lac and directing the First Appellate Authority to decide the appeal on
merits.
8. The appeal was heard once again on merits by the First Appellate
Authority i.e. Additional Commissioner and was disposed of vide orders
C dated 29th May, 2009. The assessee was given part relief. However, as
the assessee again failed to produce the original invoices or books of
accounts, which were purportedly lost, it was ready to produce the
photocopy of those bills which he allegedly collected from the dealers.
The First Appellate Authority observed that it was for the assessee to
D
submit proof to the satisfaction of the Assessing Officer that the sale
made by it was not liable to be taxed. The first Appellate Authority also
observed that as far as enhancement of sale was made by the Assessing
Officer, no reasons in support thereof are given. The First Appellate
E Authority again remanded the case back to the Assessing Officer with
the direction to assess the turnover on the basis of available records and
pass speaking order for any enhancement of sale.
9. Since the first appellate Authority had observed in the impugned
F order that the assessee was not entitled to get the relief in the absence
of original invoices and on the basis of photocopy of the invoices, the
assessee took the same as an order adverse to it as it was not in a
position to produce the original books of accounts or the original invoices
G which were purportedly lost and could clearly foresee the outcome of the
fresh assessment orders had it gone to the Assessing Officer back on the
basis of direction given by the First Appellate Authority. Therefore, the
assessee decided to challenge this order by filing appeal before the Tribunal.
H Along with this appeal, as usual, stay application was also moved. This
application was heard on 16th December, 2009 and the Tribunal dispensed
with the condition of pre-deposit of tax. The Tribunal heard the appeal
also on merits finally there and then and reserved the orders. The orders
were pronounced on 31st March, 2010 dismissing the appeal. This is
I how the assessee has approached this Court by way of present appeal
challenging the said order of the Tribunal.
10. Though, many questions of law are proposed, according to us
Alpine Agencies Pvt. Ltd. v. Comm. of Value Added Tax (A.K. Sikri, J.) 115
controversy highlighted above gives rise to the following two questions A
of law:
(i)
Whether the inference drawn by the Tribunal that the
appellant was in possession of the books of accounts and,
therefore, there is no reason for them not to produce B
them before the Assessing Authority is not contrary to the
facts of the case, especially when an FIR regarding the
loss of books of accounts had been lodged on 9.9.2001
and the remanded assessment order in this matter was C
passed on 13.1.2005 (and not 25.2.2000)?
When the goods dealt in by the appellant were first point
goods on which liability to tax is on first sale, then could
the liability be fastened on the appellant when:D
(a) they were not the first seller of the said goods,
(c)
C
D
in discharge of their onus in terms of notification dated
31.02.1988, they had produced photocopies of the
purchase invoices before the Additional Commissioner E
and had also submitted the list of such purchases before
the Tribunal, and
E
There is a recording of admission of the respondent in
the order dated 18.2.2002 passed by this Court in CWP F
No.7173/2001 that appellant has paid all the taxes?”
F
11. It was highlighted by Mr. Jain, learned counsel appearing for
the assessee that the goods in question dealt with by the assessee attracted
sales tax on first sale and admittedly first sale was by the registered G
dealers to the assessee and, therefore, that sale could not be without
charging the sales tax. Thus, it could clearly be inferred and implied that
due sale tax was paid by the assessee. In such circumstances, there was
no question of any liability to pay sales tax again when the sales were H
made by the assessee to the ultimate consumers Though, it was conceded
that in order to avail this benefit, it was necessary for the assessee to
produce the books of accounts and the purchase invoices showing sales
tax charged by the dealers from the assessee at the time of making first
sale to it, his grievance was that the authorities below failed to appreciate I
that when the books of accounts had been lost, the assessee had no
alternative but to produce the photocopies of the purchase invoices which
ILR (2011) I Delhi
A the assessee had collected from the dealers He submitted that loss of
books of accounts etc. took place in September, 2001 and FIR was
lodged in that behalf as these books of accounts were available earlier,
he had shown the same to the Additional Commissioner (the First Appellate
B Authority) when in the first round of appeal before the said authority, the
assessee had pressed its application for stay. This contention of the
assessee is noted by the said Authority in its order dated 3th August,
2005 in the following terms:-
(ii)
(b)
Indian Law Reports (Delhi)
116
“Out of the total sales made for Rs. 1,76,30,139, sales worth
Rs.1,33,98,488 had been claimed as Tax paid sales. Since the
tax had been paid at first point the same could not be subjected
to tax again in the hands of the petitioner. The details of tax paid
purchases worth Rs. 1,62,97,112 had been filed before the Ld.
AA at the time of assessment as well as before the Hon’ble
Appellate Tribunal, Sales Tax at the time of appeal and also the
purchase vouchers were produced before the Hon’ble Sales Tax
Appellate Tribunal at the time of hearing of appeal U/S 43(5). It
amply proves that the appellant had the requisite purchase voucher/
bills in respect of the tax paid purchases which were subsequently
lost along with the books of accounts on 9.9.2001, however,
copies of purchase bills are available.”
12. We may again clarify that this was the contention of the assessee
before the said authority.
13. His further submission was that in order to get the benefit,
there was no requirement of producing the original bills. The Assessing
G
Officer had only to satisfy itself about the fact that tax had been paid
which could be gathered from the fact that items in which the assessee
was dealing were liable to tax on first sale whereas the sales made by
the assessee to the consumers were second sale. Further, the assessee
H had produced the photocopies of the bills duly verified by the registered
dealers evidencing the payment of sales tax.
I
14. Mr. Jain referred to the following judgments in support of his
plea that when the first seller of the goods is identifiable who alone is
liable to tax, then subsequent tax is exempted from taxation:
(1)
B. Narasaiah & Co. Vs. State of Andhra Pradesh
Alpine Agencies Pvt. Ltd. v. Comm. of Value Added Tax (A.K. Sikri, J.) 117
[2002 (127) STC 606 (AP)];
A
(2)
Shanmuga Traders Etc. Vs. State of Tamil Nadu [1999
(114) STC 1 (SC);
(3)
State of Tamil Nadu Vs. V. Balu Chettiar [1996 (100)
B
STC 120 (Mad.);
Dy. Commissioner Vs. Saivakumar & Co.[1980 (45)
STC 436 (Mad.);
(5)
Govindan & Co. Vs. Raichael Chacko [1975 (35) STC
C
50 (SC);
(6)
State of Tamil Nadu Vs. Raman & Co. & Ors. [1994
(93) STC 185 (SC); and
(7)
State of Andhra Pradesh Vs. Tungbhadra Inds. Ltd. D
[1986 (62) STC 71 (AP).
15. He also relied upon the Notification dated 30.12.1988, which
reads as under:
E
F
16. He further tried to distinguish the judgment of the Supreme G
Court in the case of Indian Agencies (Regd.), Bangalore Vs. Additional
Commissioner of Commercial Taxes, Bangalore [139 STC 329] relied
upon by the Tribunal. In support of his submission that when the original
copies of the cash memos/books of accounts had been lost, non-production H
thereof would not attract denial of the benefit when the payment of taxes
at first point or purchases from registered dealer had not been disputed
and referred to the following judgment in support of this plea:
(a)
CCE, Ludhiana Vs. Ralson India Ltd.[2006 (202) ELT
759 (P & H);
(b)
CCE Vs. Stelko Strips Ltd. [2010 (255) ELT 397
I
ILR (2011) I Delhi
(P&H)]; and
A
(c)
(4)
“… the only condition imposed upon a dealer for claiming
exemption is to produce bill(s)/cash memo(s) in support of
purchase of such goods in Delhi. Photocopies of such bills are
available with the appellant which are produced before this Court.
Such purchases stand confirmed from the sellers either by
stamping the invoices or supported with their letters. These have
been recorded in thes books of account and payments too have
been made by cheques.”
Indian Law Reports (Delhi)
118
Kothari General Foods Corpn. Ltd. Vs. CCE,
Bangalore [2002 (144) ELT 338 (T)].
17. Mr. Taneja, learned counsel appearing for the respondent/Revenue
relied upon the reasons given by the Tribunal in its detailed judgment and
the case law referred by the Tribunal in the impugned order was extensively
read by Mr. Taneja in support of his plea that in a case like this, no
indulgence could be given to the assessee who had been negligent
C throughout and had ultimately failed to produce the requisite evidence in
support of its plea that sales tax had been paid. He placed strong reliance
upon the judgment of the Supreme Court in the Case of Indian Agencies
(Regd.), Bangalore (supra).
B
D
18. We have considered the rival submissions. We find from the
order of the Tribunal that it has drawn its conclusion, based upon the
judgment of the Supreme Court in the case of Indian Agencies (Regd.),
Bangalore (supra). The attempt made by the learned counsel for the
E appellant is to distinguish that judgment. Therefore, it would be appropriate
to start discussion from that judgment and to find out as to what that
case actually decides.
19. That case arose out of Central Sales Tax Act, 1956. Section 8
F of the said Act provides for rates of tax on sales in the course of interstate trade and commerce. Sub-section (4) whereof lays down the
circumstances under which the sales tax to any sale in the course of
inter-state trade and commerce would not be leviable. Clause (a) thereof
G provides that the dealer selling the goods shall not be liable to pay this
tax if he furnishes to the prescribed authority in the prescribed manner,
a declaration duly filled and signed by the registered dealer to whom the
goods are sold containing the prescribed particulars in a prescribed form
obtained from the prescribed authority. These prescribed forms are known
H
as ‘Form-C’. The appellant/dealer in the said case had claimed exemption
from payment of tax at the prescribed rate, but wanted the same at
concessional rate. This was, however, disallowed by the Additional
Commissioner of Commerce Taxes, as the appellant had not produced
I original ‘Form-C’ and instead wanted the benefit of concessional rate of
tax on the basis of ‘Form-C’ marked as duplicate. He had pleaded that
since ‘Form-C’ marked as original had been lost, he was producing
Alpine Agencies Pvt. Ltd. v. Comm. of Value Added Tax (A.K. Sikri, J.) 119
duplicate ‘Form-C’, which contention was not accepted by the Assessing
Officer. The appeal was preferred before the Joint Commissioner of
Commerce Taxes (Appeals), Bangalore, which was allowed holding that
the Assessing Authorities should not have rejected the duplicate of the
‘C-Forms’ and the indemnity bonds filed by the appellant and should not
have denied the benefit of concessional rate of tax on such turnover
covered by duplicate ‘C-Forms’. The Revenue preferred appeal thereagainst
before the Additional Commissioner Commercial Taxes, who allowed the
appeal by setting aside the order of the Joint Commissioner of Commerce
Taxes (Appeals) to the extent that it allowed concessional rate of tax on
the inter-state sales effected by the controller on the basis of the ‘CForms’ marked as duplicate and the indemnity bonds furnished by the
dealer for the loss of the ‘C-Forms’ marked as original. The appellant/
assessee approached the High Court of Karnataka by filing the Sales Tax
Appeal No.75 of 1998, which was dismissed. In these circumstances,
the appellant knocked the door of the Supreme Court. It was the contention
of the appellant before the Supreme Court that as ‘original.’ C-Form had
been lost, it was permissible for the appellant to produce ‘duplicate’ CForms, which was also primary evidence of the said document by virtue
of the principles enshrined in Section 62 of the Evidence Act, 1872. It
was also argued that in any event, filing of the ‘original’ C-Form was not
mandatory, but directory and filing ‘duplicate’ C-Form was sufficient
compliance for levy of lower rate of tax under Rule 12(1) of Central
Rules read with Rule 6(b)(ii) of the State Rules and Section 8 of the
Central Act. It was also argued that when the original document is lost,
duplicate, in any case, would be the best secondary evidence admissible
under Section 65/66 of the Evidence Act. Many other submissions were
made, which are not relevant for our purposes.
120
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A
B
B
C
C
D
E
E
F
F
G
20. The Supreme Court referred to the provision of Section 8 of
the Central Act as well as Rule 12 of the Central Sales Tax (Registration
and Turnover) Rule, 1957 made by the Central Government in exercise H
of its power conferred under Section 13 of the Central Act. Proviso (2)
and (3) to this Rule deal with the situation where original Forms are lost
and reads as under:
I
“Provided also…
(2) Where a blank or duly completed form of declaration is lost,
whether such loss occurs while it is in the custody of the
D
Indian Law Reports (Delhi)
ILR (2011) I Delhi
purchasing dealer or in transit to the selling dealer, the purchasing
dealer shall furnish in respect of every such form so lost an
indemnity bond in Form G to the notified authority from whom
the said form was obtained, for such sum as the said authority
may having regard to the circumstances of the case, fix. Such
indemnity bond shall be furnished by the selling dealer to the
notified authority of his State if a duly completed form of
declaration received by him is los, whether such loss occurs
while it is in his custody or while it is in transit to the notified
authority of his State.
Provided that where more than one form of declaration is lost,
the purchasing dealer or the selling dealer, as the case may be,
may furnish one such indemnity bond to cover all the forms of
declaration so lost.
(3) Where a declaration form furnished by the dealer purchasing
the goods or the certificate furnished by the Government has
been lost, the dealer selling the goods, may demand from the
dealer who purchased the goods or, as the case may be, from
the Government, which purchased the goods, a duplicate of
such form or certificate, and the same shall be furnished with
the following declaration recorded in red ink and signed by the
dealer or authorized officer or the Government, as the case may
be, on all the there portions of such form or certificate.”
21. The Court also took note of Rule 6 of Central Sales Tax
(Karnataka) Rules, 1957. Clause (ii) of sub-Rule (ii) thereof is relevant
G
and reads as under:
H
I
“(ii) A registered dealer who claims to have made a sale to
another registered dealer or to Government shall, in respect of
such claim, attach to his return to be filled in Form IV the
portion marked ‘original’ of the declaration or the certificate in
Form D, received by him from the purchasing dealer or
Government, as the case may. The assessing authority may, in
his discretion, also direct the selling dealer to produce for
inspection the portion marked ‘duplicate’ or the declaration or
certificate in Form D, as the case may be.”
Alpine Agencies Pvt. Ltd. v. Comm. of Value Added Tax (A.K. Sikri, J.) 121
22. On the basis of the aforesaid provisions, the Apex Court came A
to the conclusion that merely by producing ‘duplicate’ C-Form instead
of ‘original’ forms, the appellant had not complied with the provision of
Section 8 (4) to enable it to claim the benefit of concessional rates. It
observed:
B
“12… … … In our view, the Rule has to be strictly construed.
Admittedly, the appellant has not complied with the said provisions
and, therefore, he is not entitled to the concessional rate of tax
under Section 8 of the Central Sales Tax. Section 8(4) specifically C
provides that the provisions of sub-section (1) shall not apply to
any sale in the course of inter-state trade or commerce unless
the dealer selling the goods furnishes to the prescribed authority
in the prescribed manner. Rule 8(4)(a) also provides that a
D
declaration duly filled and signed by the registered dealer to
whom the goods are sold containing the prescribed particulars in
a prescribed form obtained from the prescribed authority. On the
above provision, a registered dealer will not be entitled to the
concessional rate of tax in respect of inter-state sales made by E
him without the production of the declaration referred under
clause (a) of sub-section (4) noted above.
13. Under the Central Sales Tax (Karnataka) Rules, 1957, the
dealer is required to submit along with his return the original of F
the prescribed forms. As could be seen from the rule extracted
above a registered dealer who claims that he has made a sale to
another registered dealer is required to attach the original of the
declaration forms on the certificate in the prescribed form G
ˇreceived by him from the prescribed dealer along with his
return filed by him… …. …
… … … Thus, the dealer has to strictly follow the procedure
and the Rule 6(b)(ii) and produce the relevant materials required H
under the said rule. Without producing the specified documents
as prescribed thereunder a dealer cannot claim the benefits
provided under Section 8 of the Act. Therefore, we are of the
opinion that the requirements contained in Rule 6(b)(ii) of the I
Central Sales Tax (Karnataka) Rules, 1957 are mandatory… …
…”
122
A
B
C
D
E
F
G
H
I
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ILR (2011) I Delhi
23. The Court gave the following rationale justifying strict compliance
of the aforesaid provision:
“15. The very purpose of prescribing the filing of C-Forms is
that there should not be suppression of any inter-state sales by
a selling dealer and evasion of tax to the State from where the
actual sales are affected. Secondly, the purchasing dealer also
cannot suppress such purchases once he issues C-Form to the
selling dealer. Since the dealer should issue C-Form has to
maintain a detailed account of such C-Forms obtained from the
department prescribed under the States Taxation law. The CForm is a declaration to be issued only by the sales tax authorities
of concerned States. By issuing declaration in C-Form the
purchasing dealer would be benefited as he is entitled to purchase
goods by paying only concessional rate of tax of 4% as prescribed
by the concerned State of purchasing dealer otherwise the
purchasing dealer has to pay tax at a higher rate besides additional
taxes on such sales effected within the State where selling dealer
is situated.”
24. The Supreme Court also discussed various precedents and entire
discussion thereon would be relevant for us. Therefore, we reproduce
the same:
“18. In Kedarnath Jute Manufacturing Co. v. Commercial
Tax Officer, Calcutta and Ors. [1965]3SCR626 , the question
that arose in this case was whether under Section 5(2)(a)(ii) of
the Bengal Finance (Sales Tax) Act, 1941, the furnishing of
declaration forms issued by the purchasing dealers was a
condition for claiming the exemption thereunder. This Court held
as under:
"Section 5(2)(a)(ii) of the Act in effect exempts a specified
turn-over of a dealer from sales tax. The provision
prescribing the exemption shall, therefore, be strictly
construed. The substantive clause gives the exemption
and the proviso qualifies the substantive clause. In effect
the proviso says that part of the turnover of the selling
dealer covered by the terms of sub- clause (ii) will be
exempted provided a declaration in the form prescribed is
Alpine Agencies Pvt. Ltd. v. Comm. of Value Added Tax (A.K. Sikri, J.) 123
furnished. To put it in other words, a dealer cannot get
the exemption unless he furnishes the declaration in the
prescribed form. It is well settled that 'the effect of an
excepting or qualifying proviso, according to the ordinary
rules of construction, is to except out of the preceding
portion of the enactment, or to qualify something enacted
therein, which but for the proviso would be within it.
There is an understandable reason for the stringency of
the provisions. The object of s. 5(2)(a)(ii) of the Act and
the rules made thereunder is self-evident. While they are
obviously intended to give exemption to a dealer in respect
of sales to registered dealers of specified classes of goods,
it seeks also to prevent fraud and collusion in an attempt
to evade tax. In the nature of things, in view of innumerable
transactions that may be entered into between dealers, it
will wellnigh be impossible for the taxing authorities to
ascertain in each case whether a dealer has sold the
specified goods to another for the purposes mentioned in
the section. Therefore, presumably to achieve the twofold
object, namely, prevention of fraud and facilitating
administrative efficiency, the exemption given is made
subject to a condition that the person claiming the
exemption shall furnish a declaration form in the manner
prescribed under the section. The liberal construction
suggested will facilitate the commission of fraud and
introduce administrative inconveniences, both of which
the provisions of the said clause seek to avoid."
124
A
A
B
B
C
C
D
D
E
E
F
F
G
G
16. In State of Madras v. R. Nandlal and Co., :
[1967]3SCR645 , this Court while construing the rule
making power of Central Government has observed as
under:H
H
"The Central Government has, in exercise of the power
under S. 13(1)(d) prescribed the form of declaration and
the particulars to be contained in the declaration. A
direction that there shall be a separate declaration in
respect of each individual transaction may appropriately
be made in exercise of the power conferred under S.
13(1)(d). The State Government is undoubtedly
I
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
empowered to make rules under sub-ss.(3) and (4) of S.
13; but the rules made by the State Government must
not be inconsistent with the provisions of the Act and
the rules made under sub-s.(1) of S. 13 to carry out the
purposes of the Act.”
17. In a similar matter - Commissioner of Sales Tax,
Delhi v. Delhi Automobiles (P.) Ltd., STC Vol. 48 1981,
the Delhi High Court held that the production of a
declaration form is a condition precedent for the availability
of the concession. The Bench also has observed that
these detailed provisions are intended as a measure of
safeguard against possible miss-utilization of the forms
and also to ensure that relief is not obtained by more than
one selling dealer in respect of the same declaration form
by using the various parts of it differently.
18. This Court has further held that the essence of these
rules and regulations is that before a selling dealer is able
to claim the benefit of concessional tax he should be able
to produce the original and duplicate issued by him by the
purchasing dealer in the first instance or the duplicate
which will also contain these two portions of the forms
issued along with a declaration subscribed to by the
purchasing dealer subsequently on the strength of his earlier
records and his personal knowledge and for which he will
have to count in due course to the Sales Tax Authorities
from whom he obtained these declarations. The bench
was of the opinion that the production of the Photostat
copy of the counter foil cannot be said to be strict or
even substantial compliance of Rule 12(3) and that by
merely producing the photostat copy of the counter foil,
it cannot be said that the Act and the Rules have been
complied with.
19. The case of Manganese Ore (India) Ltd. v.
Commissioner of Sales Tax, Madhya Pradesh STC
Vol.83 1991 was relied on by learned counsel for the
appellant. In the above case, in order to obtain the benefit
of Section 8(1) of the Central Sales Tax Act, it was
Alpine Agencies Pvt. Ltd. v. Comm. of Value Added Tax (A.K. Sikri, J.) 125
argued before the High Court that Form-C consists of
three parts - original, duplicate and counter foil and all the
three parts are identical in terms of them and form part
of form-C and that Section 8(5) or Rule 12(1) does not
say which part of the form is required to be filed before
the Assessing Authority. In that case, the dealer filed the
duplicate part of form-C instead of the original, the High
Court held that there was sufficient compliance with the
provisions of Section 8(4) of the Central Sales Tax Act
and those of Rule 12(1) of the Central Sales Tax (R&T)
rules so as to entitle the dealer to get the benefit of
concessional rate of tax under Section 8(1) of the Central
Sales Tax Act. The High Court as a result of their
discussion held that the filing of original parts of declaration
in C-Form is not mandatory but directory under the Central
Sales Tax Act, 1956 read with rules thereunder and in the
facts and circumstances of the case, the assessee was
entitled to the concessional rate of tax as if it had filed the
original parts of the declaration in C-Form as it had filed
the original parts in Maharashtra. The Assessing Authority
which was also sought to be summoned by an application
for their production and further the duplicate parts thereof
were filed before the Assessing Authority in Madhya
Pradesh.
126
A
B
B
C
C
D
D
E
F
20. The above judgment does not help the appellant in the
present case. The facts in the above case and the case on
hand are different. This apart, there is no similar rule in G
this case to the one found in the case on hand, namely,
Rule 6(b)(ii) of the Central Sales Tax (Karnataka) Rules,
1957 that makes of the difference for it is the rule 6(b)(ii)
imposes the condition in the instant case.
H
21. Against the decision in Commissioner of Sales Tax,
Delhi v. Delhi Automobiles (P.) Ltd., (supra) of the
High Court of Delhi, the Delhi Automobiles (P) Ltd.
preferred an Appeal in this Court - Delhi Automobiles
(P) Ltd. v. Commissioner of Sales Tax, Delhi:
(1997)10SCC486 , which was dismissed by this Court.
The learned judges of this Court has observed in para 7
A
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
as under:
In our view, in the first place, the assessee had not done
all that it could; it could, and should, have preferred an
appeal against the order of the learned Single Judge and
persisted in his application for obtaining from the Official
Liquidator duplicates of the 'C' Form declarations, as
required by Rule 12(3). Since it did not, in the face of the
clear language of the rule, its case can hardly be said to
be a hard case. The judgment cited by the learned counsel
has no application because that was a case where the
language of the statute was found to be ambiguous The
language of the provision here is clear and was rightly
applied by the High Court.”
25. It is, thus, clear that in view of the provisions contained in the
Central Sales Tax Act and Rules framed thereunder as well as Karnataka
Sales Tax Act, the Court opined that those provisions were mandatory
in nature which required furnishing of ‘original’ C-Form and it was
E
necessary to construe them strictly, in order to avoid misuse.
26. Keeping this rationale in mind, let us scan through the provisions
of law with which we are concerned. As per Section 5 of Local Act,
once the point of sale at which the classes of goods taxed, notified by
F
the first sale, all subsequent sales of such goods shall be exempt from
payment of tax. For claiming this deduction, procedure is laid down in
Section 4 of the Local Act as well as Rule 9 of Delhi Sales Tax Rule and
Notification dated 30.12.1988. We, thus, reproduce these provisions, i.e.,
G Section 4, Section 5 of the Local Act, Rule 9 of Delhi Sales Tax Rule
and Notification dated 30.12.1988:
H
I
“4. WHEN IS A SALE OR PURCHASE OF GOODS SAID
TO TAKE PLACE OUTSIDE A STATE. - (1) Subject to the
provisions contained in section 3, when a sale or purchase of
goods is determined in accordance with sub-section (2) to take
place inside a State, such sale or purchase shall be deemed to
have taken place outside all other States.
(2) A sale or purchase of goods shall be deemed to take place
inside a State, if the goods are within the State, - (a) in the case
of specific or ascertained goods, at the time the contract of sale
Alpine Agencies Pvt. Ltd. v. Comm. of Value Added Tax (A.K. Sikri, J.) 127
128
A
A
(b) in the case of unascertained or future goods, at the time of
their appropriation to the contract of sale by the seller or by the
buyer, whether assent of the other party is prior or subsequent
B
to such appropriation.
B
is made; and
Explanation : Where there is a single contract of sale or purchase
of goods situated at more places than one, the provisions of this
sub-section shall apply as if there were separate contracts in
C
respect of the goods at each of such places.
“5. WHEN IS A SALE OR PURCHASE OF GOODS SAID
TO TAKE PLACE IN THE COURSE OF IMPORT OR
EXPORT. - (1) A sale or purchase of goods shall be deemed to
D
take place in the course of the export of the goods out of the
territory of India only if the sale or purchase either occasions
such export or is effected by a transfer of documents of title to
the goods after the goods have crossed the customs frontiers of
E
India,
(2) A sale or purchase of goods shall be deemed to take place
in the course of the import of the goods into the territory of
India only if the sale or purchase either occasions such import
F
or is effected by a transfer of documents of title to the goods
before the goods have crossed the customs frontiers of India.
(3) Notwithstanding anything contained in sub-section (1), the
last sale or purchase of any goods preceding the sale or purchase
G
occasioning the export of those goods out of the territory of
India shall also be deemed to be in the course of such export,
if such last sale or purchase took place after, and was for the
purpose of complying with, the agreement or order for or in
H
relation to such export.”
C
1. A dealer who wishes to deduct from his turnover the amount
ILR (2011) I Delhi
in respect t of any sale on the ground that he is entitled to make
such deduction under the provisions of sub-clause (i) of clause
(a) of sub-section (2) of section 5 shall, unless otherwise exempted
under the provisions of the second proviso to section 5, produce
a declaration in From ST-3 duly filled in and signed by the dealer
selling the goods:
Provided that a single declaration in From ST-3 may cover
any number of transactions of sales by a dealer, effected during
a quarter.
2. The declaration in From ST-3 shall be furnished by the dealer
claiming the deduction to the appropriate assessing authority up
to the time of assessment by it.
D
3. The provisions of sub-rule (3) of rule 7 shall mutatis mutandis
apply to furnishing of declaration in Form ST-3.”
Sub-rule (3) of Rule 7, which is made applicable here also deals with the
E situation where the dealer is not in a position to furnish all or any of the
declarations on account of loss, etc. thereof. This would, therefore, be
relevant for us and we take note of this provision as well:
F
G
H
Rule 9 of Delhi Sales Tax Rules, 1975
“9. Conditions subject to which a dealer may claim deduction
from his turnover on account of sales of goods at a point
other than the last point in the series of sales
Indian Law Reports (Delhi)
“3. Notwithstanding anything contained in sub-rule (1) if the
Commissioner on an application made by a dealer and after making
such enquiries as he may consider necessary, is satisfied that the
dealer is not in a position to furnish all or any of the declarations
referred to in sub-rule (1) above on account of loss of such
declaration or declarations due to the fire or flood or riots beyond
the control of the dealer, and that the application of sub-rule (1)
will cause undue hardship to the dealer, he may by an order in
writing exempt such dealer from furnishing such declaration or
declarations, subject to the conditions as are hereinbelow mentioned
and to such further conditions as may be specified by the
Commissioner in the order.
CONDITIONS
I
I
(1) That the application is made within 30 days of the event, i.e.,
fire or flood or riots, as the case may be, stating the fact and
circumstances in which the loss took place and also shall state
Alpine Agencies Pvt. Ltd. v. Comm. of Value Added Tax (A.K. Sikri, J.) 129
the evidence on which he relies in support of such facts. The A
application shall be duly signed and verified by the dealer in the
manner as is provided in respect of returns.
No.F.2(18)/77-PPR/PF/9426-9777”
B
(3) The provisions of sub-rule (3) of rule 7, shall mutatis mutandis
apply to the furnishing of exemption certificates from the
diplomatic missions, their personnel and specialized agencies as
C
specified under rule 11.”
C
Notification dated 30th December, 1988
“ NOTIFICATION
D
D
Now, therefore, in exercise of the powers conferred by second E
proviso to section 5 of the Delhi Sales Tax Act, 1975 (43 of
1975), the Administrator is pleased to exempt all dealers selling
goods or the class of goods notified to be taxable at first
point goods in this Administration's Notification No.F.4(1)/78- F
Fin.(G)(i) dated the 31st January, 1978 and further notified from
time to time from furnishing under the first proviso to the said
section 5 declaration in form ST-3 in respect of a sale of first
point goods purchased on or after the first day of February, G
1978 subject to the condition that the dealer claiming exemption
shall produce bill(s)/cash memo(s) in support of purchase of
such goods in Delhi.
E
No.F..4(57)/86-Fin.(G): - Whereas the Administrator is of the
opinion that it is not necessary to do so:
This notification shall be enforced w.e.f. 1st February, 1978.
H
By order and the name of
Administrator of the Union
Territory of Delhi
Sd/(T.C. Nakh)
Deputy Secretary (Finance)
I
ILR (2011) I Delhi
Dated: 3.1.89
A
(2) That the loss had taken place at the place of business of the
B
dealer.
Dated the 30th December, 1988
Indian Law Reports (Delhi)
130
F
G
27. Having regard to the ratio of the judgment of the Supreme
Court in Indian Agencies (Regd.), Bangalore (supra), we need to give
strict interpretation to the aforesaid provisions. It would mean that there
has to be strict compliance by the dealer, in order to avail the benefit
under these provisions. Rule 9 of Delhi Sales Tax Rules requires the
dealer to produce a declaration in Form ST-3 duly filled in and signed by
the dealer selling the goods. This would clearly signify that Form ST-3
has to be produced in original. No doubt, when these original Forms ST3 are lost or destroyed because of the circumstances beyond the control
of the assessee, he should not be punished and denied the benefit. The
rule making authority has taken care of such a situation, so that no
unnecessary hardship is caused. Sub-Rule (3) is specifically added to
take care of these circumstances. Sub-rule (3) is an exception and if the
circumstances contained therein exist, the Commissioner can exempt a
dealer from furnishing original ST 3 From. However, for doing so the
conditions laid down therein are to be satisfied, which are specifically
incorporated in the provision. To avail the benefit, the dealer has to
necessarily seek exemption in the manner provided therein. It has to be
in the following manner:
(1)
The application is to be made by the dealer within 30
days of the occurrence of any event specified in the
sub-rule.
(2)
In this application, the dealer is to state the facts and
circumstances in which the loss took place.
(3)
The dealer has also to state in the application the evidence
on which he would rely in the absence of original
documents.
(4)
On making this application, the Commissioner shall make
appropriate inquiry to satisfy himself that the dealer is
not in a position to furnish all or any of the declarations
referred to in sub-rule(1).
(5)
He shall also be convinced that cause of non-supply of
those documents shall cause undue hardship to the dealer.
H
I
Alpine Agencies Pvt. Ltd. v. Comm. of Value Added Tax (A.K. Sikri, J.) 131
It would be one of the exercises, exercise in the process, that A
the other evidence, which is relied upon by the dealer in the
absence of original evidence, is sufficient to show that the tax
has been paid at the first point and the dealer is entitled to
adjustment thereof.
B
28. In the present case, no application was made by the dealer at
all, what to talk of moving an application within 30 days. The appellant
herein did not request the Commissioner to make an inquiry and satisfy
himself to the effect that the appellant was not in a position to furnish
these ST 3 Forms. This itself is a moot question whether the appellant
could avail this benefit on the ground that there was a theft, as such a
contingency is not provided to enable a dealer to seek exemption under
this provision. Be that as it may, when the appellant did not even move
the Commissioner for exemption from filing the original ST-3 form, the
conditions specified in Rule 9 of Delhi Sales Tax Rules were not satisfied
by the dealer. In the absence thereof, the appellant could not claim
deduction without producing the original ST-3 Forms. The appellant
merely wanted to rely upon the photocopies of such forms. That would
not amount to fulfilling the conditions to enable the appellant to claim
deduction from his turn over on account of sale of goods at first point.
The purpose of furnishing ST-3 Form is to prove that sales tax has
already been collected. In the absence of such forms, the appellant has
not been able to demonstrate this.
C
ILR (2011) I Delhi
A in those cases. It is stated at the cost of repetition that in the present
case, if the cash memos/books of accounts had been lost, the appellant
should have been taken recourse of sub-rule (3) of Rule 7 of Delhi Sales
Tax Rules by moving appropriate application before the Commissioner.
B It is through this channel that he could seek the exemption from filing
the original form ST-3. Having not done so in the manner prescribed, it
is difficult to give benefit to the appellant.
31. Keeping in view the ratio of Supreme Court judgment in Indian
Agencies
(Regd.), Bangalore (supra), we have no option but to dismiss
C
the appeal.
32. However, there shall be no order as to costs.
D
D
ILR (2011) I DELHI 132
WP
E
E
GOVT. OF NCT OF DELHI & ORS.
....PETITIONERS
VERSUS
F
F
NARESH KUMAR
29. The authorities cited by the learned counsel for the appellant to
the effect that when the first seller of the goods is identified who alone
is liable to tax, then subsequent tax is exempted from taxation, is not G
applicable to the present situation. It is not a case of fixing the responsibility.
Here, the appellant wants the benefit of tax, which allegedly is already
paid. However, the appellant has to file satisfactory proof thereof, in the
manner provided under the Act and Rules.
H
30. The learned counsel for the appellant had also cited certain
judgments to show that when the original copies of the cash memos/
books of accounts had been lost, non-production thereof would not
attract denial of the benefit, moreso when the payment of taxes at first
point or purchases from registered dealer had not been disputed. Those
judgments are mentioned at Para 14 above. However, these judgments
are based on the interpretation of specific Rules, which govern the issue
Indian Law Reports (Delhi)
132
I
....RESPONDENT
(PRADEEP NANDRAJOG AND MOOL CHAND GARG, JJ.)
G WP(C) NO. : 22658-60/2005
AND WP (C) NO. : 22669/2005
H
I
DATE OF DECISION: 20.09.2010
CCS (Temporary Service) Rules, 1965—Rule 5—Indian
Penal Code, 1860—Section 363/366/376—Respondents
appointed on probation against temporary post of
Warder Prison in Tihar—Pursuant to registration FIR,
respondents sent to judicial custody—Competent
Authority terminated services by non stigmatic orders
of discharge simpliciter—Representations made to
appointing authority to re-induct respondents in service
after their acquittal in criminal trial rejected—
Govt. of NCT of Delhi v. Naresh Kumar (Pradeep Nandrajog, J.) 133
Representations styled as appeals also rejected—
Impugned orders challenged before Administrative
Tribunal to set aside order of termination—Plea taken,
order terminating services being penal in nature,
department was obliged to hold enquiry—
Administrative Tribunal allowed application—Order of
Tribunal challenged in High Court—Plea taken,
applications before Tribunal were time barred—
Respondents being accused of serious offences and
arrest was motive and not foundation of order
terminating their services—Held, Non statutory
representation can never extend limitation—Merely
by labelling representation as appeal and said work
being reflected in order communicating rejection of
representation would not make representation
appeal—It is substance which matters not label—
Representations questioning order terminating
services were highly belated and barred by limitation
before Tribunal—Employer has legal right to dispense
with services of employee without anything more
during or at end of prescribed period—Where no
findings are arrived at any inquiry or no inquiry is held
but employees chooses to discontinue services of
employee against whom complaints are received it
would be a case of complaints motivating action and
would not be bad—Order of Tribunal quashed.
Indian Law Reports (Delhi)
134
A
A
B
B
C
C
D
D
E
E
F
F
G
We may only add by stating that nobody acts for no reasons
and indeed if somebody were to act on account of no
reasons, that itself would vitiate an action as not only being
unintelligible but as being perverse. Obviously, something
has to impel or propel an employer to terminate the services H
of his employee. It is only when the termination is by way of
penalty would the principles of natural justice and opportunity
to participate at an inquiry where guilt to be determined is
the object of the inquiry would come into play. Obviously, I
where on the finding of guilt an order terminating the
services of an employee is passed it can safely be said that
the employee has been penalized for a wrong. But where
G
ILR (2011) I Delhi
the misdemeanour is not treated as proved and no inquiry
is held, and where an inquiry is held, the report is not made
the foundation of the order, but what is opined by the
employer is that the employee has lost the confidence of the
employer, an order of termination cannot be said to be
founded on the misdemeanour and the misdemeanour would
remain as the motive for the action. This situation would not
attract the principle that the termination is penal.
(Para 44)
Important Issue Involved: (A) Non statutory representation
can never extend the limitation. Merely by labelling a
representation as an appeal and the said work being reflected
in the order communicating rejection of the representation
would not make the representation an appeal. It is the
substance which matters and not the label.
(B) An employer has a legal right to dispense with the
services of the employee without anything more, during or
at the end of the prescribed period, which is styled as the
period of limitation.
(C) Where the termination of services of a probationer visits
him with a stigma or is penal or mala fide, the probationer
would have a right to justify that the cause which resulted
in his being removed is other than relating to his personal
capacity, suitability, utility or capacity to work.
[Ar Bh]
H
APPEARANCES:
FOR THE PETITIONERS
:
Ms. Avnish Ahlawat, Advocate with
Ms. Latika Chaudhary, Ms. Simran
Singh and Mr. Nitesh Kumar Singh,
Advocates.
FOR THE RESPONDENT
:
Mr. P.P. Khurana, Sr. Advocate with
I
Govt. of NCT of Delhi v. Naresh Kumar (Pradeep Nandrajog, J.) 135
136
Mr. Sunil Magon and Mr. H.K. Bajpai, A
Advocates.
Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I. of
B
Medical Sciences & Anr., AIR 2002 SC 23.
2.
Dipti Prakash Banerjee vs. Satvendera Nath Bose National
Centre for Basic Sciences AIR 1999 SC 983.
3.
Kamal Kishore Lakshman vs. Pan Amercian World Airways C
1987 (1) SCC 146.
4.
Gujarat Steel Tube vs. Gujarat Steel Tubes Majdoor Sangh
1980 (2) SCC 593.
5.
S.Sukhwant Singh vs. State of Punjab, AIR 1962 SC D
1711.
6.
State of Orissa vs. Ram Narayan Dass AIR 1961 SC 177.
7.
Purshottam Lal Dhingra vs. UOI, AIR 1958 SC 36.
E
RESULT: Allowed.
years from the date of appointment. Failure to complete the
period of probation to the satisfaction of the Competent authority
will render him liable to discharge from service without any
notice.
B
2. The appointment will be terminated at any time by one month
notice given by the either side viz, the appointee or the appointing
authority without assigning any reasons. The appointing authority,
however reserves the right of terminating the service of the
appointee forth with or before expiry of the stipulated period of
notice by making payment to him of a sum of equivalent to pay
and allowances for the period of notice or unexpired portion
thereof. “
C
D
2. A bare perusal of the relevant terms of the memorandum aforesaid
reveals that Satish and Naresh were to be on probation for a period of
2 years and within the period the probation their services could be
terminated without assigning any reasons. Satish Kumar joined duty as
E Warder Prison in Tihar Jail, Delhi on 10.7.1996 and Naresh Kumar joined
duty as Warder Prison in Tihar Jail, Delhi on 23.7.1996.
PRADEEP NANDRAJOG, J.
1. Respondents of the two writ petitions being WP(C) No.22658F
60/2005 and WP(C) No.22669-72/2005 i.e. Naresh Kumar and Satish
Kumar respectively, were appointed on probation against the temporary
post of Warder Prison in Tihar Jail, Delhi vide memorandum dated
23.1.1996 relevant part whereof reads as under:G
“MEMORANDUM
On the recommendation of Staff Selection Board, the undersigned
is hereby please to offer to Sh.Satish Kumar a temporary/post of
Warder on a pay of Rs. 9050/- per month in the scale of Rs. H
950-20-1150-EB-25-1400 in Central Jail, Tihar, New Delhi. The
appointee will also be entitled to draw dearness allowance and
other allowance at the rates admissible under the Rule and subject
to the conditions laid down in the Rules and Orders governing
I
the grant of such allowances in force from time to time. Other
Terms and conditions are as follows:1. Sh.Satish Kumar will be on a probation for a period of two
ILR (2011) I Delhi
A
CASES REFERRED TO:
1.
Indian Law Reports (Delhi)
F
3. Pursuant to an FIR registered for the offences punishable under
Section 363/366/376 IPC Naresh Kumar and Satish Kumar were arrested
on 13.10.96 and were sent to judicial custody along with a third coaccused Jaswant Kumar.
4. Information pertaining to Naresh Kumar and Satish Kumar being
accused of having committed the offence of kidnapping and rape and
G being arrested and denied bail was received by the jail authorities and the
competent authority took a decision that services of Naresh Kumar and
Satish Kumar should be terminated. On 16.10.1996 services of both the
respondents were terminated under rule 5 of the CCS (Temporary Service)
H Rules 1965.
5. Order terminating services of Naresh Kumar reads as under:-
I
In pursuance of the proviso to Sub-rule (1) of Rule 5 of the
Central Civil Services (Temporary Service), Rules, 1965, I,
R.S.Gupta, I.G.(Prisons) hereby terminate forthwith the services
of Sh.Naresh Kumar S/o Sh.Ram Chander, Warder and direct
that he shall be entitled to claim a sum equivalent to the amount
Govt. of NCT of Delhi v. Naresh Kumar (Pradeep Nandrajog, J.) 137
138
of his pay plus allowances for the period of notice at the same A
rates which he was drawing immediately before the termination
of his service, or, as the case may be, for the period by which
such notice falls short of one month.
6. Order terminating service of Satish Kumar reads as under:-
B
In pursuance of the proviso to Sub-rule (1) of Rule 5 of the
Central Civil Services (Temporary Service), Rules, 1965, I,
R.S.Gupta, I.G.(Prisons) hereby terminate forthwith the services
of Sh.Satish Kumar S/o Sh.Danbir Singh, Warder and direct that C
he shall be entitled to claim a sum equivalent to the amount of
his pay plus allowances for the period of notice at the same rates
which he was drawing immediately before the termination of his
service, or, as the case may be, for the period by which such D
notice falls short of one month.
ILR (2011) I Delhi
A representations for re-induction in service was passed by the Inspector
General Prisons, and the two thought that the Executive Administrative
Head of Prisons being the Principal Secretary Home, Government of
NCT Delhi could be the Authority to which they could appeal.
B
C
D
7. A perusal of the two orders afore-noted shows that the orders
are non-stigmatic and are orders of discharge simpliciter.
E
E
F
9. On 10.11.2003 they filed separate representations to the Authority
appointing them and requested that in view of they being acquitted at the
criminal trial the order terminating their services be revoked and they be
re-inducted into service. The representations were rejected by the
G
Appointing Authority and were communicated to them in identical words.
We note the rejection communicated vide memorandum dated 4.12.2003
to Naresh Kumar. It reads as under:-
F
Reference his application dated 10.11.2003 regarding the H
revocation of termination of order dated 16.10.1996. Sh.Naresh
Kumar, Ex-Warder is informed that as per rules, the case cannot
be reopened after the expiry of 3 month, from the date of
termination of service by the Head of Department.
I
10. Styling it as an Appeal, Naresh Kumar and Satish Kumar
submitted representations to the Principal Secretary Home, probably for
the reason the order of termination and the order rejecting their
H
8. After 7 years of being accused of having committed the offences
punishable under Section 363/366/376 IPC, Naresh Kumar, Satish Kumar
and the third co-accused Jaswant Kumar were acquitted vide judgment
and order dated 16.10.2003.
Indian Law Reports (Delhi)
G
I
11. Vide order dated 22.6.2004 the Secretary Home rejected the
representation styled as an Appeal filed by Naresh Kumar. The order
reads as under:This concerns an appeal filed by Shri Naresh Kumar, Ex-Warder
at Tihar Jail against his termination by an order dated 16.10.1996
of the then I.G. (Prisons), Central Jail Tihar.
2. I had given a personal hearing to the appellant on 21.4.2004
in the course of which he stated that he had been wrongly
terminated. He mentioned that his termination was a consequence
of a criminal case against him and two others before the court
of the Addl. Sessions Judge. The charges against Sh.Naresh
Kumar and two others concern the abduction of a lady, with
dishonest intentions, and that he had later on raped her. Charges
u/s 366/376 IPC have been framed against Sh.Naresh Kumar. He
stated that all three had been acquitted by an order dt.16.10.03
of the Addl. Sessions Judge, and in view of this, he may be
reinstated in jail service.
3. On going through the order of the termination, it is observed
that the then I.G. (Prisons) had terminated the services of
Sh.Naresh Kumar on 16.10.1996 in exercise of powers vested
under the proviso in Sub-rule (1) of Rule 5 of the Central Civil
Services (Temporary Service) Rules, 1965. The Prisons Deptt.
have stated in their comments regarding the appeal filed by
Sh.Naresh Kumar, that this termination order is a termination
simplicitor without attaching any stigma. The official was then
still in temporary service and his services had been terminated as
his work was not satisfactory during the period of probation.
This has been done after allowing him one month’s pay in lieu
of notice of one month. It has further been pointed out by the
Prison Deptt. that in the circumstances, termination is possible
without assigning any reason.
Govt. of NCT of Delhi v. Naresh Kumar (Pradeep Nandrajog, J.) 139
4. On going through the wording of order of termination
dt.16.10.1996 of the then IG (Prisons) it is clear that there is no
mention whatsoever of Sh.Naresh Kumar’s involvement in another
criminal case. In fact, there is no mention whatsoever of any
ground or reason which could be construed as causing a stigma
on Sh.Naresh Kumar. This is, in fact, the correct procedure for
termination under the Temporary Services Rules, where the
ground should normally be confined to circumstances concerned
with performance during the period of probation. In these
circumstances there is no need for any departmental inquiry.
Such procedure would have been essential if there had been any
grounds which could cause a stigma on the character or conduct
of the charged official, necessitating the conduct of a full-fledged
departmental inquiry in which he would be afforded an opportunity
to defend himself. This is not the case in the matter regarding
termination of Sh.Naresh Kumar.
140
A
A
B
B
C
C
D
5. Given the above facts, I see no reason to intervene in the
matter and confirm the order already passed and the appeal is E
dismissed. Sh.Naresh Kumar and the D.G.(Prisons) may be
informed accordingly.”
12. Vide order of even date the Secretary Home, Government of
NCT Delhi rejected the representation, styled as an Appeal, filed by F
Satish Kumar. The order reads as under:This concerns an appeal filed by Sh.Satish Kumar, Ex-Warder,
Central Jail Tihar requesting that he may be reinstated to his post
G
at Tihar Jail. By way of a background it may be mentioned that
by an order dated 16.10.1996 passed by the then Inspector
General (Prisons), Shri R.S.Gupta, in pursuance of the proviso
to Sub-rule (1) of Rule 5 of the Central Civil Services (Temporary
Service) Rules, 1965, the services of Sh.Satish Kumar, present H
petitioner had been terminated. It may be mentioned here that
Sh.Satish Kumar had been tried by the court of the Addl.Sessions
Judge in Sessions Case No.26/1997 based on a FIR No.26/1996,
having been charged u/s 363/366/376 IPC. The complaint against I
the petitioner and some others was to the effect that they had
abducted the complainant, Ms.Savita and outraged her modesty
in a conference hall on 12.10.1996 and raped her on the same
D
E
F
G
H
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
date at the house of one Jaswant Sharma at Vijay Enclave. After
weighing the evidence, the Addl. Sessions Judge had disbelieved
the story of Ms.Savita and had acquitted the present petitioner,
Sh.Satish Kumar and two others. During the period of trial the
three persons were in judicial custody, and they were ordered to
be released. This order of the Addl.Sessions Judge was passed
on 16.10.03. It is the contention of the petitioner in his appeal
received in this office on 2.1.04 that following his acquittal, he
may be restored to his position as a warder in Tihar Jail.
2. In this connection he has mentioned that he had earlier requested
the Director General (Prisons) for revocation of the termination
order dt.16.10.03 by his application dated 10.11.03, to which he
had received a reply on 4.12.03 from the Officer Incharge
(Vigilance) in the Directorate General of Prisons, rejecting his
request for revocation of the termination order dated 16.10.2003
by his application dated 10.11.2003, to which he had received a
reply on 4.12.2003 from the Officer Incharge (Vigilance) in the
Directorate General of Prisons, rejecting his request for revocation
of the termination order pointing out that the case cannot be reopened after expiry of three months from the date of termination
by the Head of Department. I had given the petitioner an
opportunity for personal hearing on 9.6.2004 and he had availed
of the same. During the hearing he had mentioned that his family
circumstances were very difficult owing to his financial position
and requested for revocation of the termination order. He had
also contested the reasons given by the Director General (Prisons)
for rejecting his request.
3. I have carefully gone through the impugned order dated
16.10.1996 passed by the then Inspector General (Prisons) under
Central Civil Services (Temporary Service) Rules, 1965. This
order is strictly in pursuance of Rule 5 of the Central Civil
Services (Temporary Service) Rules, 1965 and it does not make
any mention whatsoever of the criminal case which was then
pending against the petitioner. In short, the inference one can
draw is that his involvement in the criminal case was not the
ground for his termination. In view of this it cannot be said that
any stigma had been cast on the petitioner in the process of
terminating his service under Central Civil Services (Temporary
Govt. of NCT of Delhi v. Naresh Kumar (Pradeep Nandrajog, J.) 141
Service) Rules. Also within the framework of the Central Civil A
Services (Temporary Service) Rules, 1965 there is a prescription
under Rule 5 (2) for a Head of Deptt. or Competent Authority
to reopen the case ‘suo moto’ and re-instate the government
servant in service or such other order as may be considered B
proper. There is a specific stipulation that no case shall be
reopened under the Sub rule after the expiry of three months
except in special circumstances. No such special circumstances
exist in this case.
C
4. I have also considered the comments of the Director General
(Prisons) received in this office on 16.2.04 on the appeal filed
by the petitioner. The Prisons Deptt. have pointed out that the
termination order passed by the Inspector General (Prisons) is
D
termination simplicitor without attaching any stigma. It has been
stated that his termination from service took place because his
work was not satisfactory during the probation period.
5. Taking the above circumstances into consideration, there is E
no substance in the petitioner's appeal and the same is accordingly
dismissed. The petitioner and the Director General (Prisons) may
be informed accordingly.”
13. It may be noted by us that the IG Prisons rejected the F
representations filed by Naresh Kumar and Satish Kumar holding that the
order terminating their services was dated 16.10.1996 and as per rules
the case could not be reopened after the expiry of three months. Same
is the reasoning adopted by the Principal Secretary Home who additionally
G
held that the orders terminating their services were non-stigmatic and
there was no necessity of conducting a full-fledged inquiry before
terminating their services.
14. Aggrieved by the said order rejecting their representations styled H
as an Appeal, Satish Kumar and Naresh Kumar filed Original Application
No.1914/2004 and Original Application No.1800/2004 respectively before
the Central Administrative Tribunal praying that the order dated 16.10.1996
terminating their services and the order dated 22.6.2004 passed by the
I
Appellate Authority be quashed, it was also prayed that they be reinducted in service with all consequential benefits.
15. Briefly noted, it was pleaded by both that the order terminating
142
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A their services in the year 1996 was by way of penalty imposed upon
them as they were an accused on the allegation of having committed
offences punishable under Section 363/366/376 IPC and that being penal
in nature the department was obliged to hold an inquiry. Both of them
B pleaded that having joined service on 10.7.1996 and 23.7.1996 nothing
adverse pertaining to their working was intimated to them till their services
were terminated on 16.10.1996. Additional plea taken by Satish Kumar
was that the order terminating his services was stigmatic.
16. The response of the department was that the services of Satish
Kumar and Naresh Kumar were rightly terminated as within two months
of the two joining service they were arrested by the police for having
committed an offence punishable under Section 363/366/376 IPC. It was
stated that the two were still under probation and the letter of appointment
D
permitted the department to terminate their services without assigning
any reasons. It was stated that the order terminating their services were
non-stigmatic. It was pleaded that the Tribunal could not pry into the
reasons which weighed with the Authority to terminate their services.
E Unfortunately, pertaining to Naresh Kumar it was pleaded that his work
was not satisfactory. In the case of Satish Kumar, it was pleaded that
the order dated 16.10.1996 could not be challenged by way of Original
Application filed in the year 2004.
F
17. The Tribunal has allowed the petitions filed by the respondents.
C
The Original Application filed by Satish Kumar was allowed vide order
dated 21.4.2005. After copiously noting various judgments pertaining to
when could the Court lift the veil and look for reasons behind an innocuous
G order of discharge, but without digesting them, the Tribunal held that the
foundation of the order discharging the services of Satish Kumar was his
being accused of having committed an offence punishable under Section
363/366/376 IPC and thus his services were terminated by way of penalty
H and the same not being preceded by an inquiry rendered the order liable
to be set aside. On the bar of limitation, the Tribunal held that since the
appeal filed by Satish Kumar was entertained by the Appellate Authority
and rejected vide order dated 22.6.2004, the Original Application filed
before the Tribunal within one year thereof was within limitation.
I
18. Pertaining to the Original Application filed by Naresh Kumar,
the Tribunal chartered a different route. In view of the justification given
by the department in its pleading by way of reply to the Original Application
Govt. of NCT of Delhi v. Naresh Kumar (Pradeep Nandrajog, J.) 143
144
that Naresh Kumar’s unsatisfactory service was the cause to terminate A
his service, after calling upon the department to produce the record and
justify the said plea, and finding none, the Tribunal held that it is apparent
that the order of termination was motivated on the basis of some serious
misconduct for which no inquiry was held and hence the order terminating B
the services of Naresh Kumar was illegal.
19. The Government of NCT Delhi has challenged the order dated
21.4.2005 allowing OA No.1914/2004 filed by Satish Kumar by and
under WP(C) 22669-72/2005. The order dated 25.8.2005 allowing OA C
No.1800/2004 filed by Naresh Kumar has been challenged by and under
WP(C) No.22658-60/2005.
20. Three issues were debated at the Bar between learned counsel
for the parties. The first was whether the original applications were
within limitation and the rival viewpoints projected at the debate were
that: as per the petitioners the memorandum styled as an appeal was a
non-statutory representation since no statutory provision prescribes any
appeal against an order terminating the services of a probationer and the
rejection of a non-statutory representation could not extend the limitation.
The response of the respondents was that the order dated 22.6.2004
passed by the Principal Secretary Home refers to his deciding the appeals
filed by Naresh Kumar and Satish Kumar and thus the bar of limitation
did not come in the way of the respondents. The second debate was
whether Naresh Kumar and Satish Kumar being accused for having
kidnapped and abducted a girl was the motive or the foundation for the
action taken. Whereas the petitioners urged that the two being accused
of serious offences and arrested was the motive and not the foundation
of the order terminating their services, the respondents urged to the
contrary by pleading that the order terminating their services was founded
on the misdemeanour. The third issue of debate pertained to Naresh
Kumar and the debate was whether Naresh Kumar’s services were
terminated on account of deficiency in work for which there was no
proof and which was the justification pleaded before the Tribunal, to
which the response of learned counsel for the petitioners was that an
ignorant lawyer pleaded an ignorant defence and that the same had to be
ignored and reality had to be seen.
21. On the bar of limitation, it is settled law that non-statutory
representation can never extend the limitation. The order terminating the
D
E
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A services of the respondents is dated 16.10.1996. Learned counsel for the
respondents could show to us no statutory provisions providing the
remedy of appeal against said order. In fact, the memorandums filed by
Naresh Kumar and Satish Kumar under the label of an appeal is against
B the order/memorandum dated 4.12.2003 rejecting their representations
for revocation of the order dated 16.10.1996. No statutory provision has
been shown to us which provides for the remedy of an appeal against
an order rejecting a representation to recall or revoke an order of
termination. That apart, order dated 4.12.2003 passed by the appointing
C authority rejecting the representations dated 10.11.2003 and 14.11.2003
filed by Naresh Kumar and Satish Kumar against the order dated
16.10.1996 terminating their services, clearly states that the representations
were rejected as the case could not be reopened after the expiry of three
D months of the date when order terminating their services was passed. It
is apparent that the representations made to the Appointing Authority
were highly belated and were rejected as barred by limitation. Merely by
labeling a representation as an Appeal and the said work being reflected
E in the order communicating rejection of the representation would not
make the representation an appeal. It is settled law that it is the substance
which matters and not the label.
F
F
G
G
H
H
22. Thus, we hold that not only was the representation dated
10.11.2003 and the representation dated 14.11.2003 filed by the respondents
questioning the order terminating their services highly belated, the remedy
before the Tribunal was barred by limitation.
23. We deal with the two further issues debated at the Bar.
24. The issue of termination of a probationer has cropped up time
and again. It has received judicial attention over four decades. Tests have
been evolved, found to be difficult to apply; they have been reformulated
from time to time.
25. What is the final position of the law?
I
I
26. A person undergoes selection along with others and on being
found more meritorious finds employment. This person cannot contend
that since the employer has tested his suitability he is entitled to serve till
he attains the age of superannuation.
27. Till date no test has been devised where a person’s capacity,
Govt. of NCT of Delhi v. Naresh Kumar (Pradeep Nandrajog, J.) 145
146
integrity, suitability, utility and capacity to work in harmony with the A
others can be tested at one go. Therefore, law vests a right in the
employer, to keep under watch the services of the person he has employed,
but for a duration of time. This is to guard against errors of human
judgment in selecting a suitable candidate. The employee remains on test B
for a specified duration i.e. the period of probation before he gets a right
to be permanently absorbed. This period of probation affords to the
employer the locus to watch the efficiency, ability, integrity, sincerity,
suitability and the competent of the probationer employee. This is the
period of reassurance for the employer to reassure that his initial judgment C
was right. Therefore, an employer has a legal right to dispense with the
services of the employee without anything more, during or at the end of
the prescribed period, which is styled as the period of probation.
D
28. In the light of the aforesaid concept of probation as understood
under Service Jurisprudence, termination of the services of the probationer,
during or at the end of the period of probation does not affect any right
of his, as indeed has no right to continue to hold the post, save and
E
except after confirmation.
29. The period of probation affords an opportunity to an employer
to observe the work, conduct, efficiency, utility, integrity and suitability
of the probationer to make up his mind whether to permanently absorb
the probationer or dispense with his services.
F
30. In the decision reported as AIR 1962 SC 1711, S.Sukhwant
Singh Vs. State of Punjab, the Supreme Court observed:“12. ..............But the very fact that a person is a probationer G
implies that he has to prove his worth, his suitability for the
higher post in which he is officiating if his work is not found to
be satisfactory, he will be liable to be reverted to his original post
even without assigning any reason, it would, therefore, not be H
correct to say that a probationer has any any right to the higher
post in which he is officiating or a right to be confirmed. A
probationer being merely made eligible for being absorbed in a
permanent post is in no better position.”
I
31. However, where a probationer is stigmatized, evil consequences
flow. He has to live with the stigma all his life. This stigma would affect
his future prospects of finding suitable employment elsewhere. Therefore,
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A harmonizing the right of the employer and the right of the employee the
service jurisprudence has recognized that where the termination of services
of a probationer visits him with a stigma or is penal or mala fide, the
probationer would have a right to justify that the cause which has resulted
B in his being removed is other than relating to his personal capacity,
suitability, utility or capacity to work.
32. In the decision reported as AIR 1958 SC 36 Purshottam Lal
Dhingra vs. UOI, the Supreme Court held that it is not the form of the
C termination order but the substance thereof which would determine whether
it is penal and that, in an appropriate case, the Court can tear the veil
behind a termination order which is innocuous on its face and is a
discharge simplicitor.
D
33. What is a stigma?
34. In the decision reported as 1987 (1) SCC 146 Kamal Kishore
Lakshman Vs. Pan Amercian World Airways it was observed:
According to Webster’s New World Dictionary, it (stigma) is something
E that detracts from the character or reputation of a person….. The Legal
Thesuras by Burton gives the meaning of the word ‘to be blemish,
defect, disgrace, disrepute, imputation, mark of disgrace or shame’.
F
35. In the decision reported as AIR 1961 SC 177 State of Orissa
Vs. Ram Narayan Dass it was held that the words ‘unsatisfactory work
and conduct’ in the termination order will not amount to a stigma.
36. The reason is obvious. Notwithstanding subjecting a new recruit
to the rigors of a selection process, the employer has a right to see
G
whether the recruit is able to perform the duties assigned to him. Being
on probation, the recruit is kept under a watch to ascertain his
performance. Not only is the recruit under the scrutiny but even the
initial judgment of the employer is under a scrutiny for the reason even
H the employer has to consider and decide whether his initial judgment was
correct. Logic demands that where the new recruit is able to discharge
the duties assigned to him he should be permanently absorbed. It would
be most illogical to say to the recruit that I find nothing wrong with your
I work but still I do not permanently absorb you. That is why some
decisions have taken the view that it would be unfair not to point out the
shortcomings in the work of a probationer thereby depriving him an
opportunity to improve himself and all of a sudden discharge him from
Govt. of NCT of Delhi v. Naresh Kumar (Pradeep Nandrajog, J.) 147
service stating that his work is not up to the mark.
148
A
37. In the instant case the order terminating the services of Naresh
Kumar and Satish Kumar, contents whereof have been noted by us in
paras 5 and 6 above do not refer to any fact which casts a stigma on
the two and thus we need not debate on the language of the orders with B
respect to the controversy that ex facie the orders are stigmatic in nature.
38. With respect to the plea that they being an accused for having
committed offences punishable under Section 363/366/376 IPC and this
was the foundation for the action, we note that the said controversy has C
to be resolved by noting the fact that in the orders terminating their
services no reference has been made to said fact and on the language of
the orders it cannot be said that the orders are founded on the ground
that they have committed the offence of which they were charged of. D
39. We have only to look to the fact whether by lifting the veil we
can determine that the order terminating their services is founded on the
fact that they have committed the offences which they were charged of.
This process of inquiry would of necessity require us to determine E
whether the circumstance of they being accused of having committed
serious penal offences was the motive propelling the formation of the
opinion that it was no longer desirable to retain the two in service.
F
40. We have enough case law, where pertaining to a misconduct
detected during the probation of an employee, a show cause notice is
issued to respond as to why on account of the stated misconduct the
services be not terminated, but ignoring the show cause notice, a simple
order of discharge from service is issued. When questioned in a Court G
on the plea that the veil be lifted to see as to what was the foundation
of the order, it was held that motive and foundation are two different
concepts. We may quote only from one decision reported as 1980 (2)
SCC 593 Gujarat Steel Tube Vs. Gujarat Steel Tubes Majdoor Sangh. H
As to foundation, it was observed:“…….a termination effected because the master is satisfied of
the misconduct and of the desirability of terminating the service
of the delinquent servant, it is a dismissal, even if he had the
right in law to terminate with an innocent order under the standing
order or otherwise. Whether, in such a case, the grounds are
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recorded in different proceedings from the formal order, does
not detract from its nature. Nor the fact that, after being satisfied
of the guilt, the master abandons the inquiry and proceeds to
terminate. Given an alleged misconduct and a live nexus between
it and the termination of service, the conclusion is dismissal,
even if full benefits as on simple termination, are given and noninjurious terminology is used.”
41. As to motive, it was observed:-
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“On the contrary, even if there is suspicion of misconduct, the
master may say that he does not wish to bother about it and may
not go into his guilt but may feel like not keeping a man he is
not happy with. He may not like to investigate nor take the risk
of continuing a dubious servant. Then it is not dismissal but
termination simpliciter, if no injurious record of reasons or
pecuniary cut-back on his full terminal benefits is found. For, in
fact, misconduct is not then the moving factor in the discharge.”
E
42. Suffice would it be to state that if an inquiry is conducted into
an alleged misconduct behind the back of the employee and a simple
order of termination is passed, ‘founded’ on the report of the inquiry
indicting the employee, the action would be tainted but where no findings
F are arrived at any inquiry or no inquiry is held but the employer chooses
to discontinue the services of an employee against whom complaints are
received it would be a case of the complaints motivating the action and
hence order would not be bad as observed in the decision reported as
AIR 1999 SC 983 Dipti Prakash Banerjee Vs. Satvendera Nath Bose
G
National Centre for Basic Sciences (para 22).
43. To conclude on the issue, we note the decision of the Supreme
Court reported as AIR 2002 SC 23 Pavanendra Narayan Verma Vs.
H Sanjay Gandhi P.G.I. of Medical Sciences & Anr., where in para 28
thereof, how the issue has to be dealt with by Courts was stated. It was
held: Therefore, whenever a probationer challenges his termination the
Courts’ first task will be to apply the test of stigma or the form test. If
the order survives this examination the substance of the termination will
I
have to be found out.
44. We may only add by stating that nobody acts for no reasons
and indeed if somebody were to act on account of no reasons, that itself
Govt. of NCT of Delhi v. Naresh Kumar (Pradeep Nandrajog, J.) 149
would vitiate an action as not only being unintelligible but as being perverse.
Obviously, something has to impel or propel an employer to terminate the
services of his employee. It is only when the termination is by way of
penalty would the principles of natural justice and opportunity to participate
at an inquiry where guilt to be determined is the object of the inquiry
would come into play. Obviously, where on the finding of guilt an order
terminating the services of an employee is passed it can safely be said
that the employee has been penalized for a wrong. But where the
misdemeanour is not treated as proved and no inquiry is held, and where
an inquiry is held, the report is not made the foundation of the order, but
what is opined by the employer is that the employee has lost the confidence
of the employer, an order of termination cannot be said to be founded
on the misdemeanour and the misdemeanour would remain as the motive
for the action. This situation would not attract the principle that the
termination is penal.
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45. We need to reemphasize the fact that Naresh Kumar and Satish
Kumar joined service on 23.7.1996 and 10.7.1996 respectively and their
services were terminated on 16.10.1996. Naresh Kumar worked for 2 E
months and 24 days and Satish Kumar worked for 3 months and 6 days.
Within this short period they became an accused for having committed
serious penal offences punishable under Section 363/366/376 IPC and
were arrested and denied bail. They were taken on probation to the post F
of Warder Prison, which required them in discharge of their duties to
keep an eye on prisoners and ensure that neither does a prisoner escape
nor does a prisoner indulge in activities which are prohibited as per the
jail manual. If a warder is accused of kidnapping/abducting a girl, certainly
G
he would lose the confidence of the employer qua his suitability to work
as a warder and the decision taken by the employer as to the lack of the
suitability of the warder cannot be labeled as the ipse dixit of the employer.
46. As regards the issue that the petitioners sought to justify H
terminating services of Naresh Kumar on the plea that his working was
found to be deficient, in respect of which plea no material could be
shown to the Tribunal, suffice would it be to state that the plea appears
to be the result of an over enthusiastic lawyer who did not understand
the law on the subject on the issue of a misdemeanour being the motive I
or the foundation of an order of discharge simpliciter and though that it
would be better to plead deficient and unsatisfactory service, being blissfully
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ILR (2011) I Delhi
A ignorant of the fact that there was no material in support of the said plea.
The fact of the matter remains, on which neither party was at variance
that it was the involvement of Naresh Kumar and Satish Kumar in the
alleged crime committed pertaining to a girl being kidnapped and raped.
B Though not very relevant but it would be of some importance to note
vis-à-vis Satish that at the criminal trial he examined as DW-1, the
Assistant Superintendent Jail Sh.Subhash Batra to prove that in the
intervening night of 12th and 13th October 1996, from 12:00 midnight
till 6:00 AM he was posted on duty and the witness stated that though
C posted on duty, Satish was found absent during the night. It be noted
that the victim, as per the FIR in question, did not return home when
night fell on 12th October 1996 and reached home the next day. As per
the victim Naresh Kumar had kidnapped her and had raped her in the
D house of co-accused Jaswant Sharma in the night and thereafter the
other two accused which included Satish Kumar had also raped her. The
accused were acquitted on account of contradictions made by the
prosecutrix at the trial. There was a serious dispute as to the age of the
E prosecutrix and the learned Trial Judge held her to be a major by reading
the opinion of the medical expert pertaining to her age by adding years
on the plus side for the reason Medical Jurisprudence tells us that the
exact age of a person cannot be determined on medical examination and
there is always an error of plus or minus one year on either side of the
F age opined by the medical expert.
47. Be that as it may we have noted the aforesaid facts to bring
home the point that Satish Kumar was absent from duty on the night
when the victim was away from her house and if not more, it establishes
G
the propensity of Satish Kumar to abandon duties.
48. Before concluding we may observe that the respondents were
acquitted at the criminal trial is irrelevant when the issue of their termination
H is being considered for the reason we have held that the order terminating
the services of the respondents was not founded on proof of the
misdemeanour of having committed the offences charged of. The same
was a motive for the action. The involvement of the two in a criminal
offence, keeping in view the nature of the offence, has been held by us
I as a justifiable ground for the employer to opine that the two had lost the
confidence of the employer.
49. We thus hold that the Original Applications filed by the respondents
Vinod Kumar Kanojia v. UOI and Ors. (Dipak Misra, CJ.)
151
questioning the orders terminating their services were highly belated and A
were barred by limitation. We further hold that the orders terminating the
services of the respondents were not founded on any misdemeanour and
thus there was no requirement to hold an inquiry. The orders are innocuous
and non-stigmatic and even lifting the veil we find no stigma. Thus, we B
allow the writ petitions and quash the impugned order dated 25.8.2005
and dismiss OA No.1800/2004 filed by Naresh Kumar as also the impugned
order dated 21.4.2005 and dismiss OA No.1914/2004 filed by Satish
Kumar.
C
50. However, we refrain from imposing any costs keeping in view
the financial status of the respondents.
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ILR (2011) I DELHI 151
WP (C)
VINOD KUMAR KANOJIA
Important Issue Involved: Public interest litigation must
necessarily espouse a public good. Present litigation defeats
the basic concept of public interest litigation for public good.
This is not permissible and not to be countenanced.
[Sa Gh]
APPEARANCES:
....RESPONDENTS
F
F
FOR THE PETITIONER
:
Mr. Ajay Kumar Bhatia, Advocate.
FOR THE RESPONDENTS
:
Mr. A.S. Chandhiok, ASG with Mr.
Jatan Singh, Advocate for R-1.
(DIPAK MISRA CJ. AND MANMOHAN, J.)
WP (C) NO. : 6302/2010
ILR (2011) I Delhi
Cinematograph Act and Rules framed thereunder—
Said Act prohibits use and presentation of visual or
words contemptuous of racial or religious groups—
Use of “Dhobi Ghat” cannot be construed to violate
provisions of 1989 Act—Public interest litigation—
Reliance on ratio of Ashok Kumar Pandey case—
Present litigation initiated marely to satisfy one's own
egoism or megalomania—A public cause is required to
be espoused in public interest litigation—Present
litigation is abuse of the process of the Court—Defeats
basic concept of public interest litigation for public
good—Petition dismissed with costs of Rs. 25,000/-.
....PETITIONER
VERSUS
UOI AND ORS.
Indian Law Reports (Delhi)
152
DATE OF DECISION: 22.09.2010
CASES REFERRED TO:
G
Constitution of India—Article 226—Public Interest
Litigation—Petition filed on behalf of Hindustan Kanojia
Organisation—Said organization a community of
“Dhobis”, a scheduled caste—Community's feelings H
affected by use of “Dhobi Ghat” as name of film—
Alleging that the said name is violative of Section
3(1)(x) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (“1989 Act”) I
Held—Failed to see how naming of movie/film can be
offensive to caste in question—Cinema is public
medium to communicate to the society—Governed by
G
1.
Swaran Singh and others vs. State and another, (2008) 8
SCC 435.
2.
Ashok Kumar Pandey vs. State of West Bengal, (2004) 3
SCC 349.
3.
Kazi Lhendup Dorji vs. Central Bureau of Investigation,
1994 Supp. (2) SCC 116.
4.
K.R. Srinivas vs. R.M. Premchand, (1994) 6 SCC 620.
5.
Ramjas Foundation vs. Union of India, AIR1993 SC
852.
H
I
RESULT: Petition dismissed with costs.
Vinod Kumar Kanojia v. UOI and Ors. (Dipak Misra, CJ.)
DIPAK MISRA, CJ.
153
154
A
1. The petitioner, Vinod Kumar Kanojia, has preferred this public
interest litigation on behalf of the Hindustan Kanojia Organization (a
community of ‘Dhobis’, scheduled caste in India) after coming to know
from a news item published in ‘Amar Ujala’ Dehradun Hindi newspaper B
on 20th July, 2010 that a film in the name of ‘Dhobi Ghat’ is going to
be released in December, 2010 and the name of the film has affected the
sensitivity and created a dent in the feeling of the community.
2. Mr. Ajay Kumar Bhatia, learned counsel for the petitioner, has C
referred to the long history of the depressed and also reproduced the
storyline in the writ petition to highlight the contention that the said
storyline has nothing to do with the ‘dhobi ghat’ and further the use of
the word ‘dhobi’ is an insult to the Scheduled Caste and has affected the D
feelings of the persons belonging to the said particular caste. It is urged
by the learned counsel for the petitioner that the name of the movie as
‘Dhobi Ghat’ violates Section 3(1)(x) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the E
1989 Act.). The learned counsel has also commended us to the decision
in Swaran Singh and others v. State and another, (2008) 8 SCC 435.
He has placed heavy reliance on paragraphs 14 and 27 and for the sake
completeness, we reproduce the said paragraphs:F
“14. Before the coming of the British into India, the chamar
were a stable socio-economic group who were engated in
manufacturing leather goods by handicraft. As is well known,
feudal society was characterized by the feudal occupation division
G
of labour in society. In other words, every vocation or occupation
in India became a caste e.g. dhobi (washerman), badhai
(carpenter), lohar (blacksmith), Kumbhar (potter), etc. The same
was the position in other countries also during feudal times.
Thus, even now many Britishers have the surnames Baker, H
Butcher, Taylor, Smith, Carpenter, Gardener, Mason, Turner,
etc. which shows that their ancestors belonged to their
professions.
I
27. Learned counsel then contended that the alleged act was not
committed in a public place and hence does not come within the
purview of Section 3(1)(x) of the Act. In this connection it may
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be noted that the aforesaid provision does not use the expression
“public place”, but instead the expression used is “in any place
within public view”. In our opinion there is a clear distinction
between the two expressions.”
B
On a reading of the provision contained in the 1989 Act and the
decision referred to in Swaran Singh and others (supra), we really fail
to fathom how the provisions of the Act and the said decision are
applicable to the case at hand. In Swaran Singh and others (supra), the
C Apex Court was dealing with the offences committed under Section
3(1)(x) of the 1989 Act against various castes and further what is the
difference between ‘public place’ and ‘in any place within public view’.
It has nothing to do with the name of a movie which can be christened
as ‘Dhobi Ghat’. We have been apprised by Mr. Chandhiok, learned
D
Additional Solicitor General, that “dhobi ghat” is a description of a place
where clothes are washed. Thus, it has a place oriented description. We
really fail to understand how naming of a movie/film of this nature can
be offensive to the caste in question.
E
3. At this juncture, we may note with profit that cinema as a
medium of expression and as a mode of entertainment has reached an
enviable status in the modern world. The Indian cinema has a different
conception from its inception inasmuch as myths, historical events,
F poignant novels, biographical sketches along with melodious songs have
dominated the silver screen. The term ‘cinema’ is an abbreviation of the
term ‘cinematograph’ or ‘kinematograph’. In the first half of the 20th
century, it became popular and gained the status of qualitative entertainment.
G Initially, it was regarded as a trick photography and thereafter, it earned
the status of an art. With the passage of time, certain pictures were
contrived and there was no sound. In the third decade of the last century,
‘talkies’ arrived and in the year 1926, introduction of sound transformation
H and technical form of film production took place and slowly colour
photography was introduced and factors in size and quality of the image
changed.
I
4. The cinema as a public medium has something to communicate
to the society. The grant of certification of cinema is governed by the
Cinematograph Act and the Rules framed thereunder. There is a Censor
Board under the Act which screens the movies. The said Act prohibits
use and presentation of visual or words contemptuous of racial, religious
Vinod Kumar Kanojia v. UOI and Ors. (Dipak Misra, CJ.)
155
156
or other groups. In the case at hand, the name of the movie is ‘Dhobi A
Ghat’. It is difficult to understand how an association which is represented
by the petitioner can conceive the idea that if a movie is named ‘Dhobi
Ghat’, it is offensive or plays foul of the provisions contained in the 1989
Act. Therefore, we are of the considered opinion that there is actually no B
public interest.
5. At this stage, we are inclined to reproduce few passages from
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349
C
which read as under:“4. When there is material to show that a petition styled as a
public interest litigation is nothing but a camouflage to foster
personal disputes, the said petition is to be thrown out. Before
we grapple with the issue involved in the present case, we feel
it necessary to consider the issue regarding public interest aspect.
Public interest litigation which has now come to occupy an
important field in the administration of law should not be "publicity
interest litigation" or "private interest litigation" or "politics interest
litigation" or the latest trend "paise income litigation". If not
properly regulated and abuseaverted it also becomes a tool in
unscrupulous hands to release vendetta and wreak vengeance, as
well. There must be real and genuine public interest involved in
the litigation and not merely an adventure of a knight errant or
poke one's nose into for a probe. It cannot also be invoked by
a person or a body of persons to further his or their personal
causes or satisfy his or their personal grudge and enmity. Courts
of justice should not be allowed to be polluted by unscrupulous
litigants by resorting to the extraordinary jurisdiction. A person
acting bona fide and having sufficient interest in the proceeding
of public interest litigation will alone have a locus standi and can
approach the court to wipe out violation of fundamental rights
and genuine infraction of statutory provisions, but not for personal
gain or private profit or political motive or any oblique
consideration. These aspects were highlighted by this Court in
Janta Dal case (1992) 4 SCC 305 and Kazi Lhendup Dorji v.
Central Bureau of Investigation, 1994 Supp. (2) SCC 116. A
writ petitioner who comes to the court for relief in public interest
must come not only with clean hands like any other writ petitioner
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but also with a clean heart, clean mind and clean objective. See
Ramjas Foundation v. Union of India, AIR 1993 SC 852 and
K.R. Srinivas v. R.M. Premchand, (1994) 6 SCC 620.
11. It is depressing to note that on account of such trumpery
proceedings initiated before the Courts, innumerable days are
wasted, which time otherwise could have been spent for the
disposal of cases of genuine litigants. Though we spare no efforts
in fostering and developing the laudable concept of PIL and
extending our long arm of sympathy to the poor, the ignorant,
the oppressed and the needy whose fundamental rights are
infringed and violated and whose grievances go unnoticed,
unrepresented and unheard; yet we cannot avoid but express our
opinion that while genuine litigants with legitimate grievances
relating to civil matters involving properties worth hundreds of
millions of rupees and criminal cases in which persons sentenced
to death and facing the gallows under untold agony, persons
sentenced to life imprisonment and kept in incarceration for long
years, persons suffering from undue delay in service matters government or private, persons awaiting the disposal of cases
wherein huge amounts of public revenue or unauthorized collection
of tax amounts are locked up, detenus expecting their release
from the detention orders etc. etc. are all standing in a long
serpentine queue for years with the fond hope of getting into the
courts and having their grievances redressed, the busybodies,
meddlesome interlopers, wayfarers or officious interveners having
absolutely no public interest except for personal gain or private
profit either of themselves or as a proxy of others or for any
other extraneous motivation or for the glare of publicity break
the queue muffling their faces by wearing the mask of public
interest litigation and get into the courts by filing vexatious and
frivolous petitions and thus criminally waste the valuable time of
the courts and as a result of which the queue standing outside
the doors of the court never moves, which piquant situation
creates frustration in the minds of genuine litigants and resultantly,
they lose faith in the administration of our judicial system.
12. Public interest litigation is a weapon which has to be used
with great care and circumspection and the judiciary has to be
Vinod Kumar Kanojia v. UOI and Ors. (Dipak Misra, CJ.)
157
extremely careful to see that behind the beautiful veil of public
interest an ugly private malice, vested interest and/or publicityseeking is not lurking. It is to be used as an effective weapon
in the armory of law for delivering social justice to citizens. The
attractive brand name of public interest litigation should not be
used for suspicious products of mischief. It should be aimed at
redressal of genuine public wrong or public injury and not
publicity-oriented or founded on personal vendetta. As indicated
above, court must be careful to see that a body of persons or
a member of the public, who approaches the court is acting bona
fide and not for personal gain or private motive or political
motivation or other oblique consideration. The court must not
allow its process to be abused for oblique considerations. Some
persons with vested interest indulge in the pastime of meddling
with judicial process either by force of habit or from improper
motives. Often they are actuated by a desire to win notoriety or
cheap popularity. The petitions of such busybodies deserve to be
thrown out by rejection at the threshold, and in appropriate cases
with exemplary costs.”
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ILR (2011) I Delhi
B
A within a period of four weeks in favour of The Blind Relief Association,
Lal Bahadur Shastri Marg, Near Oberoi Hotel, New Delhi – 110 003. If
the petitioner would fail to deposit, liberty is granted to Mr. Chandhiok,
learned Additional solicitor General, to move an application before this
B Court so that the petitioner can be booked under appropriate law.
C
C
D
D
A
ILR (2011) I DELHI 158
CRL.M.C
DHARMENDRA KR. LILA
....PETITIONER
VERSUS
REGISTRAR OF COMPANIES
E
6. We have quoted in extenso from the aforesaid decision as we are
disposed to think that the present litigation, styled as a public interest
litigation, has been initiated just to satisfy one's own egoism or F
megalomania. It is to be borne in mind that a public cause is required to
be espoused in a public interest litigation. It must have some kind of
nexus with the public interest. We are not oblivious of the fact that if the
Censor Board grants a certificate in violation of the Act, Rules, Regulations
G
and the Guidelines, the same can be assailed in a court of law regard
being had to the other provisions but definitely christening of a movie as
‘Dhobi Ghat’ would not come in the said realm or sphere. We have no
hesitation in holding that this is an abuse of the process of the Court and
defeats the basic concept of public interest litigation for public good. The H
present litigation has only exhibited ostentatious proclivity of a personality
who intended to occupy the centre stage as a protagonist harbouring the
notion that the Court is a laboratory and he can come to play at his own
whim and fancy. This is not permissible and not to be countenanced.
I
7. In view of our preceding analysis, the present writ petition
stands dismissed with costs of Rs.25,000/- which shall be deposited
Indian Law Reports (Delhi)
E
(A.K. PATHAK, J.)
CRL.M.C. NO. : 6249/2006,
6263/2006 & 6278/2006
F
G
H
I
....RESPONDENT
DATE OF DECISION: 23.09.2010
Code of Criminal Procedure, 1973—Section 482—Indian
Companies Act, 1956—Quashing of criminal complaint
filed by the Registrar of Companies u/s 62 r/w section
68 of Companies Act in court of ACMM—Allegation
that petitioners were signatories to prospectus
containing misstatement of facts—Company had
collected Rs 210 lakhs from public issue but had failed
to accomplish the promises made in the prospectus—
Held, compensation in respect of violation of Section
62 can be claimed by filing appropriate civil suit and
no criminal complaint under Section 62 would be
maintainable—U/s 68 prior sanction of the competent
authority is required before launching prosecution
which was not done in the case—Petition allowed and
proceedings pending before ACMM quashed.
Dharmendra Kr. Lila v. Registrar of Companies (A.K. Pathak, J.) 159
Important Issue Involved: Compensation in respect of
violation of Section 62 of the Indian Companies Act can be
claimed by filing appropriate civil suit and no criminal
complaint under Section 62 would be maintainable.
160
A
B
[Ad Ch]
APPEARANCES:
FOR THE APPELLANT
FOR THE RESPONDENT
:
:
Mr. Sidharth Luthra, Senior
C
Advocate with Mr. P.S. Singhal, Ms.
Smriti Sinha & Mr. Arshdeep Singh,
Advocate.
Mr. Baldev Malik, Advocate.
Manju Yadav vs. Registrar of Companies 2007 (98) DRJ
312.
2.
Rajeev Shukla & Anr. vs. Registrar of Companies 135
(2006) Delhi Law Times 599.
C
A.K. PATHAK, J. (ORAL)
(1)
D
E
E
Subject to the provisions of this section, where a
prospectus invites persons to subscribe for shares in or
debentures of a company, the following persons shall be
liable to pay compensation to every persons who subscribes
for any shares or debentures on the faith for the prospectus
for any loss or damage he may have sustained by reason
of any untrue statement included therein, that is to
say,………..
xx xx
F
1. By these petitions under Section 482 of the Code of Criminal
Procedure, 1973, petitioners seek quashing of criminal complaint No.805/
2002 under Section 62 read with Section 68 of the Indian Companies
G
Act, 1956 (for short hereinafter referred to as “the Act”) filed by Registrar
of Companies against them. This complaint is pending in the court of
Additional Chief Metropolitan Magistrate (ACMM), Delhi. It was alleged
in the complaint that the petitioners were signatories to the prospectus
dated 28th April, 1994 containing misstatement of facts. The company H
had collected Rs. 210 lakhs from the public issue but had failed to
accomplish the promises made in the prospectus.
2. Learned Senior counsel for the petitioners has contended that no
criminal complaint can be filed under Section 62 of the Act as this
provision deals with the “civil liability” for making misstatement in the
prospectus. With regard to the complaint under Section 68 of the Act,
3. Section 62 of the Act reads as under:“62. Civil liability for misstatements in prospectus.
D
RESULT: Petition allowed.
I
ILR (2011) I Delhi
A it has been submitted that for filing of a complaint under this section,
prior sanction of competent authority was required. Neither such sanction
was obtained by the Registrar of Companies prior to filing of the complaint
nor had the same been placed on record. In nutshell, it has been canvassed
B that the complaint under Section 62 read with Section 68 of the Act was
liable to be quashed. Reliance has also been placed on Rajeev Shukla
& Anr. vs. Registrar of Companies 135 (2006) Delhi Law Times 599
and Manju Yadav vs. Registrar of Companies 2007 (98) DRJ 312.
CASES REFERRED TO:
1.
Indian Law Reports (Delhi)
xx
xx”
4. Bare perusal of the aforesaid provision clearly indicates that
violation thereof entails civil liability inasmuch as, it provides payment of
compensation in case of misstatement in the prospectus. In my view, the
compensation in respect of violation of Section 62 of the Act can be
claimed by filing appropriate civil suit and no criminal complaint under
G Section 62 of the Act would be maintainable in this regard. Similar view
has been expressed in Rajiv Shukla and Manju Yadav’s cases (supra).
F
5. As regards the complaint under Section 68 of the said Act is
concerned, learned counsel for the respondent has not disputed that prior
H sanction of the competent authority is required before launching prosecution
under the said provision. However, he contends that such sanction was
granted for initiating prosecution by the Department of Company Affairs
vide its letter dated 13th March, 2002. I have perused the copy of so
I called sanction letter and find that the same is general permission granted
to the Regional Director by the Department of Law & Justice for initiating
prosecution in respect of violations of Sections 62, 63 read with 628 of
the said Act. This sanction nowhere includes launching of prosecution
Dr. Rajiva Kumar Tiwari v. Union of India & Ors. (Manmohan, J.) 161
Indian Law Reports (Delhi)
162
under Section 68 of the Act. In Rajiv Shukla’s case (supra) also this A
very sanction letter was involved and was adversely commented upon.
No other sanction letter has been placed on record. In absence of any
such sanction, the only presumption which can be drawn is that no
sanction was obtained for launching prosecution under Section 68 of the B
Act against the petitioners. In absence of prior sanction, the complaint
under Section 68 of the said Act would also be not maintainable.
6. For the foregoing reasons, petitions are allowed and complaint
case bearing no. 805/2002 pending before the ACMM and all further C
proceedings arising therefrom qua the petitioners are hereby quashed.
A
B
C
7. All the above mentioned petitions are disposed of in the above
terms.
D
D
ILR (2011) I Delhi
Concerned Rules do not permit revaluation. Indian
Evidence Act—Section 73: Held not applicable to writ
proceedings—Nonetheless
answer
sheets
scrutinized—Change of marks with regard to a
particular question is normal and not indicative of
malice or manipulation—Appellant failed to name even
one officer of Respondent No. 3 who was inimical
towards Appellant—Appeal dismissed.
Important Issue Involved: Revaluation of answer sheet
not permissible unless rules of conducting organization allow
for the same. Change of marks with regard to a particular
question is normal and not indicative of malice or
manipulation.
[Sa Gh]
ILR (2011) I DELHI 161
LPA
DR. RAJIVA KUMAR TIWARI
E
FOR THE APPELLANT
:
Mr. H.P. Sharma, Advocate with Mr.
Sanjay Katyal and Mr. Saurabh,
Advocates.
F
F FOR THE RESPONDENTS
:
Dr. Rakesh Gosain, Advocate for R2 and 3 Mr. Rakesh Tiku and Mr.
Aman Wlesha, Advocate for UOI.
G
G
....RESPONDENTS
(DIPAK MISRA, CJ. AND MANMOHAN, J.)
LPA NO. : 653/2010 &
CM NO. : 16272/2010
APPEARANCES:
....APPELLANT
VERSUS
UNION OF INDIA & ORS.
E
DATE OF DECISION: 27.09.2010
CASES REFERRED TO:
Constitution of India—Article 226—Scope of H
interference—Appellant filed writ petition alleging
manipulation in marks awarded in answer sheets—
Learned Single Judge dismissed petition—Held that
mere overwriting need not mean manipulation or
I
fudging—Hence Present appeal—Held—Revaluation of
answer sheet not permissible unless rules of
conducting organization allow for the same—
1.
H.P. Public Service Commission vs. Mukesh Thakur &
Anr., 2010 (6) SCALE 79).
2.
Pramod Kumar Srivastava vs. Chairman, Bihar Public
Service Commission, Patna and Others (2004) 6 SCC
714.
3.
Board of Secondary Education vs. Pravas Ranjan Panda
and Another, (2004) 13 SCC 383.
4.
Shivajirao Nilangekar Patil vs. Dr. Mahesh Madhav
Gosavi & Ors. (1987) 1 SCC 227.
5.
Maharashtra State Board of Secondary and Higher
H
I
Dr. Rajiva Kumar Tiwari v. Union of India & Ors. (Manmohan, J.) 163
164
Secondary Education vs. Paritosh Bhupeshkumar Sheth, A
(1984) 4 SCC 27.
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A petition by observing as under:-
B
B
1. The present Letters Patent Appeal has been filed challenging the
judgment and order dated 02nd August, 2010 by virtue of which the
Learned Single Judge has dismissed in limine the appellant’s writ petition
being W.P.(C) No.5135/2010.
C
“4. The marks given against answer to question no.1 do appear
to have been changed from 7 to 5 marks, both against the
answer as well as in the tabulation on the opening sheet of
answer book. However, there is no such indication whatsoever
with respect to the marks given against answer to question no.7
neither against the answer nor in the tabulation aforesaid………….
C
Moreover, even if there were to be a difference, as long as it
clearly reads as 5 and does not appear to be changed, it cannot
be said that the marks against question no.7 have been changed.
D
5. The mainstay of the petitioner is that in the tabulation on the
opening sheet of answer book, the totaling of the marks against
each question, appears to have been done, initially as 57;
subsequently changed to 55 and ultimately to 53.
REULT: Appeal dismissed.
MANMOHAN, J.
2. Mr. H.P. Sharma, learned counsel for the appellant submitted
that respondent No.3 had intentionally failed the appellant by manipulating
his answer sheets by reducing his marks from 7 to 5 against Questions
No.1 and 7 and further by changing the total marks on the opening page D
of the answer sheet. In this connection, Mr. H.P. Sharma, drew our
attention to pages 78, 85 and 109 of the present appeal paper book. Mr.
H.P. Sharma referred to Section 73 of the Indian Evidence Act to submit
that this Court should compare the signatures and writing of the examiner E
and give a finding thereon. Mr. Sharma also placed reliance upon a
judgment of the Supreme Court in Shivajirao Nilangekar Patil Vs. Dr.
Mahesh Madhav Gosavi & Ors. (1987) 1 SCC 227 wherein it has been
held as under:
F
“36. The allegations made in the petition disclose a lamentable
state of affairs in one of the premier universities of India. The
petitioner might have moved in his private interest but enquiry
into the conduct of the examiners of the Bombay University in
G
one of the highest medical degrees was a matter of public interest.
Such state of affairs having been brought to the notice of the
court, it was the duty of the court to the public that the truth
and the validity of the allegations made be inquired into. It was
in furtherance of public interest that an enquiry into the state of H
affairs of public institution becomes necessary and private
litigation assumes the character of public interest litigation and
such an enquiry cannot be avoided if it is necessary an essential
for the administration of justice.”
I
3. It is pertinent to mention that similar arguments were advanced
before the learned Single Judge who has dismissed the appellant’s writ
6. The totaling to 57 appears to be a case of error………..
E
F
G
H
I
7. The petitioner even if said to be scoring 55 marks would still
have a total score of 148 marks only and would not clear the
examination.
8. I also do not find the change from 7 to 5 marks (qua answer
to question no.1) also to be such, as to call for any inquiry.
Often, while checking the answer books, the examiner may have
second thought and may change the marks. Merely because
there is overwriting, would not show any manipulation or fudging.
xxx xxx xxx
10. Even otherwise the said investigation cannot be done in writ
jurisdiction and the question whether the answer deserves 7 to
5 marks out of 10 marks cannot be the subject matter of judicial
review.
11. The counsel for the petitioner has been sought to urge that
there is an inconsistency in the guidelines given to the examinees
and to the examiners. The counsel for the petitioner however
fairly admits that such contradiction even if any, would affect all
the examinees……”
Dr. Rajiva Kumar Tiwari v. Union of India & Ors. (Manmohan, J.) 165
4. It is settled position of law that revaluation of an answer sheet A
is not permissible unless the rules of an organization which conducted
the examination permits so. (Refer to Maharashtra State Board of
Secondary and Higher Secondary Education v. Paritosh
Bhupeshkumar Sheth, (1984) 4 SCC 27, Pramod Kumar Srivastava B
v. Chairman, Bihar Public Service Commission, Patna and Others
(2004) 6 SCC 714, Board of Secondary Education v. Pravas Ranjan
Panda and Another, (2004) 13 SCC 383 and H.P. Public Service
Commission v. Mukesh Thakur & Anr., 2010 (6) SCALE 79). The
admitted position in the present case is that the rules of respondent No.3 C
do not permit revaluation. Consequently, the scope of interference by this
Court is limited.
5. We are further of the opinion that Section 73 of the Indian
D
Evidence Act has no applicability to the present proceedings. However,
we have scrutinized the appellant’s answer sheet to see if there was any
manipulation by respondent No.3.
Indian Law Reports (Delhi)
166
A
B
ILR (2011) I Delhi
ILR (2011) I DELHI 166
TEST CASE
MAHABIR PRASAD & ANOTHER
....PETITIONERS
VERSUS
STATE
....RESPONDENT
(S. RAVINDRA BHAT, J.)
C
TEST CASE NO. : 30/1989 &
IA NOS. : 6806/2000, 815/2009
AND 1618/2010
DATE OF DECISION: 27.09.2010
D
(A)
Limitation Act, 1963—Applicability to Probate Petitions—
Testator bequeathed his property entirely to
petitioner—Contention of other heirs—Will not genuine
and fabricated-Testator was an old and infirm man-did
not possess testamentary capacity—Delay of seven
years in propounding the Will—Held—The Limitation
Act mention applicability to applications, suits and
appeals but it does not mention Petition in form of
probate claims or any proceedings under the Indian
Succession Act.
G (B)
Indian Succession Act, 1925—Intention of testator in
propounding the Will—Which interferes or disturbs
the natural line of succession—Mere fact some heirs
excluded is not a ground to conclude that Will was
executed in suspicious circumstances—When all facts
point to a valid Will—Delay in overall circumstances—
Not fatal.
6. In fact, upon a perusal of pages 78, 85 and 109 of the paper E
book, we are in agreement with the findings of the learned Single Judge
that it appears that the appellant’s marks have been changed from 7 to
5 only with respect to Question No.1. Neither the marks with respect to
Question No.7 have been changed against the said question nor on the
tabulation sheet. Moreover, in our opinion, change of marks by an examiner F
with regard to a particular question is quite normal and on this score no
malice or manipulation can be attributed to the respondent. As far as the
totaling error on the front page or the tabulation sheet is concerned, we
are of the view that the same is only an arithmetical mistake and it can G
confer no right in favour of the appellant. Consequently, the aforesaid
judgment in the case of Shivajirao Nilangekar Patil (supra) has no
application to the facts of the present case.
E
7. It is also pertinent to mention that though the appellant has H
alleged manipulation of his answer sheet, yet he has not named even a
single officer of the respondent No.3 who was inimical to him.
Consequently, the appeal and the pending application, being devoid of
merit, are dismissed, but with no order as to costs.
I
H
F
I
The fact that Satyawati's jewellery was used to construct the
property, acknowledged in a letter written by the testator in
1971, only establishes that aspect, as also another previous
letter of 1965. However, there is a long gap between these
two periods, and a decade after 1971. The will itself mentions
Mahabir Prasad & Another v. State (S. Ravindra Bhat, J.)
167
that the testator and Govind had arrived at a settlement,
whereby the latter had been paid Rs. 20,000/- and a large
part of a Civil Lines plot in Barielly. The evidence also
suggests that Govind had some shops, and lived from the
rental income derived. The testator, in one of his letters,
suggests that Gopal, i.e Govind's son, should start working
and take charge of his responsibilities. Yet, these facts or
taken with the others do not mean that the testator wished
to bequeath any share in the property to the objectors. It
would be worth noticing at this stage that the third son of the
testator did not object to the will and has apparently accepted
the bequests. As regards the letter written to the petioner by
Satyawati is concerned, it cannot establish the existence of
any other will. In any case, no evidence has been placed, on
the record to dispel the inference that the will propounded
in this case was the last will and testament of the petitioner.
The court is mindful of the fact that more often than not,
testators wish to make dispositions or bequests which disturb
the natural line of succession. Having regard to all these
aspects, the fact that the will does not provision for Govind's
heirs, is not sufficient to set the will aside, or hold that its
execution was clouded by suspicious circumstances.( P a r a
39)
Indian Law Reports (Delhi)
168
A
A
B
B
C
C
D
D
E
E
ILR (2011) I Delhi
when the Parliament was aware of existing law, which had
provided a special procedure for grant of probate. In the
present case, when all other facts point to a valid and
genuine will, with no foul play, or the testator having suffered
from any incapacity or disability impairing his fair judgment,
that the petitioner has approached the court after some
delay in the overall circumstances cannot be fatal to the
claim.
(Para 40)
Important Issue Involved: The Limitation Act mentions
applicability to applications, suits and appeals but it does not
mention Petition in form of probate claims or any
proceedings under the Indian Succession Act. When all
facts point a genuine will, overall delay is not fatal to the
claim.
[Sa Gh]
F
The last aspect to be considered is whether the delay in
approaching the court, and seeking probate is fatal to the
petition. Kunvarjeet Singh Khandpur is an authority for G
the proposition that the court can reject a claim or relief,
primarily based on a will, if the petitioner does not approach
it in time. It is to be noticed at this stage that the said
decision was rendered a good 73 years after enactment of
the Succession Act. The nature of proceedings, and the H
procedure to be adopted under the Act, was well known to
Parliament, which made no mention of any period of limitation.
The Limitation Act, significantly mentions about its applicability
to applications, suits, and appeals; it does not mention I
Petitions, in the form of probate claims, or any proceedings
under the Succession Act. Therefore, the observations in
Khandpur have to be read in the context of the statute,
APPEARANCES:
FOR THE PETITIONERS
:
Mr. Sidharth Yadav, Advocate.
FOR THE RESPONDENT
:
Sh. Amit S. Chadha, Sr. Advocate
with Mr. Rajat Navet and Mr.
Jitender Ratta, Advocate for
Respondents 4 and 5. Mr. Ritesh
Sharma Advocate for Objector No.
6.
F
G
CASES REFERRED TO:
H
1.
Bharpur Singh & Ors. vs. Shamsher Singh AIR 2009 SC
1766.
2.
Shyamal Kanti Guha (Dead) Through L.R.s & Ors. vs.
Meena Bose 2008 (8) SCC 115.
3.
Kunvarjeet Singh Khandpur vs. Kirandeep Kaur & Ors.
2008 (8) SCC 463.
4.
Hazara Bradri & Ors. vs. Lokesh Datta Multani 2005
(13) SCC 278.
I
Mahabir Prasad & Another v. State (S. Ravindra Bhat, J.)
169
170
5.
Janki Narayan Bhoir vs. Narayan Namdeo Kadam (2003) A
2 SCC 91.
6.
Gurdial Kaur vs. Kartar Kaur 1998 (4) SCC 384.
7.
Sadasivam vs. K. Doraiswamy 1996 (8) SCC 624.
8.
Vrindavanibai Sambhaji Mane vs. Ramchandra Vithal
Ganeshkar (1995) 5 SCC 215.
9.
Rabindra Nath Mukherjee vs. Panchanan Banerjee 1995
(4) SCC 459.
10.
P.P.K. Gopalan Nambiar vs. P.P.K. Balakrishnan
Nambiar 1995 Supp (2) SCC 664).
11.
Jaswant Kaur vs. Amrit Kaur & Ors. 1977 (1) SCR 925.
12.
Jaswant Kaur vs. Amrit Kaur 1977 (1) SCC 369.
13.
Seth Beni Chand vs. Kamla Kanwar AIR 1977 SC 63.
B
C
D
D
14.
Navneet Lal vs. Gokul (1976) 1 SCC 630.
15.
Surendra Pal vs. Dr. Saraswati Arora 1974 (2) SCC 600. E
Ramachandra Shenoy vs. Hilda Brite AIR 1964 SC 1323.
E
17.
Rani Purnima Debi vs. Khagendra Narayan Deb : AIR
1962 SC 567.
18.
H. Venkatachala Iyengar vs. B.N. Thimmajamma & Ors.
AIR 1959 SC 443.
F
F
G
G
RESULT: Petitioner held entitled to probate and petition allowed.
S. RAVINDRA BHAT, J.
1. This proceeding concerns the claim for probate in respect of the
Will of late Sh. Krishna Prasad, who died on 13.03.1982. The petitioner
(hereafter called “Mahabir Prasad”) is concededly the son of the testator;
the Will of which Probate is sought is dated 28.01.1982. The testator had H
three children – Gobind Prasad, Mahabir Prasad and Kanti Prasad. Gobind
Prasad had pre-deceased the testator and was survived by his children
– i.e. Gopal Prasad, Gita Chatterjee, Jagriti Gaur and Yamini Mishra.
Gobind Prasad was survived by his widow, Smt. Satyawati Prasad, who I
during the pendency of the present case, died on 24.04.2007.
2. It is contended that in terms of the recitals of the Will, the
ILR (2011) I Delhi
A testator bequeathed his property, i.e. A-16 Maharani Bagh to Sh. Mahabir
Prasad entirely, besides all other movables and personal assets. The
petitioner seeks probate only in respect of the said immovable property.
It is contended that the cause for approaching the Court arose on
B 13.02.1982 when the testator died.
C
16.
Indian Law Reports (Delhi)
3. After citation was published and notices were issued to the
testator’s heirs, Sh. Gopal Prasad, the third objector, filed his reply,
submitting that the Will is not genuine. Sh. Gopal Prasad also contends
that the plot upon which the subject property was constructed was
purchased out of HUF funds and amounts invested by late Sh. Gobind
Prasad, the pre-deceased son of the testator. Sh. Gopal Prasad also
contends that the Will was forged and is a fabricated document and that
the property has to devolve in one-third proportion to each branch of the
testator’s family. In the additional pleas, Sh. Gopal Prasad argues that the
property was purchased in 1965 from the Maharani Bagh Cooperative
House Building Society of which the testator became a member in 1959;
it is also submitted that the testator was karta of HUF and that he
invested ` 21,000/-on 20.04.1959 in the Society – an amount which had
accrued on him on sale of Zamindari Abolition Bonds in 1958 and partly
from rent and so on. It is also submitted that Gopal’s father, i.e. Sh.
Gobind Prasad had sent ` 16,000/-in 1961 from Bareilly and was used to
acquire the suit property. Sh. Gopal Prasad argues that the late testator
was trying hard to raise amounts for constructing upon the suit property
for which purpose Sh. Gobind Prasad, his father had given total amount
of ` 19,500/-during the period 1966-1968. It is submitted, therefore, that
the testator had no bequeathable interest which he could have parted
through the Will.
4. Ms. Yamini Mishra filed objections sometimes in 1993, contending
that the Will propounded in this case is not genuine or enforceable as it
H was executed only 14 days before the death of the testator who was
allegedly suffering physically for some months before its execution. Ms.
Yamini Mishra mentions about a previous registered Will dated 08.10.1969
which was revoked by the Will sought to be propounded in this case.
She also alleges that the testator was not permitted to meet his relatives
I before his death and that he requested her (Yamini) not to meet him by
letter dated 28.10.1981. It is alleged that the circumstances under which
the Will was executed are shrouded in suspicion. Ms. Yamini Mishra also
Mahabir Prasad & Another v. State (S. Ravindra Bhat, J.)
171
contends that there is sufficient evidence suggesting that the property in A
question was bought and built with the funds of one of the objectors and
that the common HUF amounts and even Streedhan and, therefore, he
(the testator) was not its absolute owner. The objection refers to a letter
dated 03.04.1971 in which the testator mentioned about his having sold B
her jewelleries and using them for construction of the house on the suit
property. It is also contended that the Will was procured by fraud,
coercion and undue influence.
A
5. Ms. Gita Chatterjee and Ms. Jagriti Gaur preferred common C
objections – in 1995 through an application alleging that the signatures of
the testator were obtained under force and coercion and that the Will was
not known to any objector. They also submitted that the testator, at the
time of his death, was under Mahabir Prasad’s control and influence, and
D
was an old, infirm man of about 90 years not possessed of conscious
mental faculties and thereby denuded of requisite testamentary capacity.
They also submit that the testator had invested HUF funds in the purchase
of the property derived of Zamindari Bonds and, therefore, he did not
possess testamentary capacity. These objectors, further, argued that no E
cause of action arose and that the petition seeking probate is not
maintainable as it is vitiated by delay.
C
6. On 28.04.2008, this Court framed the following issues for
F
consideration:
(i)
(ii)
Whether the Will dated 28.01.1982 was executed by late
Sh. Krishna Prasad while in sound, disposing mind of
his own free. OPP;
G
B
D
Govind Prasada incurred considerable losses in his businesses
and I met them from my personal income. At the time of the
family settlement, he desired to be paid off completely on that
occasion as part of family settlement not only his full share of
ancestral property but also all the further inheritances that I
wished to settle upon him or his family, to enable him to make
a fresh start of life at Bareilly. Accordingly, I gave him a much
larger slice of land in plot No. 179, Civil Lines, Bareilly, and also
a sum of Rs. 20,000/-from my pocket.
Govind Prasada has left his property in disarray, and his wife
and children are suffering hardship. It is my duty to help them
set on their feet.
I have been staying for more than 25 years with Mahabir
Prasada and his wife Girish Kumari Prasada in their house, and
they have lavished much hospitality and love and bestowed every
care upon me.
F
My third son Kanti Prasada emigrated to Canada nearly 30
years ago and has settled down there. By grace of God, he is in
affluent circumstances.
G
H
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7. The Will is marked as Ex. P-1; the material portions of the same
are extracted below:
I had three sons, namely Govind Prasada, Mahabir Prasada
and Kanti Prasada. The eldest Govind Prasada passed away last
year.
E
(iii) Relief.
“XXXXXX XXXXXX XXXXXX
ILR (2011) I Delhi
My son Mahabir Prasada also incurred losses in his business
and I have met a part of them out of my personal income.
Whether the petitioner is entitled to probate in respect of
the Will. OPP;
Issue No.1 & 2 –
Indian Law Reports (Delhi)
172
Govt. of India agreed to allow me to remit Rs. 75,000/-to
him, which I have done. His two daughters Usha and Uma also
are self-reliant and above want.
Out of my personal earnings, I have acquired on sub-lease
from Govt. of India through Maharani Bagh House Building Coop.
Society, New Delhi, a plot of land bearing No. A-16 (revised
No.2, ‘A’ Rd.) and on it have constructed a two-unit bungalow
completely detached except for a common drive-way. That
bungalow and my savings bank accounts in the State Bank of
India, Main Office, Parliament Street, New Delhi, and in the
Bank of India, East of Kailash Branch, New Delhi, are all the
property I possess.
Mahabir Prasad & Another v. State (S. Ravindra Bhat, J.)
173
174
I am deeply impressed by Sant Kabir Das's concept of wealth: A
A
“(in hindi) sai itna dijiye jaa mein kutumb samaye Main bhi bhuka
na rahun, sadhu na bhuka jaye”
Of course, one’s wants and those of one’s family have prior B
claim on one’s wealth. But there is a larger family outside – the
family of humanity – which suffers from deep misery on account
of poverty and disease. It also deserves consideration. Out of
fellow-feeling for them, I have Instituted the Pandit Het Ram,
C.I.E., Public Charitable Trust (named after my father). The C
Secretary-cum- Treasurer of Trust is Shri M.M. Bhagat (address:
3-B ‘Vandhana’, 11, Tolstoy Marg, New Delhi-110001). It is my
ardent wish that it should be kept alive for at least six years from
D
now, i.e., upto 1981-.88.
F
(ii) Rupees Five thousand per year for five years commencing
from within 12 months of my death to Gopal Prasada, S/o
Govind Prasada, or, in the event of his prior death, to his mother G
or sisters;
(iii) Rupees five thousand per year to each of Usha and Uma,
daughters of Kanti Prasada, within 5 years of payment of estate
duty, if it is leviable. If not leviable, within 5 years of my death; H
(iv) Rupees One hundred per month to my servant Dal Chand
during his lifetime. The payment to start immediately on his
attaining the age of 65 – his age on 1-1-1982 may be assumed
to be 58 – or when he ceases to earn his livelihood owing to old
age or ill health, whichever contingency occurs earlier. Subject
to the charges created above, I give, devise and bequeath all my
personal estate and all the property to which I am entitled at the
I
time of my death to my son Mahabir Prasada and his wife Girish
Kumari Prasada, Joint Executors of this my Will, in equal shares
absolutely and foreover.
XXXXXX XXXXXX XXXXXX”
C
D
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I direct them to make the following payments after my death:
(i) Rs. Ten Thousand per year upto 31st March 1988, to Pandit
Het Ram, C.I.E., Public Charitable Trust;
ILR (2011) I Delhi
B
I appoint my son Mahabir Prasada and his wife Girish Kumari
Prasada to be the joint executors of this my Will.
I direct them to pay all taxes and the death duty and to E
discharge all my liabilities form the property I am leaving behind.
Indian Law Reports (Delhi)
F
G
H
I
8. To prove the Will, the petitioner relied upon the statement of Lt.
General Jasbir Singh Bawa (PW-1), who deposed by affidavit dated
10.05.1994. PW-1 claimed acquaintanship with the testator in connection
with the DPS Society of which he (the witness) became a member in
1980. The testator was a senior and respected member of the society,
previously for many years and had held the office of Chairman. PW-1
deposed that he and the testator were members of the Working Committee
of the Society to which he (PW-1) had been elected after joining the
Society. The Committee used to meet frequently at least once every three
months; the deponent talked about creation of a Working Group for
suggesting the financial systems of the Society, to which the testator
was nominated as a Convenor and PW-1 was a member. PW-1 mentions
about several meetings of the two in January and February 1982 and
about the report having been submitted in the beginning of March 1982.
The deponent, PW-1 mentioned about the testator visiting his office
(PW-1’s) office at East of Kailash and expressing his desire to make a
Will. The testator requested him to attest the Will; he also requested Smt.
Sheela Markan, working as his Secretary (i.e. that of PW-1) also to attest
the Will. He further deposed that on 28.01.1982 at approximately 11.00
am, the testator visited his office and placed a typed Will upon which he
signed on each page in his (PW-1’s) presence and in the presence of
Smt. Sheela Markan. PW-1 also further deposed about having signed on
the Will in front of the testator and in front of Smt. Sheela Markan. He
also said that at the time of execution of the Will, the testator was of
sound mind and health; he further deposed that at the time of execution
and even thereafter the testator attended the meeting of the Working
Group of the DPS Society and was Convenor of the Working Group as
well as an active participant. He deposed that the testator was an active
golfer and played at the Delhi Golf Club 3-4 times a week.
9. In cross-examination, PW-1 denied having disclosed about what
to depose in Court with Ms. Sheela Markan. He mentioned about not
attending any family function of the testator or of his relatives; he deposed
that the testator had not discussed his family matters or even revealed
Mahabir Prasad & Another v. State (S. Ravindra Bhat, J.)
175
with whom he had good relations or otherwise. PW-1 said that he did
not read the Will before attesting it and that he did not consider it
necessary to do so; likewise, he also stated that Ms. Sheela Markan had
not read the Will in his presence when it was attested in presence of both
of them. He also clarified that the testator did not read the Will over to
him. In cross-examination, he reiterates that he used to meet the testator
once or twice a month and had no social relationship with him nor did
he speak to him about registration of the Will. He also denied knowledge
of any other Will executed by the testator or that he had consulted any
Advocate before preparing the Will. He mentioned about the testator
having visited him on 23.01.1982, asking him to attest the Will and also
requesting if Ms. Sheela Markan, his Secretary, could attest the same and
that Ms. Sheela Markan agreed to do so in his presence. PW-1 denied
the suggestion that the testator was not maintaining good health and
clarified that he was a fit man. He mentioned about there being no
occasion to tell anyone that he had attested the Will of the testator and
mentioned that about two years after his (the testator’s) death, the petitioner
had visited him requesting him to depose in the case. In further crossexamination, he clarified that there were about 20 members in the DPS
Society and that meetings used to take place approximately once in three
months. He agreed to a suggestion that the Will was typed by Ms. Sheela
Markan since she had informed him about it. In his statement he volunteered
about being Secretary of the DPS Society due to which he had frequent
communication with the testator and that the Will was first signed by him
(the testator) after which he signed it in the presence of Ms. Sheela
Markan who then signed the same. He again denied any knowledge of
what was in the Will and any awareness as to whether it was the same
Will typed by Ms. Sheela Markan.
176
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B
C
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10. PW-2, Smt. Sheela Markan, in her affidavit, mentioned about
having worked with the DPS Society since 1979 and that the testator
was its member at the time of her joining and continued to be so thereafter H
and that her knowledge and acquaintanship with the testator was because
of that working relationship. She deposed that on 23.01.1982, the testator
went to the office of the DPS Society at about 11.00 AM when she was
working with PW-1 and requested her to attest his Will. She agreed to I
the request and stated that in her presence he had requested PW-1 also
to attest the Will which he agreed. She too mentioned about the testator
asking for attestation of the Will signed by him on 28.01.1982 and her
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A having attested it in the presence of the testator and PW-1. She also
identified the places where she, PW-1 and the testator had signed on the
Will. She deposed that the testator was of sound mind and health at that
time and was talking and behaving in sensible and rational manner. She
B also stated that the testator was an active member of the DPS Society
and a Working Committee thereof and had been elected Convenor of a
Committee in January 1982.
11. In cross-examination, PW-2 submitted that the Will (Ex. PWC 1) was typed by her at the DPS Society office; she did not remember
if the Will was shown to her by the petitioner but volunteered that she
had seen the Will. She could not remember whether the meetings of the
school’s Working Group took place in 1981 or 1982; she had no idea
D how many children did the testator have or about his family particulars
since they did not interest her. She had not visited his house nor was
aware of his wife’s name. She knew the testator only in her official
capacity. The witness of her own accord stated that after she had typed
the Will, she gave it to the testator who took it away and brought it after
E
a few days and signed it in the presence of both the attesting witnesses
on 28.01.1982. She denied the suggestion that when the Will was brought,
the testator had already signed the other pages except the last one and
denied the suggestion that the Will was brought to her by the petitioner;
F she denied acquaintanship with the petitioner and reiterated that the testator
used to attend the meeting regularly. She deposed about not being aware
of the testator having any failing health and further stated that he had
attended the meeting of the Working Group in January, February and
G early March 1982. PW-2 stated that he gave the report of the Working
Group in 1982 after which he passed away at the end of March 1982.
She did not produce any copy of the minutes of meeting of the DPS
Society.
H
I
12. Gita Chaterjee, who deposed as DW-1, mentioned that the
testator became member of Maharani Co-operative Society by investing
Rs. 10,000/-funds of his HUF Kalawati Kanweri, mother of Satyawati,
maternal grandmother of DW-1 died in 1958-59, leaving behind Rs.
5,00,000/-. Testator helped DW-1’s mother to secure letters of
Administration, under which he got total property of mother and jewellery.
She relies on a letter dated 03.12.1961 whereby he told her mother
(Satyawati) that her jewellery worth Rs. 2,00,000/-had been sold, and
Mahabir Prasad & Another v. State (S. Ravindra Bhat, J.)
177
178
used for construction. Letters dated 03.04.1971 (DW-1/2) confirms that. A
Letters dated 22.06.1979 (DW1/3), 27.01.1981 (DW-1/4) and 25.02.1981
(DW-1/5) were exhibited, to show the testator’s fondness for Geeta’s
mother and children. In the summer of 1981, a family settlement was
reached whereby 1/4share went to deponent and sister, 1/4to Satyawati; B
1/4to Gopal Prasad and 1/4th to Mahabir Prasad. The Will was not
executed in exercise of free volition, but due to influence of Mahabir
Prasad; the testator’s health was failing in 1981. The testator did not
mention anything to DW-1 (when she visited him in February 1982
before his death), about the Will. Even otherwise, he could not bequeath C
the property as it was HUF property.
13. In the cross-examination, DW-1 stated that she used to visit the
testator several times before her marriage when he was living in Lodhi
Estate. She admitted to not visiting the testator after her marriage and
further deposed that her father was a doctor practicing at Lucknow.
During cross-examination, she submitted that her husband became a
Sadhu in 1970 and that she shifted to her mother. To a suggestion that
after 1958, her father never lived with her mother, DW-1 deposed that
her father used to live with them at Lucknow. Her father’s source of
livelihood, according to DW-2, was the rent received from shops at
Bareilly; she was not aware when those shops were constructed. She
expressed her ignorance of the Will in question and claimed that she
became aware of it in 1994. DW-2 stated that a case had been filed by
her brother Gopal Prasada against her father at Bareilly and that the
testator had advised him to do so. She admitted awareness about a
Vakalatnama signed by her in CS (OS) 1608/1991. She also admitted
knowledge about a lengthy litigation in respect of the suit property with
Sh. Sanjeevan Sawhney and Ms. Kusum Sawhney and claimed that the
source of knowledge was through her brother, who used to visit them.
DW-1 mentioned that her father’s address at Bareilly was 179, Civil
Lines, and that he passed away in January 1981. She admitted that her
father had shifted from Lucknow to Bareilly where he died though she
was not aware of the exact year when he did so. He owned eight shops
but was not aware of his yearly income. She stated that her family did
not shift with her father to Bareilly and that a partition had taken place
of the open land at Bareilly which was adjacent to her uncle Kanti
Prasada’s bungalow which was rented.
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14. The witness, DW-1 was unable to state whether the shops
were constructed with the money given by the testator but denied that
he and his children were not having good relations. DW-1 identified two
letters written by her mother which were exhibited as DW-1/PX-2 and
B DW1/PX-3. She also mentioned that the estate left by her maternal
grandmother, Smt. Kalawati Kanwari consisted of jewelleries and Zamindari
Bonds which were valued at Rs. 5,00,000/-out of the jewellery was
worth Rs. 2,00,000/-.
A
15. The defendants rely upon certain documents; the letter dated
30.12.1961 Ex. DW-1/1 is a letter written by the testator to his daughterin-law, Smt. Satyawati. The letter contains a reference to investment of
her amount in the purchase of the suit property and an assurance that
the money was absolutely safe. Ex. DW-1/2 is a letter written by the
D
testator to Smt. Satyawati, his daughter-in-law, on 03.04.1971,
acknowledging his awareness about the compromise in her family. The
letter states that her jewelleries as per her request, were sold and invested
in construction of the bungalow. The letter also states that the bungalow
E is for the benefit of her family also, i.e. for Shri Govind Prasad, the
testator’s son. The third document, Ex. DW-1/3 is another letter –
written by the testator to his son, Sh. Govind Prasad, referring to his
dispute with Gopal (his grandson), and advising him to have the same
F referred to arbitration.
C
16. The fourth document, Ex. DW-1/4 is a letter written to Gopal
Prasad, the testator’s grandson, alluding to his father (Govind’s) lack of
balance in his life. This letter is concededly written after Govind’s death
G and enquires about application for Succession Certificate; issues with
regard to tenancy; sorting-out legal and tax terms and so on. The letter
states that the testator wanted to visit Bareilly to help Gopal and his
mother but was not physically fit and not allowed to move freely. DWH 1/5 is a letter written to Govind’s wife, Satyawati, on 25.08.1981,
expressing the testator’s happiness at the birth of a daughter to his
grandson, Gopal. The testator cautions that Gopal should stand on his
feet and not expect money from him (the testator). The letter states that
the testator was improving slowly and was not able to do anything with
I is left hand and further that he did not go for a walk or to the club. The
last two documents relied upon by the parties were letters put to DW1 in cross-examination, i.e. DW-1/PX-2 and DW-1/PX-3. DW-1/PX-2 is
Mahabir Prasad & Another v. State (S. Ravindra Bhat, J.)
179
180
written by Satyawati to the petitioner, which states that her son, Gopal A
had met the testator, who had submitted about execution of two Wills
and requested that they should be deposited in the Court to avoid injustice
to anyone. Similarly, Ex. DW-1/P-63 is a letter to the petitioner written
by Satyawati on 12.10.1982. In the letter, family compromise are B
mentioned and Satyawati requests the petitioner to give ` 5,000/-in order
to tide-over financial difficulties and also refers to some other amounts
previously given to them.
17. The respondents argued that there is no explanation why the C
Will was propounded seven years after its alleged execution. In this
respect, it is contended that the testator died on 13.03.1982 but this
Court was approached in 1989. Reliance is placed upon para 7 of the
probate petition which states that cause of action for approaching the
D
Court arose on the date of the testator’s death. It is submitted that there
is no much less any valid or cogent explanation in this regard. Reliance
was placed upon the judgment reported as Kunvarjeet Singh Khandpur
v. Kirandeep Kaur & Ors. 2008 (8) SCC 463, to say that such Will
is sought to be propounded within time. In the absence of any explanation, E
the delay is itself an important suspicious circumstance which the Court
should consider and desist from granting probate.
18. It was next argued that there are several circumstances and
inferences deducible from the depositions of the attesting witnesses, PW- F
1 and PW-2, which the Court should not ignore. It is submitted that there
is a material discrepancy between the two depositions so far as concerns
execution of the Will. The objectors point to the fact that to a specific
query, the witnesses mentioned that the Will was typed on plain paper G
whereas it is actually on a letterhead. It is further argued that the Will
was prepared by PW-2, a fact which she did not depose nor that the
same was even spoken by PW-1. Learned counsel also pointed-out that
PW-2 never mentioned that the testator had instructed her to type the H
contents. These material discrepancies and omissions are also suspicious
circumstances, according to the Objector/respondents which should
persuade the Court to deny probate.
19. The Objectors argue that inexplicably, despite materials on record
showing that the testator’s son, Govind was financially weak and unsound,
and despite his fondness for Govind’s family, that branch has been
completely cut-out from the estate. On the other hand, submit the
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A respondents, only the petitioner who lived in Delhi and had access to the
testator, was given the entirety of the most valuable property. This,
coupled with the old age and infirmity of the testator – apparent from
two letters written by him to his daughter-in-law, are strong circumstances
B pointing to undue influence being brought to bear upon him. The Objector’s
learned senior counsel emphasized that these circumstances, i.e. the
unnatural bequest in favor of the single branch of the testator’s family
to the exclusion of all others and his advanced age, coupled with his
illness and the important fact that the Will was executed a few days
C before his death, are crucial circumstances which the petitioner has been
unable to explain.
20. It is argued that though PW-1 mentions about his being acquainted
with the testator for two years before his death, there is no material or
D
documentary evidence in support of the statement. Learned senior counsel
argued that if indeed the testator and PW-1 had attended meetings or had
participated in Committee deliberations, the least that was expected was
production of some minutes of meeting or copies of the Committee
E reports, as the case may be. Though the petition was pending for a long
time, no effort to produce such documents was made. In these
circumstances, the Court should not accept the version of PW-1 at its
face-value. The respondents also highlight that PW-1 did not know the
F testator’s relatives or family members and was a stranger to them. In the
facts and circumstances, since the testator was well-known and had
been living in Delhi for a long time, there was apparently no reason to
place faith in an utter stranger in regard to execution of the Will.
G
21. Learned senior counsel lastly argued that the documents,
particularly the letter written by the testator’s daughter-in-law and by the
testator himself vividly point to the fondness for that branch of the family
and also that his daughter-in-law’s jewellery had been sold to construct
H on the plot which formed part of the testator’s estate. These letters also
held-out clear assurances that the suit property was meant for all and
further that the testator was in touch with Govind’s branch of the family
right till the end. The testator’s letters also establish that he was unwell
and barely able to move around or use his left hand. Under these
I circumstances, having regard to the old age, the delay in propounding the
Will, reliance placed on utter strangers and the execution of the Will just
before the testator’s death were all suspicious circumstances for not
Mahabir Prasad & Another v. State (S. Ravindra Bhat, J.)
181
granting the probate claimed.
182
A
22. The Objectors, in support of their submissions, placed reliance
on the judgments of the Supreme Court reported as H. Venkatachala
Iyengar v. B.N. Thimmajamma & Ors. AIR 1959 SC 443; Jaswant
Kaur v. Amrit Kaur & Ors. 1977 (1) SCR 925; Jaswant Kaur v. B
Amrit Kaur 1977 (1) SCC 369 and Bharpur Singh & Ors. v. Shamsher
Singh AIR 2009 SC 1766. It was emphasized that wherever the execution
of the Will is shrouded in suspicion, the mere proof of due execution is
insufficient, and the propounder must dispel from the Court’s mind that C
such suspicious circumstances existed at the time of execution. In this
respect, the decision in Jaswant Singh Kaur (supra) that delay in
propounding the Will has to be cogently explained as also the fact that
the attesting witnesses were strangers and most importantly that the
D
dispositions in the Will were unfair and unnatural.
23. The petitioner argues that the evidence of the attesting witnesses
are worthy of acceptance and that the so-called discrepancies pointed out
by the respondents are minor omissions which cannot be blown out of E
proportion. It is submitted that PW-1 was a high ranking retired military
officer with no motive to perjure himself. His deposition and voluntary
statements clearly establish acquaintanship though not friendship, with
the testator, based on both being members of the Delhi Public School
Society and their involvement in its affairs. Being acquainted with each F
other for about two years was deemed appropriate by the testator, who,
having regard to what he wished to bequeath, apparently wanted to be
discreet about execution of the Will. Similarly, says the petitioner, PW2 was working with the DPS Society as a Secretary and the testator had G
occasion to see her work. It was but natural, under the circumstances,
that he reposed confidence in these two individuals who had no connection
with his family. Aside from alleging that PW-2 had been contacted by the
petitioner, no other motive was and could be ascribed to the attesting H
witnesses, who testified as to the genuineness of the circumstances
under which the Will had been propounded.
24. The petitioner argues that the omission to mention the letterhead
and the mention of stamp paper or other paper, the omission to mention
that PW-2 had typed the Will or the precise date when it was typed, and
whether PW-1 was aware of it can hardly be called as important
discrepancies that can affect the genuineness of an otherwise validly
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A signed Will. Both attesting witnesses clearly proved that the Will (Ex. P1) was signed by the testator in their presence and that they had signed
in his presence, which is what Section 63 of the Indian Succession Act
requires. So far as the question of their being strangers are concerned,
B learned counsel argued that there is no law which prescribes that only
family members or friends of an individual can act as attesting witnesses.
So long as the plea who can testify and are aware of the character of
the documents, act as attesting witnesses, there is no bar in anybody
performing that task.
C
25. It is next argued that the letters relied upon by the respondents/
Objectors, even though written by the testator, do not establish anything
more than that Govind, his son, had done badly. At the same time, the
evidence on the record in the form of DW-1’s deposition show that
D
Govind himself possessed properties, some of which came down from
the family at Bareilly. He had started living away from his own family,
i.e. wife and children – the latter lived in Lucknow The letters, particularly
of 1961 and 1972 assuring that some amounts belonging to Govind’s
E wife or her jewellery had been used in the construction of the suit
property cannot be construed as conferring or creating any interest in it.
The title and ownership of the suit property vested exclusively in the
testator who could deal with it in any manner he liked. Learned counsel
F further pointed-out that besides saying that mere amounts which belonged
to his daughter-in-law had been spent in the construction put-up on the
suit property, there was no other material on the record which could
suggest or establish or compel the Court to draw an inference one way
or the other that the Will was executed under suspicious circumstances.
G
These two letters were written in a span of 20 years before the testator’s
death. On the other hand, there are letters written by the testator which
clearly demonstrate that the petitioner used to assist his brother, Govind’s
family even after the testator’s death and that the testator was aware of
H Govind’s propensity to spend money. Learned counsel submitted that the
testator bequeathed the suit property to the petitioner since he was looked
after by him all the time and specially during his old and infirm age. On
the other hand, it could be safely inferred that Govind’s branch had been
I taken care of by the testator during his lifetime. As a result, there was
neither anything unfair nor unnatural in the manner as regards the
depositions made in the Will.
Mahabir Prasad & Another v. State (S. Ravindra Bhat, J.)
183
184
26. The petitioner also argues that the Will itself takes care of and A
provides for Govind’s branch of the family and other members of the
testator’s family by providing for allowances in favor of Gopal, of Rs.
5,000/-per year for five years, and Rs. 5,000/-per year to each daughter
of the third son, Kanta Prasad and a bequest of Rs. 100/-per month to B
the testator’s servant, Bhola Chand, during his lifetime, after his attaining
the age of 65. The petitioner submits that the concern for Govind Prasad,
who had pre-deceased the testator during his lifetime is borne from the
Will and the statement made in it about a settlement which granted him
full share of ancestral property and all further inheritances, to enable him C
to start a fresh life at Bareilly. The petitioner submits that as a result of
this settlement during the testator’s lifetime, Govind had been given a soil
of land in Plot No. 179, Civil Lines, Bareilly as well as Rs. 20,000/-.
D
27. The petitioner’s counsel relied upon the judgment reported as
Hazara Bradri & Ors. v. Lokesh Datta Multani 2005 (13) SCC 278,
to say that the Court should not lightly disturb the wishes of the testator,
once it is proved that the Will was duly executed in front of the attesting
witnesses. The petitioner also relies on Shyamal Kanti Guha (Dead) E
Through L.R.s & Ors. v. Meena Bose 2008 (8) SCC 115, to say that
the Court should always lean in favor of giving effect to the wishes of
a testator once it is duly proved rather than otherwise. Reliance is also
placed upon a judgment reported as Ramachandra Shenoy v. Hilda F
Brite AIR 1964 SC 1323. 28. Before analyzing the evidence, and the
respective positions of the parties, it would be necessary to briefly discuss
the law relating to testate succession. Section 63 of the Succession Act
and Section 68 of the Evidence Act spell out the essential requirements
G
of wills, and their proof, in a court of law. Section 63 (of the Succession
Act) states that:
"63. Execution of unprivileged wills.--Every testator, not being
a soldier employed in an expedition nor engaged in actual warfare, H
or an airman so employed or engaged, or a mariner at sea, shall
execute his will according to the following rules-(a) -(b) * * *
(c) The will shall be attested by two or more witnesses, each of
whom has seen the testator sign or affix his mark to the will or
has seen some other person sign the will, in the presence and by
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the direction of the testator, or has received from the testator a
personal acknowledgement of his signature or mark, or of the
signature of such other person; and each of the witnesses shall
sign the will in the presence of the testator, but it shall not be
necessary that more than one witness be present at the same
time, and no particular form of attestation shall be necessary.”
Section 68 of the Evidence Act enacts that:
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“68. Proof of execution of document required by law to be
attested.--If a document is required by law to be attested, it shall
not be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution, if there be
an attesting witness alive, and subject to the process of the court
and capable of giving evidence:…”
29. Section 68 of the Evidence Act provides the manner of proof
of a document required by law to be attested. It states that such a
document cannot be used as evidence till at least one attesting witness
E is called for the purpose of proving its execution, (if there such an
attesting witness is alive), and subject to the process of the court and
capable of giving evidence. Such witness has to be examined before the
document can be used in an evidence. A combined reading of Section 63
F of the Succession Act with Section 68 of the Evidence Act, reveals that
the propounder of a will has to prove that the will was duly and validly
executed. That can be done by not merely by proving the testator's
signature on the will, but also establishing that attestations were made
properly as required by Clause (c) of Section 63 of the Succession Act.
G
Section 68 of the Evidence Act does not require the examination of both
or all the attesting witnesses. Yet, at least one attesting witness should
be examined to prove the due execution of a will as mandated by Section
63. Although Section 63 of the Succession Act requires that a will has
H to be attested at least by two witnesses, Section 68 of the Evidence Act
provides that a document, which is required by law to be attested, shall
not be used as evidence until one attesting witness at least has been
examined for the purpose of proving its due execution if such witness
I is alive and capable of giving evidence and subject to the process of the
court. Therefore, it is imperative that one attesting witness has to be
examined and he (or she) should be in a position to prove the execution
of a will. The sole attesting witness so examined, should be able to
Mahabir Prasad & Another v. State (S. Ravindra Bhat, J.)
185
A
establish the attestation of a will by him and the other attesting witness
for proving there was due execution of the will. (See Janki Narayan
Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91; Seth Beni Chand
v. Kamla Kanwar AIR 1977 SC 63; H. Venkatachala Iyengar (supra)).
The first task of the court is to, therefore, see whether the Petitioner B
proves that the will was executed in accordance with law.
30. Apart from the legal requirements spelt out by Section 63 (of
the Succession Act) and Section 68 (of the Evidence Act) discussed
previously, the court which considers a plea about validity (or otherwise) C
of a will has to see other significant facets. The court has to be satisfied
generally that the tesatator (or testatrix) was of a sound and disposing
mind, in possession of his or her senses, with the ability to perceive that
the document executed was indeed a will which she or he desired, and D
was also aware of its contents, which accorded with her (or his) wishes.
These essentials were clarified by the Supreme Court, in H. Venkatachala
Iyengar v. B.N. Thimmajamma (supra), in the following terms:
“There may, however, be cases in which the execution of the E
will may be surrounded by suspicious circumstances. The alleged
signature of the testator may be very shaky and doubtful and
evidence in support of the propounder's case that the signature,
in question is the signature of the testator may not remove the F
doubt created by the appearance of the signature; the condition
of the testator's mind may appear to be very feeble and debilitated;
and evidence adduced may not succeed in removing the legitimate
doubt as to the mental capacity of the testator; the dispositions
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made in the will may appear to be unnatural, improbable or
unfair in the light of relevant circumstances; or, the will may
otherwise indicate that the said dispositions may not be the result
of the testator's free will and mind. In such cases the court
would naturally expect that all legitimate suspicions should be H
completely removed before the document is accepted as the last
will of the testator. The presence of such naturally tends to
make the initial onus very heavy; and, unless it is satisfactorily
discharged, courts would be reluctant to treat the document as I
the last will of the testator. It is true that, if a caveat is filed
alleging the exercise of undue influence, fraud or coercion in
respect of the execution of the will propounded, such pleas may
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have to be proved by the caveators; but, even without such pleas
circumstances may raise a doubt as to whether the testator was
acting of his own free will in executing the will, and in such
circumstances, it would be a part of the initial onus to remove
any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have
just referred, in some cases the wills propounded disclose another
infirmity. Propounders themselves take a prominent part in the
execution of the wills which confer on them substantial benefits.
If it is shown that the propounder has taken a prominent part in
the execution of the will and has received substantial benefit
under it, that itself is generally treated as a suspicious circumstance
attending the execution of the will and the propounder is required
to remove the said suspicion by clear and satisfactory evidence.
It is in connection with wills that present such suspicious
circumstances that decisions of English courts often mention the
test of the satisfaction of judicial conscience. It may be that the
reference to judicial conscience in this connection is a heritage
from similar observations made by ecclesiastical courts in England
when they exercised jurisdiction with reference to wills; but any
objection to the use of the word "conscience" in this context
would, in our opinion, be purely technical and academic, if not
pedantic. The test merely emphasizes that, in determining the
question as to whether an instrument produced before the court
is the last will of the testator, the court is deciding a solemn
question and it must be fully satisfied that it had been validly
executed by the testator who is no longer alive.”
31. The reasoning in this decision has been applied subsequently in
several judgments: Rani Purnima Debi v. Khagendra Narayan Deb :
H AIR 1962 SC 567; Surendra Pal v. Dr. Saraswati Arora 1974 (2) SCC
600; Gurdial Kaur v. Kartar Kaur 1998 (4) SCC 384, etc. Courts have
emphasized that usually it is the cumulative effect, rather than a stray
circumstance, which would weigh in concluding that a will is shrouded
in suspicion. Ultimately, it is the conscience of the court, which should
I be satisfied that the will is a genuine document, and expresses what is
intended by the testatrix or testator, apart from being satisfied that the
technical legal requirements mandated by the joint operation of Section
Mahabir Prasad & Another v. State (S. Ravindra Bhat, J.)
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63 of the Succession Act, and Section 68 of the Evidence Act, are A
fulfilled.
32. It is well established that the intention of a testator, in executing
a will, is to disturb or interfere with the normal line of succession.
Therefore, unless something unusual and grossly unfair is shown in the B
disposition, the mere fact that some heirs are excluded is not a ground
to conclude that it was executed under suspicious circumstances. (See
Rabindra Nath Mukherjee v. Panchanan Banerjee 1995 (4) SCC
459; Sadasivam v. K. Doraiswamy 1996 (8) SCC 624; P.P.K. Gopalan C
Nambiar v. P.P.K. Balakrishnan Nambiar 1995 Supp (2) SCC 664).
In Vrindavanibai Sambhaji Mane v. Ramchandra Vithal Ganeshkar
(1995) 5 SCC 215 the Supreme Court listed out what are the unnatural
circumstances which would make courts pause, and consider whether
D
such features are "suspicious circumstances ": (1) The propounder taking
a prominent part in the execution of a Will which confers substantial
benefits on him; (2) Shaky signature; (3) A feeble mind which is likely
to be influenced; (4) Unfair and unjust disposal of property.
E
33. The court, at the same time, is also bound by another principle,
which is that while construing a will, every attempt must be made to give
effect to the testator's intention (if it is proved that the will is a genuine
and validly executed one). Navneet Lal v. Gokul (1976) 1 SCC 630 is
a decision, where the court summarized the principles applicable in such F
circumstances, as follows:
“8. From the earlier decisions of this Court the following principles,
inter alia, are well established:
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(1) In construing a document whether in English or in vernacular
the fundamental rule is to ascertain the intention from the words
used; the surrounding circumstances are to be considered; but
that is only for the purpose of finding out the intended meaning H
of the words which have actually been employed. (Ram Gopal
v. Nand Lal)
(2) In construing the language of the will the court is entitled to
put itself into the testator's armchair (Venkata Narasimha v.
Parthasarathy) and is bound to bear in mind also other matters
than merely the words used. It must consider the surrounding
circumstances, the position of the testator, his family relationship,
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the probability that he would use words in a particular sense....
But all this is solely as an aid to arriving at a right construction
of the will, and to ascertain the meaning of its language when
used by that particular testator in that document. (Venkata
Narasimha case and Gnanambal Ammal v. T. Raju Ayyar)
(3) The true intention of the testator has to be gathered not by
attaching importance to isolated expressions but by reading the
will as a whole with all its provisions and ignoring none of them
as redundant or contradictory. (Raj Bajrang Bahadur Singh v.
Thakurain Bakhtraj Kuer)
(4) The court must accept, if possible, such construction as
would give to every expression some effect rather than that
which would render any of the expressions inoperative. The
court will look at the circumstances under which the testator
makes his will, such as the state of his property, of his family
and the like. Where apparently conflicting dispositions can be
reconciled by giving full effect to every word used in a document,
such a construction should be accepted instead of a construction
which would have the effect of cutting down the clear meaning
of the words used by the testator. Further, where one of the two
reasonable constructions would lead to intestacy, that should be
discarded in favour of a construction which does not create any
such hiatus. (Pearey Lal v. Rameshwar Das)
(5) It is one of the cardinal principles of construction of wills
that to the extent that it is legally possible effect should be given
to every disposition contained in the will unless the law prevents
effect being given to it. Of course, if there are two repugnant
provisions conferring successive interests, if the first interest
created is valid the subsequent interest cannot take effect but a
Court of construction will proceed to the farthest extent to avoid
repugnancy, so that effect could be given as far as possible to
every testamentary intention contained in the will. (Ramachandra
Shenoy v. Hilda Brite Mrs.)....”
34. The evidence here is in the form of deposition of the two
attesting witness, i.e. of Lt. General Bawa PW-1, and Mrs. Markan, PW2. They deposed that the will was executed by the testatator on 28th
Mahabir Prasad & Another v. State (S. Ravindra Bhat, J.)
189
January 1982 and attested by each other. In cross examination, both
stated having met the testator on two occasions; they could recollect that
the will was executed by him. PW-1 mentioned about his previous
association with the testator as member of the DPS governing Council,
and that they had participated in committee deliberations. He volunteered
about his acquaintanceship with the testator, on that basis, and denied the
suggestion that he was unwell on date of the execution of the will. He
also said that the testator used to play golf regularly. He was aware that
the testator had visited him previously, and that PW-2 had been requested
to attest the will as a witness. PW-2 corroborated this version; she was
a personal secretary in the DPS society. In cross examination, she
conceded having typed the will according to the testator's directions,
given previously. The respondents could not elicit anything to say that
the testator was unwell or infirm.
35. The respondents object to the witnesses' depositions, arguing
that there are grave discrepancies, in as much as PW-1 did not mention
about the other witness typing the will, both of them, omitting to say that
the will contained something in Hindi, and that there was omission to say
when the testator visited the office to give a draft to PW-2 for typing
the final will. It was also argued that both versions did not say that the
will was typed on a letterhead. These are trivial inconsistencies or
discrepancies, in the opinion of the court. The standard of proving a will
in this context is the same as in other case, i.e. the propounder should
establish through preponderance of probabilities that the will was validly
executed. The respondents have not led any evidence to show infirmity,
illness or mental incapacity of the kind that would have deprived the
testator of his capacity to make a valid testamentary disposition. The
discrepancies pointed by them pertain to a period of over 25 years before
the two attesting witnesses were examined. Human memory cannot have
the same vividity and constancy to retain every little detail, and describe
it as if the act were performed the day before the deposition. Predictably,
witnesses' faded recollections inevitably tend to throw up some
inconsistencies, which are natural. What would however be worrisome,
is if the tale is picture perfect in all detail. That would be a circumstance
impelling the court to scrutinize the testimonies and the materials, rather
closely, as human fallibility, rather than perfection, is the norm. On an
overall consideration of the materials, the court is of the opinion that
there is sufficient proof, contemplated by Section 63 of the Succession
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A Act and Section 68 of the Evidence Act about due execution of the will
by the late testator.
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36. The next question is whether the will was executed under
suspicious circumstances. The objectors argue that the testator was ill;
that he confided in total strangers, that he was of advanced age, and that
the will made unnatural dispositions, for no reason -as grounds to establish
suspicious circumstances which should dissuade the court from granting
probate. Now, in this regard, the court has to take into consideration the
evidence presented before it. The testimonies of PW-1 and PW-2 are
credible. Nothing has been shown disclosing that they had any ill-motive
against the objector, or were interested. Indeed, PW-1 is a retired Lt.
General. He cannot possibly have any motive other than to depose to
what was witnessed by him. He -as well as PW-2 consistently deposed
that the testator was in his senses when he signed the will, in their
presence. The objectors have not led any positive evidence of chronic
ailment or disease that would have rendered the testator mentally
incapacitated, or incapable of understanding his actions. Indeed, by all
accounts, he was alert, when he signed the will; he was actively involved
in the affairs of the DPS society and convenor of a reforms committee.
PW-1 even said that he used to play golf. The testator concededly was
a retired high ranking bureaucrat of the ICS cadre. The petitioner's
evidence is sufficient to rule out any serious mental incapacity or ailment
which rendered the testators judgment or understanding suspect, when
the will was made and signed by him. No doubt, he was aged; but there
is nothing to show that such advanced age alone was enough to incapacitate
him, or more importantly, impair his judgment. In one of his letters, he
did mention about inability to use one hand. Yet, the objectors did not
deem that circumstance serious enough to visit him, or inquire or gather
any evidence to establish their case that he was incapacitated by any
such condition, from exercising sound judgment, while signing the will.
37. As far as confiding in total strangers, for executing the will is
concerned, the court is of the opinion that the previous judgments are to
be viewed as broad guidelines, and not rigid formulae to be applied in
every fact situation. They are broad markers, to be kept in the mind of
the court, whose conscience is to be ultimately satisfied that the will was
indeed signed by the testator, while in a sound and disposing mind. The
mere fact, in the circumstances of this case, that the testator confided
Mahabir Prasad & Another v. State (S. Ravindra Bhat, J.)
191
in relative strangers, and not in close friends or family members, should
not cloud the court's vision in examining whether those "strangers"
established due execution of the will. There is no law or rule which
obliges individuals -even of advanced age, to seek the aid of friends or
family members while executing a will. Indeed, it could arguably be said
that testators, having regard to the nature of bequests, may sometimes
wish to keep "under wraps" the execution of the will, away from prying
eyes of relatives, and friends, who may be seen as threats, wanting to
seek their share in the inheritance. Therefore, it is natural, under
circumstances, to involve third parties or slight acquaintances to act as
attesting witnesses. As stated earlier, the objectors were unable to point
out to any possible motive or ill will on the part of the attesting witnesses,
in perjuring themselves. Therefore, that they were strangers, is insufficient
to say that there were suspicious circumstances vitiating the will in
question.
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38. The next question is whether the objectors show that the
disposition or bequest made was unnatural. The testator was survived by
two sons, and the family of another predeceased son. The objectors have E
relied on certain letters to say that the daughter in law, Satyavati, used
to correspond with the testator, who was fond of her, and his
grandchildren, i.e. son and daughter of Govind. These letters also indicate
that her money was used for constructing upon the suit plot, and that F
the testator appears to have assured that the house could be used by all,
including Govind's branch of the family. The question is whether this can
persuade the court into concluding that the will made an unnatural
disposition, by excluding the heirs of a predeceased son altogether.
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39. The fact that Satyawati's jewellery was used to construct the
property, acknowledged in a letter written by the testator in 1971, only
establishes that aspect, as also another previous letter of 1965. However,
there is a long gap between these two periods, and a decade after 1971. H
The will itself mentions that the testator and Govind had arrived at a
settlement, whereby the latter had been paid Rs. 20,000/-and a large part
of a Civil Lines plot in Barielly. The evidence also suggests that Govind
had some shops, and lived from the rental income derived. The testator,
in one of his letters, suggests that Gopal, i.e Govind's son, should start I
working and take charge of his responsibilities. Yet, these facts or taken
with the others do not mean that the testator wished to bequeath any
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A share in the property to the objectors. It would be worth noticing at this
stage that the third son of the testator did not object to the will and has
apparently accepted the bequests. As regards the letter written to the
petioner by Satyawati is concerned, it cannot establish the existence of
B any other will. In any case, no evidence has been placed, on the record
to dispel the inference that the will propounded in this case was the last
will and testament of the petitioner. The court is mindful of the fact that
more often than not, testators wish to make dispositions or bequests
which disturb the natural line of succession. Having regard to all these
C aspects, the fact that the will does not provision for Govind's heirs, is
not sufficient to set the will aside, or hold that its execution was clouded
by suspicious circumstances.
40. The last aspect to be considered is whether the delay in
approaching the court, and seeking probate is fatal to the petition.
Kunvarjeet Singh Khandpur is an authority for the proposition that the
court can reject a claim or relief, primarily based on a will, if the petitioner
does not approach it in time. It is to be noticed at this stage that the said
E decision was rendered a good 73 years after enactment of the Succession
Act. The nature of proceedings, and the procedure to be adopted under
the Act, was well known to Parliament, which made no mention of any
period of limitation. The Limitation Act, significantly mentions about its
F applicability to applications, suits, and appeals; it does not mention Petitions,
in the form of probate claims, or any proceedings under the Succession
Act. Therefore, the observations in Khandpur have to be read in the
context of the statute, when the Parliament was aware of existing law,
which had provided a special procedure for grant of probate. In the
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present case, when all other facts point to a valid and genuine will, with
no foul play, or the testator having suffered from any incapacity or
disability impairing his fair judgment, that the petitioner has approached
the court after some delay in the overall circumstances cannot be fatal
H to the claim.
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41. In view of the above findings, it is held that the testator was
of sound and disposing mind, while signing the will in question in this
case. The petitioner has proved its due execution; the court is satisfied
that there were no surrounding suspicious circumstances, which disentitle
the petitioner's claim. Therefore, he is entitled to probate in respect of the
will dated 28th January, 1982.
Sardar Gurdial v. Dr. Sandeep Sharma (Hima Kohli, J.)
193
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Issue No. 3
42. For the reasons mentioned and findings rendered in respect of
the first two issues, the petition is allowed. The petitioner shall be granted
probate of his father's will, and shall act as executor in respect thereof.
The same shall be granted subject to the petitioner furnishing Administration B
and Surety Bonds, within eight weeks, and also ensuring that the valuation
of the suit property is placed on the record. The petition is therefore,
allowed in the above terms, without any order as to costs.
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ILR (2011) I DELHI 193
CRL. REV. P.
SARDAR GURDIAL
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E
stage of presummoning, statement made by the
petitioner have to be accepted as true and correct—
Held, eight exception to Section 499 IPC applicable—
Reply filed by respondent in proceedings initiated by
the mother of the Petitioner u/s 133 Cr.PC were filed
in the Court of Law which had authority over subject
matter in dispute—Reply was filed in good faith to get
complaint dismissed—Not case of petitioner that apart
from filing on record the reply was circulated to any
person—No infirmity in order—Petition dismissed.
Important Issue Involved: It is not defamation to prefer
in good faith an accusation in legal proceedings against any
person to any of those who have lawful authority over that
person with respect to the subject matter of accusation.
....PETITIONER
VERSUS
DR. SANDEEP SHARMA
[Ad Ch]
....RESPONDENT
(HIMA KOHLI, J.)
CRL. REV. P. NO. : 280/09
DATE OF DECISION: 29.09.2010
ILR (2011) I Delhi
F
Code of Criminal Procedure, 1973—Section 200, 397,
401—Indian Penal Code, 1860—Section 500—Quashing
G
of order of ASJ upholding order of MM dismissing the
complaint filed by the petitioner u/s 200 Cr.PC against
the respondent for defaming him—Mother of petitioner
had filed criminal complaint against respondent and
others u/s 133 Cr. PC before SDM—Responsdent vide H
a notice was called upon to reply—In response to
notice respondent submitted reply which was
considered as defamatory by the petitioner—Complaint
u/s 200 filed before MM—Complaint dismissed— I
Contention of petitioner that the court below could
not have gone into the merits of the case, as at the
F
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APPEARANCES:
FOR THE PETITIONER
:
Mr. Ashutosh Gupta, Advocate.
FOR THE RESPONDENT
:
Mr. Manish Makhija, Advocate.
CASES REFERRED TO:
1.
S.P. Satsangi vs. Krishna Kumar Satsangi reported as
142(2007) DLT 192.
2.
Dr. P. Sharma vs. P.S. Popli and another reported as
2002 I AD (DELHI) 569.
3.
Sunil Sareen vs. Govt.of NCT of Delhi & Anr. reported
as 83 (2000) DLT 380.
4.
Mohinder Singh vs. Gulwant Singh & Ors. reported as
JT 1992 (1) SC 542.
RESULT: Petition allowed.
I
HIMA KOHLI, J. (Oral)
1. The present revision petition is filed by the petitioner under
Section 397 read with Section 401 of Cr.P.C. praying inter alia for
Sardar Gurdial v. Dr. Sandeep Sharma (Hima Kohli, J.)
195
196
quashing of the order dated 31.1.2009 passed by the learned District A
Judge-cum-ASJ in Crl.Appeal.No.6/08, upholding the order dated
1.12.2006 passed by the learned Metropolitan Magistrate, who had
dismissed the complaint filed by the petitioner against the respondent for
allegedly committing an offence punishable under Section 500 IPC.
B
2. The main grievance of the counsel for the petitioner against the
impugned order is that the courts below erred in dismissing the complaint
of the petitioner by going into the merits of the case, whereas at the stage
of ˇpre-summoning, the evidence and statements made by the petitioner C
have to be accepted as true and correct. In support of the said submission,
he draws the attention of this Court to the complaint filed by the petitioner
against the respondent under Sections 190 & 199 Cr.P.C. praying inter
alia for trying and punishing him for the offence under Section 500 IPC,
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the statement on oath made by the petitioner before the learned Metropolitan
Magistrate recorded on 14.3.2005, and the order of the learned
Metropolitan Magistrate, passed on 1.12.2006.
3. In short, facts of the case are that Smt. Jaswant Kaur, the E
mother of the petitioner filed a criminal complaint against the respondent
and others under Section 133 Cr.P.C. before the learned Sub-Divisional
Magistrate, Delhi Cantt. The basis of the said complaint was the fact that
the respondent, who is the next door neighbour of the petitioner, was
running an X-ray clinic from his premises. Vide order dated 5.9.2002, F
notice was issued to the respondent in the aforesaid complaint calling
upon him to file a reply thereto. In response to the notice, the respondent
submitted a reply dated 13.9.2002 to the court of the learned SDM. In
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para 1 of the said reply, the respondent stated as below:
“Para No.1: The complainant is in the habit of harassing my
family and me on the grounds of false, frivolous, baseless and
malicious complaints. The reality is that her notorious son Shri
Gurdiyal Singh s/o Shri Pyara Singh mostly signs the complaint H
in her name and sends them to various authorities to harass us.
He is the main culprit.”
4. Pertinently, the complaint filed by Smt. Jaswant Kaur was finally
dismissed by the learned SDM vide order dated 31.8.2004.
5. As per the petitioner, he had been merely acting as an attorney
of his mother, Smt.Jaswant Kaur and had nothing to do with the complaint,
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A except to represent her in the said proceedings and hence he was unable
to protect himself from the aforesaid defamatory remarks made by the
respondent against him. He further averred that by publishing the aforesaid
remarks by way of reply submitted by the respondent before the learned
B SDM, the respondent has defamed the petitioner for which he was liable
to be punished under Section 500 IPC.
6. On receiving the aforesaid complaint, the learned Metropolitan
Magistrate recorded the statement of the petitioner on oath (CW-1). The
C orderly from the court of the ASJ, Patiala House Courts, New Delhi(CW2) was summoned with the judicial file of the court of SDM Kapashera,
New Delhi, vide Case No.65/SDM/2002 under Section 133 Cr.P.C., which
was filed by Smt. Jaswant Kaur, mother of the petitioner against the
respondent. After perusing the aforesaid records and the testimony of the
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CW-1 & CW-2, the learned Metropolitan Magistrate arrived at a conclusion
that the contents of the reply(Ex.CW-2/A) filed by the respondent in the
proceedings initiated by the mother of the petitioner, were not made with
the intention of causing any harm to his reputation and further, that the
E petitioner has not examined any person, apart from himself to show such
imputations as made by the respondent in his reply(Ex.CW-2/A) had
really defamed him. As a result, no grounds were found to summon the
respondent in the complaint case and the same was dismissed.
F
7. Aggrieved by the aforesaid dismissal order, the petitioner filed an
appeal before the learned ASJ. After hearing the petitioner and perusing
the records, the learned ASJ rejected the appeal on the ground that the
reply filed by the respondent before the learned SDM, Vasant Vihar, was
G bona fide and was filed to explain his position in the complaint filed by
the mother of the petitioner and further, that there was no element of
mens rea to lower the reputation of the petitioner.
8. This Court has heard the counsels for the parties and perused the
H documents placed on the record, as also the judgments dated 1.12.2006
passed by the learned Metropolitan Magistrate and the order dated 31.1.2009
passed by the learned ASJ.
I
9. The submission of the counsel for the petitioner that at the presummoning stage, the learned Metropolitan Magistrate has no option, but
to accept the evidence and the statements made by the petitioner as true
and correct, has to be examined in the light of the provisions contained
Sardar Gurdial v. Dr. Sandeep Sharma (Hima Kohli, J.)
197
in Chapter XV of the Cr.P.C., which deals with `Complaints to A
Magistrates’. Section 200 Cr.P.C. postulates examination of the complainant
and requires a Magistrate to take cognizance of the offence on complaint,
to examine the complainant on oath and the witnesses present, if any,
and reduce into writing the substance of such an examination to be B
signed by the complainant and the witnesses. Section 203 Cr.P.C. deals
with dismissal of complaint and stipulates that if, after considering the
statements on oath of the complainant and the witnesses and the result
of the inquiry or investigation under Section 202, the Magistrate is of the
opinion that there is insufficient ground for proceeding, he shall dismiss C
the complaint, with reasons to be recorded for doing so.
10. The very fact that Section 203 of the Cr.P.C. requires the
Magistrate to examine the statements made by the complainant and the
D
witnesses, as also the result of the inquiry or investigation and only after
considering the same, if the he/she is of the opinion that there are not
enough grounds to proceed on the basis of the complaint, he has the
option to dismiss the same by passing a reasoned order shows that
discretion vests with the trial court to take a decision either ways, i.e., E
to proceed to register the case, or to dismiss the complaint. Hence, the
contention of the counsel for the petitioner that at the pre-summoning
stage, the Magistrate has no option, but to accept the statements made
by the complainant and the witnesses as the gospel truth and proceed to F
register the complaint, is contrary to the provision itself. Rather, the
option is available with the Magistrate to apply his mind to arrive at a
conclusion as to whether the testimony of the complainant and the
witnesses or the result of the inquiry or investigation reveal sufficient
G
ground for proceeding in the complaint, and if not, to dismiss the same.
11. In the instant case, the order passed by the both the learned
Metropolitan Magistrate as also the learned ASJ are reasoned orders. The
fact that the respondent filed a reply in the criminal complaint lodged by H
the petitioner, as a power of attorney holder of his mother, whereupon
a notice was issued by the learned SDM to him, calling upon him to file
a reply, shows that the respondent was under an obligation to take a
stand, putting forth his defence in the matter. Section 499 IPC postulates
that in case there are accusations made in good faith in the said defence I
as set out in the Exception clauses to the said Section, then, defamation
would not be made out. In the present case, the Eighth Exception is
198
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A applicable to the facts in hand, which is as below :
B
C
D
E
F
G
“Eighth Exception – Accusation preferred in good faith to
authorized person. - It is not defamation to prefer in good faith
an accusation against any person to any of those who have
lawful authority over that person with respect to the subjectmatter of accusation.”
12. Reliance has rightly been placed by the counsel for the respondent
on the judgment of this Court in the case of S.P.Satsangi Vs. Krishna
Kumar Satsangi reported as 142(2007) DLT 192 wherein the petitioner
therein sought quashing of the summoning orders passed by the learned
Metropolitan Magistrate in a complaint filed by the respondent (wife of
the petitioner therein) under Sections 499 & 500 IPC alleging that in the
divorce petition preferred by the petitioner, in order to prove cruelty, he
had filed on the record, a tape recorded conversation which contained
some utterances on his part which the complainant felt offended by on
account of the imputations contained therein, to bring down her image
and reputation. The learned Single Judge allowed the petition of the
husband by holding that the annexure filed by the petitioner on the record
of the divorce petition was with the Court of law, which had the authority
on the subject matter in dispute and hence it could not be said that the
intention was to defame the complainant. While holding so, the court
observed that apart from filing Annexure-A on the judicial record, there
was nothing in the complaint made by the respondent therein that the
petitioner had circulated tape-recorded version to any other person,
relations, friends etc.
13. In the case of Dr. P. Sharma Vs. P.S. Popli and another
reported as 2002 I AD (DELHI) 569, a criminal complaint filed by the
respondent therein against the petitioner was dismissed by the Magistrate.
The respondent preferred a revision petition before the learned ASJ who
H allowed the same and the accused persons were ordered to be summoned
and put on trial. Against the order passed by the learned ASJ, the petitioner
came up in revision to the High Court, which was dismissed. Aggrieved
by the said dismissal order, the petitioner preferred a SLP in the Supreme
I Court wherein he pleaded that the complaint filed by the respondent was
false, mischievous and intended to blackmail him. The SLP was allowed
by the Supreme Court and the complaint and the order of summoning
were quashed. In the second round of litigation, the respondent filed a
Sardar Gurdial v. Dr. Sandeep Sharma (Hima Kohli, J.)
199
complaint against the petitioner under Section 500 IPC alleging that the
imputations made by him in the SLP were intended to harm his reputation.
The petitioner was summoned for offence punishable under Section 500
IPC in the complaint. Upon appearing, he sought recalling of the
summoning order by filing an application, which was dismissed. Aggrieved
by the said dismissal order, the petitioner filed a revision petition before
the High Court, which was allowed and the complaint and the proceedings
thereon were quashed, as the court concluded that copy of the complaint
and any other connected documents were filed with the SLP before the
Supreme Court with the intention of getting the complaint quashed and
the imputation preferred in good faith by the petitioner to get the
summoning order quashed, could not be said with the intention or
knowledge to cause harm to the reputation of the complainant. It was
further observed that accusation were made before the Supreme Court
which has authority over the subject matter in dispute.
200
A
B
C
D
14. Same is the position even in the present case. The reply filed
by the respondent in the proceedings initiated by the mother of the
petitioner under Section 133 Cr.P.C. was filed in the Court of law, which E
had the authority over the subject matter in dispute. The said reply was
filed in good faith to get the complaint dismissed. It is not the case of
the petitioner that apart from filing the said reply on the record, the same
was also circulated to any person, relations or friends so as to treat it F
as a publication.
15. The position in the case of Sunil Sareen Vs. Govt.of NCT of
Delhi & Anr. reported as 83 (2000) DLT 380 relied upon by the counsel
for the petitioner is not different. In the said decision, the court held that G
the scope of inquiry under Section 202 Cr.P.C. is extremely restricted
only to finding out the truth or otherwise of the allegations made in the
complaint and that a full dress trial in the case only takes place after
process is issued under Section 204 Cr.P.C. In the aforesaid case, reliance H
was placed on the decision of the Supreme Court in the case of Mohinder
Singh Vs. Gulwant Singh & Ors. reported as JT 1992 (1) SC 542, and
it was noticed that during the course of enquiry conducted under Section
202 of the Code, the enquiry officer had to satisfy himself on the evidence
adduced by the prosecution, whether prima facie case had been made out I
so as to put the proposed accused on a regular trial and that no detailed
enquiry was called for during the course of such an enquiry. Undoubtedly,
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A an enquiry under Section 202 Cr.P.C. is extremely restricted, but the
option is still with the trial court to determine from the material placed
on the record as to whether the process under Section 204 Cr.P.C.
should be issued or whether the complaint should be dismissed under
B Section 203 Cr.P.C. on the ground that there is insufficient material to
proceed further against the accused.
16. In the present case, after examining the evidence on the record,
the learned Metropolitan Magistrate rejected the complaint of the petitioner
C for cogent and valid reasons. The aforesaid order dated 1.12.2006 was
duly considered by the learned ASJ in appeal, before upholding the same
by the impugned order dated 31.1.2009. The said decisions have been
arrived at on the basis of a prima facie finding. As noted above, it is not
obligatory on the part of the learned Metropolitan Magistrate to accept
D
the testimony of the complainant as the gospel truth, and issue summons
to the accused without applying his mind to the complaint. This Court
does not find any illegality, arbitrariness or miscarriage of justice in the
present case so as to entertain the present petition. The same is therefore
E dismissed as being devoid of merits, while leaving parties to bear their
own costs.
F
ILR (2011) I DELHI 200
WRIT PETITION
G
EX-CONST. VIJENDER SINGH
.....PETITIONER
VERSUS
H
UNION OF INDIA AND ORS.
.....RESPONDENTS
(GITA MITTAL & J.R MIDHA, JJ.)
W. P. (C) NO. : 14098/2009
DATE OF DECISION: 01.10.2010
I
Border Security Force Act, 1968—Section 117(2)—
Border Security Force Rules, 1969—Rule 142—
Petitioner charged with attempt to commit suicide—
EX-Const. Vijender Singh v. Union of India and Ors. (Gita Mittal, J.) 201
Respondents contend petitioner entered plea of guilty
before Summary Security Force Court (SSFC) and
dismissed him from service—Order challenged in High
Court—Plea taken, petitioner had never pleaded guilty
to charge—Per contra, plea taken petitioner had prayed
for mitigation of punishment—Held—Proceedings of
court do not contain signatures of petitioner at any
place at all in SSFC which militate against petitioner
having so pleaded—Court is required to test legality
and validity of findings returned by SSFC based on
material before court and conviction of petitioner
cannot be premised on any thing which may have
come before them subsequently—Record made by
hospital authority and police does not support charge
for which petitioner was arraigned—Petitioner
reinstated with all consequential benefits.
A
B
ILR (2011) I Delhi
A APPEARANCES:
FOR THE PETITIONER :
B
Mr. Anil Gautam and Mr. D.S. Ahluwalia,
Advs.
FOR THE RESPONDENTS : Mr. Anjum Javed, Adv. along with
Assistant Commandant Bhupinder,
BSF.
CASES REFERRED TO:
C
D
Learned counsel for the petitioner has contended that
despite the explanation given by the petitioner and the fact E
that the police had found no substance or culpability for any
penal offence of the petitioner, the respondents had found
the petitioner guilty of the charge. The plea set up by the
petitioner after such finding had been returned by the court F
as a last resort to seek mitigation of sentence cannot be
treated as an admission of guilt.
In any case, this court is required to examine the material
which was before the court in arriving at the conclusion of G
the petitioner's guilt. Certainly the conclusion cannot be
tested on the basis of any statement which is attributed to
the petitioner after the decision making.
(Para 20)
H
Important Issue Involved: This court is required to test
the legality and validity of the findings returned by Summary
Security Force Court based on the material before the court
and the conviction of the petitioner can not be premised on
I
anything which may have come before them subsequently.
[Ar Bh]
Indian Law Reports (Delhi)
202
C
D
E
1.
Sukanta Mitra vs. Union of India & Ors., MANU/JK/
0017/2007 : 2007 (2) JKJ 197.
2.
Ex. Naik Subhash Chander vs. UOI & Ors. W.P.(C)
No.6036/2005.
3.
Lachhman (Ex.Rect.) vs. Union of India & Ors., 2003 II
AD (Delhi) 103.
4.
The Chief of Army Staff & Ors. vs. Ex. 14257873 K.
Sigmm Trilochan Behera, LPA No. 254/2001.
5.
Vimal Kumar Singh vs. Union of India & Ors. WP (C)
No.236/2000.
6.
Shri Sukhbir Singh vs. Union of India and others W.P.(C)
No. 2683/1992.
7.
Union of India and Ors. vs. Ex-Havildar Clerk Prithpal
Singh and Ors. KLJ 1991 page 513.
8.
Uma Shanker Pathak vs. UOI & Ors. 1989 (3) SLR 405.
9.
Prithpal Singh vs. Union of India & Ors., 1984 (3) SLR
675.
F
G
RESULT: Allowed.
H GITA MITTAL, J. (Oral)
1. Rule D.B.
I
2. With the consent of both the parties, the petition is taken up for
consideration and final disposal.
3. The respondents have produced the record before us in terms of
the order dated 22nd December, 2009. Learned counsel for the parties
have also been heard with regard to the issue raised by the petitioner.
EX-Const. Vijender Singh v. Union of India and Ors. (Gita Mittal, J.)203
Learned counsel for the respondents has relied upon the record of the A
case to make submissions.
4. It appears that so far as the factual matrix is concerned, there
is really no dispute.
B
5. The petitioner was enrolled as Constable with the Border Security
Force (‘BSF’ hereafter) in the year 2000. The available record of Summary
Security Force Court (‘SSFC’ hereafter) shows that the petitioner had
rendered satisfactory service of little over eight years before passing of C
the impugned order of dismissal on the 13th of October, 2008.
6. It appears that on the night intervening 30th June/1st July, 2008,
there was an incident of firing and the petitioner is stated to have suffered
a bullet injury from his own rifle on his left shoulder. The question which D
has been raised by the petitioner is that the same was on account of
accidental firing for the reason that the petitioner had slipped while
returning from late night duty while crossing a ditch as a consequence
of which, the trigger of his rifle which was slung over his left shoulder
E
got pressed resulting in the rifle going off and the bullet piercing the flesh
of his left shoulder. The petitioner contends that he had reached the
border outpost in such injured condition and informed the officers about
the incident of firing whereafter the petitioner was medically treated for
F
the injury received by him.
7. The respondents on the other hand have placed reliance on a
record of evidence made under the provision of Border Security Force
Act between 17th August, 2008 and 8th October, 2008 into the said
G
incident. On a consideration thereof, the Commandant of the petitioner’s
Battalion passed an order on 8th October, 2008 itself that the petitioner
be tried by the Summary Security Force Court (‘SSFC’ hereafter).
8. The original record of the proceedings of the SSFC have been H
placed before us.
A
The accused No.00005142 Constable Vizender Singh of E
Coy, 43 BN BSF is charged with:-
I
ILR (2011) I Delhi
BSF ACT 1968 ATTEMPTING TO COMMIT
U/SEC-41(c) SUICIDE AND IN SUCH ATTEMPT DOING AN
ACT TOWARDS THE COMMISSION OF THE SAME.
B
In that he,
A BOP Sowarwali on 01st July, 2008 at about 010020 hrs
attempted to commit suicide by firing one round from his personal
weapon 5.56 Insas Rifle bearing Butt No.138, body No.16609458.”
C
10. The respondents have contended that the petitioner entered a
plea of ‘guilty’ to the charge before the SSFC on 13th October, 2008.
As a result he was found guilty thereof and sentence to dismissal from
service.
D
11. It is an admitted position that there was no witness to the
incident of firing. We find that the only evidence which has been relied
upon the respondents to return a finding of conviction and guilt for the
said charge is the said plea of guilt by the petitioner. It is submitted that
E in view of this plea, no trial proceedings were required to be conducted
and no evidence was recorded by the SSFC.
12. The primary challenge to the proceedings of the SSFC laid by
the petitioner rests on the contention that he had never pleaded guilty to
F
the charge. It has been contended that for this reason, the proceedings
of the court do not contain his signatures at any place. Perusal of the
original record shows that the proceedings dated 13th October, 2008 of
the SSFC do not contain the signatures of the petitioner. Rule 142 of the
G BSF Rules, 1969 prescribes as to how a plea of guilty or not guilty
should be recorded by a Security Force Court which reads as follows
:H
9. The petitioner was arraigned on the following charges:“CHARGE SHEET
Indian Law Reports (Delhi)
204
I
“142. General plea of “Guilty” or “Not Guilty”.- (1)The
accused person’s plea of ‘Guilty’ or ‘Not Guilty’ (or if he refuses
to plead or does not plead intelligibly either one or the other), a
plea of ‘Not Guilty’ shall be recorded on each charge.
(2) If an accused person pleads ‘Guilty’ that plea shall be recorded
as the finding of the Court but before it is recorded, the Court
shall ascertain that the accused understands the nature of the
charge to which he has pleaded guilty and shall inform him of
EX-Const. Vijender Singh v. Union of India and Ors. (Gita Mittal, J.)205
the general effect of that plea, and in particular of the meaning A
of the charge to which he has pleaded guilty, and of the difference
in procedure which will be made by the plea of guilty and shall
advise him to withdraw that plea if it appears from the record
or abstract of evidence (if any) or otherwise that the accused B
ought to plead not guilty.
(3) Where an accused person pleads guilty to the first two or
more charges laid in the alternative, the Court may after sub-rule
(2) has been complied with and before the accused is arraigned C
on the alternative charge or charges, withdraw such alternative
charge or charges as follow the charge to which the accused has
pleaded guilty without requiring the accused to plead thereto, and
a record to that effect shall be made in the proceedings of the
D
Court”.
13. In as much as, the respondents rely on a plea of guilt of the
petitioner, it becomes necessary to consider the well settled principles
laid down by the courts with regard to the manner in which such a plea E
is to be recorded. In this behalf, reference can be usefully made to the
previous pronouncements of this court including the judgment dated 3rd
August, 2010 in W.P.(C) No. 2683/1992 entitled Shri Sukhbir Singh
Vs. Union of India and others and the judgment dated 31st May, 2010
in WP (C) No.236/2000 entitled Vimal Kumar Singh Vs. Union of F
India & Ors. The several binding judicial on the issue were considered
and had been held as follows:“59. If an accused person pleads guilty to the charges, the
G
Security Force Court is required to comply with the requirements
of sub-rule 2 of rule 142. Such plea is mandatorily to be recorded
as the finding of the court but before it is so recorded, the court
is required to ascertain that the accused understands the nature
of the charge to which he has pleaded guilty. The court is H
required to inform him of the general effect of that plea, and in
particular of the meaning of the charge to which he has pleaded
guilty. The court is also required to inform the accused person
of the difference in procedure which will be followed by the I
court upon the accused entering a plea of guilty and shall advise
him to withdraw that plea if it appears from the record or abstract
of evidence (if any) or otherwise that the accused ought to plead
Indian Law Reports (Delhi)
206
ILR (2011) I Delhi
A
not guilty.
B
Sub-rule 2 casts a duty on the court to ascertain from the
accused, before recording of the plea of guilt, as to whether he
understands nature of the charge to which he has pleaded guilty
and shall inform him of the general effect of his plea after
ensuring that he has understood the nature of the charge. The
court shall enter the plea only thereafter and proceed with the
trial accordingly.
C
D
E
F
G
H
I
60. Rule 81 stipulates the procedure which is to be followed on
a plea of guilty. When the court has so recorded a finding of
guilty in respect of the charge, the prosecutor then is required
to read the record or the abstract of evidence, as the case may
be to the court or inform the court of the facts contained therein.
Thereafter, under sub-rule (3) of rule 81, the accused person
may (a) adduce evidence of character and in mitigation of
punishment; (b) address the court in mitigation of punishment,
(c) proceed under Rule 101 when sub-rule (3) has been complied
with. In accordance with Rule 101, the court shall take evidence
of the general character, age, previous conviction and record of
the conduct of accused person; decorations, reward, period spent
in custody or confinement etc. The court would give an
opportunity to the accused person to cross examine witnesses,
to produce such record and address the court in mitigation of his
punishment.
61. Similar statutory provisions governing army personnel are to
be found in the Army Act & Rules thereunder. In the context of
recording of pleas of guilt by court martials exercising jurisdiction
thereunder, the courts have repeatedly emphasized that signatures
of the accused especially on a plea of guilt, even though they are
not statutorily required, ought to be taken as a matter of abundant
caution.
62. The statutory scheme with regard to recording of a plea of
guilt under the Border Security Force Act is similar to the scheme
under the Army Act. The observations of the Jammu and Kashmir
High Court on the manner in which a plea of guilt is to be
recorded in 1984 (3) SLR 675 Prithpal Singh Vs. Union of
EX-Const. Vijender Singh v. Union of India and Ors. (Gita Mittal, J.)207
208
India & Ors., which arose in the context of the Army Act, shed A
valuable light on the issue which has been argued before us. On
this question, in para 9 of the judgment, the court held as follows:“10. The most important aspect of the case is as to
whether the petitioner had pleaded guilty to the charges as
is suggested by Mr. Hussain or not. Plea of guilt recorded
by Lt. Col. Mehta is dehors Rule 115 of the Army Rules.
In the first place the alleged plea of guilt is unsigned by
the authorities. Surprisingly the petitioner also has not
signed the alleged plea of guilt. At what stage word 'guilty'
was recorded against each charge is not known. If it was
recorded in presence of the accused/petitioner obviously
his signatures would have been obtained on it. Then the
minutes of the enquiry should have contained an advice to
the petitioner not to plead guilty as enjoined by Rule 115
of the Army Rules. This important mandate of the Rule
has been flagrantly violated. Therefore the proceedings
conducted by the Summary Court Martial which have
affected the petitioner's fundamental rights as he is deprived
of his job are vitiated. The protection afforded by the
procedure should not have been denied to the petitioner if
it was intended to proceed against him under the Army
Rules. As to whether charges were correct or not as
already observed this Court cannot go into that aspect of
the matter. But certainly this Court will set aside the
punishment which is awarded to the petitioner on the
ground that the decision to punish the petitioner was taken
by contravening the mandate of Rules. Such a decision
would be arbitrary and shall be violative of the guarantees
contained in Article 14 of the Constitution. The argument
of the learned Counsel for the respondent that the petitioner
was not prejudiced in any manner during the Summary
Court Martial proceedings is devoid of force. The petitioner
has suffered punishment of dismissal from service and
the punishment is awarded by conducting proceedings in
such a manner which were neither fair not judicial. Could
the Summary Court Martial observe the Rules governing
the conduct of Summary Court Martial in breach. Answer
B
A
B
Indian Law Reports (Delhi)
ILR (2011) I Delhi
to this question will be emphatic no in view of the glory
of the Constitution and rights guaranteed by it.”
The court had thus observed that if the statement was recorded
in the presence of the accused/petitioner, obviously, his signatures
would have been obtained on it.
63. On this very issue, in MANU/JK/0017/2007 : 2007 (2) JKJ
197 Sukanta Mitra Vs. Union of India & Ors., the court
observed as follows:-
C
C
D
D
E
E
F
F
G
G
H
H
I
I
“9. This apart the fact remains that the appellant has been
convicted and sentenced on the basis of his plea of guilt.
The plea of guilt recorded by the Court does not bear the
signatures of the appellant. The question arising for
consideration, therefore, is whether obtaining of signatures
was necessary. In a case Union of India and Ors. v.
Ex-Havildar Clerk Prithpal Singh and Ors. KLJ 1991
page 513, a Division Bench of this Court has observed:
“The other point which has been made basis for quashing
the sentence awarded to respondent-accused relates to
clause (2) of rule 115. Under this mandatory provision the
court is required to ascertain, before it records plea of
guilt of the accused, as to whether the accused undertakes
the nature of the charge to which he has pleaded guilty
and shall inform him of the general effect of that plea and
in particular of the meaning of charge to which he has
pleaded guilty. The Court is further required under this
provision of law to advise the accused to withdraw that
plea if it a appears from summary of evidence or otherwise
that the accused ought to plead not guilty. How to follow
this procedure is the main crux of the question involved
in this case. Rule 125 provides that the court shall date
and sign the sentence and such signatures shall authenticate
of the same. We may take it that the signature of the
accused are not required even after recording plea of guilt
but as a matter of caution same should have been taken.”
xxx xxx
11. Admittedly, in the present case signatures of the
EX-Const. Vijender Singh v. Union of India and Ors. (Gita Mittal, J.)209
210
accused/appellant have not been obtained on the plea of A
guilt recorded by the BSF Court which as a matter of
caution must have been obtained and nor it is revealed
from the record that the appellant was ever informed
about the general effect of the plea of guilt.”
B
64. Our attention has also been drawn to the judgment of this
court dated 17th January, 2008, passed in LPA No. 254/2001
entitled The Chief of Army Staff & Ors. Vs. Ex. 14257873 K.
Sigmm Trilochan Behera, wherein the court had occasion to C
consider the case where plea of guilt of the respondent was
recorded on a printed format. The court deprecated the nonrecording of complete plea which was not signed by the
respondents as well. This case had also arisen in the context of
D
recording of a plea of guilty by a court martial under the Army
Act and in a similar situation, the court observed as under.
“5. Secondly, the signatures of the respondent were not
obtained on any of these proceeding. The plea of the
E
respondent was recorded on a printed format. The column
of arraignment reads as under :
“By the Court-How say you No. 14257873K ULNK
Trilochan Behera are you guilty or not guilty of the
.................... charge preferred against you?
F
The answer is recorded as “Guilty”. It does not mention
what was the charge though a separate chargesheet has
been placed on record which is dated 22nd March, 1994,
G
which is not signed by the respondent. The complete plea
of guilt of the respondent was not recorded.”
No date was mentioned on the paper where this was recorded.
The record did not bear the signatures of the judges as well.
H
Certain other procedural guidelines had also not been complied.
The court held that failure to comply with the prescribed
procedure amounted to violation of the procedural safeguards
provided in Army Rule 115(2) and were violative of the rights of
I
the accused under Article 14 of the Constitution of India.
65. On the same issue, in 2003 II AD (Delhi) 103 Lachhman
(Ex.Rect.) v. Union of India & Ors., it was held :-
A
B
C
D
Indian Law Reports (Delhi)
ILR (2011) I Delhi
“13. The record of the proceedings shows that the plea
of guilty has not been entered into by the accused nor has
it been recorded as per Rule 115 inasmuch neither it has
been recorded as finding of court nor was the accused
informed about the general effect of plea of guilt nor
about the difference in procedure which is involved in
plea of guilt nor did he advise the petitioner to withdraw
the plea if it appeared from the summary of evidence that
the accused ought to plead not guilty nor is the factum of
compliance of Sub-rule (2) has been recorded by the
Commanding Officer in the manner prescribed in Subrule 2(A). Thus the stand of the respondents that the
petitioner had entered into the plea of guilt stands on
highly feeble foundation.”
66. In Uma Shanker Pathak vs. UOI & Ors. 1989 (3) SLR
405 Allahabad High Court had occasion to deal with this question
and held that :-
E
F
G
H
I
“10. The provision embodies a wholesome provision which
is clearly designed to ensure that an accused person should
be fully forewarned about the implications of the charge
and the effect of pleading guilty. The procedure prescribed
for the trial of cases where the accused pleads guilty is
radically different from that prescribed for trial of cases
where the accused pleads 'not guilty'. The procedure in
cases where the plea is of 'not guilty' is far more elaborate
than in cases where the accused pleads 'guilty'. This is
apparent from a comparison of the procedures laid down
for these two classes of cases. It is in order to save a
simple, unsuspecting and ignorant accused person from
the effect of pleading guilty to the charge without being
fully conscious of the nature thereof and the implications
and general effect of that plea, that the framers of the rule
have insisted that the court must ascertain that the accused
fully understands the nature of the charge and the
implications of pleading guilty to the same.”
67. In the decision dated 8th September, 2008 in W.P.(C)
No.6036/2005 Ex. Naik Subhash Chander Vs. UOI & Ors.
EX-Const. Vijender Singh v. Union of India and Ors. (Gita Mittal, J.)211
this court had occasion to test the propriety and legality of a A
record of a summery security force court which is identical to
that in the present case. Ex Naik Subhash Chander was tried for
committing an offence under section 20 of the BSF Act. The
plea of guilt against the petitioner had been recorded in identical B
terms. The observations of the court can also be usefully extracted
and read as follows:“11..........The possibility of its being manipulated cannot
be ruled out. Such like certificates can be prepared at any C
time. This justifies the need for obtaining the signatures of
the accused viz. to lend authenticity to such a record.”
68. In the above background, compliance with the statutory
mandate has to be real. No cosmetic satisfaction or compliance D
could meet the requirements of law and a bald certification by
the respondents that statutory provisions have been complied
with is insufficient. Such certification certainly does not satisfy
the legal requirements.
E
69. Our attention is drawn to the photocopy of these proceedings
which has been placed on record by the petitioner. The plea of
guilt of the petitioner has been recorded on a typed format, the
columns whereof reads as follows :F
A
B
C
G
Only the word “Guilty” is handwritten.
70. We find that the following had already been typed below the
space for the above answer:“The accused having pleaded guilty to the charge, the
court read and explained to the accused the meaning of
the charge to which he has pleaded guilty and ascertains
that the accused understands the nature of the charge to
which he has pleaded guilty. The court also informed the
accused the general effect of that plea and the difference
in procedure which will be followed consequent to the
H
I
ILR (2011) I Delhi
said plea. The court satisfies itself that the accused
understands the charge and the effect of that plea and the
difference in procedure which will be followed consequent
to the said plea. The court satisfy itself that the accused
understands the charge particularly the difference in
procedure.”
The above indicates that the SSFC had at the outset assumed
that the petitioner would plead guilty and has proceeded on that
basis.
xxx xxx xxx
D
E
F
“Q-1. How say you No. 860014234 L/NK Vimal Kumar
Singh, are you guilty or not guilty of the charge, which
you have heard read?
Ans. GUILTY”
Indian Law Reports (Delhi)
212
72. Perusal of this document does not show as to what was the
charge to which was explained to the petitioner to which he
pleaded guilty and it is left to presumption that it was actually the
contents of the charge sheet dated 28th December, 1998 which
was put to the petitioner and that he pleaded guilty to the same.
73. It is noteworthy that a separate charge sheet has been placed
on record dated 17th February, 1999. This charge sheet also
does not bear the signatures of the petitioner.
74. Even if it was to be held that no illegality can be founded in
the failure to obtain signatures by the court, it is clearly evident
that there was no real trial of the petitioner at all and that the
respondents had proceeded against the petitioner in a premeditated
manner after having predetermined the result of the proceedings.”
G
14. In view of the legal position and principles laid down in the
several judicial pronouncements noted hereinabove, so far as the alleged
plea of guilt before the SSFC is concerned, the same does not inspire any
confidence. The proceedings of the court do not contain the signatures
H of the petitioner at any place at all in the SSFC which would militate
against the petitioner having so pleaded.
I
15. It is an admitted position that the petitioner was admitted to
Civil Hospital, Fazilka which had referred the petitioner to Guru Gobind
Singh Medical College, Faridkot for further treatment.
16. The respondents have placed before this court the record of the
petitioner’s treatment both at the Civil Hospital, Fazilka as well as Guru
EX-Const. Vijender Singh v. Union of India and Ors. (Gita Mittal, J.)213
214
Gobind Singh Medical College, Faridkot. When the petitioner was produced A
before the Civil Hospital on the 1st of July, 2008, we find that the doctor
noted that the petitioner had suffered an “alleged accidental gun-shot
injury”. The petitioner was referred and admitted to the Guru Gobind
Singh Medical College also on the 1st of July, 2008 and discharged B
therefrom on 10th July, 2008. A final diagnosis was recorded by the
hospital and mentioned in the discharge form issued to the petitioner
which also states the injuries suffered by the petitioner were by “alleged
accidental gun-shot injury”.
C
17. It is noteworthy that during the course of inquiry into the
matter, the Police Station, Sadar Fazilka had recorded a diary No.24 on
the 3rd of July, 2008. A true copy thereof has been placed by the
petitioner before us. In this daily diary, the police had recorded the
D
statement of the petitioner which is to the following effect:“I, Constable Vajinder Singh of BSF No.00005142, „E.
Company, 43 Battalion S/O Shri Dalip Singh resident of village
Nidana Distt Jind, PS Julana, Haryana, was deployed at BSF E
BOP Sawarwali, PS Sadar Fazilka. On the intervening nigt of
30.06.08 and 01.07.08 I was coming back while performing my
duty along with border fencing near out BSF BOP. Because of
night my foot got slipped over some ditch ad while I was falling
on the ground the trigger of my INSAS Rifle, which was on my F
left shoulder, got pressed with the result the bullet pierced through
the flesh on my left shoulder. I reached my BOP in the injured
condition and infirmed my officers about the fire. They who got
me admitted in Civil Hospital Fazilka they referred me to Guru G
Gobind Singh Medical College Faridkot for further treatment.
This incident of accidental fire had taken place because of sudden
slip of my foot over some ditch while I was coming back fromˇ
my duty and for that accidental fire nobody else is to be blamed H
and also I do not want to take action against any person. The
above statement heard, signed by the individual in English as
Correct”.
It appears that a complaint to this effect was lodged by the BSF
with the civil police as well which after investigation had closed the case
supporting the conclusion that the case of suicide was not made out.
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
18. We may notice that based on the investigation conducted by the
police and the first statements of the petitioner recorded by the doctor
on the 1st of July, 2008 and the police on the 3rd of July, 2008, it is
manifest that the petitioner had consistently explained that he had suffered
B injury on account of an accidental firing. This stand has been accepted
by the police.
A
In this background, all these circumstances taken together would
support the plea set up by the petitioner that he had not pleaded guilty
C to the charge levelled against him.
19. Learned counsel for the respondents has drawn our attention to
the petitioner’s prayer for mitigation of the punishment which is stated
to have been set up in a signed communication purportedly addressed by
D the petitioner to the SSFC. Interestingly, the original document relied
before us is a type written document which contains no date at all. This
document sets up a plea of sickness of the petitioner's wife and daughter,
who were dependent upon the petitioner's service, in support of his
E prayer for mitigation of the sentence.
20. Learned counsel for the petitioner has contended that despite
the explanation given by the petitioner and the fact that the police had
found no substance or culpability for any penal offence of the petitioner,
F the respondents had found the petitioner guilty of the charge. The plea
set up by the petitioner after such finding had been returned by the court
as a last resort to seek mitigation of sentence cannot be treated as an
admission of guilt.
G
In any case, this court is required to examine the material which
was before the court in arriving at the conclusion of the petitioner’s guilt.
Certainly the conclusion cannot be tested on the basis of any statement
which is attributed to the petitioner after the decision making.
H
21. Interestingly, the respondents have placed reliance on this undated
communication available in the record which has been purportedly received
by them on 25th November, 2008. Perusal of this communication shows
that a completely new story has been mentioned therein more than 16
months after the incident. Neither of these petitions inspires any confidence
and are clearly desperate pleas of a person without means and resource
seeking to protect his employment.
I
EX-Const. Vijender Singh v. Union of India and Ors. (Gita Mittal, J.) 215
Indian Law Reports (Delhi)
216
The petitioner submitted a statutory petition under Section 117(2) A
of the Border Security Force Act assailing the finding and sentence of
the SSFC which was addressed to the Director General of the BSF. The
petitioner has specifically challenged the plea of guilt attributed against
him and reiterated that the incident arose out of accidental firing. The B
statutory petition was rejected by the authorities by the order dated 22nd
April, 2009.
22. As noted hereinabove, this court is required to test the legality
and validity of the findings returned by the SSFC based on the material C
before the court and the conviction of the petitioner cannot be premised
on anything which may have come before them subsequently.
23. In any case, there are material contradictions between the contents
of this undated communication received by the respondents on 25th D
November, 2008 and the explanation rendered by the petitioner in the
statutory petition dated 7th March, 2009.
A restoration of seniority, etc. in accordance with the prescribed procedure.
29. The respondents shall pass an appropriate order in terms of
above directions within a period of twelve weeks from today which shall
be communicated to the petitioner.
B
30. For the reasons that we have awarded back wages, we are not
inclined to award costs.
31. Dasti to the parties.
C
ILR (2011) I DELHI 216
LPA
D
ABW INFRASTRUCTURES LTD. & ANR.
24. Mr. Anil Gautam, learned counsel appearing for the petitioner
has further explained that after the respondents found him guilty and E
convicted him for the charge of committing suicide, the petitioner made
a request for restoration of his service keeping in view the extreme
sickness of his wife and daughter.
F
25. In any case, the independent record made by the hospital authority
as well as police does not support the charge for which the petitioner
was arraigned.
26. For all these reasons, we find substance in the challenge laid by
G
the petitioner to his conviction by the SSFC by the order dated 13th
October, 2008. For the same reasons, the punishment of dismissal imposed
upon the petitioner and the order dated 29th April, 2009 passed by the
respondents rejecting the petition under Section 117(2) of the Border
H
Security Force Act are also not sustainable.
27. In view of the above discussion, the order of conviction and
sentence dated 13th October, 2008 passed by the SSFC and the order
dated 29th April, 2009 are hereby set aside and quashed.
28. As a consequence, the petitioner shall be entitled to reinstatement
in service with all consequential benefits including back wages and
I
ILR (2011) I Delhi
E
....APPELLANTS
VERSUS
RAIL LAND DEVELOPMENT AUTHORITY
....RESPONDENT
(DIPAK MISRA, CJ. AND MANMOHAN, J.)
F
G
H
I
LPA NO. : 264/2010
DATE OF DECISION: 18.10.2010
Constitution of India, 1950--Order passed by Ld. Single
Judge in Writ Petition (C) Challenged by appellants as
their prayer for issuance of mandamus to respondent
to agree to suggestions and amendments proposed
by them to draft agreement, dismissed—Respondent
urged, petitioner awarded project for development of
plot being highest bidder with stipulation that bid
amount was to be paid in installments—Appellants did
not pay the first installment and only gave a
performance guarantee and made payments towards
interest and success fee—This resulted in series of
breach on part of appellants, hence, termination of
contract took place—Appellants filed writ petition in
ABW Infrastructures Ltd. v. Rail Land Deve. Auth. (Dipak Misra, CJ.) 217
which respondent directed to abide by the contract Even thereafter appellants did not pay first installment
but approached respondent for amendment of tender
terms and also sought renegotiation of terms of
tender—Thereupon Respondent vide letter informed
appellants, rejecting suggestions for amendment and
modifications and it also invoked bank guarantee
furnished by the appellants—Aggrieved appellants,
then again filed writ petition which was dismissed by
the Ld. Single Judge—According to appellants, Writ
Court has jurisdiction to address itself even with
regard to unfair practice adopted before entering into
agreement and also after entering into the agreement—
Held : it may, however, be true that where serious
disputed questions of fact are raised requiring
appreciation of evidence, and, for determination
thereof, examination of witnesses would be necessary;
it may not be convenient to decide the dispute in a
proceeding under Article 226 of the Constitution of
India—From the entire gamut of facts which have
been brought on record and projected, it is well nigh
impossible to say whether the termination of contract
and the forfeiture of the earnest money by the
respondent is unreasonable or arbitrary and thereby
invites the frown of Article 14 of the Constitution of
India—It is extremely difficult to state that there are
no disputed questions of fact—The petitioner should
approach the appropriate legal forum as advised in
law.
218
A
A
B
B
C
C
D
D
E
E
F
F
G
G
Thereafter, their Lordships referred to the decision in
Century Spg. and Mfg. Co. Ltd. v. Ulhasnagar Municipal H
Council, (1970) 1 SCC 582 wherein it has been held that
merely because a question of fact was raised, the High
Court will not be justified in requiring the party to seek relief
by somewhat lengthy, dilatory and expensive process by a I
civil suit against a public body. The questions of fact raised
by the appellants in this case were elementary. (Para 29)
Indian Law Reports (Delhi)
ILR (2011) I Delhi
Eventually, as is perceivable, the Apex Court adverted to
the facts and came to hold as follows:
“51. …Merely because the first respondent wants to
dispute this fact, in our opinion, it does not become a
disputed fact. If such objection as to disputed questions
or interpretations is raised in a writ petition, in our
opinion, the courts can very well go into the same and
decide that objection if facts permit the same as in
this case. We have already noted the decisions of this
Court which in clear terms have laid down that mere
existence of disputed questions of fact ipso facto
does not prevent a writ court from determining the
disputed questions of fact. [See: Gunwant Kaur
(supra)].”
(Para 31)
In the said case, ultimately, their Lordships interfered holding
that in such a factual situation, the facts of the case do not
and should not inhibit the High Court or the Apex Court from
granting relief sought for by the petitioner.
(Para 32)
Important Issue Involved: Where serious disputed
questions of fact are raised requiring appreciation of evidence,
and, for determination thereof, examination of witnesses
would be necessary; it may not be convenient to decide the
dispute in a proceeding under Article 226 of the Constitution
of India. An appropriate legal forum as advised in law is the
remedy.
[Sh Ka]
H APPEARANCES:
FOR THE APPELLANTS
:
Mr. Sunil Kumar, Senior Advocate
with Mr. Harsharan Singh and Mr.
Dhiraj, Advocates
I
:
Mr. Soli J. Sorabjee, Senior Advocate
with Mr. Amit Kumar. Mr. Ashish
Kumar, Mr. Ritesh Ratnam and Mr.
FOR THE RESPONDENT
ABW Infrastructures Ltd. v. Rail Land Deve. Auth. (Dipak Misra, CJ.) 219
Shashank, Advocate.
Indian Law Reports (Delhi)
220
A
A
16.
R.D. Shetty vs. International Airport Authority of India,
(1979) 3 SCC 489 : (AIR 1979 SC 162).
17.
Radhakrishna Agarwal vs. State of Bihar, (1977) 3 SCC
457.
18.
E.P. Royappa vs. State of Tamil Nadu, (1974) 4 SCC 3:
(AIR 1974 SC 555).
19.
South Kheri and others vs. Ram Sanehi Singh, AIR 1973
SC 205.
20.
K.N. Guruswamy vs. State of Mysore and others, 1955
(1) SCR 305.
CASES REFERRED TO:
1.
Purvankara Projects Ltd. vs. Hotel Venus International,
(2007) 10 SCC 33.
2.
Noble Resources Ltd. vs. State of Orissa & Anr., (2006)
10 SCC 236.
3.
ABL International Limited and Anr. vs. Export Credit
Guarantee Corporation of India Limited and Ors., (2004) C
3 SCC 553.
4.
B
RESULT: Appeal dismissed.
Air India Ltd. vs. Cochin International Airport Ltd., (2000) D
2 SCC 617.
6.
Air India Limited vs. Cochin International Airport Limited,
(2000) 2 SCC 617.
7.
Monarch Infrastructure Private Limited vs. Commissioner, E
Ulhasnagar Municipal Coropration, (2000) 5 SCC 287.
8.
Mahabir Auto Stores and others vs. India Oil Corporation
and others, AIR 1990 SC 1031.
9.
Assistant Excise Commissioner & Ors. vs. Issac Peter &
Ors., (1994) 4 SCC 104.
10.
Whirlpool Corporation vs. Registrar of Trade Marks,
(1998) 8 SCC 1.
11.
Dwarkadas Marfatia and Sons vs. Board of Trustees of
the Port of Bombay, (1989) 3 SCC 293.
12.
Life Insurance Corporation of India vs. Escorts Limited
and others, 1986 (8) ECC 189.
H
Gujarat State Financial Corporation vs. Lotus Hotels
Private Limited, AIR 1983 SC 848.
14.
15.
C
Cochin International Airport Ltd. vs. Cambatta Aviation
Ltd. & Ors., (2000) 2 SCC 617.
5.
13.
B
Ajay Hasia vs. Khalid Mujib Sehravardi, (1981) 1 SCC
722: (AIR 1981 SC 487).
New Bihari Biri Leaves Co. vs. State of Bihar, (1981) 1
SCC 537.
ILR (2011) I Delhi
F
G
I
D DIPAK MISRA, CJ.
E
1. In this intra court appeal, the legal substantiality and vulnerability
of the order dated 10.12.2009 passed by the learned Single Judge in
W.P.(C) No.13590/2009 is called in question.
2. The factual scores as undraped are that the appellants – petitioners
(hereinafter referred to as ‘the appellants’), M/s ABW Infrastructure
Ltd., on the basis of the highest tender bid of Rs.1026 crores, was
awarded project for development of plot at Sarai Rohilla, Kishanganj,
F
New Delhi as per letter of acceptance dated 19.5.2008 with the stipulation
that the said amount was to be paid by the appellants to the respondent,
Rail Land Development Authority (for short ‘the RLDA’), in installments.
The first installment was fixed at Rs.513 crores which was to be paid
G within 30 days from 19.5.2008, i.e., the date of issue of letter of
acceptance. The appellants did not pay the first installment. It had only
given a performance guarantee of Rs.10 crores and had made other
payments amounting to Rs.29 crores to the respondents towards interest
H and success fee.
I
3. It is worth noting, at one point of time, the RLDA, the respondent
herein, desired to review the project allotted to the appellants and resile
from the letter of acceptance which compelled the appellants to file
WP(C) No.4320/2008 wherein this Court, on 12.8.2008, directed the
respondents to abide by the contract awarded to the appellants vide letter
dated 19.5.2008. Be it noted, in the said order, this Court had quashed
ABW Infrastructures Ltd. v. Rail Land Deve. Auth. (Dipak Misra, CJ.) 221
222
the communication dated 24.5.2008 by which the respondent had taken A
a decision to review the order.
4. After the said order was passed, the appellants did not pay
Rs.513 crores but approached the RLDA for amendment of the tender
terms. The said amendment was sought on 24.4.2009 after expiry of 8
months from the date of order passed in WP(C) No.4320/2008, i.e.,
12.8.2008. The appellants sought renegotiation of the terms of the tender.
Similar request was reiterated by letter dated 16.7.2009. As set forth, the
RLDA, by letter dated 20.8.2009, agreed to examine the request of the
appellants for modification of the existing agreement to the extent
mentioned therein. The learned Single Judge, as is evincible from the
order impugned, has referred to the said letter and analysed the same to
arrive at the conclusion that the said communication clearly mentions that
the modifications suggested and pending consideration would be applicable
and valid only if a renewed Joint Bidding Agreement was submitted to
the RLDA and the agreement was signed and, hence, till the signing of
the agreement, the parties were obligated to be bound by the original
obligations. The learned Single Judge further held that on a scrutiny of
the said letter, it was clear as crystal that the appellants should communicate
their willingness to go ahead with the project within 10 days of issuing
the aforesaid letter. In pursuance of the aforesaid letter, the appellants
sent a letter dated 29.8.2009 which indicated, according to the learned
Single Judge, no unconditional and absolute acceptance. Thereafter, the
RLDA, on 18.9.2009, circulated a draft modified development agreement
asking the appellants to offer comments on the said document clearly
outlining the paragraph / clause which was not in accord with the decision
communicated by the RLDA through their letter dated 20.8.2009. It has
further clarified that the agreement sent to the appellants for their comments
was merely a draft and would be finalized only after approval of the
competent authority. As is evincible, the appellants, on 7.10.2009, entered
into correspondence with the RLDA raising various objections to several
clauses of the draft agreement and suggested amendment. They gave a
list of suggestions / amendments for favourable consideration and
incorporation in the modified development agreement. The RLDA, by
letter dated 9.10.2009, informed the appellants that on consideration of
the suggestions for amendment and modification, the same were not
acceptable. Thereafter, the appellants sent two letters dated 16.10.2009
and 19.10.2009 which were responded to by the RLDA expressing its
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A inability to accept the same. The RLDA invoked the bank guarantee and
the appellants, vide CM No.15228/2009, assailed the action for invoking
the bank guarantee and for quashment of the communications dated
1.12.2009 and 2.12.2009.
B
B
C
C
D
D
E
E
F
F
G
G
H
H
I
I
5. Before the writ court, it was prayed that a mandamus should be
issued to the RLDA to agree to the suggestions and the amendments
proposed by them to the draft agreement since the stand of the RLDA
is absolutely arbitrary and smacks of unreasonableness. The learned Single
Judge, after exposition of the facts and the stand and stance put forth
by the parties, came to hold that the appellants had themselves accepted
the communication dated 19.5.2008 and this Court had opined that the
letter of acceptance would constitute the contract between them; that the
appellants wanted to renegotiate the terms of the contract which was
considered by the RLDA and a draft agreement was circulated and the
appellants wanted change in the draft agreement which was not accepted
by the RLDA; that in the case at hand, there has been no wrongful
termination of a contract by a government company which enjoys
monopoly status; that the State or instrumentalities of the State can
evolve rational method to arrive at a decision and can fix their own terms
of invitation to tender which are normally not to be interfered with; that
on the earlier occasion, the appellants had filed a writ petition contending,
inter alia, that there was a concluded contract and the amendments and
suggestions requested by the appellants have not been accepted by the
RLDA; that the appellants had not deposited Rs.513 crores till the date
of filing of the writ petition; that the decisions referred in Mahabir Auto
Stores and others v. India Oil Corporation and others, AIR 1990 SC
1031, ABL International Limited and Anr. v. Export Credit
Guarantee Corporation of India Limited and Ors., (2004) 3 SCC
553, K.N. Guruswamy v. State of Mysore and others, 1955 (1) SCR
305, the DFO, South Kheri and others v. Ram Sanehi Singh, AIR
1973 SC 205, Gujarat State Financial Corporation v. Lotus Hotels
Private Limited, AIR 1983 SC 848 and Life Insurance Corporation
of India v. Escorts Limited and others, 1986 (8) ECC 189, Purvankara
Projects Ltd. v. Hotel Venus International, (2007) 10 SCC 33, Air
India Limited v. Cochin International Airport Limited, (2000) 2
SCC 617 and Monarch Infrastructure Private Limited v.
Commissioner, Ulhasnagar Municipal Coropration, (2000) 5 SCC
ABW Infrastructures Ltd. v. Rail Land Deve. Auth. (Dipak Misra, CJ.) 223
224
287 are not applicable to the case at hand and that the writ petition was A
devoid of any substance. Being of this view, the learned Single Judge
dismissed the writ petition.
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A interfere and not throw the writ petition as not being entertainable.
6. Mr. Soli J. Sorabjee, learned senior counsel appearing for the
RLDA, resisting the aforesaid submissions and supporting the order of
the learned Single Judge, has advanced the following proponements:
6. Questioning the legal sustainability of the order passed by the
learned Single Judge, Mr. Sunil Kumar, learned senior counsel for the B
appellants, has raised the following contentions:
B
(i) The learned Single Judge has failed to appreciate the necessity
for making suitable and necessary changes in the draft development
agreement failing which the project had become unworkable and the said C
amendments were imperative in the facts and circumstances of the case.
C
(ii) The RLDA has not acted in an arbitrary or unfair manner but
as a prudent owner would behave under such circumstances within the
reasonable parameters and, hence, the communication terminating the
contract cannot be found fault with.
D
(iii) Once a finding had been arrived at in the earlier writ petition
that there was a concluded contract and was binding on the parties, the
appellants could not have sought amendments in the original contract in
a unilateral manner putting forth terms which suited them.
E
(iv) The amendments which were proposed by the appellants were
considered by the Board of RLDA and the same were not accepted by
the Board and such non-acceptance is based on a commercial principle
and, therefore, the writ court has correctly not delved upon the same.
(ii) The writ court has not appreciated that the appellants were not
praying for issue of mandamus to the respondents to accede to the
D
suggestions and amendments proposed by the appellants to the draft
agreement, but were agitating a plea that the respondents, after having
accepted to revise the development agreement in terms of the suggestions
made by the appellants, as is evincible from the communication dated
20.8.2009, declined to carry out the consequential changes which exhibits E
unfair and arbitrary action on the part of the respondents which is
impermissible in law.
(iii) The respondent has acted totally arbitrarily and unreasonably
F
inasmuch as the lease deed which had been executed for the first track
of land could not have been cancelled and the amount paid on that score
could not have been forfeited. The respondent is under obligation to
permit development of area in proportion to the investment made enabling
private equity players and others referred to by the appellants in its G
communications dated 16.10.2009 and 19.10.2009 to invest in the project
and achieve financial closure. The action of the respondent smacks of
unfairness since during the pendency of the writ petition, the respondent
issued a notice of termination dated 1.12.2009 requiring the appellants to H
make the payment within seven days but invoked the bank guarantee
furnished by the appellants on 2.12.2009.
(iv) The learned Single Judge has committed illegality by not taking
note of the fact that the issue of entering into a contract or not entering
into a contract by an instrumentality of the State rests on the touchstone
of reasonableness and when it is manifest that the respondent has shown
total unreasonableness, the writ court would have been well advised to
I
(i) The appellants committed breach of contract on many an occasion
putting the RLDA to immense jeopardy and, therefore, it is not entitled
to invoke the equitable and extra-ordinary jurisdiction of this Court.
F
(v) The conduct of the appellants, as is evident from the
communications and actions, would not entitle them to any kind of relief
in exercise of jurisdiction under Article 226 of the Constitution of India
inasmuch as it no only pertains to disputed questions of fact but also
G certain aspects which are founded on commercial norms and are difficult
to be delved into in a writ petition.
(vi) The changes sought for in the agreement and denial thereof by
the RLDA involve many a factor and the said aspects cannot be adverted
H to by the writ court and, therefore, the learned Single Judge has appositely
declined to entertain the writ petition.
I
7. To appreciate the rivalised submissions raised at the Bar, it is
essential to refer to certain chronology of events. The Railways
(Amendment) Act, 2005 [No.47 of 2005] came into force on 15.9.2005
by bringing certain amendments to the Railways Act, 1989. The purpose
of bringing the amendment was to supplement their financial resources
ABW Infrastructures Ltd. v. Rail Land Deve. Auth. (Dipak Misra, CJ.) 225
through non-tariff measures like commercial utilization of land and the air
space by constituting a separate authority called the RLDA under the
Railways Act, 1989 which could exclusively deal with the commercial
development of railway land and the air space above such land. Section
4-E confers power on the authority to enter into agreements and execute
contracts. In pursuance of the amended provisions, the Railways took
certain areas for development and, accordingly, the bids were called for
a project for development of plot at Sarai Rohilla, Kishanganj, New Delhi.
A letter of acceptance was sent on 19.5.2008. In the said letter of
acceptance, it was mentioned that the financial bid of Rs.1026 crores
(rupees one thousand and twenty six crores only) was accepted and the
consortium of the appellants had been declared as the ‘Selected Bidder’
for the project subject to the fulfillment of certain terms and conditions
incorporated therein. Clause (g) of the said letter of acceptance dealt with
‘Payments by the Developer’. The relevant clauses (g)(i) and (g)(vii),
being germane for the present purpose, are reproduced below:
226
A
A
Indian Law Reports (Delhi)
ILR (2011) I Delhi
change in the Redevelopment Area of 4.37 Hectares given on
license basis.”
8. Clause (4) deals with execution of the development agreement
and lease deed and the same, being relevant, is reproduced below:
B
B
“(4) RLDA shall execute the Development Agreement with the
Developer after all the following conditions have been met:
C
C
(a) Receipt of the first installment of the Upfront Lease Premium
along with bank guarantees for the second and third installments
from the Developer within the specified time limit,
(b) Receipt of Performance Bank Guarantee from the Developer
D
D
(c) Incorporation of the SPV (the Developer)
(d) Minimum paid up capital subscribed by the SPV as required
under law.
“Payments by the Developer
E
E
(g) You shall pay to RLDA the Upfront Lease Premium quoted
by you/your Consortium as under:
(i) A sum of Rs.513,00,00,000/- (Rupees Five hundred and
thirteen Crores only) being the First Instalment i.e. 50% (Fifty F
percent) of the Upfront Lease Premium, vide demand draft /
banker’s cheque in favour of Rail Land Development Authority
and payable at Delhi, within 30 days from the date of the issue
of this Letter of Acceptance. You shall also furnish alongwith the
G
first instalment, Bank Guarantees in the format prescribed in the
RFP, for the amounts equal to the second and third instalments
of the Upfront Lease Premium plus applicable taxes, as mentioned
in paras (ii) and (iii) below, which shall remain valid for a period
of 30 days beyond the respective due dates. (vii) If at the time H
of handling over of the land, the area of the plot leased is found
to be at variance from that stated in the RFP document, then the
difference in Upfront Lease Premium payable to RLDA / receivable
by you will be determined pro-rata, based on the total Upfront I
Lease Premium payable. It is clarified that such adjustment in
area shall be effected only for the leased site area, without any
(e) Payment of Success Fees to IL&FS Infrastructure
Development Corporation Limited as mentioned above.
(f) Any other condition mentioned in this LOA.”
9. From the aforesaid communication, it is clear as crystal that the
F first, second and third installments were to be paid by 18.6.2008, 18.2.2009
and 18.11.2009 respectively. When the matter stood thus, the RLDA
issued communication dated 24.5.2008 for review as the Government
was desirous of reviewing the allotment of the Railway land. Being
G grieved by the said communication, the appellants preferred W.P.(C)
No.4320/2008 which was disposed of on 12.8.2008 by a Division Bench
of this Court and it was held as follows:
H
I
“7. We have perused the records of the case and heard the
Counsel for the Parties. In the circumstances and the submissions
made hereinabove, we are of the view that the grievances of the
Petitioners are justified. The concluded contract had come into
existence evidenced by the Letter of Acceptance issued on 19th
May, 2008 to the Petitioners. The said contract is also in public
interest as the bid of the Petitioners is about Rs. 250 Crores
higher than the next bidder. The Petitioners, after the acceptance
ABW Infrastructures Ltd. v. Rail Land Deve. Auth. (Dipak Misra, CJ.) 227
228
of the contract, have committed themselves financially. Even A
upto date no decision on the proposed review has been taken.
The Respondent No. 1 cannot be permitted to frustrate the said
contract when no decision on the review has been taken.
A
8. We, therefore, allow this writ petition. The impugned B
communication dated 24.5.2008 is quashed and the Respondents
are directed to abide by the Contract awarded to the Petitioners
vide letter dated 19th May, 2008. We, however, make it clear
that, as also agreed by the Counsel for the petitioners on instruction C
that the Petitioner shall not claim any equity or damages against
the Respondents for any delay caused by the issuance of impugned
communication and will abide by the terms of the Original Letter
of Acceptance dated 19th May, 2008, deeming as if the same
D
was issued with effect from today. All financial and other
commitments/obligations will be completed on the basis of the
said Letter ofAcceptance dated 19th May, 2008. No order as to
costs.
E
10. On a perusal of the aforesaid order, it is clear as crystal that
the Division Bench held that the contract was a concluded one and the
appellants cannot claim any equity or seek damages against the respondent
for any delay caused by the issuance of the impugned communication
and would abide by the terms of the original letter of acceptance dated F
19.5.2008 deeming the same was issued with effect from that day and
all financial and other commitments / obligations would be completed on
the basis of the said letter of acceptance dated 19.5.2008. It is not in
dispute that extensions were granted for payment of the amount as earlier G
agreed. Despite the aforesaid verdict, the appellants did not pay Rs.513
crores but approached the RLDA for amendment of the tender notice.
The first communication was made on 24.4.2009. The said letter was a
communication to the respondent whereby the respondent had required H
the appellants to honour the obligations by 30.4.2009. As is patent, in the
said communication, the appellants had asked for amendments and
renegotiation of the terms of the tender. In the said letter, many a term
and condition was incorporated. We think it appropriate to quote the
I
following portion from the said letter:
B
“In such a scenario, there is a pressing need for the RLDA to
apprise itself more fully of actions taken by other Government
C
D
E
F
G
H
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
organization seeking to preserve existing contracts and not having
to face the rigors of retendering in rapidly changing market
conditions.
Further, the following facts would reveal that RLDA don’t want
to appreciate the prevailing economic and financial downturn in
the market and is not interested in successful execution of the
subject project.
1. That whereas the reserve price for the subject project by
RLDA was fixed at Rs.675 crores, the second highest bidder had
offered a price of Rs.757 crores only. It was our Consortium
which had given an offer of Rs.1,026 crores representing, even
at that point of time an excellent value realization for the RLDA.
It would be apparent to mention here that since the award of the
contract, the property prices have gone down by 35 to 40% and
the present market value of the subject Plot is not more than
INR 650 Crores.
2. That surprisingly, after accepting our bid and creating a valid
contract, RLDA signified to us its intention to “review” the matter
of allotment of railway land at Sarai Rohilla on 90 years lease for
essentially residential purpose. This step of RLDA forced us to
seek necessary remedy through the courts at Delhi. After a
crucial period of three months, the sanctity of the contract was
upheld by the Honorable Delhi High Court by its judgment order
dated 12th August, 2008. Even after the judgment of the Honorable
High Court the uncertainty remained in the matter as RLDA
intended to file appeal in the Apex Court against the judgment.
As such, the position of uncertainty created by the RLDA affected
our efforts to tie up the financial arrangements with various
institutions. The time when the Project was awarded was ripe
and the banks / financial institutions were anxious to finance the
project. Had RLDA not created uncertainty in the matter after
the issue of Letter of Award, we would have certainly achieved
the financial closure in due time. With the prevailing uncertainty
in the matter the banks and the financial institutions started loosing
their interest in the Project.
3. That since November, 2008 we have been requesting RLDA
ABW Infrastructures Ltd. v. Rail Land Deve. Auth. (Dipak Misra, CJ.)229
to consider the alternative proposals submitted by us. Although,
time and again RLDA has been convening meetings with us but
they remain inconclusive even after spending long hours in the
meetings.
230
A
B
4. That in the last few months there has been an unprecedented
economic and financial crisis all over the world. Real estate has
been especially hard hit. Correct in real estate prices, globally
and in India, is a well documented fact which requires little
elaboration. All over the globe, the governments and authorities C
are giving bail out packages to the companies to protect them
from financial meltdown. Apex bank has given guidance to Banks
/ Financial Institutions to revise the payment schedule of loans
given to real estate companies.”
D
C
D
“We also propose to submit a Development Agreement Plan E
before signing of the development agreement in which we will
demarcate the entire project size of 11.37 hectares of land five
equal parts including the structures to be built thereon and one
part will be leased to us with the respective installment.
F
We guarantee that we will not have any claim on the land until
the same is specifically leased to us on payment of installment
as specified herein above.
E
We are also enclosing herewith the business plan mentioning G
clearly how the payments will be made to RLDA over the period
of time. We would like to mention here that we shall bring our
contribution for payment of the upfront lease premium through
internal accruals / Pvt. Equity and Bank Loan over the period of H
time.
G
11. After the said letter, the correspondences continued between
the parties and the respondent intimated the appellants on 29.6.2009 that
I
ILR (2011) I Delhi
A the letter of acceptance is liable to be terminated and the Bid Security
submitted by the appellants shall be forfeited by the RLDA without being
liable for any consideration to them whatsoever in case of failure by the
consortium/ developer to comply with the terms and conditions contained
B in the letter of acceptance and the provisions of the RFP document.
Thereafter, the appellants, vide letter dated 16.7.2009, apart from
enumerating many aspects, stated thus:
After so stating, the appellants referred to their earlier letter dated
21.1.2009 and ultimately stated thus:
We wish to reiterate that we are committed to pay the contractual
amount of Rs.1,026 crores to the RLDA and are keen to execute
the project without any further delay.”
Indian Law Reports (Delhi)
F
H
I
“In case the Development Agreement is executed and the contract
proceeds, the maximum period for which the interest could be
payable by us would be only for about three months (viz. 12.10.08
to 18.11.08 and 12.03.2009 to 30.04.2009. The decision for
implementation and payment of first installment was conveyed
by RLDA only on 11.09.2008 after the court case).
As an alternative and to be fair to both the parties, we request
that the issue of amount of accrued interest payable till the date
of payment of first installment of the upfront lease premium may
be referred to arbitration by an independent committee or arbitrator
for decision on the matter. We undertake to abide by the decision
of the committee in this regard and will pay the interest as
determined within 18 months from the date of signing of the
Development Agreement, in installments.
Though we have no doubt on the success of the project and
payment of upfront lease premium to RLDA as proposed, yet for
the comfort of RLDA and to allay its fears we would like to
inform you that we have a ‘Land Bank’ of about 200 Acres at
Manesar, Gurgaon, under our various group companies. These
group companies are under the same management as of ABW
Infrastructure Limited. The approximate value of this land is
around 600 crores as substantiated by the valuation reports
attached herewith.
Although the present market value of land is highly discounted
and realty sector have not been able to attract the clients despite
their best efforts, we still wish to execute the project and tender
the entire amount of bid as per the above revised payment
schedule. We do hope that RLDA will now accord their approval
to our above proposal leaving apart the payment of interest which
ABW Infrastructures Ltd. v. Rail Land Deve. Auth. (Dipak Misra, CJ.) 231
232
we hereby undertake to pay if so determined by the independent A
committee constituted by RLDA. Alternatively, if RLDA agrees
for charging interest for a reasonable period of about three months,
we agree to pay the same without any demur provided the
Development Agreement is executed as per our above proposal.” B
A
submitted to RLDA within 30 days of issue of this letter.
B
4. The Draft Development Agreement suitably modified on the
lines enumerated in para-1 above will be sent to you on compliance
of action under para 2 & 3 above.
C
C
(i) First installment to be paid shall be of Rs.380 crores (Rupees D
Three Hundred and Eighty Crores only). Second installemt of
Rs.200 crores (Rupees Two Hundred Crores only) shall be paid
within 12 months from the date of payment of first installment.
Third installment of Rs.446 crores (Rupees Four Hundred and E
Forty Six Crores only) shall be paid within 18 months from the
date of payment of first installment. The Consortium/Developer
shall make payment of the First installment within 60 days of
issue of this letter or within 15 days of issue of draft modified
F
Development Agreement whichever is later.
D
The payment schedule for lease premium of Rs.1026 crores has
been agreed to be revised as under:
(ii) Interest @15% p.a. on the outstanding lease premium shall
continue to be payable. The interest accrued on the second and
third installment of lease premium shall be paid alongwith the
G
respective installment on the due dates.
(iii) The accrued interest on the outstanding amount of Rs.1026
crores for the entire period w.e.f 11.9.2008 upto the date of
payment of first installment shall be paid by the developer to H
RLDA within 24 months from the date of signing of Development
Agreement as per the RFP.”
E
F
I
5. It may be noted that till such time the documents / compliances
as mentioned under para 2 & 3 above are submitted to RLDA
and all other obligations including signing of Development
Agreement as per above terms are met with by the developer,
you continue to remain obligated to comply with the original
obligations as per RLDA’s letter No.RLDA/2008/Project/Sarai
Rohilla/RFP/Vol.II dated 31.1.09 and 02.02.09.
It may also be noted that communication of the above relaxations
by RLDA will neither entitled you for any claim whatsoever
against RLDA nor does it restrict RLDA’s rights to seek the
compliance of the terms and conditions of LOA as partially
modified vide this office letter dated 31.01.09 & 02.02.09 and
take appropriate consequential action and any other alternative
remedy in case of your failure(i) to communicate your willingness as per para – 3 above; or
G
(ii) to submit the joint Bidding Agreement within the stipulated
time as in para – 2 above; or
(iii) to deposit the First installment of Rs.380 crores within the
stipulated time as above.”
H
In the said letter, it was also mentioned as follows:
“2. Above terms shall be applicable and valid if and only if
renewed Joint Bidding Agreement is submitted to RLDA. The
renewed Joint Bidding Agreement and SPV documents shall be
ILR (2011) I Delhi
3. In view of the above, please communicate your willingness to
go ahead with the execution of the project within 10 days of the
issue of this letter.
12. Thereafter, as is evident from the material brought on record,
a letter was issued by the respondent on 20.8.2009 indicating the revised
payment consideration of lease premium. The same reads as follows:
“Revised payment consideration of lease premium
Indian Law Reports (Delhi)
I
13. The appellants responded to the said letter vide letter dated
29.8.2009. The same has been reproduced by the learned Single Judge.
We think it apt to reproduce the relevant portion of it:
“We hereby convey our willingness to go ahead with execution
of the project as per the terms and conditions contained in your
above said letter. However, as regards payment of accrued interest
on the upfront lease premium of Rs. 1026 crore for the entire
ABW Infrastructures Ltd. v. Rail Land Deve. Auth. (Dipak Misra, CJ.) 233
period with effect from 11.09.2008 upto the date of payment of A
the first installment, we have already conveyed our reservations
vide our various letters to you. In this regard we reserve our
right to seek an amicable settlement through dispute resolution
mechanism.”
B
14. Thereafter, the RLDA, on 18.9.2009, sent a modified draft
development agreement requiring the appellants to offer comments on the
said document outlining the paragraph / clause which was not in accord
with the decision communicated by the RLDA through their earlier letter C
dated 20.8.2009. It was also clarified in the said communication that the
agreement that was sent to the appellants for their comments was merely
a draft and was to be finalized only after approval of the competent
authority. The appellants, on 7.10.2009, communicated to the RLDA
D
raising various objections to several clauses of the draft agreement and
suggested certain amendments. The said letter was responded by the
RLDA on 9.10.2009. The relevant portion of the same reads as follows:
234
A
Indian Law Reports (Delhi)
ILR (2011) I Delhi
to be signed with the SPV on compliance of various requirements
listed under RLDA’s letter dated 20.08.09 & 16.09.09, is enclosed
herewith.
B
Thus RLDA has given you all reasonable opportunity for survival
of this contract and the onus of failure squarely lies on you.
C
Now through this letter you are hereby notified that the first
installment of Rs.380 crore be paid to RLDA on or before
19.10.2009 (60 days of issue of RLDA’s letter dated 20.08.09)
along with compliance of various requirements well before the
same, failing which the Contract will be terminated and
consequential action will follow. In case of failure to make the
payment this may be treated as Notice of Termination.”
D
“There are no signs so far on your part for compliance of any E
of the actionable points leading to signing of Development
Agreement except extension of bid security BG, and there appears
to be a deliberate attempt on your part to delay the process.
E
Your attention is again invited to para 5 of this office letter dated F
20.8.2009 under reference (i) above. It was clearly advised to
you that till such time the documents / compliances as mentioned
under para 2 and 3 above are submitted to RLDA and all other
obligations including signing of Development Agreement as per
G
above terms are met with by the developer, you continue to
remain obligated to comply with the original obligations as per
RLDA’s letter No. RLDA/2008/Project/Sarai Rohilla/RFP / Vol.II
dated 31.01.09 and 02.02.09. The same is once again reiterated.
H
Despite not receiving the JBA from you, the Draft Development
Agreement was sent to you on 18.09.09 vide letter under reference
(iii) above. While your comments on the Draft Development
Agreement have been received vide reference (v) above, they do
I
not deserve to be given any cognizance in the absence of JBA.
Nevertheless, your observations have been considered and RLDA’s
response is enclosed. Modified Development Agreement proposed
F
G
H
I
15. On 12.11.2009, the RLDA again notified the appellants to comply
with the documentary requirements and to make payment of the first
installment within a fortnight. As the same was not done, on 1.12.2009,
the following letter was issued:
“Your attention is invited to RLDA’s letter dated 12.11.2009
under reference (vii) above wherein you were notified to comply
with the documentary requirements and to make payment of first
installment of Rs.380 crores within 15 days (Fifteen days) of
receipt of the letter failing which consequential action for default
would follow. It is observed that you have failed to deposit the
first installment of Rs.380 crores and also failed to submit other
required documents even after lapse of 15 days days.
2. Despite being given adequate and all reasonable opportunities
by RLDA to make payment of first installment and to comply
with the documentary requirements, your consortium has failed
to honour the obligations and it appears that your consortium is
not in a position to honour the obligations.”
16. After terminating the rent lease, the respondent invoked the
bank guarantee and, on 10.12.2009, issued the final termination of
agreement on the ground that the appellants have failed to implement any
of the obligations by the stipulated date and the contract (LOA and
modified terms thereof) stood terminated with immediate effect and the
bid security of Rs.10 crores and all other payments made to the RLDA
ABW Infrastructures Ltd. v. Rail Land Deve. Auth. (Dipak Misra, CJ.) 235
stood forfeited accordingly.
236
A
17. Be it noted, in the writ petition as well as in the LPA what is
vehemently urged is that the respondent has acted in an extremely arbitrary
and unfair manner whereby the whole action invites the wrath of Article
14 of the Constitution of India. The stand and stance of the respondent B
is that there is no unfair act on the part of the respondent but there is
a series of breach on the part of the appellants and, hence, the termination
took place. At this juncture, it is apposite to note that this Court, on
6.7.2010, had passed the following order:
C
A
B
C
“Heard Mr. Raju Ramchandran, learned senior counsel for
appellants and Mr. Soli J. Sorabjee, learned senior counsel for
respondent.
D
In course of hearing this appeal, a consensus was arrived at
being initiated by Mr. Soli J. Sorabjee that if the appellants deposit
a sum of Rs. 75 Crores by 20th July, 2010, the financial bid
shall not be opened. Needless to emphasise that the debate went
on for some time with regard to reduction of area and prorata E
reduction of amount and as a consequence, the factum installment.
The aforesaid aspects shall be dwelled upon on the next date of
hearing.
F
As further conceded to, if the amount as agreed is not deposited,
it would tantamount that appellants have conceived the idea that
Court is a laboratory where children come to play. It needs no
special emphasis to state that the LPA shall meet the fate of
G
dismissal, as an inevitable corollary.
D
E
F
G
sum of Rs. 75 crores has been deposited within the stipulated
time. In course of further hearing, we have been told that the
first instalment is Rs.380 crores. A suggestion was given to the
learned counsel for the parties that if the appellant deposits Rs.135
crores by 25th August, 2010 and further depositing Rs.135 crores
on 25th September, 2010, the draft Agreement, keeping in view
the pro rata reduction of the land and increase F.A.R., shall be
handed over to the appellant. Be it noted, we have calculated the
sum regard being had to the factum that Rs.35 crores was
forfeited by the respondent after termination of the contract. We
must appreciably state that Mr.Soli J.Sorabjee, learned senior
counsel appearing for the respondent fairly submitted that the
appellant must deposit the amount barring the amount that has
been forfeited and then only a draft Agreement, as has been
suggested by this Court, can be filed before this Court.”
“In pursuance of the aforesaid order, a sum of Rs.75 crores has
been deposited with the respondent-corporation. It is submitted
by Mr. Raju Ramachandran, learned senior counsel appearing for
appellant and Mr. Soli J. Sorabjee, learned senior counsel appearing
for respondent-corporation that there is difficulty to carry out
the said arrangement that was recorded on 22nd July, 2010.
In view of the aforesaid as agreed to by learned counsel for
parties, the sum of Rs.75 crores that has been deposited by the
appellant with the respondent-corporation shall be refunded within
a period of one week from today.”
20. The purpose of referring to the aforesaid orders is that despite
the initial efforts, no consensus could be arrived at.
H
H
I
I
18. On 22.7.2010, the following order came to be passed:
“This Court on 6th July 2010 on the basis of a consensus
arrived at had directed that if the appellants deposit a sum of
Rs.75 crores by 20th July, 2010, the financial bid shall not be
opened and if the amount is not deposited, the appeal shall meet
the fate of dismissal. We have been apprised at the bar that a
ILR (2011) I Delhi
19. On 27.7.2010, the following order came to be passed:
List on 22nd July, 2010. The matter shall be taken up at 2.15
p.m.
Order dasti under the signature of Court Master.”
Indian Law Reports (Delhi)
21. The singular question that emanates for consideration in this
intra court appeal is whether the learned Single Judge committed any
illegality in not entertaining the writ petition. The submission of the
learned counsel for the appellants is that the conclusion arrived at by the
learned Single Judge is sensitively susceptible inasmuch as a writ court
has jurisdiction to address itself even with regard to an unfair practice
adopted before entering into the agreement and also after entering into the
agreement. In support of the same, he has placed reliance on Mahabir
ABW Infrastructures Ltd. v. Rail Land Deve. Auth. (Dipak Misra, CJ.) 237
Auto Stores (supra). In the said case, it has been held thus:
“12. …Where there is arbitrariness in State action of this type of
entering or not entering into contracts, Article 14 springs up and
judicial review strikes such an action down. Every action of the
State executive authority must be subject to rule of law and must
be informed by reason. So, whatever be the activity of the public
authority, in such monopoly or semi-monopoly dealings, it should
meet the test of Article 14 of the Constitution. If a Governmental
action even in the matters of entering or not entering into contracts,
fails to satisfy the test of reasonableness, the same would be
unreasonable. In this connection reference may be made to E.P.
Royappa v. State of Tamil Nadu, (1974) 4 SCC 3: (AIR 1974
SC 555); Maneka Gandhi v. (1978) 1 SCC 248 : (AIR 1978 SC
597); Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC
722: (AIR 1981 SC 487); R.D. Shetty v. International Airport
Authority of India, (1979) 3 SCC 489 : (AIR 1979 SC 162)
and also Dwarkadas Marfatia and Sons v. Board of Trustees
of the Port of Bombay, (1989) 3 SCC 293 : (AIR 1989 SC
1642). It appears to us that rule of reason and rule against
arbitrariness and discrimination, rules of fair play and natural
justice are part of the rule of law applicable in situation or action
by State instrumentality in dealing with citizens in a situation like
the present one. Even though the rights of the citizens are in the
nature of contractual rights, the manner, the method and motive
of a decision of entering or not entering into a contract, are
subject to judicial review on the touchstone of relevance and
reasonableness, fair play, natural justice, equality and nondiscrimination in the type of the transactions and nature of the
dealing as in the present case.”
238
A
A
B
B
C
C
D
D
E
E
ILR (2011) I Delhi
“The award of a contract, whether it is by a private party or by
a public body or the State, is essentially a commercial transaction.
In arriving at a commercial decision considerations which are
paramount are commercial considerations. The State can choose
its own method to arrive at a decision. It can fix its own terms
of invitation to tender and that is not open to judicial scrutiny.
It can enter into negotiations before finally deciding to accept
one of the offers made to it. Price need not always be the sole
criterion for awarding a contract. It is free to grant any relaxation,
for bona fide reasons, if the tender conditions permit such a
relaxation. It may not accept the offer even though it happens to
be the highest or the lowest. But the State, its corporations,
instrumentalities and agencies are bound to adhere to the norms,
standards and procedure laid down by them and cannot depart
from them arbitrarily. Though that decision is not amenable to
judicial review, the court can examine the decision-making process
and interfere if it is found vitiated by mala fides, unreasonableness
and arbitrariness.”
24. In New Bihari Biri Leaves Co. v. State of Bihar, (1981) 1
SCC 537, their Lordships have opined thus:
F
F
G
G
22. The said observations were made as the Indian Oil Corporation H
discontinued the supply of lubricants. Their Lordships observed that
when the State enters into a contractual arena, it would be governed by
the terms of the contract but in appropriate case, the writ court, in
exercise of power under Article 226 of the Constitution of India, can
interfere and interdict when the acts of the State smack of arbitrariness. I
H
23. In Air India Ltd. v. Cochin International Airport Ltd.,
(2000) 2 SCC 617, it has been ruled thus:
Indian Law Reports (Delhi)
I
“48. It is a fundamental principle of general application that if a
person of his own accord, accepts a contract on certain terms
and works out the contract, he cannot be allowed to adhere to
and abide by some of the terms of the contract which proved
advantageous to him and repudiate the other terms of the same
contract which might be disadvantageous to him. The maxim is
qui approbate non reprobate (one who approbates cannot
reprobate). This principle, though originally borrowed from Scots
Law, is now firmly embodied in English Common Law. According
to it, a party to an instrument or transaction cannot take advantage
of one part of a document or transaction and reject the rest.
That is to say, no party can accept and reject the same instrument
or transaction.”
25. In Assistant Excise Commissioner & Ors. v. Issac Peter &
Ors., (1994) 4 SCC 104, it has been held that the doctrine of fairness
and reasonableness can be read into the contracts to which the State is
a party on the ground that the State has acted unreasonably or unfairly
ABW Infrastructures Ltd. v. Rail Land Deve. Auth. (Dipak Misra, CJ.) 239
240
while acting under a contract involving State power. It has been further A
opined that duty to act fairly cannot be sought to be imported into the
contract to modify and alter its term and to create an obligation upon the
State which is not there in the contract.
A
26. The aforesaid principle was reiterated in Puravankara Projects B
Ltd. v. Hotel Venus International and Ors., (2007) 10 SCC 33. 27.
In Cochin International Airport Ltd. v. Cambatta Aviation Ltd. &
Ors., (2000) 2 SCC 617, it has been ruled thus:
“6. Challenging this decision of the High Court, Air India has C
B
filed Civil Appeal No. 3641 of 1999 and CIAL has filed Civil
Appeal No. 3642 of 1999. Mr. Nariman, learned senior counsel
appearing for Air India and Mr. Venugopal, learned senior counsel
appearing for CIAL contended that the Division Bench had gone D
wrong in its conclusion as it adopted a wrong approach in a
matter of this type. They submitted that the Division Bench
committed a grave error in considering this to be a case of
public tender. They also submitted that the decision of CIAL to E
award the contract to Air India was taken bona fide in the
financial and overall interest of CIAL and, therefore, the High
Court while exercising its power under Article 226 ought not to
have interfered as no substantial amount of public interest was
F
involved.
7. …The award of contract, whether it is by a private party or
by a public body or the State, is essentially a commercial
transaction. In arriving at a commercial decision considerations
G
which are paramount are commercial considerations. The State
can choose its own method to arrive at a decision. It can fix its
own terms of invitation to tender and that is not open to judicial
scrutiny. It can enter into negotiations before finally deciding to
accept one of the offers made to it. Price need not always be the H
sole criterion for awarding a contract. It is free to grant any
relaxation, for bona fide reasons, if the tender conditions permit
such a relaxation. It may not accept the offer even though it
happens to be the highest or the lowest. But the State, its I
corporations, instrumentalities and agencies are bound to adhere
to the norms, standards and procedures laid down by them and
cannot depart from them arbitrarily. Though that decision is not
C
Indian Law Reports (Delhi)
ILR (2011) I Delhi
amenable to judicial review, the Court can examine the decision
making process and interfere if it is found vitiated by mala fides,
unreasonableness and arbitrariness. The State, its corporations,
instrumentalities and agencies have the public duty to be fair to
all concerned. Even when some defect is found in the decisionmaking process the Court must exercise its discretionary power
under Article 226 with great caution and should exercise it only
in furtherance of public interest and not merely on the making
out of a legal point. The Court should always keep the larger
public interest in mind in order to decide whether its intervention
is called for or not. Only when it comes to a conclusion that
overwhelming public interest requires interference, the Court
should intervene.”
D
28. In ABL International Ltd. & Anr. (supra), the question arose
with regard to the maintainability of the writ petition. The Apex Court
referred to the decision in Gunwant Kaur v. Municipal Committee,
Bhatinda, (1969) 3 SCC 769 and adverted to the concept of applicability
E of public law principles into government contracts and the liability of
State in contractual matters and keeping in view the facts which arose
before the Apex Court, it was held as follows:
F
G
16. …A perusal of this judgment though shows that a writ
petition involving serious disputed questions of facts which requires
consideration of evidence which is not on record, will not normally
be entertained by a court in the exercise of its jurisdiction under
Article 226 of the Constitution of India. This decision again, in
our opinion, does not lay down an absolute rule that in all cases
involving disputed questions of fact the parties should be relegated
to a civil suit…”
29. Thereafter, their Lordships referred to the decision in Century
H Spg. and Mfg. Co. Ltd. v. Ulhasnagar Municipal Council, (1970) 1
SCC 582 wherein it has been held that merely because a question of fact
was raised, the High Court will not be justified in requiring the party to
seek relief by somewhat lengthy, dilatory and expensive process by a
I civil suit against a public body. The questions of fact raised by the
appellants in this case were elementary.
30. After analyzing the facts, it was opined thus:
ABW Infrastructures Ltd. v. Rail Land Deve. Auth. (Dipak Misra, CJ.) 241
“28. However, while entertaining an objection as to the
maintainability of a writ petition under Article 226 of the
Constitution of India, the court should bear in mind the fact that
the power to issue prerogative writs under Article 226 of the
Constitution is plenary in nature and is not limited by any other
provisions of the Constitution. The High Court having regard to
the facts of the case, has a discretion to entertain or not to
entertain a writ petition. The Court has imposed upon itself certain
restrictions in the exercise of this power [See: Whirlpool
Corporation v. Registrar of Trade Marks, (1998) 8 SCC 1].
And this plenary right of the High Court to issue a prerogative
writ will not normally be exercised by the Court to the exclusion
of other available remedies unless such action of the State or its
instrumentality is arbitrary and unreasonable so as to violate the
constitutional mandate of Article 14 or for other valid and legitimate
reasons, for which the court thinks it necessary to exercise the
said jurisdiction.”
242
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A
A Constitution of India and thereafter referring to the decisions in
Radhakrishna Agarwal v. State of Bihar, (1977) 3 SCC 457 and ABL
International Ltd. (supra), held thus:
B
B
C
C
D
31. Eventually, as is perceivable, the Apex Court adverted to the E
facts and came to hold as follows:
“51. …Merely because the first respondent wants to dispute this
fact, in our opinion, it does not become a disputed fact. If such
objection as to disputed questions or interpretations is raised in F
a writ petition, in our opinion, the courts can very well go into
the same and decide that objection if facts permit the same as
in this case. We have already noted the decisions of this Court
which in clear terms have laid down that mere existence of G
disputed questions of fact ipso facto does not prevent a writ
court from determining the disputed questions of fact. [See:
Gunwant Kaur (supra)].”
32. In the said case, ultimately, their Lordships interfered holding H
that in such a factual situation, the facts of the case do not and should
not inhibit the High Court or the Apex Court from granting relief sought
for by the petitioner.
I
33. In Noble Resources Ltd. v. State of Orissa & Anr., (2006)
10 SCC 236, the Apex Court, referring to number of authorities how the
State action is to be tested on the touchstone of Article 14 of the
D
“18. It may, however, be true that where serious disputed
questions of fact are raised requiring appreciation of evidence,
and, thus, for determination thereof, examination of witnesses
would be necessary; it may not be convenient to decide the
dispute in a proceeding under Article 226 of the Constitution of
India.
19. On a conspectus of several decisions, a Division Bench of
this Court in ABL International Ltd. (supra) opined that such
a writ petition would be maintainable even if it involves some
disputed questions of fact. It was stated that no decision lays
down an absolute rule that in all cases involving disputed questions
of fact, the party should be relegated to a civil court.”
34. The obtaining factual matrix is required to be adjudged on the
E aforesaid enunciation of law. We have referred to the facts in extenso.
The appellants, as is demonstrable, had preferred the writ petition and
this Court, on earlier occasion, had come to hold that there was a
concluded contract as there had been offer and acceptance. Be that as
F it may, after the concluded contract came into existence, the parties
entered into correspondences. Certain terms were put forth by the
appellants and they were not acceded to in entirety by the respondent.
The appellants requested for amendment in the original contract. While
entering into communication, it put forth its conditions and emphasis was
G
laid on leasehold or prorata reduction and many other facets. The
respondent, as we have stated hereinbefore, had sent a draft agreement
and the communication. The same was not accepted by the appellants.
The claim of the appellants is that they should be granted permission for
H development of the area in proportion to the investment made. That
apart, the appellants contend that the respondent has acted in a manner
by which certain conditions of the contract were not workable. Therefore,
prorata should be computed and the benefit should have been extended.
I Resisting the same, it is urged by the respondent that the appellants never
showed their bonafide by depositing the first installment of Rs.513 crores
and, hence, there has been breach of the terms and conditions of the
agreement, which had attained finality as is evident from the order of the
Chanchal Bhatti & Ors. v. State (NCT of Delhi) (Sanjiv Khanna, J.) 243
244
earlier writ petition. It is also highlighted that though discussions and A
negotiations went on, the appellants unilaterally tried to impose certain
conditions. From the entire gamut of facts which have been brought on
record and projected, it is well nigh impossible to say whether the
termination of contract and the forfeiture of the earnest money by the B
respondent is unreasonable or arbitrary and thereby invites the frown of
Article 14 of the Constitution of India. It is extremely difficult to state
that there are no disputed questions of fact. Thus, we are inclined to
think that the view expressed by the learned Single Judge that the petitioner
should approach the appropriate legal forum as advised in law cannot be C
found fault with.
35. Consequently, we perceive no substance in the appeal and,
accordingly, the same stands dismissed. However, we hasten to add that
D
if the appellants approach the appropriate legal forum, neither the
observations of the learned Single Judge nor our observations made in
this appeal shall be pressed into service as they have only been stated for
the adjudication of the writ petition as regards its entertainability in a
E
controversy of this nature. There shall be no order as to costs.
ILR (2011) I DELHI 243
CRIMINAL MC
CHANCHAL BHATTI & ORS.
....PETITIONERS
A
B
C
D
E
F
F
G
G
H
H
I
I
VERSUS
STATE (NCT OF DELHI)
Indian Law Reports (Delhi)
ILR (2011) I Delhi
and 83—FIR 107/2003 u/s 379 regd on receiving
complaint of one car being stolen—Petitioners arrested
in another case along with stolen car—Intimation of
arrest given to police station with reference to FIR
107/2003—Possession of stolen car taken by IO and
warrants issued by MM—Petitioners could not be
arrested—No further steps taken to arrest or conduct
investigation in case till subsequent IO wrote note
dated 5.06.2006 to ACP informing that earlier IO had
not carried out any proceedings and seeking
permission to reinvestigate—Application made before
MM for issue of NBWs—NBWs issued returned
unexecuted—Process u/s 82/83 commenced—
Contention of petitioners that Section 397 IPC
punishable with imprisonment of three years, so in
view of Section 468 Cr PC MM not competent to take
cognizance after expiry of three years since barred u/
s 468 Cr PC so no NBWs could be issued or process
u/s 82/83 initiated—Held, Section 468 deals with
cognizance of offences and does not prescribe any
limitation period for investigation of offences—It does
not bar investigation of offences by the police even if
the period of limitation prescribed u/s 468 for taking
cognizance has expired—Till chargesheet is filed the
stage of taking cognizance does not arise and it is at
the stage of taking cognizance that court decides
whether or not to condone delay u/s 473—Investigation
cannot be stopped and FIR quashed on ground of
delay—Petition dismissed.
....RESPONDENT
(SANJIV KHANNA, J.)
CRIMINAL MC NO. : 1810/2007 DATE OF DECISION. : 19.10.2010
Code of Criminal Procedure, 1973—Section 2(h), 468,
469, 470, 472, 473 & 482—Limitation for taking
cognizance—Quashing of FIR—Setting aside of order
issuing NBW and order initiating proceedings u/s 82
Important Issue Involved: Section 468 Cr PC which
prescribes limitation period for taking cognizance does not
bar investigation of offences by the police even if the period
of limitation prescribed under it for taking cognizance has
expired since it is at the stage of taking cognizance after
chargesheet is filed that the court decides whether or not to
condone delay.
Chanchal Bhatti & Ors. v. State (NCT of Delhi) (Sanjiv Khanna, J.)245
246
[Ad Ch] A
APPEARANCES:
FOR THE PETITIONER
:
Mr. S.C. Sagar, Advocate,
FOR THE RESPONDENTS
:
Ms. Fizani Hussain, APP.
B
CASES REFERRED TO:
1.
Chief Enforcement Officer vs. Videocon International Ltd.
(2008) 2 SCC 492.
2.
H.N. Rishbud vs. State of Delhi (1955) 1 SCR 1150.
C
RESULT: Petition dismissed.
SANJIV KHANNA, J.
D
1. The petitioners, Chanchal Bhati, Ranvijay and Kalu, by this Petition
under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as the Code, for short) have prayed for quashing of FIR No.
173/2003 dated 23rd February, 2003 under Section 379 of the Indian E
Penal Code, 1860 (hereinafter referred to as IPC, for short). They have
also prayed for setting aside of the order dated 26th March, 2007 passed
by the Metropolitan Magistrate issuing non-bailable warrants and the
subsequent proceedings thereafter. The petitioners further pray for setting
aside of the order dated 19th April, 2007 initiating of proceedings under F
Sections 82 and 83 of the Code against the petitioners.
2. FIR No. 107/2003 under Section 379, IPC was registered at P.S.
Shalimar Bagh on 23rd February, 2003 on a complaint made by one
G
Navdeep Khurana that his car bearing no. DL-2CG-1022 was stolen in
the night intervening 18/19th February, 2003. It is submitted that the
petitioners and one Rakesh were arrested in FIR Nos.167, 168 and 169/
2003 P.S. Kavi Nagar, Distt. Ghaziabad, U.P. along with the said car on
1st March, 2003. An unnumbered FIR had also been registered against H
Ranvijay Singh. Intimation of the arrest of the petitioners was given to
P.S. Shalimar Bagh with reference to FIR No.107/2003 vide D.D. entry
40B dated 4th March, 2003. Possession of the stolen car was taken by
the Investigating Officer on 21st March, 2003 and warrant was issued I
by the Metropolitan Magistrate under Section 72 of the Code on 27th
March, 2003. However, the petitioners could not be arrested as they
were released on bail on 13th March, 2003 from the Ghaziabad jail.
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A Thereafter no steps were taken by the Investigating Officer to arrest the
petitioners or conduct further investigation till H.C. Satbir Singh wrote a
note dated 5th June, 2006 that the earlier Investigating Officer HC Dinesh
Singh had not carried out any proceedings, had not written the case diary
B or arrested the accused persons. This note was addressed to ACP Rohini
and permission was sought to order reinvestigation.
3. An application dated 16th March, 2007 was made to the court
of Metropolitan Magistrate for issue of non bailable warrants. It was
C stated in the application that the petitioners could not be arrested and
were absconding. Learned Metropolitan Magistrate issued non bailable
warrants for 19th April, 2007 vide order dated 26th March, 2007. The
petitioners could not be arrested and the court was informed that non
bailable warrants could not be executed and an application under Section
D
82 of the Code was filed on 19th April, 2007. On this application, order
dated 19th April, 2007 was passed by the Metropolitan Magistrate for
initiation of proceedings under Sections 82 and 83 of the Code against
the petitioners.
E
4. The contention raised by the petitioners is that the offence under
Section 397 IPC is punishable with imprisonment of three years and
therefore in view of Section 468 of the Code, Metropolitan Magistrate is
not competent to take cognizance of the offence under Section 397 IPC
F after expiry of three years. It is submitted that the trial court could not
therefore have issued non-bailable warrants or initiated proceedings under
Sections 82 and 83 of the Code. It is submitted that the investigation by
the police is barred and prohibited as the court cannot now take cognizance
G in view of the limitation period prescribed in section 468 of the Code.
5. To decide the said contention, provisions of Chapter XXXVI –
‘Limitation for taking cognizance of certain offences’ relating to limitation
are required to be examined.
H
6. Sections 468, 469, 470, 472 and 473 of the Code are reproduced
below:I
“Section 468. Bar to taking cognizance after lapse of the
period of limitation.- (1) Except as otherwise provided elsewhere
in this Code, no Court shall take cognizance of an offence of the
category specified in sub-section (2), after the expiry of the
period of limitation.
Chanchal Bhatti & Ors. v. State (NCT of Delhi) (Sanjiv Khanna, J.)247
(2) The period of limitation shall be-
248
A
A
(a) Six months, if the offence is punishable with fine only;
(b) One year, if the offence is punishable with imprisonment for
a term not exceeding one year;
B
B
(c) Three years, if the offence is punishable with imprisonment
for a term exceeding one year but not exceeding three years.
[(3) For the purposes of this section, the period of limitation, in
C
relation to offences which may be tried together, shall be
determined with reference to the offence which is punishable
with the more severe punishment or, as the case may be, the
most severe punishment.]
D
Section 469. Commencement of the period of limitation—
(1) The period of limitation, in relation to an offender, shall
commence,—
C
D
Indian Law Reports (Delhi)
ILR (2011) I Delhi
faith in a Court which from defect of jurisdiction or other cause
of a like nature, is unable to entertain it.
(2) Where the institution of the prosecution in respect of an
offence has been stayed by an injunction or order, then, in
computing the period of limitation, the period of the continuance
of the injunction or order, the day on which it was issued or
made, and the day on which it was withdrawn, shall be excluded.
(3) Where notice of prosecution for an offence has been given,
or where, under any law for the time being in force, the previous
consent or sanction of the Government or any other authority is
required for the institution of any prosecution for an offence,
then, in computing the period of limitation, the period of such
notice or, as the case may be, the time required for obtaining
such consent or sanction shall be excluded.
E
E
(b) where the commission of the offence was not known to the
person aggrieved by the offence or to any police officer, the first
day on which such offence comes to the knowledge of such
person or to any police officer, whichever is earlier; or
F
Explanation.—In computing the time required for obtaining the
consent or sanction of the Government or any other authority,
the date on which the application was made for obtaining the
consent or sanction and the date of receipt of the order of the
Government or other authority shall both be excluded.
F
(4) In computing the period of limitation, the time during which
the offender—
(a) on the date of the offence; or
(c) where it is not known by whom the offence was committed,
the first day on which the identity of the offender is known to
the person aggrieved by the offence or to the police officer
G
making investigation into the offence, whichever is earlier.
G
(b) has avoided arrest by absconding or concealing himself, shall
be excluded.
(2) In computing the said period, the day from which such
period is to be computed shall be excluded.
Section 470. Exclusion of time in certain cases.—(1) In H
computing the period of limitation, the time during which any
person has been prosecuting with due diligence another
prosecution, whether in a Court of first instance or in a Court
of appeal or revision, against the offender, shall be excluded:
I
Provided that no such exclusion shall be made unless the
prosecution relates to the same facts and is prosecuted in good
(a) has been absent from India or from any territory outside
India which is under the administration of the Central Government,
or
H
I
Section 472. Continuing offence.—In the case of a
continuing offence, a fresh period of limitation shall begin to run
at every moment of the time during which the offence continues.
Section 473. Extension of period of limitation in certain
cases.—Notwithstanding anything contained in the foregoing
provisions of this Chapter, any Court may take cognizance of an
offence after the expiry of the period of limitation, if it is satisfied
on the facts and in the circumstances of the case that the delay
Chanchal Bhatti & Ors. v. State (NCT of Delhi) (Sanjiv Khanna,
249
J.)
has been properly explained or that it is necessary so to do in the A
interests of justice.”
7. Section 468(1) of the Code stipulates that no court shall take
cognizance of an offence after the period of limitation prescribed in subsection (2) has expired. Thus there is a bar or prohibition on the court
from taking cognizance. The term ‘cognizance’ has not been defined in
the Code. It is well settled that ‘cognizance’ means judicial notice of an
offence taken by a Magistrate, in order to initiate proceedings in respect
of such offence. It requires application of mind by the Magistrate to the
content or the allegations made in the chargesheet or the complaint or
suo motu on the information received by the court. Taking of cognizance
of an offence by the Magistrate depends upon the facts and circumstances
of the particular case. It has been observed in Chief Enforcement
Officer v. Videocon International Ltd. (2008)2SCC492 that cognizance
of an offence under Section 190 of the Code is said to have been taken
by the Magistrate, when he applies his mind not only to the content of
the complaint or police report but also when he has done so for the
purpose of proceeding under Section 200 of the Code. On the other
hand, when the Magistrate has applied his mind only to the extent of
ordering for an investigation under section 156(3) or issue of search
warrant for investigation, it cannot be said that he has taken cognizance
of the offence.
Indian Law Reports (Delhi)
250
A
ILR (2011) I Delhi
considered necessary for the investigation and to be produced at
the trial, and (5) Formation of the opinion as to whether on the
material collected there is a case to place the accused before a
Magistrate for trial and if so taking the necessary steps for the
same by the filing of a charge-sheet under Section 173. …..
B
B
C
9. The Code also deals with investigation of offences by the police
in Chapter XII. Section 167 of the Code deals with the procedure when
investigation cannot be completed within 24 hours. Sections 167(5) and
C (6) of the Code reads as under:“Section 167. Procedure when investigation cannot be
completed in twenty-four hours. —
D
D
(1) xxxxx
(2) xxxxx
(3) xxxxx
E
E
F
F
8. The term ‘investigation’ has been defined in Section 2(h) of the
Code and includes all proceedings under the Code for collection of evidence
conducted by the police officer or any person, other than the Metropolitan
Magistrate, who has been authorized by the Metropolitan Magistrate in G
this behalf. The term ‘investigation’ has been interpreted by the Supreme
Court in H.N.Rishbud v. State of Delhi (1955) 1 SCR 1150 and it has
been held;
G
“5. ……..Thus, under the Code investigation consists generally H
of the following steps: (1) Proceeding to the spot, (2)
Ascertainment of the facts and circumstances of the case, (3)
Discovery and arrest of the suspected offender, (4) Collection of
evidence relating to the commission of the offence which may I
consist of (a) the examination of various persons (including the
accused) and the reduction of their statements into writing, if the
officer thinks fit, (b) the search of places or seizure of things
H
I
(4) xxxxx
(5) If in any case triable by Magistrate as a summons case, the
investigation is not concluded within a period of six months
from the date on which the accused was arrested, the Magistrate
shall make an order stopping further investigation into the offence
unless the officer making the investigation satisfies the Magistrate
that for special reasons and in the interests of justice the
continuation of the investigation beyond the period of six months
is necessary.
(6) Where any order stopping further investigation into an offence
has been made under sub-section (5), the Sessions Judge may,
if he is satisfied, on an application made to him or otherwise,
that further investigation into the offence ought to be made,
vacate the order made under sub-section (5) and direct further
investigation to be made into the offence subject to such directions
with regard to bail and other matters as he may specify.”
10. Under section 167(5) of the Code time limit of six months from
the date the accused is arrested, has been fixed for investigation in
summons cases. A magistrate can, for special reasons and in the interest
Chanchal Bhatti & Ors. v. State (NCT of Delhi) (Sanjiv Khanna, 251
J.)
of justice, permit investigation even after six months. In case of refusal A
and stoppage of investigation the State can approach the Sessions Court.
No such time limit has been fixed in non-summon cases. Offence under
Section 379 IPC is punishable upto three years and is therefore a warrant
case and not a summons case. In any case, the accused in the present
B
petition were not arrested and therefore Section 167(5) of the Code has
no application.
11. It is clear from the above, that Section 468 of the Code only
deals with cognizance of offences and does not prescribe any limitation C
period for investigation of offences. Section 468 of the Code does not
bar investigation of offences by the police even if the period of limitation,
prescribed under the said section, for taking cognizance by the court, has
expired.
D
12. There is a good reason why Section 468 of the Code cannot
be applied and should not be interpreted as fixing an outer time limit for
investigation of offences. Section 469 of the Code states when the period
of limitation for an offence shall commence. In some cases, it may be
E
doubtful and debatable as to which of the three clauses under Section
469(1) is applicable. This determination or dispute has to be decided by
the courts and not by the police. Similarly, Section 470 of the Code
provides for ˇexclusion of time in certain cases. Again whether or not
time should be excluded has to be determined and adjudicated by the F
court and not by the police.
13. For the purpose of the present case, clause (b) of Section
470(4) may be noted. The said clause stipulates that for computing the
G
period of limitation the time during which an offender has avoided arrest
by absconding or concealing himself has to be excluded. The said clause
may be applicable in the facts of the present case as FIR under Section
397 IPC was registered in February, 2003 but the petitioners were not
apprehended or arrested. The case of the police/State is that the petitioners H
were absconding. This aspect/question can be decided by the court when
it decides whether or not cognizance should be taken. However,
investigation by the police cannot be stopped or barred.
14. Disputes can also arise whether an offence is a continuing
offence. This again is a matter for the court to be decided and not for
the police to make self judgment.
I
252
Indian Law Reports (Delhi)
ILR (2011) I Delhi
A
15. Section 473 of the Code is a non-obstante provision and gives
liberty to the court to take cognizance of an offence after expiry of the
period of limitation, if it is satisfied that in the said case delay has been
properly explained or it is necessary to take cognizance in the interest of
B justice. The two conditions stipulated in Section 473 of the Code are in
alternative and distinct and not conjoint. An order under Section 473 of
the Code is to be passed by a court and not by the police. Till investigation
is done and a chargesheet under Section 173 of the Code is filed by the
police, the stage of taking cognizance by the court does not arise. It is
C
at the stage of taking cognizance that the court decides whether or not
delay should be condoned under Section 473 of the Code and till that
stage, the court cannot condone delay.
16. In view of the aforesaid reasoning, the contention of the petitioners
that investigation should be stopped and FIR should be quashed cannot
be accepted. In the present case, it is noticed that on the applications
filed by the police on 16th March, 2007 and 19th April, 2007, the
Metropolitan Magistrate had passed an order for issue of non-bailable
E warrants against the petitioners on 26th March, 2007 and proceedings
under Sections 82 and 83 of the Code on 19th April, 2007. Sometimes
while the FIR is pending investigation the police/Investigating Officer can
move applications before the court with the prayer for orders or directions.
F The court while deciding any application does not act as a rubber stamp
of the prosecution and orders are passed after due consideration and
discretion is exercised keeping in mind the relevant facts including
contentions raised, public interest, case of the prosecution, statutory and
G constitutional rights of the victim and accused, delay in investigation,
reasons thereof etc. In a given case, delay in investigation etc. may be
a relevant consideration for the exercise of discretion by the court.
However, at this stage, the court does not consider and decide the
question of cognizance, whether or not cognizance should be taken.
H Application of provisions of Chapter XXXVI of the Code is to be decided
by the court at the time of taking cognizance.
D
I
17. With the aforesaid observations, the present petition is dismissed.
It is clarified that the observations made in this order are for the purpose
of disposal of the present petition and will not be construed as observations
on merits/facts binding on the trial court. This court has not expressed
any opinion on whether or not proceedings under Sections 82 and 83 of
Kundan Infrastructures v. NDMC (Rajiv Sahai Endlaw, J.)
253
254
the Code are justified and valid. The petitioners will have to approach the A
trial court for the said purpose at the first instance.
A
B
B
C
C
ILR (2011) I DELHI 253
W.P.
M/S KUNDAN INFRASTRUCTURES
....PETITIONER
VERSUS
NDMC & ANR.
....RESPONDENTS
D
D
(RAJIV SAHAI ENDLAW, J)
W.P (C) NO. : 6058/2002 &
DATE OF DECISION: 20.10.2010
CM NO. : 11771/2004 (U/O 1 R-10 CPC)
E
Constitution of India , 1950—Petitioner preferred writ
petition impugning condition imposed by respondent
NDMC on petitioner to deposit dues of electricity
F
connection earlier installed in property which was
purchased by petitioner—As per petitioner, after taking
possession of the flat purchased by him, electricity
connection was not found existing and electricity meter
detached—Petitioner applied to NDMC for electricity G
connection but NDMC claimed previous dues but
petitioner not liable to pay electricity arrears of earlier
owner/occupant of flat—Respondent NDMC urged duty
of petitioner to ascertain about electricity dues before H
acquiring property, demand of electricity arrears
reasonable and in public interest and necessary to
prevent dishonest consumers transferring property
without clearing dues. Held : If any statutory rules
I
govern the condition relating to sanction of a
connection or supply of electricity, the distributor can
insist upon fulfillment of requirement of such rules
E
F
G
H
I
Indian Law Reports (Delhi)
ILR (2011) I Delhi
and regulations—If the rules are silent, can stipulate
such terms and conditions as it deems fit and proper
to regulate its transactions and dealings—So long as
such rules and regulations or the terms and conditions
are not arbitrary and unreasonable, Courts will not
interfere with them—The conditions of Supply
whereunder such arrears
are demanded are
statutory—The petitioner is liable to pay the dues of
the earlier owner/occupant.
Insofar as the reference to the definition of “consumer” in
the Indian Electricity Act, 1910 is concerned, the said
definition was noticed in para 35 of the judgment in Isha
Marbles and the said definition was not held to include the
subsequent purchaser of the property.
(Para 17)
The argument of the senior counsel for the respondent
NDMC of the right of the NDMC on the basis of the clause
reproduced above in the affidavit obtained by the NDMC
from the petitioner also has no force. The said affidavit was
obtained admittedly in consideration of grant of electricity
connection. However the electricity connection did not come
to be granted by the respondent NDMC to the petitioner and
the petitioner immediately on the earlier dues being intimated
to it preferred this writ petition. Thus the question of the
petitioner being bound by the said affidavit, does not arise.
Moreover, it is quite clear that the affidavit was in the format
prescribed by the respondent NDMC itself and thus the
contention of the petitioner that the affidavit was not given
voluntarily has merit and the petitioner having immediately
protested thereagainst cannot be held to be bound by it.
Reference in this regard can be made to the judgment of
the Supreme Court in National Insurance Co. Ltd. Vs.
Boghara Polyfab Pvt. Ltd. MANU/SC/4056/2008 holding
that when such standard terms and conditions are immediately
protested against, no reliance can be placed thereon.
(Para 18)
255
Notwithstanding having disagreed with all the contentions of A
the respondent NDMC, I am still unable to grant relief to the
petitioner. I do not agree with the contention of the counsel
for the petitioner that the judgment of the Full Bench of this
Court in Saurashtra Color Tones is not applicable, being in B
relation to the Delhi Electricity Reforms Act, 2000, not
applicable in the present case.
(Para 19)
Important Issue Involved: If any statutory rules govern
the condition relating to sanction of a connection or supply
of electricity, the distributor can insist upon fulfillment of
such rules and regulations. If the rules are silent, it can
stipulate such terms and conditions as it deems fit and
proper to regulate its transactions and dealings. So long as
such rules and regulations or the terms and conditions are
not arbitrary and unreasonable, Court will not interfere with
them.
C
Mr. H.L. Tinku, Sr. advocate, with
Mr. Arjun Pant, Advocate for
NDMC.
G
CASES REFERRED TO :
National Insurance Co. Ltd. vs. Boghara Polyfab Pvt.
Ltd. MANU/SC/4056/2008.
Bihar State Electricity Board vs. Parmeshwar Kumar
Agarwala (1996) 4 SCC 686.
8.
Isha Marbles vs. Bihar State Electricity Board (1995) 2
ˇSCC 648.
9.
Punjab State Electricity Board vs. Bassi Cold Storage
1994 Supp(2) SCC 124.
F
:
4.
7.
F
FOR THE RESPONDENT
Vidyut Vitran Nigam Ltd. vs. DVS Steels & Alloys Private
Ltd. (2009) 1 SCC 210.
M/s Hyderabad Vanaspati Ltd. vs. A.P. State Electricity
Board (1998) 2 SCR 620.
E
Mr. Siddharth Khattar & Mr. Faisal
Zafar, advocates.
3.
6.
1. The petitioner filed this writ petition impugning the condition
imposed by respondent NDMC on the petitioner of the dues of the
electricity connection earlier provided in Flat No.4 (Second Floor), Building
E No.3, Scindia House, Connaught Place, New Delhi purchased by the
petitioner for granting electricity connection in the name of the petitioner
in the said flat.
:
State Electricity Board vs. Hanuman Rice Mills CA
No.6817/2010.
C
Mrs. Madhu Garg vs. North Delhi Power Ltd. 129 (2006)
DLT 213.
D RAJIV SAHAI ENDLAW, J.
FOR THE PETITIONER
2.
B
5.
D
APPEARANCES:
BSES Rajdhani Power Ltd. vs. Saurashtra Color Tones
Pvt. Ltd. AIR 2010 Delhi 14.
A
ILR (2010) II Delhi
RESULT: Writ petition dismissed.
[Sh Ka]
1.
Indian Law Reports (Delhi)
256
H
I
2. This Court vide interim order dated 23rd September, 2002, while
issuing notice of the writ petition and relying upon the judgment of the
Supreme Court in Isha Marbles Vs. Bihar State Electricity Board
(1995) 2 SCC 648, directed the respondent NDMC to grant electricity
connection in the name of the petitioner in the said flat subject to the
G petitioner depositing Rs. 8,00,000/- only with the NDMC instead of sums
of Rs. 8,26,493/- and Rs.3,55,935/- demanded by the respondent NDMC
as dues towards the earlier electricity connections provided in the flat.
The petitioner is informed to have deposited the said sum of Rs. 8,00,000/
H - and electricity connection granted to the petitioner. Rule was issued in
the writ petition on 8th April, 2003. On 7th September, 2010 attention
of the counsel for the petitioner was invited to the subsequent judgment
of the Supreme Court in Paschimanchal Vidyut Vitran Nigam Ltd. Vs.
DVS Steels & Alloys Private Ltd. (2009) 1 SCC 210 and the Full
I
Bench judgment of this Court in BSES Rajdhani Power Ltd. Vs.
Saurashtra Color Tones Pvt. Ltd. AIR 2010 Delhi 14 which have taken
a different view from that taken in earlier judgment in Isha Marbles.
Wheels India v. S. Nirmal Singh & Anr. (Reva Khetrapal, J.)
257
3. The senior counsel for the respondent NDMC has today at the
outset argued that before taking up the writ petition for consideration, the
application of the petitioner under Order I Rule 10, CPC being CM
No.11771/2004 has to be taken up for consideration. The petitioner by
the said application seeks striking off of the name of M/s Kundan
Infrastructures and the substitution of M/s Vanshika Buildtech Ltd. as the
petitioner in the present writ petition. It is stated in the application that
the writ petition was mistakenly filed in the name of M/s Kundan
Infrastructures and in the body of the writ petition, the said M/s Kundan
Infrastructures was mistakenly described as a Company incorporated
under the Indian Companies Act, 1956; it is stated that M/s Kundan
Infrastructures was a Partnership Firm instituted by Partnership Deed
dated 3rd May, 2002; that the name of the partnership was changed to
M/s Vanshika Buildtech and a fresh Partnership Deed dated 17th March,
2004 was executed; that thereafter M/s Vanshika Buildtech Ltd. was got
incorporated on 31st March, 2004 and all the business and assets of the
partnership of M/s Vanshika Buildtech was taken over by the said
Company. The respondent NDMC has not filed any reply to the said
application. However the senior counsel for the respondent NDMC with
reference to the copies of the Partnership Deeds annexed to the application
argued that the said Partnerships Deeds have been fabricated and the
petitioner is none else but the previous owner of the flat and for this
reason only is liable for the electricity dues of the previous owner of the
flat. The senior counsel for the respondent NDMC has also argued that
if the petitioner is not able to make out a title to the flat, it would in any
case be not entitled to maintain the present writ petition and the writ
petition would be liable to be dismissed.
258
A
B
C
D
E
F
G
4. In the absence of any reply of the respondent NDMC to the
application, it is not open to the NDMC to take up such factual pleas
orally and without any basis therefor. I have enquired from the senior
counsel for the respondent NDMC whether NDMC in its counter affidavit H
or in any other pleading has even taken the plea of the identity of the
present owner of the flat and of the earlier owner of the flat being the
same. The answer is in the negative. In the absence of any pleading,
such pleas cannot be permitted to be urged orally.
I
5. Moreover, the Sale Certificate with respect to the flat issued by
the Debt Recovery Tribunal (DRT) pursuant to the auction of the said
Indian Law Reports (Delhi)
ILR (2010) II Delhi
A flat is in the name of M/s Kundan Infrastructures; it was the said M/s
Kundan Infrastructures who had applied to the NDMC for electricity
connection in the said flat and the petitioner in the writ petition has paid
the sum of Rs.8,00,000/- as aforesaid to the respondent NDMC and the
B respondent NDMC cannot convert this writ petition into a proceeding for
the petitioner to establish its title to the flat.
6. The application being CM No.11771/2004 (u/O 1 R-10) is thus
allowed and the name of the petitioner is permitted to be changed from
C M/s Kundan Infrastructures to M/s Vanshika Buildtech Ltd.
7. Coming to the merits of the matter, the case of the petitioner is
that the aforesaid flat was earlier owned by M/s Surya Agro Oils Ltd.;
that in a recovery proceeding filed by State Bank of Travancore against
D the said M/s Surya Agro Oils Ltd. before the Debt Recovery Tribunal,
Delhi, a Recovery Certificate was issued against the said M/s Surya Agro
Oils Ltd.; that in pursuance to the said Recovery Certificate, the said flat
was auctioned and bid therefor made by the petitioner was accepted and
E Certificate of Sale dated 12th August, 2002 issued in favour of the
petitioner and possession of the flat delivered to the petitioner; a
Conveyance Deed is also stated to have been executed in favour of the
petitioner. It is the case of the petitioner that after taking possession of
the flat it found that there was no electricity connection existing therein
F and the electricity meter had also been detached; that upon approaching
the respondent NDMC it was required to submit an application for
electricity connection along with documents including an affidavit in the
prescribed form; that the proforma of the affidavit required to be submitted
G by the petitioner inter alia provided:-
H
I
“The said premises is installed with electricity connection against
K.No._______________NA_______________. We undertake to
pay the dues of electricity against the said existing electricity
connection if found subsequently after the sanction of New /
Additional load in this premises.”
That the petitioner accordingly submitted the affidavit in the
prescribed proforma; that after the petitioner had submitted the aforesaid
affidavit, the respondent NDMC demanded the sums of Rs. 8,26,493/and Rs. 3,55,935/- from the petitioner claiming the same to be due
towards electricity connection in the name of M/s Cooke and Kelvey and
Wheels India v. S. Nirmal Singh & Anr. (Reva Khetrapal, J.)
259
260
M/s Aditya Cables Ltd. respectively earlier provided in the said flat. The A
petitioner contending that in terms of judgment in Isha Marbles it was not
liable to pay the electricity arrears of the earlier owner/occupant of the
flat, filed the present writ petition as aforesaid. The petitioner also claimed
the relief of declaration that the clause aforesaid in the affidavit obtained B
by the respondent NDMC from the petitioner is ultra vires the provisions
of the Indian Electricity Act, 1910, Electricity (Supply) Act, 1948 and the
New Delhi Municipal Council (NDMC) Act, 1994.
A
8. The respondent NDMC in its counter affidavit has inter alia C
stated that it was the duty of the petitioner to before acquiring the
property ascertain the electricity dues, if any therein; that the petitioner
had by submitting the affidavit aforesaid expressly agreed to pay the
arrears and cannot wriggle out of the said commitment; that its demand
D
of electricity arrears from the petitioner is reasonable and in public interest
and is necessary to prevent dishonest consumers transferring the properties
without clearing the dues.
C
9. The counsel for the petitioner has today argued:
(i) that the judgments in Paschimanchal Vidyut (supra) and in
Saurashtra Color Tones (supra) are in the context of the Delhi
Electricity Reforms Act, 2000; however, the said Act is not
applicable to the area of the New Delhi Municipal Committee.
Attention in this regard is invited to Section 1(2) of the Delhi
Electricity Reforms Act, 2000;
E
F
(ii) that there is no provision in the NDMC Act, 1994 or in the
Indian Electricity Act, 1910 or in the Electricity (Supply) Act, G
1948 in force at the relevant time, entitling the respondent NDMC
to recover the electricity dues owed by the earlier owner/occupant
of the property from the new owner thereof;
(iii) that the respondent NDMC in its counter affidavit is seeking H
to justify the recovery only on the basis of the clause aforesaid
in the affidavit obtained from the petitioner but protest in which
regard was lodged immediately upon the respondent NDMC
informing the petitioner of the arrears and the petitioner can thus I
not be held bound by the said affidavit;
(iv) that the respondent NDMC being the sole supplier of electricity
B
D
Indian Law Reports (Delhi)
ILR (2010) II Delhi
in the area, enjoys a position of monopoly and in exercise of
such monopolistic practice had obtained the affidavit in the
prescribed format from the petitioner and which the petitioner
was bound to give and the said affidavit cannot now be used
against the petitioner;
(v) Without prejudice to the aforesaid and in the alternative, it is
argued that the aforesaid arrears are claimed to be for the period
of 1996 to 2001; that the respondent NDMC in any case is not
entitled to recover arrears beyond three years and could at best
have recovered arrears for three years prior to 2002 from the
petitioner and which as per the computations delivered by the
respondent NDMC to the petitioner are of not more than `50,000/
-. It is contended that the respondent NDMC cannot recover
time barred arrears from a subsequent purchaser of the property.
10. The senior counsel for the respondent NDMC has sought to
justify the power of NDMC to recover such electricity arrears from the
E subsequent purchaser of immovable property by referring to Sections
200, 363 & 102 of the NDMC Act, 1994 which are as under:-
F
G
H
“Section 200-Charges for supply of electricity—Subject to
the provisions of any law for the time being in force, charges
shall be leviable for the supply of electricity by the Council at
such rates as may, from time to time, be fixed by the Council.
Section 363-Mode of recovery of certain dues—In any case
not expressly provided for in this Act or any bye-law made
thereunder any sum due to the Council on account of any charge,
costs, expenses, fees, rates or rent or on any other account
under this Act or any such bye-law may be recoverable from
any person from whom such sum is due as an arrear of tax
under this Act.
Provided that no proceedings for the recovery of any sum
under this section shall be commenced after the expiry of three
years from the date on which such sum becomes due.
I
Section 102—Recovery of Tax—(1) If the person liable for the
payment of the tax does not, within thirty days from the service
of the notice of demand, pay the amount due, such sum together
Wheels India v. S. Nirmal Singh & Anr. (Reva Khetrapal, J.)
261
with all costs and the penalty provided for in Section 101 may A
be recovered under a warrant, issued in the form set forth in the
Seventh Schedule, by distress and sale of the movable property
or the attachment and sale of the immovable property of the
defaulter:
B
Provided that the Chairperson shall not recover any sum the
liability for which has been remitted on appeal under the provisions
of this Act.
(2) Every warrant issued under this section shall be signed C
by the Chairperson.”
11. It is argued that dues of electricity are a charge under Section
200; under Section 363 any sum due to the NDMC on account of
charge, is recoverable “from any person” and which would include a D
subsequent purchaser; that under Section 102 the said charge being in
the nature of a tax is recoverable as arrears of land revenue by attachment
and sale of immovable property.
E
12. Attention is also invited to Section 2(15) of the Electricity Act,
2003 containing the definition of a “consumer” and which on enquiry is
informed to be the same as definition of a consumer under the Indian
Electricity Act, 1910. It is argued that under the said definition, the
subsequent owner/occupant of the premises where the electricity F
connection is provided is also covered.
13. It is next contended by the senior counsel for the respondent
NDMC that the petitioner had bound itself in the affidavit aforesaid, as
a condition of supply of electricity to pay the arrears of the earlier owner/ G
occupant and cannot now be permitted to be wriggle out.
14. The counsel for the petitioner in rejoinder has controverted that
electricity charges are a tax. Attention is invited to the proviso to Section
H
363 laying down a limit of three years from the date when the “sums
become due”, for instituting proceedings for recovery thereof to buttress
the argument that dues beyond three years cannot be recovered. The
counsel for the petitioner has also invited attention to the recent dicta
dated 20th August, 2010 of the Supreme Court in CA No.6817/2010 I
titled Haryana State Electricity Board Vs. Hanuman Rice Mills laying
down that electricity arrears do not constitute a charge over the property
262
Indian Law Reports (Delhi)
ILR (2010) II Delhi
A and therefore in general law, a transferee of a premises cannot be made
liable for the dues of the previous owner/occupier and further holding
that only where the statutory rules or terms and conditions of supply
which are statutory in character, authorize the supplier of electricity, to
B demand from the purchaser of a property claiming re-connection or
fresh connection of electricity, the arrears due by the previous owner/
occupier in regard to supply of electricity to such premises, can the
supplier recover the arrears from the purchaser.
C
D
15. The senior counsel for the respondent NDMC has also drawn
attention to the terms and conditions of the auction held by the DRT to
show that the flat aforesaid was put to auction together with all liabilities
and claims attaching to the said flat. It is contended that the electricity
charges are a liability attaching to the flat.
16. I am unable to accept any of the contentions of the senior
counsel for the respondent NDMC. The contention that electricity dues
are a charge on the immovable property to which they pertain has been
E expressly negatived even in Paschimanchal Vidyut; the Supreme Court
therein held that a transferee of the premises or a subsequent occupant
of the premises with whom the electricity supplier has no privity of
contract cannot be asked to pay the dues of his predecessor in title or
possession as the amount payable towards supply of electricity does not
F constitute a “charge” on the premises. For the same reason the attempt
of the senior counsel for the respondent NDMC to, by referring to the
provisions aforesaid of the NDMC Act contend that the electricity charges
are a charge on the property cannot be accepted. The provisions of the
G NDMC Act relied upon by the senior counsel for the respondent NDMC
also do not create a charge with respect to the electricity dues on the
property to which the dues pertain. Section 363 makes the electricity
dues recoverable only from the person from whom the same are due and
H not from the property with respect to which the same are due. Section
102 deals with the recovery of tax and not of electricity charges. The
senior counsel for the respondent NDMC himself did not even attempt
to justify that electricity charges are a tax except for making a bare
submission. In any case even if Section 102 of the NDMC Act were to
I be applicable, the same makes the taxes recoverable from attachment and
sale of immovable property of the defaulter and not from the immovable
property to which the taxes pertain. The defaulter in the present case
Wheels India v. S. Nirmal Singh & Anr. (Reva Khetrapal, J.)
263
264
would be the person in whose name the connection with respect to A
which the dues pertain was and cannot mean the subsequent purchaser
of the property.
17. Insofar as the reference to the definition of “consumer” in the
Indian Electricity Act, 1910 is concerned, the said definition was noticed B
in para 35 of the judgment in Isha Marbles and the said definition was
not held to include the subsequent purchaser of the property.
18. The argument of the senior counsel for the respondent NDMC
of the right of the NDMC on the basis of the clause reproduced above C
in the affidavit obtained by the NDMC from the petitioner also has no
force. The said affidavit was obtained admittedly in consideration of
grant of electricity connection. However the electricity connection did
not come to be granted by the respondent NDMC to the petitioner and D
the petitioner immediately on the earlier dues being intimated to it preferred
this writ petition. Thus the question of the petitioner being bound by the
said affidavit, does not arise. Moreover, it is quite clear that the affidavit
was in the format prescribed by the respondent NDMC itself and thus E
the contention of the petitioner that the affidavit was not given voluntarily
has merit and the petitioner having immediately protested thereagainst
cannot be held to be bound by it. Reference in this regard can be made
to the judgment of the Supreme Court in National Insurance Co. Ltd.
Vs. Boghara Polyfab Pvt. Ltd. MANU/SC/4056/2008 holding that when F
such standard terms and conditions are immediately protested against, no
reliance can be placed thereon.
19. Notwithstanding having disagreed with all the contentions of
G
the respondent NDMC, I am still unable to grant relief to the petitioner.
I do not agree with the contention of the counsel for the petitioner that
the judgment of the Full Bench of this Court in Saurashtra Color Tones
is not applicable, being in relation to the Delhi Electricity Reforms Act,
H
2000, not applicable in the present case.
A
B
C
D
E
F
G
H
20. A close perusal of each of the judgment mentioned above
shows:(a) Though the Supreme Court in Isha Marbles also held that
electricity is public property and law requires such public property
to be protected but held the law, in that case relating to Bihar,
I
I
Indian Law Reports (Delhi)
ILR (2010) II Delhi
to be inadequate to enforce the liability of the previous owner of
the property on the subsequent owner of the property.
(b) A Division Bench of this Court in Mrs. Madhu Garg Vs.
North Delhi Power Ltd. 129 (2006) DLT 213 cited with approval
in Saurashtra Color Tones had occasion to examine the law as
applicable to Delhi. Reference was made to ‘General Conditions
of Supply (of electricity), as applicable in Delhi, clause 2.1(iv)
whereof provides for the applicant for supply of electricity
depositing inter alia outstanding dues against the premises and/
or disconnected connection(s). The judgment refers to the said
Clause being contained in General Conditions of Supply contained
in the Tariff Orders of 1997-98 and 2001-02 also and which was
continued. It was further held that the said General Conditions
of Supply had been framed under Section 21(2) of the Indian
Electricity Act, 1910 as well as Section 49 of the Electricity
(Supply) Act, 1948 and hence is a piece of delegated legislation.
It was further held that in view of the aforesaid conditions of
supply, it was irrelevant whether the subsequent purchaser was
aware of the electricity dues or not.
The Division Bench further held that the binding and statutory
nature of the Conditions of Supply was upheld by the Supreme
Court in Punjab State Electricity Board Vs. Bassi Cold Storage
1994 Supp(2) SCC 124, Bihar State Electricity Board Vs.
Parmeshwar Kumar Agarwala (1996) 4 SCC 686 and in M/s
Hyderabad Vanaspati Ltd. Vs. A.P. State Electricity Board
(1998) 2 SCR 620.
The Division Bench further held that an interpretation of law
which furthers the preservation and protection of public property
ought to be adopted; if arrears of electricity supply to a premises
were to be equated with contractual claim of damages, it would
encourage dishonest consumers to raise some dispute or other in
respect of such arrears and evade the consequences of nonpayment of electricity charges.
The Division Bench held the decision in Isha Marbles to be
distinguishable being in the context of inadequacy of law applicable
in the State of Bihar. It was held that law applicable in Delhi
Wheels India v. S. Nirmal Singh & Anr. (Reva Khetrapal, J.)
265
266
being different inasmuch as there is a statutory condition of A
supply which requires payment of such outstanding dues before
resumption/continuation of electricity supply.
It was also held that clause 2.1(iv) of the General Conditions
of Supply was formulated by DESU (DVB) as far back as in B
1997-98 and thereafter adopted by DERC in 2001-02.
(c) The judgment of the Full Bench in Saurashtra Color Tones
also though referring to the provisions of the Delhi Electricity
Reforms Act, 2000 (not applicable in the present case) also C
referred to the Clause 2.1 (iv) of the General Conditions of
Supply applicable as far back as in 1997-98 and also to the
provisions of the Indian Electricity Act, 1910 and the Electricity
(Supply) Act, 1948. Reference was also made to Section 21(2) D
of the Indian Electricity Act, 1910 empowering the licensee to
regulate its relations with persons who are intended to become
consumers. Reference was also made to Section 49(1) of the
Electricity (Supply) Act, 1948 empowering the licensee to supply E
electricity to the real consumer upon such terms and conditions
as it may be deem fit. It was reiterated that the clause 2.1(iv)
(supra) in the General Conditions of Supply was the same as in
the regime of DVB.
F
It was noticed that the licensee was not required to enter into
a contract with an individual consumer and even in the absence
of individual contract, the terms and conditions of supply would
be applicable to the consumers and the consumers would be
G
bound by the same.
It was held that the licensee in performance of a statutory
duty supplies energy on certain specific terms and conditions
framed in exercise of a statutory power and the terms and H
conditions are statutory in character and cannot be said to be
contractual.
It was further held the Conditions of Supply have sacrosanctity
since Rule 27 of the Indian Electricity Rules, 1956 framed by the
Central Electricity Board (in exercise of powers under Section
37 of the Indian Electricity Act, 1910) read with Annexure VI
I
Indian Law Reports (Delhi)
ILR (2010) II Delhi
A
thereof provided the model Conditions of Supply required to be
adopted by the State Boards and that it was on the basis of the
statutorily prescribed model that energy was being supplied by
the Board to the consumer.
B
It was held that there was no illegality or unconstitutionality
in Clause 2.1(iv) of the General Conditions of Supply aforesaid
and the same was held to have been framed under Section 21 (2)
of the Indian Electricity Act, 1910 and Section 49 of the Electricity
(Supply) Act, 1948.
C
D
E
F
G
H
I
The Full Bench held that the statutory void or in adequacy of
law found by the Supreme Court in Isha Marbles had been
correctedinsofar as the city of Delhi was concerned inasmuch as
there is a statutory Condition of Supply which requires payment
of such outstanding dues before resumption/continuation of
electricity supply.
(d) The Supreme Court in Paschimanchal Vidyut held that if
any statutory rules govern the conditions relating to sanction of
a connection or supply of electricity, the distributor can insist
upon fulfillment of requirement of such rules and regulations—
if the rules are silent, it can stipulate such terms and conditions
as it deems fit and proper to regulate its transactions and dealings.
So long as such rules and regulations or the terms and conditions
are not arbitrary and unreasonable, Courts will not interfere with
them. A stipulation by the distributor that the dues in regard to
the electricity supplied to the premises should be cleared before
electricity supply is restored or a new connection is given to a
premises was held to be not unreasonable or arbitrary.
(e) The same Hon’ble Judge who delivered the judgment in
Paschimanchal Vidyut laying down that even in the absence of
the statutory rules, the distributor was entitled to stipulate such
terms and conditions as it may deem fit, in Hanuman Rice
Mills (supra), restricted the right to recover dues of earlier owner/
occupant only when statutory rules or terms and conditions of
supply existed.
21. Though the judgments in Madhu Garg (supra) and Saurashtra
Wheels India v. S. Nirmal Singh & Anr. (Reva Khetrapal, J.)
267
Color Tones did not relate to the NDMC areas but I find that under
Section 197 of the NDMC Act, the NDMC has all the powers and
obligations of a licensee under the Indian Electricity Act, 1910. Section
199 empowers the NDMC to enter into agreements regarding sale and
price of electricity. Section 200 also empowers the NDMC to levy charges
for electricity at such rates as may be fixed by the NDMC. The Full
Bench in Saurashtra Color Tones has approved the judgment of the
Division Bench of the Bombay High Court in Maharashtra State Electricity
Board Vs. Maharashtra Electricity Regulatory Commission AIR 2003
Bom 398 laying down that the terms and conditions for supply of electricity
go with the costs of electricity and while fixing the tariff for electricity,
the terms and conditions of supply insofar as they add to the costs of
electricity have to be considered. The recovery of dues of the earlier
owner/occupant was thus held to be a part of the tariff.
Indian Law Reports (Delhi)
268
A
B
C
D
22. Since the respondent NDMC neither in its counter affidavit nor
in its arguments has dealt with the aforesaid aspect of the matter, the
occasion did not arise to place before this Court documents to show that
the General Conditions of Supply with Clause 2.1 (iv) as aforesaid apply E
to NDMC area. However, I have no doubt in my mind in this regard. The
very fact that the format of the affidavit demanded by the respondent
NDMC from the petitioner included a clause for payment of dues of
earlier owner/occupant also indicates that the said General Conditions of F
Supply were applicable to respondent NDMC also.
23. The Division Bench and Full Bench of this Court in Madhu
Garg and Saurashtra Color Tones respectively have held that the Conditions
of Supply aforesaid whereunder such arrears are demanded are statutory. G
The said judgments are binding on the undersigned.
24. Resultantly, it is held that the petitioner is liable to pay the dues
of the earlier owner/occupant and the writ petition fails and is dismissed.
The alternative argument of counsel for the petitioner of the said claim H
or bulk of it being barred by time also cannot be accepted. Such recovery
has been held to be in public interest. The limitation would commence
only on demand being raised on subsequent purchaser and from which
date it is within time. As aforesaid, the petitioner instead of Rs. 8,26,493/ I
- and Rs. 3,55,935/- i.e. total Rs. 11,82,428/- has deposited only
Rs.8,00,000/- with therespondent NDMC. The petitioner remains liable to
pay the balance amount of Rs. 3,82,428/-. The petitioner is granted four
ILR (2010) II Delhi
A weeks time to pay the balance amount to the respondent NDMC failing
which the respondent NDMC shall be entitled to disconnect the electricity
connection granted to the petitioner under interim orders in this writ
petition. Though the petitioner has availed the benefit of stay but in view
B of the aforesaid complex legal position and in view of the respondent
NDMC having not taken the stand on which the writ petition has failed,
I refrain from awarding any interest on the stayed amount or costs of
the writ petition to the respondent NDMC.
C
ILR (2011) I DELHI 198
FAO
D
MACHINE TOOLS (INDIA) LTD.
.....APPELLANT
VERSUS
E
THE EMPLOYEES STATE
INSURANCE CORPORATION
F
(MOOL CHAND GARG, J.)
FAO NO. : 322/2001
G
H
I
.....RESPONDENT
DATE OF DECISION: 26.10.2010
Employees State Insurance Act, 1948—Section 45A,
82—Aggrieved appellant, challenged judgment passed
by ESI court, urging appellant though registered as
Establishment under Delhi Shops & Establishment Act,
but is not a shop as not covered by notification
dt.30.09.1988—Therefore—appellant cannot be
assessed under Section 45A of the Act—Also, less
than 20 employees working in Establishment which
was not involved in any manufacturing activity—As
per Respondent, appellant covered within purview of
Act w.e.f. 02.10.1988 and appellant failed to furnish
complete and correct particulars in Form—01, thus
liable to be assessed under Section 48-Held: It is not
Wheels India v. S. Nirmal Singh & Anr. (Reva Khetrapal, J.)
269
that a place where goods are sold is only a shop—A A
place where services are sold on retail basis is also
a shop—When services are being sold, it becomes a
commercial activity—Since the Act is intended for
social benefit of the workers, it has to be given an B
extended meaning—Petitioners are not providing
anything for free—Petitioner also admitted the strength
of their employees on a particular day as 65, thus they
are covered under the Act.
C
There is no dispute that the appellants are also rendering
service and activities carried out from their premises and
are registered under the Shop & Establishment Act. The
appellants act as commission agents and gets commission D
on machinery manufactured by foreign or Indian companies.
Since the appellants despite service of notice failed to
supply the necessary particulars, they were rightly issued a
show cause notice under Section 45A of the Act where
again they were given an opportunity to clarify their position. E
(Para 16)
Moreover, as regard the submissions made by the appellants
that their establishment was not covered even if they were F
to be considered as a ‘shop’ as they were not employing
requisite number of employees, the answer lied in the
judgment reported in M/s Hindu Jea Band Jaipur Vs.
Regional Director, Employees’ State Insurance
Coporation, Jaipur, AIR 1987 SC 1166, referred to by the G
appellants, which was dealt with by the ESI Court in the
impugned judgment. The relevant observations are as under
:
H
“27. In an authority reported as M/s Hindu Jea Band
Jaipur Vs. Regional Director, Employees’ State
Insurance Coporation, Jaipur, AIR1987 SC 1166, it
was observed:I
“It is not that a place where goods are sold is only a
shop. A place where services are sold on retail basis
Indian Law Reports (Delhi)
270
A
is also a shop. The place of business of a firm
carrying on the business of playing music on occasion,
such as marriages and other social functions which
made available on payment of the stipulated price the
services of the members of the group of musicians
employed by it on wages is a shop to which the Act
is applicable by virtue of the notification, the fact that
the services are rendered by the employees engaged
by the firm intermittently or during marriages does not
entitle the firm to claim any exemption from the
operation of the Act. The firm cannot rely on sub-s.(4)
of S.1 of the Act which refers to factories only in
support of its case. Moreover, the services of the
employees of the firm are not confined only to
marriages. It cannot also be said that marriages take
place only during a specified part of the year.
Nowadays marriages take place throughout the year.”
(Para 20)
B
C
D
E
F
ILR (2010) II Delhi
Important Issue Involved: It is not a place where goods
are sold is only a shop—A place where services are sold on
retail basis is also a shop—When services are being sold, it
becomes a commercial activity. Since the Act is intended
for social benefit of the workers, it has to be given an
extended meaning.
G
[Sh Ka]
APPEARANCES:
FOR THE APPELLANT
:
Mr. Kailash Vasdev, Sr. Advocate
With Mr. Siddharth Dias, Advocate
FOR THE RESPONDENT
:
Mr. Wadhwa, Sr. Advocate with Mr.
Saurabh Dhawan, Advocate.
H
I
CASES REFERRED TO:
1.
M/s. Cochin Shipping Company vs. ESIC, 1993 (II) LLJ795
(SC).
Wheels India v. S. Nirmal Singh & Anr. (Reva Khetrapal, J.)
2.
271
M/s Hindu Jea Band Jaipur vs. Regional Director, A
Employees’ State Insurance Coporation, Jaipur, AIR1987
SC 1166.
RESULT: Appeal dismissed.
MOOL CHAND GARG, J.
B
1. This appeal has been filed under Section 82 of the Employees
State Insurance Act, 1948 (hereinafter referred to as “the Act”) against
the judgment dated 7.4.2001 passed by the ESI court, Delhi in ESI Case C
No.15/90, whereby the learned ESI court has dismissed the petition filed
by the appellant under Section 75 of the Act.
2. Briefly stating, the facts of this case are that the appellant, a
Limited company, filed a petition before the ESI court through its Director D
and authorized representative Sh. K.J. Gandhi on the allegations that the
appellant is registered as an ‘establishment’ under the Delhi Shops and
Establishment Act and is providing professional services as their Engineers
visit their clients. factories and establishments to advise and guide them E
about the machine tools, inspection equipments and other engineering
equipments which the clients should acquire for the use of manufacturing
the goods in their factories/establishments.
3. The respondents alleged that an Inspector of the respondent- F
corporation visited the appellant-company in the month of October, 1988
and collected some information about the appellant-company and then
sent a letter dated 12.11.1988 informing the appellants that on the basis
of the inspection conducted by the Inspector on 6.10.1988 the
G
establishment of the appellant-company was covered under the Act by
virtue of the Notification dated 30.09.1988 which gives effect to the
coverage of the ‘shops’ also. The appellants were called upon to furnish
complete and correct particulars in Form-01 within 15 days from the
H
date of issue of the impugned order.
4. It is the case of the appellants that their representative visited the
office of the respondent and explained their case that the appellant was
not a shop and as such, it was not covered by the said notification.
Thereafter, the respondent called upon the appellants to show cause as
to why the assessment of the establishment of the appellants should not
be made under Section 45A of the Act for the period from 2.10.1988 to
Indian Law Reports (Delhi)
272
I
ILR (2010) II Delhi
A 30.9.1988. It was submitted that explanation was furnished by the
appellants to the respondent stating that they were not covered under the
Act and that invocation of Section 45A of the Act was unwarranted. It
was also submitted that there were less than 20 employees and that the
B establishment of the appellant was not involved in any manufacturing
activity.
5. However, the pleas taken by the appellants were not accepted by
the respondent. They contested the matter.
C
D
6. The ESI court framed the following issues on the pleadings of
the parties:“(i) Whether the demand raised by the respondent vide letter
dated 8.3.90 is illegal and requires to be quashed as alleged by
the petitioner in his petition? OPP
(ii) Relief.”
7. The ESI court also framed the following additional issue on
E 30.4.1998:-
F
“Whether the factory in suit is coverable under the ESI Scheme
and whether Sec.45-A of ESI Act could be invoked without the
coverage of the factory?”
8. Another additional issue was also framed on 03.01.2001 to the
following effect:-
G
“Whether the employees getting salary beyond the limit of `1600/
- per month have been counted for the ˇpurpose of coverage of
the petitioner under the ESI Act?”
9. Thereafter, the parties led their evidence. The appellants examined
PW-1 Sh.Subhash Gupta, who is an account officer, and PW-2
H Sh.R.K.Gupta, Manager (Finance). On the other hand, respondents have
examined RW-1 Sh.Raj Kanwal, Deputy Director, & one Inspector who
conducted the inspection. The ESI Court however had not agreed with
the appellant and dismissed their petition under Section 75 of the Act.
I
10. On the question as to whether the establishment of the appellant
was not covered under the Act, relying upon the Notification dated
30.09.1988 the Court held that the establishment of the appellants was
Rs.5.00 lakhs
Wheels India v. S. Nirmal Singh & Anr. (Reva Khetrapal, J.)
273
covered within the definition of the „shop.. With respect to the objections
raised that the appellants was not doing manufacturing activities and the
employees who were employed by the employer were less than 20, the
ESI court has observed that the appellant company did not fill up Form
01 given to them for supplying necessary particulars and in such a
situation when a factory/establishment is not filing the return in the light
of the Act, invocation of Section 45A of the Act was fully justified.
Consequently, the learned ESI court held that once the respondent has
proved that the appellants are employing requisite number of workers,
which fact was also admitted by a witness of the appellants, who admitted
that on a particular day the employees strength in the establishment of
the appellants was 65 employees, claim of the appellants that they were
exempted from the operation of the Act is not sustainable. Consequently,
the claim petition filed by the appellants was dismissed as without any
merit.
274
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ILR (2010) II Delhi
A
claimed by the respondent.
B
B
(iii) The learned Judge has failed to appreciate that that the
activities of the Appellant constituted activities where the services
rendered and the machinery/equipments imported were never
brought to the premises of the Appellant and/or delivered there.
The services rendered by the petitioner company did not constitute
activities which would come under the definition of Shop.
C
C
(iv) It has been submitted that in their reply it was specifically
stated by them that:-
D
D
11. Before this Court, the learned counsel appearing for the appellants
has assailed the impugned order by making submissions that the ESI
E
Court has failed to appreciate that:-
E
(i) The Employee's State Insurance Act will apply to an
Establishment when the Establishment as a fact employs 20 or
more personnel drawing a salary of Rs ,600/- per month (as
applicable at the relevant time). In the absence of such a F
determination, the provisions of the Act cannot be unilaterally
extended to an Establishment. In this regard, it has been submitted
that the ESI court failed to appreciate that it was a specific stand
taken by the appellants that there were less than 20 number of G
employees and therefore, the employees of the appellant come
within the definition of the ‘employees’ as stated under Section
2(9) of the Act. It has also been submitted that the question as
to how many employees working under the appellant should H
have been considered at the relevant time i.e. when the inspection
took place and notice was sent by the respondent i.e. between
1988 to 1990.
(ii) Merely because no reply was filed on behalf of the appellant
to the queries made by the respondent, no presumption can be
raised that more than 20 employees were working and therefore,
the appellants were covered under the provisions of the Act as
Indian Law Reports (Delhi)
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F
G
H
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“We rendered requisite assistance to our client in procuring
the equipment as required by them from the manufacturers
in India as well as from the overseas country. That after
the machine tools and other equipments are received by
our clients in their factories and establishments from the
manufacturers, our engineers, technical personnel, visit
them to advise them on the installation of such machine
tools and other equipments, their operation, maintenance,
training of their operations etc., all such type of services
are rendered at their premises i.e. in their Factories and
Establishments.”
(v) It has also been submitted by them that the action of the
respondent corporation was against the principles of natural justice
for the following reasons:a. No report was prepared in the presence of the appellants.
Further, no copy of the said report was ever served upon
the petitioner company.
b. there was no compliance of notice under Section 44(2)
by the respondent corporation and they straightaway
proceeded with the determination of contribution under
Section 45-A without giving a hearing to the petitioner
company.
c. There is no compliance on the part of the respondent
corporation of Regulation 10B (c) & (d) before proceeding
under Section 45A of the ESI Act. (vi) It has also been
submitted that the entire proceedings conducted by the
Wheels India v. S. Nirmal Singh & Anr. (Reva Khetrapal, J.)
275
276
Indian Law Reports (Delhi)
ILR (2010) II Delhi
respondents were based on assumptions in the absence of A
any evidence to show that the premises of the appellant
were used for the business of the Shop.
A of the ESI Act goes to show that even a shop has been covered under
the Act, which in fact extends the scope of the applicability of the Act
to all such establishments.
(vii) It has also been submitted that the respondents did not
cross-examine the witnesses of the petitioner with regard to the B
number of eligible employees for purposes of coverability under
the Act.
16. There is no dispute that the appellants are also rendering service
B and activities carried out from their premises and are registered under the
Shop & Establishment Act. The appellants act as commission agents and
gets commission on machinery manufactured by foreign or Indian
companies. Since the appellants despite service of notice failed to supply
C the necessary particulars, they were rightly issued a show cause notice
under Section 45A of the Act where again they were given an opportunity
to clarify their position.
12. On the other hand, the learned counsel appearing for respondent
submitted that in view of the Notification dated 30.09.1988 the ‘shops’ C
covered even the establishment of the appellants company and thus, they
were covered within the purview of Section 1(5) of the Act w.e.f.
2.10.1988. Relying upon the judgment delivered in the case of M/s Hindu
Jea Band Jaipur Vs. Regional Director, Employees’ State Insurance D
Coporation, Jaipur, AIR1987 SC 1166 pleaded that branches of appellant
also covered under the notification.
13. It was also submitted that the appellants were thereafter called
upon to furnish a complete and correct particulars in Form 01 within 15 E
days of the date of issue of the impugned order. However, they failed
to supply the necessary particulars and therefore, it became necessary
for the respondent to assess the appellants under Section 45A of the Act
for the period in question and for which they propose to assess the F
appellants at ` 49,630.25p on ad hoc basis despite affording an opportunity
of personal hearing, which was fixed on 12.03.1990 at 2 pm. The appellants
though sent their representative but did not file a reply to the show cause
notice for which they took time and finally made a representation. It is
G
also submitted that their establishment was not a ‘shop’ and that they
were not liable to coverage under Section 1(5) of the Act or that no
assessment order could have been passed against the appellants under
Section 45A of the Act on ad hoc basis, is not sustainable.
H
14. It was further submitted that in view of non-submission of
Form 01 by the appellants their claim that they were employing less 20
number of employees was also not sustainable.
15. I have heard the submissions made on behalf of the parties and
have perused the order passed by the ESI Court. A bare reading of the
Notification dated 30.09.1988 read with Section 2(9) and Section 2(27)
I
17. I may also take note of Section 45A of the Act, which reads
D as under:“45A. Determination of contributions in certain cases
E
F
G
(1) Where in respect of a factory or establishment no returns,
particulars, registers or records are submitted, furnished or
maintained in accordance with the provisions of section 44 or
any Inspector or other official of the Corporation referred to in
sub-section (2) of section 45 is prevented in any manner by the
principal or immediate employer or any other person, in exercising
his functions or discharging his duties under section 45, the
Corporation may, on the basis of information available to it, by
order, determine the amount of contributions payable in respect
of the employees of that factory or establishment :
PROVIDED that no such order shall be passed by the Corporation
unless the principal or immediate employer or the person in
charge of the factory or establishment has been given a reasonable
opportunity of being heard.
H
I
(2) An order made by the Corporation under sub-section (1)
shall be sufficient proof of the claim of the Corporation under
section 75 or for recovery of the amount determined by such
order as an arrear of land revenue under section 45B or the
recovery under section 45C to section 45-I .”
18. It is apparent from the record that the appellants have not filed
a return as was required to have been filed under Section 45A of the Act.
Wheels India v. S. Nirmal Singh & Anr. (Reva Khetrapal, J.)
277
278
They have not done so despite receiving a notice from the respondent to A
do so.
19. Before the court, the respondents have proved on record the
survey report Ex.RW1/1, which was signed by PW-2 Sh. R.K. Gupta
even though he denied having signed the same. RW-1 Raj Kanwal has B
deposed in his cross-examination that it was Sh.R.K.Gupta who signed
the same. It was not in dispute that Form 01 was supplied to PW-2
Sh.R.K.Gupta which has not been filled up and filed. The ESI Court has
rightly observed that:C
“There is no reason to disbelieve his testimony. Form 01 is
supplied as per Regulation 10-B of the Employees State Insurance
(General) Regulations, 1950 which contains necessary information
about the employees employed by the employer. The petitionercompany did not fill up the form 01 nor the same was supplied
to the respondent. In such a situation, when the petitioner-company
was inspected by the Inspectors of the respondent, they were
given the Form 01 and as per the record of the petitioner, they
were shown to be employing the requisite number of employees,
it was obligatory on the petitioner-company to file their return or
to produce their record before the respondents but there is nothing
in the evidence of PW-1 Sh. Subhash Chand Gupta and PW-2
Sh.R.K.Gupta that they had pursued the matter to a logical end
with the respondents excepting visiting the office of the
respondents and thereafter leaving the matter to them as the
respondents had assured them to take appropriate action. In
such a situation, when a factory or establishment is not filing
return, in the light of above legal and factual discussion, the
invocation of section 45-A of the Act is fully justified.”
C
D
E
E
F
F
G
G
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ILR (2010) II Delhi
A as a ‘shop’ as they were not employing requisite number of employees,
the answer lied in the judgment reported in M/s Hindu Jea Band Jaipur
Vs. Regional Director, Employees’ State Insuranceˇ Coporation,
Jaipur, AIR 1987 SC 1166, referred to by the appellants, which was
B dealt with by the ESI Court in the impugned judgment. The relevant
observations are as under :
D
20. Moreover, as regard the submissions made by the appellants
that their establishment was not covered even if they were to be considered H
Indian Law Reports (Delhi)
H
I
“27. In an authority reported as M/s Hindu Jea Band Jaipur
Vs. Regional Director, Employees’ State Insurance
Coporation, Jaipur, AIR1987 SC 1166, it was observed:“It is not that a place where goods are sold is only
a shop. A place where services are sold on retail basis is
also a shop. The place of business of a firm carrying on
the business of playing music on occasion, such as
marriages and other social functions which made available
on payment of the stipulated price the services of the
members of the group of musicians employed by it on
wages is a shop to which the Act is applicable by virtue
of the notification, the fact that the services are rendered
by the employees engaged by the firm intermittently or
during marriages does not entitle the firm to claim any
exemption from the operation of the Act. The firm cannot
rely on sub-s.(4) of S.1 of the Act which refers to factories
only in support of its case. Moreover, the services of the
employees of the firm are not confined only to marriages.
It cannot also be said that marriages take place only during
a specified part of the year. Nowadays marriages take
place throughout the year.”
28. It is the admitted case of the petition that they are providing
services. When services are being sold, it becomes a commercial
activity. Since the Act is intended for social welfare of the
workers, it has to be given an extended meaning. The petitioners
are not providing anything for free as is conceded by PW-1 in
his cross-examination that the advice is given free. This is not
the case of the petitioner.
21. Similar proposition has been laid in the case of M/s.Cochin
Shipping Company Vs. ESIC, 1993 (II) LLJ795 (SC).
Coca-Cola Co. v. Bisleri International Pvt. Ltd.(Manmohan Singh, J.) 279
280
22. In this case, it is not in dispute that the appellants were supplied A
with Form 01, they were also given a show cause notice dated 12.11.1988
and again an opportunity of hearing but they have not supplied the
necessary information. However, their own witness, namely, PW-1
Sh.Subhash Gupta has admitted that strength of their employees on a B
particular date was 65, which clearly takes the establishment of the
appellant within the meaning of ‘an establishment employing more than
20 employees’ on a particular day and thus, covers the appellants under
the Act. There is no reason to interfere with the order of the ESI Court
in this appeal. Accordingly, the appeal is dismissed with no order as to C
costs. Trial court record, if any, be sent back forthwith.
A
D
D
E
E
F
F
G
G
B
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ILR (2011) I DELHI 209
WRIT PETITION (CIVIL)
M/S. GENESIS PRINTERS
....PETITIONER
VERSUS
SHRI RATI RAM JATAV
PRESIDING OFFICERS & ORS.
....RESPONDENTS
(VALMIKI J. MEHTA, J.)
W.P. (CIVIL) NO. : 61/1997
(A)
DATE OF DECISION: 27.10.2010
Constitution of India, 1950—Article 226 and 227—Code
of Civil Procedure, 1908—Order IX Rule 13—Industrial H
Disputes Act, 1947—Section 11—Labour Court by ex
parte award directed reinstatement of workman with
back wages and dismissed application of petitioner
for setting aside exparte award—Orders challenged in
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HC—Plea taken, counsel without any reason stopped
appearing in the case—Held—Ex parte award can be
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Indian Law Reports (Delhi)
ILR (2010) II Delhi
set aside on account of giving valid reasons for non
appearance—A client can not be made to suffer for
fault of his advocate—This can not be a general rule
and facts of each case have to be seen—There is no
grave prejudice in setting aside ex parte proceedings
as at best on setting aside exparte proceedings case
will be decided considering respective merits—
Impugned order set aside.
In my opinion, the Labour Court has clearly fallen into an error
in dismissing the application of the petitioner under Section 9
Rule 13 read with Section 11 of the Industrial Disputes Act
inasmuch as a client cannot be made to suffer for the fault of
his advocate. This is the position right from the decision of the
Supreme Court in the case of Rafiq Vs. Munshi Lal AIR 1981
SC 1400 in which it was laid down that a party should not suffer
for the inaction, deliberate omission or mis-demeanour of his
lawyer. No doubt, this cannot be a general rule, and, facts of
each case have to be seen, however, I am of the firm belief in
the facts of the present case that considering that only an amount
of only Rs.2,400/- was liable to be paid in compliance of Section
25-F there was no reason for the management not to contest the
case. Further, the status of the petitioner, at the relevant point
of time when the workman was employed was a partnership
firm and which was subsequently dissolved whereby one of the
partner who is the present sole proprietor ship concern took
over the business of the partnership firm. It is possible that on
account of this reason there may have been miscommunication
or lack of communication with the counsel or that the counsel
otherwise failed to appear inasmuch as it was the other partner
who was in touch with the Advocate, however, it cannot be said
that there is a deliberate and conscious negligence of the petitioner
to contest the proceedings so as to deny the relief of setting
aside the ex parte proceedings. At best on setting aside ex parte
proceedings the case will be decided considering the respective
merits. There is therefore no grave prejudice in setting aside ex
parte proceedings.
I, therefore, set aside the impugned order dated 18.12.1996 by
Coca-Cola Co. v. Bisleri International Pvt. Ltd.(Manmohan Singh, J.) 281
282
which the application under Order 9 Rule 13 read with Rule 11 A
of the Industrial Disputes Act was dismissed.
(Para 4)
(B)
Industrial Disputes Act, 1947—Section 2(oo) and 25
F—Services of workman were terminated vide
termination letter service of which is not disputed—
Plea of workman that action of requiring workman to
come and collect dues instead of sending amount due
alongwith letter is illegal—Per contra. plea of petitioner
is that this technical defect is not such that any huge
benefit would have accrued as to employer if provision
of payment of dues was to have been complied with—
Held—It is discretion of courts as to whether facts of
case justify reinstatement or compensation would be
adequate relief—Reinstatement is not automatic and
facts of each case have to be seen to whether
reinstatement should be granted or compensation is
adequate remedy—Various factors such as industry in
question, financial capacity of employer, peculiar
circumstances of each case, nature and period of
employment have to be seen—Employment of workman
was towards working on printing machine which was
sold—Plea of workman that there is no inherent right
to retrenchment and valid reasons must be given for
retrenchment rejected—Only requirement for
retrenchment is it must be of type falling under Section
2 (oo) and letter must be accompanied by amount
which would be 15 days pay for each year of service
and a 30 days notice pay—There is indeed retrenchment
but there is a technical violation in that instead of
sending amount alongwith termination letter, workman
was asked to collect amount—Employment is not of a
very large number of years—Award set aside in that it
directs reinstatement—Instead of reinstatement,
workman should receive a sum of Rs. 1 lac as
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ILR (2010) II Delhi
compensation for illegal retrenchment.
Let us therefore examine the facts of the present case to
decide whether reinstatement ought to be granted or
compensation is enough. Firstly, the fact of the matter is
that the employment letter specifically states that the workman
was wanting to be employed for working of the Mercedes
Super Machine pertaining to printing. I have already held
above, that it cannot be said that this letter has been
obtained by any coercion or undue influence. The employment
of the workman was therefore specifically towards the working
of the Mercedes Super Machine used in the printing business.
This printing machine was thereafter sold by the employer
on account of change in the technology of printing and also
because of rapid decline of the work of the company and
due to financial problems faced by the management. These
aspects as stated in the notice dated 9.5.1988 have not
been replied as denied to as per the records in the present
case. On behalf of the respondent, it was sought to be
contended that there is no inherent right of retrenchment
and there must be given valid reasons for retrenchment. I
do not agree. The only requirement of Section 2(oo) and
Section 25 is that the retrenchment must be of the type
falling under Section 2(oo) and in accordance with Section
25F i.e., retrenchment letter must be accompanied by the
amount which would be 15 days pay for each year of service
and a 30 days notice pay and the retrenchment must be of
the type which is mentioned under Section 2(oo). The facts
of the present case show that there is indeed a retrenchment
in terms of the Section 2(oo) but there is a technical
violation in that instead of sending the amount along with
the termination letter, the workman was asked to collect the
amount. As already stated, it is not as if the amount was
very huge and the employer would have derived great
benefit in not sending the amount of Rs.2,400/-. Another
aspect which emerges in the facts of the present case is
that the employment is not of a very large number of years
that the reinstatement should automatically follow. The
Coca-Cola Co. v. Bisleri International Pvt. Ltd.(Manmohan Singh, J.) 283
employment was for a period of just about 3 years and that
too, which came to an end way back in the year 1988. I am
also guided by the fact that though the total compensation
payable under Section 25-F would have been Rs. 2,400/the respondent-2/workman has in fact till date pursuant to
the an order under Section 17-B received a sum of about
Rs.2,01,702/-from 1.5.1997 at a monthly amount of Rs.960/
- per month. In the ultimate analysis, in my opinion, the
impugned Award deserves to be set aside in that it directs
reinstatement. In the opinion of this court, the facts and
circumstances of the case as set out above are such that
compensation would be an adequate relief and remedy to
the workman. Taking a sum of Rs.2,400/- in the year 1988
and giving a reasonable rate of return considering that the
amount would stand doubled in about roughly 7 to 10 years,
the sum of Rs.2,400/-, even as on date from 1988 would at
the very best be an amount of about Rs.40,000/-. On the
other hand, the workman has already received amount in
excess of Rs.2 lacs.
Therefore, in the facts and
circumstances of the case, I find that instead of reinstatement,
the workman should receive a sum of Rs.1 lac as
compensation for illegal retrenchment in violation of Section
25-F.
(Para 11)
(C)
284
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Industrial Disputes Act, 1947—Section 17B—Payment
under Section 17B can not be treated as subsistence
allowance, if workman is having other sources of G
income—Workman directed to file affidavit alongwith
copies of his bank accounts that he had no other
source(s) of income during period he received payment
pursuant to order under section 17B so that there is H
no need of any recovery from him.
The object of the ratio of the judgment of the Supreme
Court in the case of Dena Bank (supra) that the workman
should not be asked to refund any amount received under
Section 17B was because the workman is not a rich person
who has various sources of income and his only source of
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income is the payment that he would be receiving under
Section 17B. It is for this purpose, the payment under
Section 17B has therefore being categorized “subsistence
allowance” by the Supreme Court in Dena Bank’s case.
Surely, the payment under Section 17B cannot be treated
as a subsistence allowance, if the workman is having other
sources of income. Accordingly, in the opinion of this court
in case, the workman during this period after passing of the
order under Section 17B from 1.5.1997 is not having any
other source of income except the payment which is received
under Section 17B, then the workman will not be bound to
refund the amount in excess of Rs.1 lac which has been
decided by this court as compensation for illegal termination,
however, in case during the said period if the workman has
other additional source(s) of income including from other
employment, then, the workman is bound to refund to the
petitioner the amount in excess of Rs.1 lac. I may note that
in compliance of the order under Section 17B, the petitioner
has been making payments by cheque to the respondent
and this amount of cheque is being regularly credited every
month in the bank account of the workman/respondent no.2.
The respondent/workman is therefore directed within a period
of four weeks from the passing of this order to file an
affidavit along with copies of his bank accounts that he had
no other source(s) of income during the period he received
payment pursuant to an order under Section 17B so that
there is no need of any recovery from him.
With the aforesaid orders, the present petition is disposed
of by setting aside the impugned Award dated 24.2.1996
and it is directed that compensation as stated above would
be appropriate relief to workman instead of reinstatement.
Parties are left to bear their own costs.
(Para 13)
Important Issue Involved: (A) An ex parte award can be
set aside on account of giving valid reasons for non
appearance. A client can not be made to suffer for the fault
of his advocate. No doubt, this can not be a general rule,
Coca-Cola Co. v. Bisleri International Pvt. Ltd.(Manmohan Singh, J.) 285
A
and, facts of each case have to be seen.
(B) Reinstatement is not automatic and facts of each case
have to be seen as to whether reinstatement should be
granted or compensation is an adequate remedy. Various
factors such as the industry in question, financial capacity
of the employer, peculiar circumstances of each case, the
nature and period of employment and so on have to be
seen.
(C) Payment under Section 17 B can not be treated as a
subsistence allowance, if the workman is having other
sources of income.
B
:
Mr. Sandeep Prabhakar, Ms. Prerna
Mehta and Mr. Amit Kumar,
Advocates.
FOR THE RESPONDENTS
:
Mr. Vinay Sabharwal, Advocate.
6.
Anil Sood vs. Presiding Officer, Labour Court II (2001)
10 SCC 534.
7.
Dena Bank vs. Kirtikumar T.Patel (1999) 2 SCC 106.
8.
Rafiq vs. Munshi Lal AIR 1981 SC 1400.
B
VALMIKI J. MEHTA, J (ORAL)
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FOR THE PETITIONER
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ILR (2010) II Delhi
RESULT: Allowed.
[Ar Bh]
APPEARANCES:
Indian Law Reports (Delhi)
286
F
CASES REFERRED TO:
1.
Senior Superintendent Telegraph (Traffic) Bhopal vs.
Santosh Kumar Seal & Ors. (Civil Appeal No. 3815 of G
2010) decided on April 26,2010.
2.
Harjinder Singh vs. Punjab State Warehousing Corporation
MANU/SC/0060/2010.
3.
Incharge Officer and Anr. vs. Shankar Shetty 2010 (8)
Scale 583.
4.
Jagbir Singh vs. Haryana State Agriculture Marketing
Board and Anr. MANU/SC/1213/2009.
5.
U.P. State Brassware Corporation Ltd. vs. Uday Narain
Pandey MANU/SC/2321/2005: (2006)ILLJ496SC.
1. By means of the present petition under Articles 226 and 227 of
the Constitution of India the petitioner/employer/sole-proprietorship concern
challenges the ex parte Award dated 24.2.1996 passed by the Labour
Court directing the reinstatement of the workman with back wages, and
also the order dated 18.12.1996 dismissing the application moved under
D Order 9 Rule 13 CPC read with Section 11 of the Industrial Disputes
Act, 1947 for setting aside the ex parte Award. The issue with regard
to the merits of the Award can only be examined if the order dated
18.12.1996 dismissing the application under Order 9 Rule 13 CPC ˇis
E set aside. This is for the reason that the documents which have been filed
in this court on behalf of the petitioner were not before the Labour Court
when the impugned Award came to be passed. This court will therefore
first have to see the validity of the order dated 18.12.1996 dismissing the
application under Order 9 Rule 13 CPC read with Section 11 of the
F
Industrial Disputes Act.
C
2. That an ex parte Award can be set aside on account of giving
valid reasons for non-appearance is no longer res integra inasmuch as it
has been held by the Supreme Court in the case of Anil Sood Vs.
G
Presiding Officer, Labour Court II (2001) 10 SCC 534 that such an
application is indeed maintainable and it cannot be said that the Labour
Court has no jurisdiction to set aside the ex parte Award.
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3. The reason pleaded by the petitioner for setting aside the ex parte
Award was that its counsel without any reason stopped appearing in the
case, although, for a few dates he appeared. It is contended that there
was no reason for the management not to contest the present case
because not only the notice dated 9.5.1988 specifically asked the workmen
to come and collect the dues under Section 25-F but also because the
dues under Section 25-F were only a sum of Rs.1440+960 i.e., a total
sum of Rs.2,400/-, being the amount calculated as per 15 days pay for
Coca-Cola Co. v. Bisleri International Pvt. Ltd.(Manmohan Singh, J.) 287
each year of service and also a notice pay of 30 days.
4. In my opinion, the Labour Court has clearly fallen into an error
in dismissing the application of the petitioner under Section 9 Rule 13
read with Section 11 of the Industrial Disputes Act inasmuch as a client
cannot be made to suffer for the fault of his advocate. This is the
position right from the decision of the Supreme Court in the case of
Rafiq Vs.Munshi Lal AIR 1981 SC 1400 in which it was laid down that
a party should not suffer for the inaction, deliberate omission or misdemeanour of his lawyer. No doubt, this cannot be a general rule, and,
facts of each case have to be seen, however, I am of the firm belief in
the facts of the present case that considering that only an amount of only
Rs.2,400/- was liable to be paid in compliance of Section 25-F there was
no reason for the management not to contest the case. Further, the status
of the petitioner, at the relevant point of time when the workman was
employed was a partnership firm and which was subsequently dissolved
whereby one of the partner who is the present sole proprietor ship
concern took over the business of the partnership firm. It is possible that
on account of this reason there may have been miscommunication or
lack of communication with the counsel or that the counsel otherwise
failed to appear inasmuch as it was the other partner who was in touch
with the Advocate, however, it cannot be said that there is a deliberate
and conscious negligence of the petitioner to contest the proceedings so
as to deny the relief of setting aside the ex parte proceedings. At best on
setting aside ex parte proceedings the case will be decided considering
the respective merits. There is therefore no grave prejudice in setting
aside ex parte proceedings.
288
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5. The question then is what follows. Once an application under H
Order 9 Rule 13 CPC is to be allowed, then, normally a case, should
thereafter be remanded back to the original forum for decision in
accordance with law. My initial reaction was to remand the matter back
to the Labour Court for a decision in accordance with law, but, considering I
that the retrenchment in question is of the year 1988 i.e. 22 years back,
and the impugned Award is dated 24.2.1996-fourteen years old, I find
that the present is a fit case for exercising my jurisdiction under Articles
ILR (2010) II Delhi
A 226 and 227 of the Constitution of India to decide the main case itself.
I, therefore, proceed to decide the main case inasmuch as the petition as
filed in this court is supported by documents and reply thereto has also
been filed by the workman. Certain admitted position emerges from the
B records and the documents filed, which enables this court to itself decide
the case on merits considering the long pendency of litigation.
C
I, therefore, set aside the impugned order dated 18.12.1996 by
which the application under Order 9 Rule 13 read with Rule 11 of the
Industrial Disputes Act was dismissed.
Indian Law Reports (Delhi)
6. The facts of the case are that the workman was employed for
the purpose of running of a Mercedes Super Machine relating to printing.
The employment letter is dated 6.6.1985 (a holograph) and which
specifically makes reference to the fact of the prayer for the employment
of the workman for running the Mercedes Super Machine. ˇThe counsel
for the respondent states that the appointment letter does not reflect this
position but he has not been able to show any such appointment letter.
In the counter-affidavit filed in this court, the workman has not disputed
the writing of this letter, however, it is stated that the letter was written
at the dictates of the management. The workman therefore contends that
this letter was written under undue influence and coercion. In the opinion
of this court, if there was undue influence or coercion, then, surely either
the workman would have preferred not to take up the employment or
may have complained to any appropriate authority, including the Labour
Commissioner, as to the unfair means adopted for the purpose of granting
of an employment at any time after employment, but this admittedly is
not the position. Therefore, it does not stand to reason that the workman
would have written this letter under any coercion or undue influence as
claimed. The facts of the case and the conduct of the workman belie this
stand which is taken up in the counter-affidavit.
7. The workman who was employed on 6.6.1985, his services
were terminated vide the termination letter dated 9.5.1988. The fact that
this letter was received by the workman is not disputed. What is contended
H on behalf of the workman is that such an action of requiring the workman
to come and collect the dues instead of sending the amount due along
with the letter is illegal. On behalf of the petitioner, it is not seriously
disputed that the amount in question namely the sum of Rs.2,400/- ought
to have been sent with the termination letter dated 9.5.1988, but, it is
I pleaded that this technical error is not such that any huge benefit would
have accrued to the employer at the relevant point of time because as
stated above only a sum of Rs.2,400/- was payable if the provision of
Coca-Cola Co. v. Bisleri International Pvt. Ltd.(Manmohan Singh, J.) 289
Section 25-F was to have been complied with.
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8. There is no dispute as to the legal proposition that it is the
discretion of the courts as to whether the facts of the case justify a
reinstatement or that compensation would be an adequate relief. It is
however contended by the learned counsel for the respondent that this B
court should not exercise its discretion under Section 226 and 227 of the
Constitution of India because the Labour Court has allowed reinstatement
and it cannot be said that exercise of discretion is illegal. It is also
contended that the facts with regard to whether reinstatement should be C
granted or compensation should be paid was a matter to be decided by
the Labour Court.
I am of the opinion that since this court has been persuaded to
decide the main case itself in the peculiar facts and circumstances of this D
case, it is this court which would decide the issue of whether reinstatement
is the appropriate remedy or compensation would be justified in the facts
and circumstances of the present case because the Labour Court had no
occasion to examine the issue of compensation in lieu of reinstatement E
as the Award is an ex parte Award.
9. A lot of water has flown since the early 80’s when reinstatement
was considered to be automatic and a matter of right on account of
violation of Section 25-F. There are atleast now a few dozen judgments F
of the Supreme Court that reinstatement is not automatic and facts of
each case have to be seen as to whether reinstatement should be granted
or compensation is an adequate remedy. Various factors such as the
industry in question, financial capacity of the employer, peculiar
G
circumstances of each case, the nature and period of employment and
so on have to be seen. In a recent judgment in the case of Incharge
Officer and Anr. Vs. Shankar Shetty 2010 (8) Scale 583, the Supreme
Court has referred to its various earlier judgments and has held that
reinstatement is not automatically a matter of right because of violation H
of Section 25 F. Paras 2 and 3 of this judgment are relevant and the same
read as under:“2. The only question to be considered in this appeal by special
leave is with regard to the relief of reinstatement granted to the
respondent by the Single Judge of the High Court of Karnataka
in his judgment and order dated August 13, 2001 and affirmed
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by the Division Bench vide its judgment and order dated December
9, 2004 in the writ appeal. Should an order of reinstatement
automatically follow in a case where the engagement of a daily
wager has been brought to end in violation of Section 25F of the
Industrial Disputes Act, 1947 (for short ‘ID Act’)? The course
of decisions of this Court in recent years has been uniform on
the above question. In the case of Jagbir Singh v. Haryana
State Agriculture Marketing Board and Anr, delivering the
judgment of this Court, one of us (R.M.Lodha, J.) noticed some
of the recent decisions of this Court-namely, U.P.State Brassware
Corporation Ltd. & Anr. V. Uday Narain Pandey; Uttranchal
Forest Development Corporation vs. M.C. Joshi; State of
M.P.& Ors v. Lalit Kumar Verma; Madhya Pradesh Admn
v. Tribhuban; Sita Ram & Ors. V. Motil Lal Nehru Farmers
Training Institute; Jaipur Development Authority v.
Ramasahai & Anr; Ghaziabad Development Authority &
Anr. v. Ashok Kumar & Anr. and Mahboob Deepak v. Nagar
Panchayat, Gajraula & Anr. and stated as follows:
“It is true that the earlier view of this Court articulated in
many decisions reflected the legal position that if the termination
of an employee was found to be illegal, the relief of reinstatement
with full back wages would ordinarily follow. However, in recent
past, there has been a shift in the legal position and in a long line
of cases, this Court has consistently taken the view that relief by
way of reinstatement with back wages is not automatic and may
be wholly inappropriate in a given fact situation even though the
termination of an employee is in contravention of the prescribed
procedure. Compensation instead of reinstatement has been held
to meet the ends of justice. It would be, thus, seen that by a
catena of decisions in recent time, this Court has clearly laid
down that an order of retrenchment passed in violation of Section
25-F although may be set aside but an award of reinstatement
should not, however, be automatically passed. The award of
reinstatement with full back wages in a case where the workman
has completed 240 days of work in a year preceding the date of
termination, particularly, daily wagers has not been found to be
proper by this Court and instead compensation has been awarded.
This Court has distinguished between a daily wager who does
Coca-Cola Co. v. Bisleri International Pvt. Ltd.(Manmohan Singh, J.) 291
292
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3. Jagbir Singh has been applied very recently in the case of
Senior Superintendent Telegraph (Traffic) Bhopal v. Santosh
Kumar Seal & Ors. (Civil Appeal No. 3815 of 2010) decided
B
on April 26,2010 wherein this Court stated:
B
not hold a post and a permanent employee”.
“In view of the aforesaid legal position and the fact that the
workmen were engaged as daily wagers about 25years back and
they worked hardly for 2 or 3 years, relief of reinstatement and
back wages to them cannot be said to be justified and instead C
monetary compensation would subserve the ends of justice.”
The learned counsel for the petitioner has also relied upon the case of
Jagbir Singh Vs. Haryana State Agriculture Marketing Board and
D
Anr. MANU/SC/1213/2009 and in which the Supreme Court has held
that reinstatement is not automatic. Paras 3, 6, 7, 8 and 12 of the said
judgment are relevant and the same read as under:“3. The Presiding Officer, Industrial Tribunal-cum-Labour Court, E
Panipat, after recording evidence and hearing the parties held
that the appellant had worked for more than 240 days in the year
preceding the date of termination and that the Respondent No. 1
violated the provisions of Section 25F of the Act 1947 by not
F
giving him notice, pay in lieu of notice and retrenchment
compensation before his termination. The Labour Court,
accordingly, vide its award dated September 16, 2005 declared
that the appellant was entitled to reinstatement with continuity of
service and full back wages from the date of demand notice, i.e., G
January 27, 1997.
6. The learned Counsel for the appellant strenuously urged that
once the termination of service of the appellant was held to be
in violation of Section 25F of the Act 1947, the Labour Court H
rightly ordered reinstatement with continuity of service and full
back wages and the High Court was not justified in interfering
with the just award passed by the Labour Court. On the other
hand, the learned Counsel for the respondents supported the I
order of the High Court.
7. It is true that earlier view of this Court articulated in many
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decisions reflected the legal position that if the termination of an
employee was found to be illegal, the relief of reinstatement with
full back wages would ordinarily follow. However, in recent
past, there has been a shift in the legal position and in long line
of cases, this Court has consistently taken the view that relief by
way of reinstatement with back wages is not automatic and may
be wholly inappropriate in a given fact situation even though the
termination of an employee is in contravention to the prescribed
procedure. Compensation instead of ˇreinstatement has been
held to meet the ends of justice.
8. In U.P. State Brassware Corporation Ltd. v. Uday Narain
Pandey MANU/SC/2321/2005: (2006)ILLJ496SC , the question
for consideration before this Court was whether direction to pay
back wages consequent upon a declaration that a workman has
been retrenched in violation of the provisions of the Section 6N
of the U.P. Industrial Disputes Act, 1947 (equivalent to Section
25F of `the Act, 1947') as a rule was proper exercise of discretion.
This Court considered a large number of cases and observed
thus:
41. The Industrial Courts while adjudicating on disputes
between the management and the workmen, therefore,
must take such decisions which would be in consonance
with the purpose the law seeks to achieve. When justice
is the buzzword in the matter of adjudication under the
Industrial Disputes Act, it would be wholly improper on
the part of the superior courts to make them apply the
cold letter of the statutes to act mechanically. Rendition
of justice would bring within its purview giving a person
what is due to him and not what can be given to him in
law.
42. A person is not entitled to get something only because
it would be lawful to do so. If that principle is applied, the
functions of an Industrial Court shall lose much of their
significance.
43. The changes brought about by the subsequent decisions
of this Court, probably having regard to the changes in
the policy decisions of the Government in the wake of
Coca-Cola Co. v. Bisleri International Pvt. Ltd.(Manmohan Singh, J.) 293
prevailing market economy, globalisation, privatisation and A
outsourcing, is evident.
294
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44. ...
45. The Court, therefore, emphasised that while granting
relief, application of mind on the part of the Industrial B
Court is imperative. Payment of full back wages, therefore,
cannot be the natural consequence.
12. In this case, the Industrial Court exercised its discretionary
jurisdiction under Section 11A of the Industrial Disputes Act. It C
merely directed the amount of compensation to which the
respondent was entitled had the provisions of Section 25F been
complied with should be sufficient to meet the ends of justice.
We are not suggesting that the High Court could not interfere D
with the said order, but the discretionary jurisdiction exercised
by the Industrial Court, in our opinion, should have been taken
into consideration for determination of the question as to what
relief should be granted in the peculiar facts and circumstances E
of this case. Each case is required to be dealt with in the fact
situation obtaining therein.” (Emphasis added)
10. A reading of the aforesaid judgment in the case of Incharge
Officer (supra) and also various other judgments which have been F
referred to show that the reinstatement is not automatic and the facts and
circumstances of each case have to be examined by the court. The
learned counsel for the respondent sought to place reliance upon Harjinder
Singh Vs. Punjab State Warehousing Corporation MANU/SC/0060/
G
2010 to contend that this court should not interfere with the exercise of
discretion by the labour court for granting reinstatement in service. I do
not find that the reading of the judgment shows that the decisions referred
to in the case of Incharge Officer (supra) are said to have laid down
the incorrect law. Whether or not reinstatement is to be granted or only H
a compensation should be granted is surely in the realm of facts of each
case, a legal position ˇwhich is not disputed even by the counsel for the
respondent. And, in the facts of this case, as already stated, the Labour
Court had no occasion to examine the issue as to whether compensation I
should be granted instead of reinstatement as the Award is an ex parte
Award.
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11. Let us therefore examine the facts of the present case to decide
whether reinstatement ought to be granted or compensation is enough.
Firstly, the fact of the matter is that the employment letter specifically
states that the workman was wanting to be employed for working of the
Mercedes Super Machine pertaining to printing. I have already held above,
that it cannot be said that this letter has been obtained by any coercion
or undue influence. The employment of the workman was therefore
specifically towards the working of the Mercedes Super Machine used
in the printing business. This printing machine was thereafter sold by the
employer on account of change in the technology of printing and also
because of rapid decline of the work of the company and due to financial
problems faced by the management. These aspects as stated in the notice
dated 9.5.1988 have not been replied as denied to as per the records in
the present case. On behalf of the respondent, it was sought to be
contended that there is no inherent right of retrenchment and there must
be given valid reasons for retrenchment. I do not agree. The only
requirement of Section 2(oo) and Section 25 is that the retrenchment
must be of the type falling under Section 2(oo) and in accordance with
Section 25F i.e., retrenchment letter must be accompanied by the amount
which would be 15 days pay for each year of service and a 30 days
notice pay and the retrenchment must be of the type which is mentioned
under Section 2(oo). The facts of the present case show that there is
indeed a retrenchment in terms of the Section 2(oo) but there is a
technical violation in that instead of sending the amount along with the
termination letter, the workman was asked to collect the amount. As
already stated, it is not as if the amount was very huge and the employer
would have derived great benefit in not sending the amount of Rs.2,400/
-. Another aspect which emerges in the facts of the present case is that
the employment is not of a very large number of years that the
reinstatement should automatically follow. The employment was for a
period of just about 3 years and that too, which came to an end way
back in the year 1988. I am also guided by the fact that though the total
compensation payable under Section 25-F would have been Rs. 2,400/
- the respondent-2/workman has in fact till date pursuant to the an order
under Section 17-B received a sum of about Rs.2,01,702/-from 1.5.1997
at a monthly amount of Rs.960/- per month. In the ultimate analysis, in
my opinion, the impugned Award deserves to be set aside in that it
directs reinstatement. In the opinion of this court, the facts and
Coca-Cola Co. v. Bisleri International Pvt. Ltd.(Manmohan Singh, J.) 295
circumstances of the case as set out above are such that compensation A
would be an adequate relief and remedy to the workman. Taking a sum
of Rs.2,400/- in the year 1988 and giving a reasonable rate of return
considering that the amount would stand doubled in about roughly 7 to
10 years, the sum of Rs.2,400/-, even as on date from 1988 would at B
the very best be an amount of about Rs.40,000/-. On the other hand, the
workman has already received amount in excess of Rs.2 lacs. Therefore,
in the facts and circumstances of the case, I find that instead of
reinstatement, the workman should receive a sum of Rs.1 lac as
C
compensation for illegal retrenchment in violation of Section 25-F.
12. The issue then arises is what should happen to the excess
amount received by the workman pursuant to the orders under Section
17-B. Though an order under Section 17B is only an interim order which
D
is subject to the final decision in the case, however, the Supreme Court
in the case of Dena Bank Vs. Kirtikumar T.Patel (1999) 2 SCC 106
has held that the payment under Section 17 B is in the nature of subsistence
allowance which would not be refundable or recoverable even if the
Award is set aside by a higher court. On a careful reading of this E
judgment, I am of the opinion that this judgment cannot be said to be
laying down an intractable position that even if the employee has other
sources of income, although he has simultaneously received the payment
under Section 17B, even then there can be no recovery of the amount F
received in excess of the compensation which is finally determined by
the Court.
The stand as taken on behalf of the petitioner by its counsel is quite
far as it is urged that as long as the Award is set aside, the petitioner is G
agreeable to not press the issue of recovery of compensation and that
whatever amount which stands paid to the respondent /workman should
be taken as full and final settlement of dues of the petitioner towards the
workman for illegal retrenchment provided of course that the workman H
did not have other sources of income when he was receiving the payment
under Section 17B. The counsel for the petitioner however submits that
as per the information received by the petitioner, it is not as if the
respondent workman is a poor person and has no source of income
except the monies which were paid under Section 17B. The counsel for I
the petitioner states that the workman in fact owns a premises and he
has let out a floor of these premises and is earning rent therefrom. This
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A aspect of course has not been established on record and is also strongly
disputed by the learned counsel for the workman.
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13. The object of the ratio of the judgment of the Supreme Court
in the case of Dena Bank (supra) that the workman should not be asked
to refund any amount received under Section 17B was because the
workman is not a rich person who has various sources of income and
his only source of income is the payment that he would be receiving
under Section 17B. It is for this purpose, the payment under Section 17B
has therefore being categorized “subsistence allowance” by the Supreme
Court in Dena Bank’s case. Surely, the payment under Section 17B
cannot be treated as a subsistence allowance, if the workman is having
other sources of income. Accordingly, in the opinion of this court in
case, the workman during this period after passing of the order under
Section 17B from 1.5.1997 is not having any other source of income
except the payment which is received under Section 17B, then the
workman will not be bound to refund the amount in excess of Rs.1 lac
which has been decided by this court as compensation for illegal
termination, however, in case during the said period if the workman has
other additional source(s) of income including from other employment,
then, the workman is bound to refund to the petitioner the amount in
excess of Rs.1 lac. I may note that in compliance of the order under
Section 17B, the petitioner has been making payments by cheque to the
respondent and this amount of cheque is being regularly credited every
month in the bank account of the workman/respondent no.2. The
respondent/workman is therefore directed within a period of four weeks
from the passing of this order to file an affidavit along with copies of
his bank accounts that he had no other source(s) of income during the
period he received payment pursuant to an order under Section 17B so
that there is no need of any recovery from him.
With the aforesaid orders, the present petition is disposed of by
setting aside the impugned Award dated 24.2.1996 and it is directed that
compensation as stated above would be appropriate relief to workman
instead of reinstatement. Parties are left to bear their own costs.
Coca-Cola Co. v. Bisleri International Pvt. Ltd.(Manmohan Singh, J.) 297
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ILR (2011) I DELHI 226
W.P.
SHAHID PARVEZ
....PETITIONER
VERSUS
UNION OF INDIA & ORS.
....RESPONDENTS
(S. MURALIDHAR, J.)
W.P. NO. : 4800/2008
DATE OF DECISION: 27.10.2010
Narcotic Drugs and Phychotropic Substances Act,
1985—Section 68-I (3) & 68-A (2) (d) & 68-B(g)—Writ
petition by petitioner against order passed by Appellant
Tribunal for forfeiture of property, dismissing
petitioner's appeal against order passed by Competent
Authority U/s 68-I (3) of Act—Petitioner urged his
brother detained for indulging in illicit trafficking of
drugs and subsequently order of detention passed
against him for period of two years—Property
belonging to petitioner frozen by police on ground
that petitioner being brother of detenu also covered
under section 68-A (2) (d) of Act—Police suspected
source of said property as well as another shop
belonging to petitioner illegal acquired properties of
detenu, brother of petitioner—Detenu filed writ petition
challenging order of detention—Only initial period of
detention of three months sustained and subsequent
period of detention held to be vitiated—As per
petitioner, for operation of section 68-A (2) (d) of Act
subsisting valid order of detention required and as
order of detention of his brother, declared void ab
initio and only initial period of detention of 3 months
sustained, therefore property of petitioner not liable
to be forfeited —Also, respondent failed to discharge
initial burden of showing nexus between properties
F
F
G
G
H
H
I
I
Indian Law Reports (Delhi)
ILR (2010) II Delhi
acquired by petitioner with alleged illicit earnings of
his brother—Respondent argued entire detention
order not held to be illegal thus burden shifted on
petitioner to show property was acquired by him from
his own source of income. Held, If there is a violation
of Article 22 (5) in not informing the detenu that he
had an opportunity to represent to the declaring
authority, upon the Court quashing the Section 9
declaration, the order is impliedly declared void from
its inception and on that basis, the benefit of extension
of the period of 5 weeks to 4 months and 2 weeks, and
the benefit of extention of 11 weeks to 5 month and 3
weeks in Section 9 (2), cease to apply—As the period
of 3 months of detention was held valid, the detention
order was itself held to be void ab initio and the show
cause notice was issued to the petitioner thereafter
when there was no valid detention order against his
brother—Consequently the essential condition for
invoking section 68-A of the Act had been rendered
non-existent.
First the effect of this Court’s order dated 16th May 2002
quashing the detention of the Petitioner’s brother’s detention
requires to be considered. The decision of the Full Bench of
this Court in Akhilesh Kumar Tyagi, was in the context of the
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1975 (‘COFEPOSA Act’). The
relevant provisions of COFEPOSA Act are more or less
similar to the corresponding provisions in Chapter V-A of the
NDPS Act with which the present case is concerned. In
Maqudoom Meera Hameem v. Joint Secretary to Govt.
of India (Crl Writ Petition No. 83 of 1995 decided on 17th
August 1995), the Division Bench of this Court had held that
in case where the reference to the Advisory Board was
The Commissioner of Income Tax v. MMTC of India (Rajiv Shakdher, J.) 299
made beyond 5 weeks and the Advisory Board gave its
opinion beyond 11 weeks, the continued detention during
the extended period became bad. In Akhilesh Kumar Tyagi,
the correctness of the decision in Maqudoom Meera Hameem
was questioned by the Union of India. It was contended that
till such time the detention order was quashed, it remained
valid. It was urged by the Union of India that the respective
periods of 5 weeks and 11 weeks in Maqudoom Meera
Hameem which got extended to ‘4 months and 2 weeks’ and
‘5 months and 3 weeks’ respectively, did not get contracted
or reduced back to 5 weeks and 11 weeks respectively
when the declaration under Section 9 COFEPOSA Act was
quashed. Consequently, it was contended by the Union of
India that the detention beyond three months did not become
illegal automatically.
(Para 14)
Indian Law Reports (Delhi)
300
A
ILR (2010) II Delhi
[Sh Ka]
A
APPEARANCES:
B
FOR THE PETITIONER
:
Mr. Vinoo Bhagat with Mr. M.R.
Mishra, Advocate.
FOR THE RESPONDENT
:
Mr. Atul Nanda Advocate for R-1 to
R-3.
B
CASES REFERRED TO:
C
D
It may be recalled that in Akhilesh Kumar Tyagi the
detention was set aside on the ground that the Petitioner
had not been informed by the declaring authority that he E
had a right to make a representation against the order of
detention to the Advisory Board and the Central Government
and also to the declaring authority.
(Para 15)
F
Important Issue Involved: When, there is a violation of
Article 22 (5) in not informing the detenu that he had an
opportunity to represent to the declaring authority, upon the
Court quashing the Section 9 declaration, the order is
G
impliedly declared void from its inception and on that basis,
the benefit of extension of the period of 5 weeks to 4
months and 2 weeks, and the benefit of extension of 11
weeks to 5 month and 3 weeks in Section 9 (2), cease to
H
apply—Moreover, when detention order held to be void ab
initio but some period of detention under the order sustained
if show cause notice for forfeiture of property under Section
68-A (2) (d) issued after period of sustained detention order
I
over, the essential condition for invoking Section 68-A is
rendered non-existent.
C
D
1.
Union of India vs. Harish Kumar (2008) 1 SCC 195.
2.
Meena Jayendra Thakur vs. Union of India (1999) 8
SCC 177.
3.
Maqudoom Meera Hameem vs. Joint Secretary to Govt.
of India (Crl Writ Petition No. 83 of 1995 decided on
17th August 1995.
4.
Akhilesh Kumar Tyagi vs. Union of India 60 (1995) DLT
203 (FB).
5.
Akhilesh Kumar Tyagi vs. Union of India held in para 30
as under (DL[email protected] p. 213).
E
RESULT: Petition allowed.
F
S. MURALIDHAR, J.
1. This writ petition has been filed against an order dated 1st
February 2006 passed by the Appellate Tribunal for Forfeited Property
G (‘Appellate Tribunal’) dismissing the Petitioner’s appeal against an order
dated 7th July 1999 passed by the Competent Authority (‘CA’) under
Section 68-I (3) of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (‘NDPS Act’).
H Background facts
I
2. The Petitioner’s brother Mohd. Azad Parvez of Balasore Town,
Orissa was detained on 10th July 1991 for the alleged offence of indulging
in illicit trafficking of drugs punishable under the NDPS Act. This was
subsequent to an order of detention passed against Mohd. Azad on 26th
July 1989 passed by the Joint Secretary to the Government of India.
After Mohd Azad was arrested, he was served with the order of detention
The Commissioner of Income Tax v. MMTC of India (Rajiv Shakdher, J.) 301
302
and grounds of detention on 10th July 1991. On 30th July 1991, a A
reference was made to the Advisory Board under Section 9 (1) of the
NDPS Act. The Advisory Board held that there was sufficient cause for
the detention and a confirming order was passed by the Central
Government under Section 9(1) read with Section 10(2) of the NDPS B
Act for a period of two years with effect from 10th July 1991.
3. It is stated that Mohd. Azad served out the entire detention
period. However, while under detention, Mohd. Azad filed a Writ Petition
(Criminal) No. 315 of 1992 in this Court challenging the said order of C
detention. However, the said writ petition was not taken up for hearing
for many years and not before he completed the period of detention.
4. Meanwhile, the property belonging to the Petitioner Shahid Parvez,
brother of Mohd. Azad being immovable property located in Balasore D
Town, which was purchased in his name under a sale deed dated 11th
February 1998, was frozen by the Inspector In-charge, Police Station
(PS) Balasore on 18th January 1999. This was confirmed by the CA on
12th February 1999. The said action was taken on the ground that the E
order of detention dated 26th July 1989 against Mohd. Azad had not been
revoked by any Court and the Petitioner being his brother was a person
covered under Section 68-A (2) (d) of the NDPS Act. It was suspected
that the source of the above immovable property at Balasore in the name
of the Petitioner as well as another motor parts shop belonging to the F
Petitioner also located at Balasore, Orissa were illegally acquired properties
in terms of Section 68B (g) of the NDPS Act.
5. According to the Respondents, on 17th February 1999 and 9th
G
March 1999, notices were issued to the Petitioner under Section 68-H (1)
of the NDPS Act calling upon him to indicate the sources of his income,
earnings or assets, out of which or by means of which he had acquired
the said two properties, the evidence on which he relies and other relevant
H
I
Indian Law Reports (Delhi)
ILR (2010) II Delhi
A information and particulars. It is stated that the above notices were
served on the Petitioner on 13th May 1999. However, there was no
response to the above notice. Thereafter, a notice under Section 68-I (1)
of the NDPS Act was issued to the Petitioner on 14th June 1999, which
B was served on him on 23rd June 1999, informing him of the date of
hearing of 5th July 1999 before the CA. It is stated by Respondents that
despite service of notice the Petitioner did not appear before the CA.
Consequently, the proceedings were concluded ex parte with a presumption
being drawn against the Petitioner that the assets mentioned in the Schedule
C were the illegally acquired properties of his brother Mohd. Azad under
Section 68-B (g) of the NDPS Act. The said properties were declared to
have been forfeited to the Central Government free from all encumbrances.
Thereafter, the Petitioner filed an appeal before the Appellate Tribunal
D which was pending before it.
6. In the meanwhile, on 16th May 2002 the petition of Mohd. Azad
being Writ Petition (Criminal) No. 315 of 1992 was taken up for hearing
by this Court and disposed of on that date by the following order:
E
“Crl.W. No. 315/92
F
G
H
I
It is agreed between the parties that this matter is covered by the
decision of this Court in Akhilesh Kumar Tyagi v. Union of
India reported in 1995 IV AD (Delhi) 107. The writ petition is
allowed in terms thereof. The initial period of detention of three
months is sustained.
It is contended by learned counsel for the Petitioner that the
original detention for a period of three months is only valid and
any detention subsequent thereto is vitiated. On the contrary, the
learned ASG submits that even if there is no declaration of
continued detention yet detention of a period of one year would
not suffice but further detention would be bad. I have heard the
learned counsel, it appears to me that the contention raised by
Mr. Sood, learned ASG is not borne out from the law laid down
by the Supreme Court. I, therefore, hold that the detention for
a period of three months is valid and continue detention is vitiated.
The writ petition is allowed accordingly.”
7. Meanwhile the Appellate Tribunal, on 1st October 1999, directed
Narayani Gautam & Ors.v. State NCT of Delhi & Anr. (V.K. Jain, J.) 303
that the Petitioner “should be given an opportunity to produce his evidence
and submit his contentions before the CA.” The CA was asked to consider
the documents and submissions and pass fresh orders. Pursuant thereto,
on 11th October 1999 the Petitioner appeared before the CA and presented
documents. The CA informed the Appellate Tribunal on 15th October
1999 that the certificates produced by the Petitioner about receipt of
salary and commission from the three different firms in Calcutta could
not be verified as such firms did not exist at the addresses given. However,
before the Appellate Tribunal the Petitioner pointed out that he was an
employee in these concerns during the period 1979-80 to 1985-86 and
that the inquiry was made after a long time-gap of 15-20 years during
which time his employers might have shifted to other places and, therefore,
mere non-availability of the concerns at the addresses given should not
have been a ground for the CA to disbelieve the Petitioner. The Appellate
Tribunal, on 3rd December 2002, passed an order directing the CA to
give a further opportunity to the Petitioner to prove the genuineness of
those concerns. The CA was directed to make further enquiries. The
proceedings were directed to be completed within three months. The
appeal was again taken up before the Appellate Tribunal on 18th August
2005. It was noted that the supplementary findings of the CA that were
called for by the Appellate Authority in its order dated 3rd December
2002 had not been submitted. Accordingly, a direction was issued to CA
to submit the additional findings.
304
A
B
C
D
E
F
8. Subsequently, the appeal was taken up for hearing on 1st February
2006 before the Appellate Tribunal. None appeared for the Appellant
(Petitioner herein). The Appellate Tribunal was informed of the order
G
passed by this Court on 16th May 2002 setting aside the continued
detention of the Petitioner’s brother. The further findings of the CA had
been submitted to the Appellate Tribunal. The CA reiterated that the
Petitioner had not been able to produce any fresh document and, therefore,
was unable to discharge the burden under Section 68-J of the NDPS Act. H
The Appellate Tribunal then concurred with the findings of the CA that
the evidentiary documents filed by the Petitioner could not be believed.
It was further concluded that the firms which issued the receipts of
salary income and the commission to the Petitioner were shown as not I
existing at the given addresses. Consequently, it was difficult to believe
that the Petitioner was having his own valid source of income. The
Appellate Tribunal observed that as regards the second forfeited property,
Indian Law Reports (Delhi)
ILR (2010) II Delhi
A the ˇPetitioner had taken a plea that he was a tenant. However, in the
absence of any documentary evidence to prove the same, the Appellate
Tribunal refrained itself from making any observations on that plea.
9. Since the appeal was decided ex parte, the Petitioner filed
B application MP-ND-29 & ND-30/CAL/2006 before the Appellate Tribunal
for recalling of its order dated 1st February 2006. By order dated 4th
October 2007, the Appellate Tribunal held that there is no explicit provision
in the Appellate Tribunal for Forfeited Property Rules, 1989 for recalling
C of any order of the Appellate Tribunal passed on merits and no case was
made out for recalling of the order dated 1st February 2006. It was also
observed that since the detention for a period of three months was
upheld, “the provisions of Chapter V-A will continue to apply to the
Petitioner.”
D
10. It was noticed by the Appellate Tribunal in the order dated 4th
October 2007 that the Petitioner had initially challenged the order dated
1st February 2006 of the Appellate Tribunal before the High Court of
E Orissa, but he withdrew the petition which was dismissed as withdrawn
on 17th July 2006. Therefore, the CA took the physical possession of the
forfeited property in terms of the order dated 7th July 1999 of the CA.
11. While directing notice to issue in the present petition on 15th
October
2008, this Court directed that the impugned order dated 1st
F
February 2006 of the Appellate Tribunal shall remain stayed till the next
date of hearing. The said interim order was continued on 7th August
2009, 26th November 2009 and 5th April 2010.
G Submissions of Counsel
12. Mr. Vinoo Bhagat, learned counsel appearing for the Petitioner
first submitted that for the operation of Section 68-A(2)(d) of the NDPS
Act, there has to be a subsisting valid order of detention. The consequence
H of this Court’s order dated 16th May 2002 setting aside the detention
order of the Petitioner’s brother Mohd. Azad, was that in terms of the
decision of the Full Bench of this Court in Akhilesh Kumar Tyagi v.
Union of India 60 (1995) DLT 203 (FB), the detention order was void
I ab initio. It is submitted that though the initial period of detention of three
months was sustained, the detention order itself was being set aside from
the date of its passing. It is further submitted that the Respondents had
failed to discharge the initial burden of showing nexus between the
Narayani Gautam & Ors.v. State NCT of Delhi & Anr. (V.K. Jain, J.) 305
properties acquired by the Petitioner in 1998 with the alleged illegal A
earnings of the Petitioner's brother for which the detention order was
passed at least nine years prior to the said acquisition and for which the
Petitioner’s brother had served term in jail for two years between 1991
and 1993. It is submitted that unless there was a prima facie material B
linking the alleged illegal earnings of the Petitioner’s brother and the
acquisition of the property in question by the Petitioner, the impugned
order cannot be sustained.
13. On the other hand, it is submitted by Mr. Atul Nanda, learned C
counsel appearing for Respondents that as explained by the Supreme
Court in Meena Jayendra Thakur v. Union of India (1999) 8 SCC 177
and Union of India v. Harish Kumar (2008) 1 SCC 195, the entire
detention order was not held to be illegal by this Court in its order dated
D
16th May 2002. That being the position, the burden shifted on the Petitioner
to show that the property was acquired by him from his own sources
of income.
Effect of this Court’s order dated 16th May 2002 quashing the E
detention
14. First the effect of this Court’s order dated 16th May 2002
quashing the detention of the Petitioner’s brother’s detention requires to
be considered. The decision of the Full Bench of this Court in Akhilesh F
Kumar Tyagi, was in the context of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1975 (‘COFEPOSA Act’).
The relevant provisions of COFEPOSA Act are more or less similar to
the corresponding provisions in Chapter V-A of the NDPS Act with
G
which the present case is concerned. In Maqudoom Meera Hameem v.
Joint Secretary to Govt. of India (Crl Writ Petition No. 83 of 1995
decided on 17th August 1995), the Division Bench of this Court had held
that in case where the reference to the Advisory Board was made beyond
5 weeks and the Advisory Board gave its opinion beyond 11 weeks, the H
continued detention during the extended period became bad. In Akhilesh
Kumar Tyagi, the correctness of the decision in Maqudoom Meera
Hameem was questioned by the Union of India. It was contended that
till such time the detention order was quashed, it remained valid. It was I
urged by the Union of India that the respective periods of 5 weeks and
11 weeks in Maqudoom Meera Hameem which got extended to ‘4 months
and 2 weeks’ and ‘5 months and 3 weeks’ respectively, did not get
306
Indian Law Reports (Delhi)
ILR (2010) II Delhi
A contracted or reduced back to 5 weeks and 11 weeks respectively when
the declaration under Section 9 COFEPOSA Act was quashed.
Consequently, it was contended by the Union of India that the detention
beyond three months did not become illegal automatically.
B
15. It may be recalled that in Akhilesh Kumar Tyagi the detention
was set aside on the ground that the Petitioner had not been informed by
the declaring authority that he had a right to make a representation
against the order of detention to the Advisory Board and the Central
C Government and also to the declaring authority. In answering the question
whether the declaration made under Section 9 of the COFEPOSA Act
was valid till it was quashed or whether it becomes void ab initio, the Full
Bench of this Court in Akhilesh Kumar Tyagi v. Union of India held
in para 30 as under ([email protected] p. 213):
D
“30. If, therefore, there is a violation of Article 22 (5) in not
informing the detenu that he had an opportunity to represent to
the declaring authority, upon the Court quashing the Section 9
declaration, the order is impliedly declared void from its inception
E
and on that basis, the benefit of extension of the period of 5
weeks to 4 months and 2 weeks, and the benefit of extension of
11 weeks to 5 months and 3 weeks in Section 9 (2), cease to
apply. It is indeed not a case of extension of the periods and a
F
later contraction but the order quashing the Section 9
declaration would make the declaration ineffective from the
date it was issued and in case either the reference to the Board
is beyond 5 weeks and/or the report of the Board is beyond 11
G
weeks, then the “continued detention” beyond three months would
be invalid.” (emphasis supplied)
16. Analysing the order dated 16th May 2002 passed by this Court
in the present case, the opening line appears to indicate that this Court
H held the initial period of three months’ detention of the Petitioner’s brother
to be valid but the remaining period of detention to be invalid in terms
of the judgment in Akhilesh Kumar Tyagi. What is also significant is
that the contention of the learned ASG to the contrary was negatived and
I it was held that “the detention for a period of three months is valid and
continued detention is vitiated.” Extending the logic of the decision in
Akhilesh Kumar Tyagi to the order dated 16th May 2002, while the
Narayani Gautam & Ors.v. State NCT of Delhi & Anr. (V.K. Jain, J.) 307
detention for a period of three months was held to be valid, the detention A
order itself was held to be void ab intio. It must be noted that the order
dated 16th May 2002 passed by this Court attained finality with the
Respondents accepting it. Further, while the period of three months of
detention was held valid, the detention order was itself held to be void B
ab initio, i.e. from the date it was issued.
17. The resultant position is that, the order dated 16th May 2002
related back to the date of passing of the detention order i.e. 7th July
1989. Even if one were to extend the ratio of Meena Jayendra Thakur C
or Harish Kumar the detention order became void three months after
the actual date of the detention of the Petitioner’s brother on 10th July
1991. The show cause notice was issued to the Petitioner on 17th
February 1999. In terms of this Court’s order dated 16th May 2002 the
D
detention order of the Petitioner’s brother had been rendered void ab
initio, i.e. void from 7th July 1989 or in any event from a date three
months after 10th July 1991. Viewed from any angle, there was on 17th
February 1999 no valid detention order against the Petitioner’s brother.
Consequently, the essential condition for invoking Section 68-A of the E
NDPS Act, had been rendered non-existent on account of the subsequent
development of the passing of the order dated 16th May 2002 by this
Court. The Petitioner is, therefore, entitled to succeed on this ground.
F
Impugned order of CA bad even on merits
18. The impugned order of the CA, affirmed by the Appellate
Tribunal, cannot be sustained even on merits. The records of the CA
have been perused by this Court. The relevant period is the one immediately
G
preceding issuance of show cause notice to the Petitioner under Section
68-H (1) of the NDPS Act. It appears that following certain letters
received from the Income Tax Office, Balasore, on 1st November 1996,
the Investigating Officer/CA at Calcutta made a noting directing the
Department “to ascertain the existence of Shri Shahid Parvez.” He advised: H
“We may as well write to Branch Manager, Central Bank of India,
Brahamansahi Branch, Soro, Balasore to furnish details of Bank Account
No. 263 such as name of holder and address, name of introducer and
address, date of opening and present position of the account.”
I
19. This was followed by several reminders and the noting dated
17th June 1997 where it was acknowledged that the Branch Manager,
308
Indian Law Reports (Delhi)
ILR (2010) II Delhi
A Central Bank of India had furnished address of the brother of the Petitioner
and other required information. However, the notice sent under Section
68-H (1) NDPS Act appears to have been returned with the remark
“left”. It appears that previous to this, an order was already passed
B against the Petitioner on 10th August 1992 under Section 68-F (2) of the
NDPS Act. The noting in the file CA/CAL/NDPS-86/92/93 do not show
any investigation having been conducted to co-relate the details received
from the Income Tax office in respect of source of the Petitioner’s
income to even form a prima facie view that the properties in question
C were acquired by him from the earnings of his brother Mohd. Azad on
account of illicit trafficking in drugs. In file CA/Cal/NDPS/31/98-99,
there are two identical notings dated 17th February 1999 and 9th March
1999 by the CA, Calcutta which reads as under:
D
“I have perused the relevant records. I have applied my mind to
all the facts and circumstances of the case. I have today recorded
my reasons in terms of Section 68H (1) of the NDPS Act, 1985
and I am satisfied that this is a fit case for issue of notice under
E
Section 68 H (1) of the NDPS Act, 1985.
Issue notice under Section 68H (1) of the NDPS Act.”
20. It is not known what records were perused by the CA before
issuing
the above orders. As far as this Court can find, there was no
F
systematic enquiry or investigation preceding the passing of the above
orders. It appears that prior to issuing a show-cause notice to the Petitioner
under Section 68-H(1) of the NDPS Act, no effort was made by the CA
to be prima facie satisfied that the essential conditions existed to attract
G
that provision. Even before the CA or the Appellate Tribunal, the initial
burden was on the office of the CA to show that the properties in the
name of the Petitioner were acquired by him through the illegal earnings
of his brother. The Petitioner on his part produced a 1998 sale deed in
H his favour in respect of one of the properties. However, the opinion
formed by the CA, as extracted hereinbefore, fails to establish even prima
facie any casual link existing between the Petitioner’s properties and the
illegal earnings of the Petitioner’s brother. The order of the CA is a mere
I reproduction of the language of the statute which is inadequate for
demonstrating application of mind to arrive at even a prima facie satisfaction
that the essential ingredients of Section 68-H (1) NDPS act stood attracted.
Narayani Gautam & Ors.v. State NCT of Delhi & Anr. (V.K. Jain, J.) 309
310
A
Conclusion
21. The impugned order passed by the CA dated 7th July 1999
against the Petitioner and the order dated 1st February 2006 passed by
the Appellate Tribunal affirming the CA’s order dated 7th July 1999 are
hereby set aside. The Petitioner will be restored the possession of the B
forfeited properties within four weeks.
A
B
22. The writ petition is allowed in the above terms with costs of
Rs. 5,000/- which will be paid by Respondents to the Petitioner within
C
four weeks from today.
C
D
D
.....PETITIONER
E
E
.....RESPONDENTS
F
F
ILR (2011) I DELHI 326
W.P.
M/S SOUTH DELHI MATERNITY &
NURSING HOME (P) LTD.
VERSUS
MCD & OTHERS
(RAJIV SAHAI ENDLAW, J.)
W.P. (C) NO. : 1828/1994
DATE OF DECISION: 28.10.2010
G
Delhi Municipal Corporation Act, 1957—Section 126,129
and 346- Aggrieved petitioner filed Writ Petition against
order of Joint Assessor & Collector of MCD fixing
ratable value of his property—Petitioner urged upon H
completion of construction of his building he gave
notice to Respondent MCD and applied for grant of
occupancy certificate which was rejected—
Subsequently MCD issued notice to petitioner under
I
Section 126 of the Act for enhancing ratable value—
Objections filed by petitioner were dismissed—
Petitioner contended without issuance of Occupancy
G
H
I
Indian Law Reports (Delhi)
ILR (2010) II Delhi
Certificate and till when property was occupied, no
property tax as of completed building could be levied—
As per Respondent, under Section 129, liability for
property tax accrues from date when notice of
completion or occupation whichever is earlier, is given
irrespective of grant of occupancy certificate—Also
petitioner itself gave notice of completion, cannot be
heard to contend that property is not assessable from
date of notice—Question which arose for determination
is whether notice of completion under building bye-law
7.5.2 can be treated as notice of completion under
Section 129. Held:- The two notices cannot be equated
and the notice under building Bye-Law 7.5.2 Cannot
be a notice under Section 129—While the provision
under the Building Bye-Law 7.5.2 is of “completion of
works” under the Building Permit, the notice under
Section 129 is of “completion of building”—Issuance
of a notice of completion coupled with an application
for Occupancy Certificate made under Bye Law 7.5.2 is
not a notice of completion under Section 129 so as to
make the property liable for property tax—The guiding
factor has to be a building which is fit for being
occupied both factually and in law before it can attract
the incidence of tax.
The reasons for providing for the two notices are entirely
different. While the notice under Building Bye-Law 7.5.2 is in
the nature of intimation of completion of works within the
time prescribed in the building permit under Section 341 and
is also in the nature of an application for Occupancy
Certificate and is required to be submitted through a licensed
Architect/Engineer who has supervised the construction, the
notice under Section 129 is intended to inform that the
building is ready for occupation or has been occupied and
has become liable for payment of property tax. Though
“ready for occupation” can only mean “legally ready for
occupation” but the Legislature in Section 129 has provided
for levy of property tax even from the date of factual
Narayani Gautam & Ors.v. State NCT of Delhi & Anr. (V.K. Jain, J.) 311
occupation even if not legally ready for occupation. However A
such illegal occupation without the building being legally
ready for occupation makes the property liable for property
tax only if the same is before the property being legally
ready for occupation, as is evident from the expression B
“whichever first occurs” in Section 129. It however cannot be
said that because Section 129 permits levy of house tax on
“actual occupation” even if without Occupancy Certificate,
that the property tax becomes leviable on mere completion
of construction and before the issue of Occupancy Certificate, C
even when there is no actual occupation.
(Para 12)
The question which arises is whether a notice of completion
under Building Bye-Law 7.5.2 can be treated as a notice of D
completion under Section 129. In my opinion, the two cannot
be equated and the notice under Building Bye-Law 7.5.2
cannot be a notice under Section 129. The reasons for
providing for the two notices are entirely different. While the
notice under Building Bye-Law 7.5.2 is in the nature of E
intimation of completion of works within the time prescribed
in the building permit under Section 341 and is also in the
nature of an application for Occupancy Certificate and is
required to be submitted through a licensed Architect/ F
Engineer who has supervised the construction, the notice
under Section 129 is intended to inform that the building is
ready for occupation or has been occupied and has become
liable for payment of property tax.
(Para 12) G
Important Issue Involved: The two notices one under
Section 129 and other under Building Bye-Law cannot be
equated—The provision under the Building Bye-Law7.5.2 is
of “completion of works” under the building permit, whereas
the notice under Section 129 is of “completion of building”—
Issuance of a notice of completion coupled with an
application for Occupancy Certificate made under Bye Law
7.5.2 is not a notice of completion under Section 129 so as
to make the property liable for property tax.
Indian Law Reports (Delhi)
312
ILR (2010) II Delhi
[Sh Ka]
A
APPEARANCES:
FOR THE PETITIONER
:
Mr. B. Jain & Mr.Abhay Jain,
Advocates
FOR THE RESPONDENT
:
Mrs. Amita Gupta with Mr. Parven
Kumar, Adv.for R-1& 2 MCD.Mr.
Y.R. Sharma, Adv. For R-3 & 4
B
C CASES REFERRED TO:
D
E
F
G
1.
Claude-Lila Parulekar vs. Sakal Papers (P) Ltd (2005)
11 SCC 73.
2.
Durga Enterprises (P) Ltd. vs. Principal Secretary,
Government of UP (2004) 13 SCC 665.
3.
MCD vs. Jain Brothers ILR (2003) 1 Delhi 334.
4.
MCD vs. Nehru Place Hotel Ltd. 108 (2003) DLT 715.
5.
MCD vs. Senaro Construction India Ltd. 104 (2003) DLT
441.
6.
Municipal Corporation of Delhi vs. P. Chandrasekharan
MANU/DE/1761/2002.
7.
Bal Krishna Agarwal (Dr.) vs. State of UP (1995) 1 SCC
614.
8.
The Municipal Corporation of Greater Bombay vs. M/s
Polychem Ltd. AIR 1974 SC 1779.
9.
Kailash Nath & Associates vs. New Delhi Municipal
Committee ILR 1976 Delhi 426.
RESULT: Petition Allowed.
H
I
H RAJIV SAHAI ENDLAW, J.
I
1. The writ petition impugns the order dated 2nd February, 1994
of the Joint Assessor & Collector of the respondent MCD fixing the
rateable value of Property No.14, Community Centre, Zamrudpur, New
Delhi at Rs. 5,19,080/- w.e.f. 20th September, 1990. It was the contention
of the petitioner in the writ petition itself that the writ petition involving
similar questions of law as raised in the present writ petition had been
Narayani Gautam & Ors.v. State NCT of Delhi & Anr. (V.K. Jain, J.) 313
admitted by this Court. Notice of the writ petition was issued and the A
counsel for the respondent MCD on 14th July, 1994 agreed not to
enforce the demand pursuant to the assessment aforesaid. After completion
of the pleadings, Rule D.B. was issued on 13th February, 1995 and the
operation of the impugned order stayed. On 25th March, 2010 the counsel B
for the petitioner stated that in the present writ petition there was no
challenge to any provision of law but only to the order of assessment
dated 2nd February, 1994 aforesaid and hence the matter was ordered
to be listed before the Single Bench as per roster.
C
2. Though in the writ petition the rateable value assessed has also
been challenged but the counsel for the petitioner has confined the argument
to, whether the property is liable to be assessed at all for the purposes
of the property tax or not.
D
3. The facts in this regard and which are not in dispute are:(i)
the petitioner was granted a perpetual lease of a plot of
land aforesaid i.e. plot no. 14, Community Centre,
Zamrudpur, New Delhi admeasuring 218.50 sq. mtrs on E
3rd February, 1984, though possession thereof had been
delivered pursuant to allotment on 20th May, 1981;
(ii)
upon the petitioner applying for sanction of building plan
for construction of superstructure on the said plot, F
sanction was accorded on 1st February, 1984;
(iii) the petitioner on 20th September, 1990 gave notice to
the respondent MCD of completion of construction and
G
applied for grant of Occupancy Certificate;
(iv) the application of the petitioner for Occupancy Certificate
was rejected on 20th September, 1991;
(v)
that the respondent MCD issued notice dated 7th /11th
March, 1991 to the petitioner under Section 126 of the H
Delhi Municipal Corporation Act, 1957 for enhancing
the rateable value from the then existing (i.e. as of a
plot) of Rs. 9,740/- to Rs. 14,69,000/- w.e.f. 1st April,
1988 for the reason of “assessment of land and/or I
building previously not included”;
(vi) the petitioner filed objections to the said notice inter alia
314
A
Indian Law Reports (Delhi)
ILR (2010) II Delhi
contending that the Completion Certificate having not
been issued till then and the building being incapable of
occupation, the notice was bad.
4. The Joint Assessor & Collector of the respondent MCD in the
B impugned order has held that property tax is leviable from the date the
building is occupied or complete; that the petitioner having applied for the
Completion Certificate on 20th September, 1990 means that the property
was completed in all respect and fit for occupation on that date; that
C rejection of the Occupancy Certificate was mainly on the ground of the
same having not been applied by all the Directors of the petitioner Company
and due to non submission of other relevant documents. It is recorded
in the impugned order that it was submitted before the MCD that there
was a dispute among the partners/Directors of the petitioner company.
D
The Joint Assessor & Collector of respondent MCD held that the levy
of property tax in respect of a building completed in all respects as
declared by the petitioner himself could not be withheld only for the
reasons of non-issuance of Occupancy Certificate and which also was
E attributable owing to internal disputes as to the management of the petitioner
Company. The enhancement in property tax was made effective from
20th September, 1990 i.e. the date when the petitioner had given notice
of completion.
F
5. The counsel for the petitioner has relied upon Sections 129 &
346(2) of the DMC Act to contend that without issuance of Occupancy
Certificate and till when the property cannot be occupied, no property tax
as of a completed building could have been levied. Reliance in this regard
G is placed on paragraphs 21 & 22 of Express Newspapers Ltd. Vs.
Municipal Corporation of Delhi 31 (1987) DLT 369 holding that if a
building has been erected, and in respect of which notice under Section
129 has been issued but permission to occupy is refused and the building
H is actually not occupied, there can be no annual rent because the building
cannot be let from year to year.
I
6. The counsel for the respondent MCD has argued that the MCD
cannot be deprived of property tax when a building has been erected and
notice of completion thereof been issued, merely because the owner fails
to pursue and obtain the Occupancy Certificate. It is contended that
under Section 129, the liability for property tax accrues from the date
when notice of completion or occupation whichever is earlier is given
Narayani Gautam & Ors.v. State NCT of Delhi & Anr. (V.K. Jain, J.) 315
Indian Law Reports (Delhi)
316
ILR (2010) II Delhi
and irrespective of the grant of Occupancy Certificate. It is urged that A
the grant of Occupancy Certificate and the prohibition against the
occupation is the concern of the Building Department of the MCD and
with which the House Tax Department is not concerned. The judgment
in Express Newspapers Ltd. (supra) is sought to be distinguished by B
contending that it was in the context of illegal construction and will not
apply when the construction is as per the sanction plan but the owner
fails to take the Occupancy Certificate, as is the case here.
A V. Sakal Papers (P) Ltd (2005) 11 SCC 73 and Bal Krishna Agarwal
(Dr.) V. State of UP (1995) 1 SCC 614. Even otherwise the writ
petition raises a pure question of law and in which circumstance this
Court has entertained writ petitions notwithstanding the alternative remedy
B of appeal. The said contention of the respondent MCD is thus not accepted.
7. I have at the outset enquired as to what is the status of the C
property as of today. The counsel for the petitioner informs that the
position is the same as then i.e. the Occupancy Certificate has not been
granted and the building remains unoccupied. The counsel for the
respondent MCD states that she has no instructions. I have also enquired
D
as to whether any subsequent steps for assessment of property tax for
any subsequent years have been taken by the MCD. The counsel for the
petitioner again informs that no steps have been taken by the MCD. The
counsel for the respondent MCD states that she has no instructions.
E
8. The aforesaid is relevant inasmuch as in the absence of any fresh
notice, the impact of the order in this writ petition would be on the claim
of tax since 20th September, 1990 i.e. for the last over 20 years.
C
9. Before dealing with the controversy aforesaid, a preliminary F
objection of the counsel for the respondent MCD as to the maintainability
of the writ petition on the ground of availability of the alternative remedy
of appeal may be dealt with. The rule of refusing to entertain a writ
petition where alternative efficacious remedy is available, is a rule of
G
discretion and not a rule of law. In the present case, the writ petition has
remained pending before this Court for the last 16 years. Though the
respondent MCD in its counter affidavit has also taken this plea but the
order sheet does not reflect that the admission of the writ petition was
opposed on this ground. I find it highly iniquitous now after 16 years H
instead of deciding the legal questions raised in the writ petition, dismiss
the writ petition on the ground of availability of alternative remedy. The
Supreme Court in Durga Enterprises (P) Ltd. V. Principal Secretary,
Government of UP (2004) 13 SCC 665 deprecated the practice of I
summarily dismissing the writ petition on ground of existence of alternative
remedy, after having entertained the writ petition and kept it pending for
thirteen years in that case. To the same effect are Claude-Lila Parulekar
10. Section 129 of the DMC Act is as under:-
D
“129. Notice of erection of building, etc. – When any new
building is erected or when any building is rebuild or enlarged or
when any building which has been vacant is reoccupied, the
person primarily liable for the property taxes assessed on the
building shall give notice thereof in writing to the Commissioner
within fifteen days from the date of its completion or occupation
whichever first occurs, or as the case may be, from the date of
its enlargement or re-occupation; and property taxes shall be
assessable on the building from the said date.”
The contention of MCD is that the petitioner itself having given
E notice dated 20th September, 1990 of completion, cannot be heard to
contend that the property is not assessable from the date of notice.
11. However the notice dated 20th September, 1990 given by the
petitioner to the respondent MCD was not under Section 129 of the
F
DMC Act. The said notice was a notice under Bye-Law 7.5.2 of the
Delhi Building Bye-Laws, 1983 which is as under:-
G
H
I
“7.5.2 Notice of Completion – Every owner shall have to
submit a notice of completion of the building to the Authority
regarding completion of the work described in the building permit.
The notice of completion shall be submitted by the owner through
the licensed Architect/ Engineer/ Supervisor/Group as the case
may be who has supervised the construction, in the proforma
given in Appendix ‘G’ accompanied by three copies of completion
plan and the following documents and along with a fee of Rs.20.
(1)
Copy of lease deed.
(2)
Copy of sewer connection permission.
(3)
Clearance from Chief Fire Officer, Delhi.
(4)
Clearance from Chief Controller of Explosives, Nagpur
Narayani Gautam & Ors.v. State NCT of Delhi & Anr. (V.K. Jain, J.) 317
as required.
318
A
(5)
Clearance from DESU regarding provision of
Transformers/Sub-Station/ancillary power supply system
etc. as required.
(6)
Structural stability certificate duly signed by the licensed B
Architect/Engineer.
(7)
Certificate from the Lift Manufacturer, as required.
(8)
Certificate from Air Conditioning Engineer, Manufacturers,
C
as required.
(9)
A certificate by the owner and architect/supervisor/
engineer for covering up the underground drain, sanitary
and water supply work, under their supervision and in
D
accordance with Building Bye Laws and sanctioned
building plans stipulated in the Appendix B-3 as applicable.
(10) In case of large campus/complex, completion of
individual block/building will be issued by the local body
E
in accordance with the construction work completed
phase-wise in the Proforma Appendix B-3.
(11) The Extension of Time up to the date of applying for
completion certificate. In case, if the completion
F
certificate is refused due to deviation, which cannot be
compounded, the completion will be rejected and
extension of time will be required accordingly.
(12) NOC for regular water supply and electricity may be
issued only after the completion certificate is obtained. G
It is only on receipt of such a notice under Building Bye-Law 7.5.2
that the procedure for grant of Occupancy Certificate under Building
ByeLaw 7.6 is commenced. The necessity of such a notice under Building
H
Bye-Law 7.5.2 arises because under Section 341 of the Act, when
sanctioning the erection of building or execution of a work, a reasonable
period within which the said work is to be completed is to be specified
and if the work is not completed within the said period, there is a
prohibition against continuing thereafter without obtaining fresh sanction I
or without obtaining an extension of the period.
12. The question which arises is whether a notice of completion
Indian Law Reports (Delhi)
ILR (2010) II Delhi
A under Building Bye-Law 7.5.2 can be treated as a notice of completion
under Section 129. In my opinion, the two cannot be equated and the
notice under Building Bye-Law 7.5.2 cannot be a notice under Section
129. The reasons for providing for the two notices are entirely different.
B While the notice under Building Bye-Law 7.5.2 is in the nature of intimation
of completion of works within the time prescribed in the building permit
under Section 341 and is also in the nature of an application for Occupancy
Certificate and is required to be submitted through a licensed Architect/
Engineer who has supervised the construction, the notice under Section
C 129 is intended to inform that the building is ready for occupation or has
been occupied and has become liable for payment of property tax. Though
“ready for occupation” can only mean “legally ready for occupation” but
the Legislature in Section 129 has provided for levy of property tax even
D from the date of factual occupation even if not legally ready for occupation.
However such illegal occupation without the building being legally ready
for occupation makes the property liable for property tax only if the same
is before the property being legally ready for occupation, as is evident
E from the expression “whichever first occurs” in Section 129. It however
cannot be said that because Section 129 permits levy of house tax on
“actual occupation” even if without Occupancy Certificate, that the
property tax becomes leviable on mere completion of construction and
before the issue of Occupancy Certificate, even when there is no actual
F occupation.
13. While the provision under the Building Bye-Law 7.5.2 is of
“completion of works” under the Building Permit, the notice under Section
129 is of “completion of the building”. The question which arises is,
G
when can a building be said to have been “completed”. Can a building
be said to have been completed merely when the work of construction
is complete even though Occupancy Certificate and in the absence whereof
the building cannot be occupied legally, has not been granted. In my
H opinion, no. As held in Express Newspapers Ltd., completion for the
purposes of property tax is when the building is capable of having an
annual rent and which cannot be without occupation. Thus the issuance
of a notice of completion coupled with an application for Occupancy
I Certificate made under Bye Law 7.5.2 is not the notice of completion
under Section 129 so as to make the property liable for property tax.
14. I am unable to accept the contention of the counsel for the
Narayani Gautam & Ors.v. State NCT of Delhi & Anr. (V.K. Jain, J.) 319
respondent MCD that the judgment in Express Newspapers Ltd. is A
distinguishable. Even though that may have been a case of illegal
construction but the ratio of the judgment is in the favour of the petitioner
herein and it is the ratio which constitutes a precedent.
A
15. I however find that another Single Judge of this Court in MCD B
Vs. Nehru Place Hotel Ltd. 108 (2003) DLT 715 without noticing the
earlier judgment in Express Newspapers Ltd. did hold that rateable value
is to be assessed with effect from fifteen days after the notice of
completion is given and the argument that Section 346(2) is a bar to C
using the building without Occupancy Certificate was held to be not
available qua property tax since the said provision deals with different
aspect of the matter and was held to be not relevant for the purposes of
property tax. Else, the consistent view of this Court appears to be in
D
consonance with Express Newspaper Ltd. Mention in this regard can be
made to:-
B
(a)
Kailash Nath & Associates Vs. New Delhi Municipal
Committee ILR 1976 Delhi 426, though in respect of
E
NDMC area and under the provisions of the then Punjab
Municipal Act, 1911 but negating the contention that
assessment can be made even if the building is not
completed. It was held that the guiding factor has to be
a building which is fit for being occupied, both factually F
and in law before it can attract the incidence of tax. The
issue of Completion Certificate or an Occupancy
Certificate was held to be certainly a guiding factor. It
was however held that it is not a general rule that only G
after the issue of Occupation Certificate or Completion
Certificate that the incidence of tax is attracted. It was
held that where a building is occupied even without
taking a Completion Certificate, it will certainly attract
H
the incidence of tax because the very fact of occupation
would establish that the building is fit for occupation; if
however the building cannot be occupied unless the
Completion Certificate or an Occupation Certificate ˇis
given, then it will not attract the incidence of tax. It was I
further clarified that if electricity connection, water
connection or arrangement for sewage disposal is not
Indian Law Reports (Delhi)
320
available, making it not possible for the building to be
occupied, then also the incidence of taxation will not
arise. Reliance was placed on the judgment of Supreme
Court in The Municipal Corporation of Greater Bombay
Vs. M/s Polychem Ltd. AIR 1974 SC 1779, where
while construing the provisions of Bombay Municipal
Corporation Act, 1888 it was held that so long as a
building is not completed or construction to such an
extent that at least a partial completion notice can be
given so that the completed portion can be occupied and
let, the land can, for the purpose of rating, be equated
with or treated as vacant land. It was held that it is only
when the building which is being put up is in such a
state that it is actually and legally capable of occupation
that the letting value of the building can enter into the
computation.
C
D
(b)
Municipal Corporation of Delhi Vs. P.
Chandrasekharan MANU/DE/1761/2002; in this case
though possession of a DDA flat was delivered but the
area where the flat was situated was not electrified.
Relying on Express Newspapers Ltd. it was held that till
electrification, the flat was incapable of having any annual
rent and thus liability for property tax was held from the
date of electrification.
(c)
MCD Vs. Senaro Construction India Ltd. 104 (2003)
DLT 441 where, it was held that in the absence of any
averment that the assessee was at fault for delay in
obtaining Occupancy Certificate or that the building had
unauthorized construction which was required to be
rectified, MCD cannot take advantage of its own delay
in issuance of Completion Certificate resulting in nonoccupation of the building and cannot claim property tax
from the date of notice of completion and can claim
property tax only from the date of Occupancy Certificate.
(d)
MCD Vs. Jain Brothers ILR (2003) 1 Delhi 334 also
holding that if delay is on the part of the MCD in issuing
the Completion Certificate, the date of issuance of the
E
F
G
H
I
ILR (2010) II Delhi
Indian Law Reports (Delhi)
ILR (2010) II Delhi
A THE VAISH COOP. ADARSHA BANK LTD.
.....APPELLANT
Narayani Gautam & Ors.v. State NCT of Delhi & Anr. (V.K. Jain, J.) 321
322
Completion Certificate is to be the date under Section A
129 of the Act.
16. Though some of the judgments of this Court have on their facts
observed the property tax leviable with effect from the date of the
Completion Certificate for the reason of delay in issue/grant of Occupancy
Certificate being not attributable to the owner but in my opinion, the
question whether delay in grant of occupancy certificate is attributable to
the owner or to the MCD is really irrelevant. If the property tax is not
leviable till either the Occupancy Certificate is granted or till the property
is actually occupied, even if the delay in obtaining Occupancy Certificate
is of the owner, as long as the owner does not actually occupy the
property, the property cannot be made liable for property tax. The tax
is on the property and as long as there is no property which can be
legally occupied or which has been actually occupied, the incidence of
tax is not attracted. Just like the MCD cannot levy property tax as on
a built-up property, on a plot of land even if the owner delays construction
thereon, so also the MCD cannot levy such tax if the owner though
builds but does not occupy or obtains Occupancy Certificate. The remedy
of MCD in a case where the owner delays obtaining Occupancy Certificate
is by either revoking the sanction earlier granted and/or of demolishing
the construction as unauthorized. However it cannot hold the property
liable for property tax on that ground.
VERSUS
SUDHIR KUMAR JAIN & ORS.
B
B
C
D
D
E
E
F
F
G
G
H
H
I
I
17. I have perused the impugned order and the counter affidavit of
the respondent MCD carefully. It is not the case of MCD that the
building even though without Occupancy Certificate has been occupied.
18. That being the position, there is no option but to strike down
the order impugned in the present writ petition and to hold that the
property is not liable for property tax till Occupancy Certificate with
respect thereto is issued or till it is factually occupied.
19. The writ petition is therefore allowed. The Rule is made absolute.
However no order as to costs.
ILR (2011) I DELHI 339
RC SA
(MOOL CHAND GARG, J.)
RC SA NO. : 8/2005
C
.....RESPONDENT
DATE OF DECISION: 29.10.2010
Delhi Rent Control Act, 1958—Section 14(1)(b), 16 &
39—Subletting—ARCT allowed appeal and set aside
eviction order of additional Rent controller of u/s
14(1)(b)—Question of law: Whether the bequest of
tenancy rights by way of Will (by tenant) to only one
heir out of many heirs, whereby the other heirs are
ousted and only one heir is granted the tenancy
rights, amounts to subletting?—Held, tenancy rights
in a property can be inherited by legal heirs which is
let out for a commercial purpose, in accordance with
the provisions of Hindu Succession Act after the
death of tenant—In case of commercial tenancy,
bequeathing the tenancy rights in such tenancy by a
tenant, contractual or statutory, only in favour of one
of the legal heirs who was otherwise going to succeed
such rights in tenanted premises after the death of
deceased tenant would not constitute subletting to
attract Section 14(b)—A cause of action u/s 14(1)(b)
arises only if a stranger (who would not inherit
according to law of succession) is put in possession
of suit property to the exclusion of the tenant who
divests himself of the possession of the suit either in
full or in part—Since in present case tenant had willed
property to one of the heirs, it did not amount of
subletting—Appeal dismissed.
Important Issue Involved: In case of a commercial tenancy,
bequeathing the tenancy rights in such tenancy by a tenant
contractual or statutory, only in favour of one of the legal
Narayani Gautam & Ors.v. State NCT of Delhi & Anr. (V.K. Jain, J.) 323
heirs who was otherwise going to succeed such rights in
tenanted premises after the death of the deceased tenant,
would not constitute subletting so as to attract the mischief
of Section 14(1)(b).
Indian Law Reports (Delhi)
324
A
B
A
ILR (2010) II Delhi
MANU/RH/0168/1973.
13.
Balkesh and Anr. vs. Shanti Devi and Ors. reported in
1972 RCT 285.
14.
Sita Ram vs. Govind MANU/RH/0013/1970.
B
RESULT: Appeal dismissed.
[Ad Ch]
MOOL CHAND GARG, J.
APPEARANCES:
FOR THE APPELLANT
:
Mr. Deepak Agarwal, Advocate.
FOR THE RESPONDENT
:
Mr. Sanjiv Kakra, Advocate for R-1
& 2.
C
CASES REFERRED TO:
1.
Jagdish Kishore Kakar vs. Krishna Baijal 1996 AD (Del)1-682.
2.
Vasant Pratap Pandit vs. Dr. Anant Trimbak Sabnis (1994)
3 SCC 481.
D
E
3.
M/s Shree Chamundi Mopends Ltd. vs. Church of South
India Trust Association reported as AIR 1992 SC 1439.
4.
Mahant Karam Singh vs. Mulakh Raj, 1992 (2) RCR 62.
5.
Tara Chand & Anr. vs. Ram Prasad (1990) 3 SCC 526.
6.
M/s. Bharat Sales Ltd. vs. Life Insurance Corporation of
India, reported in AIR 1988 SC 1240.
7.
Smt. Daljit Kuar vs. Smt. Rukman & Ors., 1988 (2) 1988
G
(2) RCR 715.
8.
Bhavarlal Labhchand Shah vs. Kanaiyalal Nathalal
Intawala MANU/SC/0529/1986 : [1986]1SCR1.
9.
Bhavarlal Labhchand Shah vs. Kanaiyalal nathalal
H
Intawala, AIR 1986 SC 600.
10.
Jaspal Singh vs. tIhe Additional District Judge,
Bulandshahr and Ors. : AIR 1984 SC 1880.
11.
V. Dhanpal Chattiar vs. Yesodai Ammal, 1980 1 SCR
334.
12.
Mohan Lal vs. Jaipur Hosiery Mills Pvt. Ltd. reported in
F
I
1. This appeal filed under Section 39 of the Delhi Rent Control Act
1958 (hereinafter referred to as “the Act”) is directed against the order
dated 11.03.2005 passed by the Additional Rent Control Tribunal, Delhi,
in RCA No.578/2002, whereby the learned Tribunal has allowed the
appeal and set aside the order dated 02.07.2002 passed by the Additional
D Rent Controller, Delhi, whereby an eviction order has been passed in an
Eviction Petition No. 221/1988 filed under Section 14(1)(b) of the Act
on the ground of the alleged subletting etc. of the premises in question.
C
2. The relevant facts leading to the filing of this case are that suit
E premises situated on plot No. 3, Block A, Netaji Subhash Marg, Darya
Ganj, Delhi bearing Municipal No. 5055, Ward No. XI (hereinafter referred
to as ‘premises’) were purchased by the appellant from its previous
owner on 28.02.1975 with Shri Jugmohinder Lal Jain a tenant in respect
F of one garage/shop (hereinafter referred to as the suit property).
Consequently, Shri jugmohinder Lal Jain became a tenant of the appellant
in the said property w.e.f. 01.03.1975. Shri Jugmohinder Lal Jain later
died on 27.06.1987. During his life time he executed a Will dated
15.06.1987 whereby he bequeathed his interest in aforesaid property as
G
a tenant in favour of one of his son i.e. the first respondent to the
exclusion of other legal heirs.
3. According to the appellant after receiving a letter from the first
respondent
and came to know about the bequeath of the tenancy rights
H
in the suit property by the deceased Shri Jugmohinder Lal Jain by executing
a Will before his death on 15.06.1987 in favour of the first respondent
only, who is admittedly one of the legal heirs of the deceased Shri
Jugmohinder Lal Jain, without the written consent of the landlord and
I
Sita Devi & Anr. v. State of Delhi & Anr. (Indermeet Kaur, J.) 325
considering this act on the part of the deceased tenant as an act of A
assignment/transfer/ subletting, the appellant filed eviction petition No.
221/1998 before the Additional Rent Controller Delhi on 06.07.1988 seeking
eviction of the respondents under Section 14(1)(b) of Delhi Rent Control
Act 1958. The said eviction petition was allowed in favour of the appellant. B
Against the said order dated 02.07.2002 the first respondent filed an
appeal before the Addl. Rent Control Tribunal being (RCA No. 578/2002)
primarily on the ground that in view of Section 2 (l) of the Act, succession
of a commercial tenancy is inherited by all the legal heirs of the original
tenant after his death as such bequeathing of the tenancy rights of the C
suit property in favour of one of the legal heirs out of many heirs would
not constitute an act of subletting. The appeal was allowed.
4. This is the order which has been assailed by the appellant before
D
me under Section 39 of the Act. According to the appellant this appeal
raises following substantial question of law for the determination by this
Court in this appeal i.e.
326
Indian Law Reports (Delhi)
ILR (2010) II Delhi
A per the definition of the ‘tenant’ under the Delhi Rent Control Act. There
is statutory prohibition under the Delhi Rent Control Act against any
assignment of the tenancy rights may be by way of a Will in favor of
one of the legal heirs. Therefore, notwithstanding the will alleged to have
B been executed by the deceased Shri Jugmohinder Lal Jain in favour of
one of his sons, the same was of no legal significance qua the other legal
heirs, who became ‘tenant’ as defined in the Act on the day their father
died.
C
7. It is further submitted that in view of provisions contained under
Section 16 of the Act the tenancy rights cannot be transferred or assigned
either in full or in any part thereof. The said provision reads as under:
“16. Restrictions on sub-letting-
D
“Whether the bequest of tenancy rights, by way of a Will to only E
one heir out of many heirs, whereby the other heirs are ousted
and only one heir is granted the tenancy rights, does not amount
to subletting?”
E
5. According to the appellant the Additional Rent Control Tribunal F
went wrong in having interfered with the well-reasoned order passed by
the Additional Rent Controller and further failed to appreciate that after
bequeathing the tenancy rights only in favour of one of the legal heirs by
way of a Will by a deceased tenant who was not even in possession of
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the suit premises, was a clear case of assignment of the suit property by
way of a Will in favour of the first respondent and thus constitute an act
of subletting within the meaning of Sub-section (b) of Section 14 of the
Act.
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6. It is submitted by the appellant that the legal position in relation
to the commercial tenancy in the Delhi Rent Control Act the issue of
subletting as a ground of eviction in this case can only be examined in
relation to the provisions of Delhi Rent Control Act and not in relation
I
to the Rent Acts in other states. Under the Delhi Rent Control Act
commercial tenancy is inheritable and, therefore, on the death of the
deceased Shri Jugmohinder Lal Jain all his legal heirs became tenants as
F
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(1) Where at any time before the 9th day of June, 1952, a tenant
has sub-let the whole or any part of the premises and the subtenant is, at the commencement of this Act, in occupation of
such premises, then notwithstanding that the consent of the
landlord was not obtained for such sub-letting, the premises shall
be deemed to have been lawfully sub-let.
(2) No premises which have been sub-let either in whole or in
part on or after the 9th day of June, 1952, without obtaining the
consent in writing of the landlord, shall be deemed to have been
lawfully sub-let.
(3) After the commencement of this Act, no tenant shall, without
the previous consent in writing of the landlord,(a) sub-let the whole or any part of the premises held by
him as a tenant; or
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(b) transfer or assign his rights in the tenancy or in any
part thereof.”
8. Relying upon the aforesaid provision it is stated that the execution
of a Will in this case by transferring the tenancy rights to only one of
the legal heirs after the death of the deceased tenant was an act of
transferring/ assigning his rights in the tenancy by the deceased landlord
to only one of the legal heirs to the exclusion of all others and thus, it
was an act of assignment which constitute sub-letting and is prohibited
Sita Devi & Anr. v. State of Delhi & Anr. (Indermeet Kaur, J.) 327
328
A
A
9. It is submitted by the appellant that for the aforesaid reasons the
order passed by the Tribunal is liable to be set aside because it amounts
to mis-interpreting the provisions contained Section 14(1)(b) and Section
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16 of the Act.
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10. On the other hand, the counsel for the respondent has submitted
that bequeathing tenancy to one of the legal heirs in exclusion to other
legal heirs would not constitute sub-letting. In this regard he has relied
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upon the following judgments.
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under the aforesaid clause.
(i)
Bhavarlal Labhchand Shah Vs. Kanaiyalal nathalal
Intawala, AIR 1986 SC 600
(ii)
Mahant Karam Singh Vs. Mulakh Raj, 1992 (2) RCR D
62
(iii) Smt. Daljit Kaur Vs. Smt. Rukman & Ors., 1988 (2)
1988 (2) RCR 715.
11. I have heard the submissions made by both sides and I have E
also gone through the judgments cited at bar and have perused the record
of the case.
12. In the case of Jagdish Kishore Kakar Vs. Krishna Baijal
1996 AD (Del)-1-682 relied upon by the appellant a Learned Single Judge F
of this Court has held that bequeathing the rights to one of the legal heirs
constitutes sub-letting while dealing with a case where the bequeath was
only in favour of an adopted son. Para 15 to 17 of the said Judgment
are relevant and reads as under:
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“15. It has next been contended by the learned counsel for the
appellants that the deceased Sm. Brij Rani Baijal through the
abovesaid will bequeathed the said tenancy rights in favour of
the appellant No.1. Thus the appellant has become a legal and H
valid tenant of the disputed property under the said will (vide Ex.
DW4/1). I am sorry I am unable to agree with the contention of
the learned counsel.
16. Section 14(b) of the Delhi Rent Control Act deals with subletting, assigning or parting with possession over tenanted
accommodation without the prior permission of the landlord. In
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ILR (2010) II Delhi
case a tenant does so in that eventuality he is liable to eviction
under the said provision of law. Thus, if the contention of the
learned counsel for the appellant is to be accepted as correct,
then the same would be in utter disregard and clear violation of
Section 14(1)(b) of “that the tenant has on or after the 9th day
of June 1952, sub-let assigned or otherwise parted with the
possession of the whole or any part of the premises without
obtaining the consent in writing of the landlord.
17. I thus feel that the courts below were correct in their
conclusion that the tenancy rights cannot be the subject matter
of a bequest.”
13. It may however be observed that the tenancy was bequeathed
D in favor of the adopted son by the deceased tenant who does not come
in the category of Class I legal heirs of the deceased tenant for the
purpose of inheriting a commercial tenancy. In the aforesaid judgment a
reference has also been made to the judgment of the Hon’ble Supreme
E Court delivered in the case of Vasant Pratap Pandit Vs. Dr. Anant
Trimbak Sabnis (1994) 3 SCC 481 where the Apex Court while dealing
with Section 15 of Bombay Rent Hotel & Lodging House Rates Control
Act, 1947 which is para-materia with Section 14(1)(b) of Delhi Rent
Control Act observed as follows:F
“The matter may be viewed from another angle also. If the word
‘heir’ is to be interpreted to include a ‘legatee’ even a stranger
may have to be inducted as a tenant for there is no embargo
upon a stranger being a legatee. The contention of Mr. Sorabjee
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that ‘heir’ under a Will may be confined to only members of the
family cannot be accepted for there is no scope for giving such
a restrictive meaning to that word in the context in which it
appears in the act as earlier noticed, unlike in other Rent Acts.
H
Coming now to meaning of the words ‘assign’ or ‘transfer’ as
appearing in Section 15 we find that ‘transfer’ has been qualified
by the words in any other manner’ and we see no reason why
it should be restricted to only transfer inter vivos. As has been
rightly pointed out by the High Court in the impugned judgment
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the Transfer of Property Act limits its operation to transfer inter
vivos and therefore, the meaning of the word ‘transfer’ as
Bhag Singh v. The Delhi High Court (Veena Birbal, J.)
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330
contained therein cannot be brought in aid for the purpose of the A
Act. On the contrary, the wide amplitude of the words in any
other manner, clearly envisages that the word ‘transfer’ has
been used therein a generic sense so as to include transfer by
testament also.”
B
“It is clear from provisions of S.23 which prohibits sub-letting
or transfer by the tenant that except in cases covered by the
provisos to sub-section (1) of S.23, there is a prohibition for a
tenant to sub-let whole or any part of the premises let to him or
to assign or transfer in any other manner his interest therein.
This prohibition is however, subject to a contract to the contrary.
A tenant who sub-lets or assigns or transfers the premises in
contravention of this prohibition loses the protection of law and
can be evicted by the landlord under Section 21 (1) (f). In the
case of a statutory tenant, the relationship is not governed by
contract. The prohibition against assignment and transfer is
therefore, absolute and the interests of a statutory tenant can
neither be assigned nor transferred. This means that the interest
of the statutory tenant in the premises in his occupation, as
governed by the Karnataka Rent Control Act is a limited interest
which enables the surviving spouse or any son or daughter or
father or mother of a deceased tenant who had been living with
the tenant in the premises as a member of the tenant’s family up
to the death of the tenant and a person continuing in possession
after the termination of the tenancy in his favour, to inherit the
interest of the tenant on his death. The said interest of the tenant
is however, not assignable or transferable.”
16. On the facts of this case this judgment also does not lay down
a law that the tenancy rights cannot be bequeathed to one of the legal
heirs who are likely to succeed the tenancy rights in the case of the death
ILR (2010) II Delhi
A of statutory tenant in a commercial tenancy.
17. In Bhavarlal labhchand Shah’s case (supra) the Hon’ble
Supreme Court has made the following observations:B
14. Thus the Court was considering the circumstances where a will
may be executed in favor of a stranger who may not be even a legal heir.
15. Reference has also been made to another judgment of the
Supreme Court in M/s Shree Chamundi Mopends Ltd. Vs. Church of C
South India Trust Association reported as AIR 1992 SC 1439. In the
aforesaid judgment it has been held:-
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“5. We are concerned in this case with a building which islet for
business and insofar as business premises are concerned it
provided in Section 5(ll)(c)(ii) that any member of the tenant's
family carrying on business, trade or storage with the tenant in
the premises at the time of the death of the tenant as may
continue, after his death, to carry on the business trade or storage,
as the case may be in the said premises and as may be decided
in default of agreement by the Court shall be treated as a tenant.
It is significant that both Sub-clauses (i) and (ii) of Clause
(c) of Sub-section (11) of Section 5 of the Act which deal
with the devolution of the right to tenancy on the death of
a tenant in respect of residential premises and premises let
for business, trade or storage respectively do not provide
that the said right of tenancy can devolve by means of
testamentary disposition on a legatee who is not referred to
in the respective Sub-clauses. It has, therefore, to be understood
that even the extended meaning given to the expression 'tenant
by Sub-section (11) of Section 5 of the Act does not authorise
the disposition of the right to the tenancy of the premises governed
by the Act under a will. Ordinarily it is only an interest that can
be inherited that can be bequeathed. But the heritability of a
tenancy after the determination of the lease, which is protected
by the Act is restricted in the case of residential premises only
to the members of the tenant's family mentioned in Sub-Clause
(i) of Clause (c) of Section 5(11) of the Act and in the case of
premises let for business, trade or usage to members belonging
to the family of the tenant carrying on business, trade or storage
with the tenant as may continue after his death to carry on the
business, trade or storage as the case may be in the said premises
and as may be decided in default of the agreement by the Court
as provided in Sub-Clause (ii) thereof. When the statute has
imposed such a restriction, it is not possible to say that the
tenant can bequeath the right to such tenancy in the case of
premises let for business, trade or storage in favour of a person
Bhag Singh v. The Delhi High Court (Veena Birbal, J.)
331
332
not possessing the qualification referred to in Section 5(11)(c)(ii) A
of the Act. The petitioner admittedly is not a person
possessing the said qualification. It is appropriate to refer here
to the following observations made by A.N. Sen, J. who has
written the main judgment of the case in Gian Devi v. AIR 1985 B
SC 796 :
“In the absence of the provision contained in Sub-Section 2(1)(iii),
the heritable interest of the heirs of the statutory tenant would
devolve on all the heirs of the 'so called statutory tenant' on his
death and the heirs of such tenant would in law step into his
position. This Sub-section (iii) of Section 2(1) seeks to restrict
this right in so far as the residential premises are concerned. The
heritability of the statutory tenancy which otherwise flows
from the Act is restricted in case of residential premises
only to the heirs herein are entitled to remain in possession
and to enjoy the protection under the Act in the manner
and to the extent indicated in Section 2(1)(iii). The Legislature
which under the Rent Act affords protection against eviction to
tenants whose tenancies have been terminated and who continue
to remain in possession and who are generally termed as statutory
tenants, is perfectly competent to lay down the manner and
extent of the protection and the rights and obligations of such
tenants and their heirs. Section 2(1)(iii) of the Act does not
create any additional or special right in favour of the heirs of the
'so called statutory tenant' on his death, but seems to restrict the
right of the heirs of such tenant in respect of residential premises.
As the status and rights of a contractual tenant even after
determination of his tenancy when the tenant is at times described
as the statutory tenant, are fully protected by the Act and the
heirs of such tenants become entitled by virtue of the provisions
of the Act to inherit the status and position of the statutory
tenant on his death, the Legislature which has created this right
has thought it fit in the case of residential premises to limit the
rights of the heirs in the manner and to the extent provided in
Section 2(1)(iii). It appears that the Legislature has not
thought it fit to put any such restrictions with regard to
tenants in respect of commercial premises in this Act.
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(underlining by us)
6. In the above decision this Court was considering the provisions
of the Delhi Rent Control Act in which restriction had been
placed on the heritability of the statutory tenancy in the case of
residential premises only to the heirs mentioned in Section 2(1)(iii)
of the Delhi Rent Control Act and-no such restriction had been
placed with regard to the right of tenancy in respect of commercial
premises. Proceeding further A.N. Sen, J. observed in the above
decision at page 813 thus :
In the Delhi Act, the Legislature has thought it fit to make
provisions regulating the right to inherit the tenancy rights in
respect of residential premises. The relevant provisions are
contained in Section 2(1)(iii) of the Act. With regard to the
commercial premises, the Legislature in the Act under
consideration has thought it fit not to make any such provision.
It may be noticed that in some Rent Acts provisions regulating
heritability of commercial premises have also been made whereas
in some Rent Acts no such provisions either in respect of
residential tenancies or commercial tenancies has been made. As
in the present Act, there is no provision regulating the
rights of the heirs to inherit the tenancy rights of premises
which is commercial premises, the tenancy right which is
heritable devolves on all the heirs under the ordinary law
of succession. The tenancy right of Wasti Ram, therefore,
devolves on all the heirs of Wasti Ram on his death.
7. In view of the above decision, we are of the opinion that the
right to occupy the premises after the determination of the
lease cannot be bequeathed to any person under a will who
does not satisfy the qualification, referred to in Section
5(11)(c)(ii) of the Act. In Gian Devi's case (supra) the Court
was not concerned with the right of a tenant to bequeath his
right to remain in possession of a premises after the determination
of the lease which he possessed under the statute in favour of
a third party under a will. The Court was dealing with the case
of persons who claimed that they had inherited such right by
way of intestate succession. Naturally the Court was inclined to
Bhag Singh v. The Delhi High Court (Veena Birbal, J.)
333
334
take a view favourable to the members of the family of the A
tenant who would be exposed to grave difficulties if they were
to be thrown out of the demised premises in which the tenant
was carrying on his business till his death. This is clear from the
following observations of A.N. Sen, J. at page 811 :
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A tenant of any commercial premises has necessarily to use
the premises for business purposes. Business carried on by a
tenant of any commercial premises may be and often is, his only
occupation and the source of livelihood of the tenant and his
family; and the tenant, if he is residing in a tenanted house, may
also be paying his rent out of the said income... The mere fact
that in the Act no provision has been made with regard to the
heirs of tenants in respect of commercial tenancies on the death
of the tenant after termination of. the tenancy, as has been done
in the case of heirs of the tenants of residential premises, does
not indicate that the Legislature intended that the heirs of the
tenants of commercial premises will cease to enjoy the protection
afforded to the tenant under the Act. The Legislature could never
have possibly intended that with the death of a tenant of the
commercial premises, the business carried on by the tenant,
however, flourishing it may be and even if the same constituted
the source of livelihood of the members of the family, must
necessarily come to an end on the death of the tenant only
because the tenant died after the contractual tenancy had been
terminated. It could never have been the intention of the Legislature
that the entire family of a tenant depending upon the business
carried on by the tenant should be completely stranded and the
business carried on for years in the premises which had been let
out to the tenant must stop functioning at the premises which
the heirs of the deceased tenant must necessarily vacate, as they
areafforded no protection under the Act. We are of the opinion
that in case of commercial premises governed by the Delhi
Act, the Legislature has not thought it fit in the light of the
situation at Delhi to place any kind of restriction on the
ordinary law of inheritance with regard to succession.
8. The reasons given by the Court in the above decision in
support of the case of the heirs of a tenant who inherit his
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business under the intestate succession would not however be
available in the case of a person who is a stranger to the family
who claims the right to the tenancy under a will of a deceased
tenant. There can possibly be no justification either in law or in
equity to extend the meaning of the expression 'tenant' so as to
include such strangers also. If such a right of a tenant were to
be recognised, what prevents him from transferring the building
to any body he likes who is totally unconnected with him or who
is not dependent on him such as a temple, a church, a mosque,
a hospital, a foreigner, a multinational company and any other
person of the counrty? The Legislature could never have intended
to confer such a right on him and exclude the right of a landlord
to get back possession of his building for ever even after the
death of the tenant with whom he had entered into contract
initially. Perhaps even in the case of a person who may succeed
under Sub-clauses (i) and (ii) of Section 5(11)(c) there can be
no further devolution after his death again under these Subclauses. This question however need not be pursued in this case.
(However see Para 602 Vol. 27 Halsbury's Laws of England 4th
Edn.). When in the case before us the Legislature has
restricted the right to inherit the right to the tenancy of the
premises let out for business, trade or storage to any member
of a tenant's family carrying on business, trade or storage
with the tenant at the time of his death it is not open to the
Court by judicial construction to extend the said right to
persons who are not members of the tenant's family who
claim under testamentary succession.”
18. The position was further clarified with regard to the bequeathing
the tenancy rights in favour of somebody else's other than legal heirs in
this judgment in paragraph 9 onwards:
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“9. In Jaspal Singh v. The Additional District Judge,
Bulandshahr and Ors. : AIR 1984 SC 1880, this Court had
occasion to consider the validity of a bequest of the right of a
tenant to continue to occupy the premises after the determination
of the tenancy under U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 under a will. Section 3(a) of the
U.P. Act referred to above defined the expression 'tenant' thus:
Bhag Singh v. The Delhi High Court (Veena Birbal, J.)
335
3. In this Act unless the context otherwise requires:
336
A
(a) 'tenant', in relation to a building means a person by whom its
rent is payable, and on the tenant's death (1) in the case of a residential building, such only of his heirs B
as normally resided with him in the building at the time of his
death ;
ILR (2010) II Delhi
A the said Act held that a statutory tenant is competent to bequeath his
tenancy right by executing a Will in favour of his son specifically excluding
daughter. The relevant observations are in para 11 which are reproduced
hereunder:B
(2)in the case of a non-residential building, his heirs ;
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10. The appellant in that case claimed the right to tenancy held
by one Nuabat Singh under the will of Naubat Singh. This Court
held that the appellant would be a tenant within the meaning of
Section 3(a) of that Act only when he was an heir but the
appellant was not a son but only nephew of Naubat Singh. The D
said U.P. Act also contained a provision in Section 12(2) thereof
which stated that in the case of non-residential building where a
tenant carrying on a business in the building admitted a person
who was not a member of his family as a partner or a new E
partner, as the case may be, the tenant should be deemed to have
ceased to occupy the building. Under those circumstances this
Court held at page 1885 thus:
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From a survey of these provisions it will be clear that if a F
tenant parts with possession of the premises in his possession,
the same would be treated as vacant... In the case of nonresidential building, when a tenant is carrying on business
in the building, admits a person who is not a member of his
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family as a partner or new partner as the case may be, the
tenant shall be deemed to have ceased to occupy the building.
If a tenant sublets the premises, he is liable to ejectment.
Obviously, therefore, there are restrictions placed by the Act on
the right of the tenant to transfer or sublet the tenancy rights and H
he can keep possession for the purpose of his family, for his
business and for the business of his family members. He obviously
cannot be allowed to transfer a tenancy right. A fortiori, the
scheme of the Act does not warrant the transfer the tenancy I
right to be effective after his lifetime.”
F
19. However, Punjab High Court in a case relating to East Punjab
Urban Rent Restriction Act while interpreting Section 2(i) and 13(2) of
Indian Law Reports (Delhi)
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“11. The competency of a statutory tenant to transfer his tenancy
rights by Will is here a matter which directly arises in this case
and cannot, therefore, be avoided. In dealing with this question,
keeping in view the relevant provisions of the East Punjab Urban
Rent Restriction Act, 1949 (hereinafter referred to as the Rent
Act), it must be appreciated that a bequest of tenancy rights by
a statutory tenant in favour of a stranger cannot but stand on a
different footing than one to his legal heirs. Whereas in the
former, it would be the thrusting of ‘uncontemplated strangers’
in the premises, in the latter it would be no more than the
coming in of some, if not all, of those upon whom the legislature
has conferred a right to succeed to such tenancy rights. It is
also well settled that an interest that can be inherited can be
bequeathed too. On principle, therefore, no exception can be
taken to the entitlement of a statutory tenant to bequeath his
tenancy rights by Will to one or more of his legal heirs who
would have succeeded to them had he died intestate.”
20. To the same affect is the other judgment delivered in the case
of Mahant Karam Singh Vs. Mulakh Raj (supra).
21. In the light of the judgment delivered by the Apex Court in the
case of Bhavarlal (supra) it has been clarified that the rights of a tenant
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are heritable in favour of the legal heirs like any other property and as
long as inheritance of the property even under a Will is in favour of one
of those i.e. the members of the family who are likely to inherit after the
death of the deceased and are not in favour of some outsiders the said
H act on the part of the deceased tenant by executing a Will in favour of
one of the legal heirs would not constitute an act of sub-letting.
I
22. Another judgment delivered in the case of Tara Chand & Anr.
Vs. Ram Prasad (1990) 3 SCC 526, the Hon’ble Supreme Court has
considered the rights of inheritance of the legal heirs of a deceased tenant
who was having a tenancy in the suit property for commercial purposes.
By making a reference to the Constitution bench judgment in Gian Devi
Anand Vs. Jeevan Kumar & Ors. and also relying upon 7 Judges
Bench of the Apex Court in V. Dhanpal Chattiar Vs. Yesodai Ammal,
1980 1 SCR 334 has extracted some observations made by the Constitution
Umesh Kaushik v. Indian Bank & Ors. (Rekha Sharma, J.)
337
338
Bench with reference to the inheritance of the commercial tenancy which A
is as under:
“We are of the opinion that in case of commercial premises
governed by the Delhi Act, the Legislature has not thought in fit
in the light of the situation at Delhi to place any kind of restriction
on the ordinary law of inheritance with regard to succession. It
may also be borne in mind that in case of commercial premises
the heirs of the deceased tenant not only succeed to the tenancy
rights in the premises but they succeed to the business as a
whole. It might have been open to the Legislature to limit or
restrict the right of inheritance with regard to the tenancy as the
Legislature had done in the case of the tenancies with regard to
the residential houses but it would not have been open to the
Legislature to alter under the Rent Act, the Law of Succession
regarding the business which is a valuable heritable right and
which must necessarily devolve on all the heirs in accordance
with law. The absence of any provision restricting the heritability
of the commercial tenancies notwithstanding the determination
of the contractual tenancies will devolve on the heirs in accordance
with law and the heirs who step into the position of the deceased
tenant will continue to enjoy the protection afforded by the Act
and they can only be evicted in accordance with the provisions
of the Act. There is another significant consideration which, in
our opinion, lends support to the view that we are taking.
Commercial premises are let out not only to individuals but also
to Companies, Corporation or anybody with juristic personality,
question of the death of the tenant will not arise. Despite the
termination of the tenancy, the Company or the Corporation or
such juristic personalities, however, will go on enjoying the
protection afforded to the tenant under the Act. It Can hardly
be conceived that the Legislature would intend to deny to
one class of tenants, namely, individuals the protection which
will be enjoyed by the other class, namely, the Corporations
and Companies and other bodies with juristic personality
under the Act. If it be held that commercial tenancies after
the termination of the contractual tenancy of the tenant
are not heritable on the death of the tenant and the heirs
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ILR (2010) II Delhi
of the tenant are not entitled to enjoy the protection under
the Act, an irreparable mischief which the Legislature would
never have intended is likely to be caused."
23. In view of the aforesaid the Apex Court observed:
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“6. On the facts of the case it was held that the tenant who
continues to remain in possession even after the termination of
the contractual tenancy till a decree for eviction against him is
passed, continues to have an estate or interest in the tenanted
premises and tenancy rights in respect of commercial premises
are heritable. There is no provision in the Act regulating the
rights of its heirs to inherits the tenancy rights of the tenanted
commercial or business premises. The tenancy rights devolved
on the heirs under the ordinary law of succession. Accordingly
it was held that the tenancy rights of Wasti Ram devolved on all
the heirs of Wasti Ram on his death. The ratio with equal force
applies to the facts of this case.”
24. By referring to the judgment in the case of Bhavarlal Labhchand
Shah (supra) it was observed:
“7. The ratio in Bhavarlal Labhchand Shah v. Kanaiyalal Nathalal
Intawala MANU/SC/0529/1986 : [1986]1SCR1 does not help the
F
respondent. The facts therein was that the tenant by testimentary
disposition "will" bequeathed his occupancy rights in the tenanted property
in favour of the stranger legatee. The question was whether such a
legatee is entitled to the benefit of continuance of tenancy under Bombay
G Rents, Hotel and Lodging House Rules Control Act, 1947. It was held
that since the bequest was in favour of the third party, the testator
thereby, cannot confer rights under the provisions of the Rent Act on the
stranger who was not a member of the family. The march of law
H culminated in Giani Devi Anandi's case knocked of the bottom of A.C.
Chaterjee's ratio. Similarly the foundation in Sita Ram v. Govind MANU/
RH/0013/1970, Balkesh and Anr. v. Shanti Devi and Ors. reported in
1972 RCT 285, Mohan Lal v. Jaipur Hosiery Mills Pvt. Ltd. reported
in MANU/RH/0168/1973 has been shaken and no longer remain to be
I
good law.”
25. Taking note of the fact that the deceased tenant Smt. Anandi,
in that case was inducted in the suit property for commercial purposes
Umesh Kaushik v. Indian Bank & Ors. (Rekha Sharma, J.)
339
& which was determined under notice of 106 of Transfer of Property A
Act even thereafter continued to remain in possession as statutory tenant
and who expired subsequently, it was held that:
“Smt. Anandi enjoyed the status as a statutory tenant of the
premises even after the determination of the tenancy. B
Notwithstanding the termination of the contractual tenancy the
jural relationship of the landlord and tenant between the respondent
and Smt. Anandi under the Act was not snapped off. The heritable
property or interest in the lease hold right in the tenancy continued C
to subsist in the tenant Anandi.
On her death, the rights to succession to an estate of the
deceased owner vested immediately on his/her than nearest heirs
and cannot be held in abeyance except when a nearer heir is then D
in the womb. The vested right can not be divested except by a
retrospective valid law. The appellants by virtue of intestate
succession under Hindu Succession Act, being Class I heirs,
succeeded to the heritable interest in the lease hold right of a E
demised premises held by Smt. Anandi. They, thereby, stepped
into the shoes of the tenant. They continued to remain in
possession as on the date of the suit as statutory tenants. Thereby,
they are entitled to the protection of their continuance as a statutory
F
tenant under the Act.”
26. The fine distinction which has been made by the Hon’ble Supreme
Court in the case of Bhavarlal (supra) has not been noticed in the later
judgment of the Hon’ble Supreme Court in Vasant Pratap Pandit’s case
G
(supra).
27. From the aforesaid it is apparent that the tenancy rights in a
property can be inherited by the legal heirs which is let-out for a commercial
purpose in accordance with the provisions of the Indian Succession Act H
after the death of the tenant. Thus in case the landlord wishes to restrict
the rights of inheritance only in favour of one of the legal heirs, such Act
on the part of the tenant may not be a cause of action giving rise to a
suit for eviction of the property on the ground of sub-letting. Of course
I
it may be an issue between the other legal heirs inter-se which is not the
case before us.
340
Indian Law Reports (Delhi)
ILR (2010) II Delhi
28. Even otherwise a cause of action for filing a suit of eviction
under Section 14(1)(b) of the Act arises only when a stranger is put in
possession of the suit to the exclusion of the tenant who divest himself
of the possession of the suit either in full or part. This aspect has also
B been dealt with by the Apex Court in the case of M/s. Bharat Sales Ltd.
Vs. Life Insurance Corporation of India, reported in AIR 1988 SC
1240, which is a celebrated judgment on the issue of sub-letting and
which reads as under:A
C
D
E
F
G
H
I
“4. Sub-tenancy or subletting comes into existence when the
tenant gives up possession of the tenanted accommodation, wholly
or in part, and puts another person in exclusive possession thereof.
This arrangement comes about obviously under a mutual agreement
of understanding between the tenant and the person to whom the
possession is so delivered. In this process, the landlord is kept
out of the scene. Rather, the scene is enacted behind the back
of the landlord, concealing the overacts and transferring
possession clandestinely to a person who is an utter stranger to
the landlord, in the sense that the landlord had not let out the
premises to that person nor had he allowed or consented to his
entering into possession over the demised property. It is the
actual, physical and exclusive possession of that person, instead
of the tenant, which ultimately reveals to the landlord that the
tenant to whom the property was let out has put some other
person into possession of that property. In such a situation, it
would be difficult for the landlord to prove, by direct evidence,
the contract or agreement or understanding between the tenant
and the sub-tenant. It would also be difficult for the landlord to
prove, by direct evidence, that the person to whom the property
had been sublet had paid monetary consideration to the tenant.
Payment of rent, undoubtedly, is an essential element of lease or
sub-lease. It may be paid in cash or in kind or may have been
paid or promised to be paid. It may have been paid in lump-sum
in advance covering the period for which the premises is let out
or sublet or it may have been paid or promised to be paid
periodically. Since payment of rent or monetary consideration
may have been made secretly, the law does not require such
payment to be proved by affirmative evidence and the court is
Umesh Kaushik v. Indian Bank & Ors. (Rekha Sharma, J.)
341
permitted to draw its own inference upon the facts of the case A
proved at the trial, including the delivery of exclusive possession
to infer that the premises were sublet.”
29. Applying the aforesaid principle to the facts of this case, it is
not a case where any stranger has been brought into possession of the B
suit by the execution of the will by late tenant in favour of one of legal
heirs. As a matter of fact, this aspect has not been dealt with in any of
the judgments relied upon & cited at bar. However, the discussion which
has undergone in various judgments of the Apex Court as discussed C
above and the judgment delivered by the Punjab and Haryana High Court
on which reliance has been placed by the respondent crystallizes the
issue. The position thus becomes clear i.e.
(i) In case of a commercial tenancy, bequeathing the D
tenancy rights in such tenancy by tenant contractual or
statutory only in favour of one of the legal heirs who was
otherwise going to succeed such rights in the tenanted
premises after the death of the deceased tenant would not
E
constitute subletting so as attract the mischief of Section
14(1)(b) of the DRC Act.
(ii) However, the Delhi Rent Control Act being a special
Act and Section 14(1)(b) specifically imposing a restriction
F
upon the tenant which would also be applicable upon a
statutory tenant i.e. not to sublet, assign or otherwise part
with the possession of the suit property to a stranger to
the exclusion of the tenant, bequeathing the rights under
the tenancy to a stranger i.e. a person who is not going G
to inherit the tenancy even by the law of successions may
give a cause of action to the landlord to contend that the
bequeath in favour of a stranger or a person who would
not inherit the tenancy in accordance with the law of H
succession is an act of sub-letting to attract mischief of
Section 14(1)((b) of DRC Act.
30. This can also be explained in this manner that in a given situation
if the other legal heirs who are not living with the tenant or are involved
in other business or if a family settlement between the legal heirs of the
deceased as reached between the life time of the tenant, exclusion of
Indian Law Reports (Delhi)
342
I
ILR (2010) II Delhi
A other legal heirs to succeed the tenancy rights would not give a cause
of action for filing a suit in favour of the landlord on the ground of subletting under Section 14(1)(b) of the Act. Such action of the deceased
may be a cause for an inter se fight between the legal heirs which is not
B a case before us.
31. In view of the aforesaid, I am of the considered view that it
is not necessary for this Court to follow the view taken by another Judge
of this Court in the case of Jagdish Kishore Kakar Vs. Krishna Baijal
C (supra), which was delivered in peculiar facts dealing with bequeath of
tenancy rights in favour of adopted child of the deceased tenant.
Consequently, the issue framed in paragraph 4 of this judgment is decided
in favour of the respondents. Consequently, the appeal filed by the appellant
is dismissed with no orders as to costs.
D
32. Copy of this order be sent to the first appellate Tribunal along
with records forthwith. Interim orders, if any, stands vacated.
ILR (2011) I DELHI 238
W.P.
E
NEENA SHAD
.....PETITIONER
VERSUS
F
MCD & ORS.
....RESPONDENT
(PRADEEP NANDRAJOG AND MOOL CHAND GARG, JJ.)
G
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W.P. (C) NO. : 6423/2010 &
6113/2010
DATE OF DECISION: 02.11.2010
Constitution of India, 1950—Article 12, 226, 227 &
331—Administrative Tribunal Act, 1985 section 19,20 &
21—Aggrieved petitioners by orders of Administrative
Tribunal filed writ petitions—As Per, Petitioners who
are husband and wife, they were appointed as Medical
Officers on contractual basis by MCD from time to time
MCD extended their term of appointment and their
remuneration also enhanced—Petitioner no. 1 filed
Umesh Kaushik v. Indian Bank & Ors. (Rekha Sharma, J.)
343
three complaints, levelling sexual harassment
allegations against colleague and seniors—Sexual
Harassment Committee dismissed those complaints
and also recommended strict disciplinary action against
both the petitioners—Accordingly, Commissioner MCD
vide office letter, took decision not to continue with
engagement of petitioners with MCD—Aggrieved by
said office order petitioner no. 1 filed writ petition
which was dismissed and appeal preferred by her also
dismissed—Thereafter petitioner no. 1 filed another
writ petition which was also dismissed—On the other
hand, petitioner no. 2 after dismissal of application of
petitioner no. 1 filed application before Administrative
Tribunal which was dismissed and review filed by him
also dismissed—Petitioners urged in writ petitions
MCD discriminated against petitioners by not extending
their term of appointment as term of other Medical
Officers who were similarly placed and also who were
juniors to petitioners were granted extension of term—
Also MCD, did not hold inquiry in terms of Article 311
(2) before issuing office order. Held : In the case of an
appointment to a permanent post in a government
service on probation or on an officiating basis, the
servant so appointed does not acquire any substantive
right to the post and consequently cannot complain,
any more than a private servant employed on probation
or on an officiating basis can do, if his service is
terminated at any time—Likewise, an appointment to a
temporary post in a government service may be
substantive or on probation or on an officiating basis—
The servant so appointed acquires no right to the
post and his service can be terminated at any time
except in one case when the appointment to a
temporary post is for a definite period—A person
appointed on contractual basis does not enjoy the
protection of Article 311 (2) as he is not a member of
a Civil Service of the Union or a All India Services or
344
A
A
Indian Law Reports (Delhi)
ILR (2010) II Delhi
a Civil Services of a State or holds a civil post under
the Union or a State.
B
B
C
C
D
D
E
E
Clause (1) of Article 311 is quite explicit and hardly requires
any discussion. The scope and the ambit of clause (1) is
that government servants are entitled to the judgment of the
authority by which they were appointed or some authority
superior to that authority and that they should not be
dismissed or removed by a lesser authority in whose
judgment they may not have the same faith. The underlying
idea obviously is that a provision like this will ensure to them
a certain amount of security of tenure. Clause (2) protects
government servants against being dismissed or removed
or reduced in rank without being given a reasonable
opportunity of showing cause against the action proposed to
be taken in regard to them. It is to be noted that in clause
(1) the words “dismissed” and “removed” have been used
while in clause (2) the words “dismissed” “removed” and
“reduced in rank” have been used.
(Para 53)
F
What is meant by the expressions “dismissed”, “removed”
and “reduced in rank” occurring in Article 311(2)? ( P a r a
54)
G
This aspect of the matter was examined in great detail by
Supreme Court in the decision reported as Parshotam Lal
Dhingra v Union of India 1958 SCR 828. After tracing the
history of service rules, Supreme Court observed as under:-
F
G
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“It follows from the above discussion that both at the
date of the commencement of the 1935 Act and of our
Constitution the words “dismissed”, “removed” and
“reduced in rank”, as used in the service rules, were
well understood as signifying or denoting the three
major punishments which could be inflicted on
government servants. The protection given by the
rules to the government servants against dismissal,
removal or reduction in rank, which could not be
enforced by action, was incorporated in sub-sections
Umesh Kaushik v. Indian Bank & Ors. (Rekha Sharma, J.)
345
(1) and (2) of Section 240 to give them a statutory
protection by indicating a procedure which had to be
followed before the punishments of dismissal, removal
or reduction in rank could be imposed on them and
which could be enforced in law. These protections
have now been incorporated in Article 311 of our
Constitution. The effect of Section 240 of the 1935
Act reproduced in Articles 310 and 311, as explained
by this Court in S.A. Venkataraman v. Union of India
25 has been to impose a fetter on the right of the
government to inflict the several punishments therein
mentioned. Thus under Article 311(1) the punishments
of dismissal, or removal cannot be inflicted by an
authority subordinate to that by which the servant was
appointed and under Article 311(2) the punishments
of dismissal, removal and reduction in rank cannot be
meted out to the government servant without giving
him a reasonable opportunity to defend himself. The
principle embodied in Article 310(1) that the
government servants hold office during the pleasure
of the President or the Governor, as the case may be,
is qualified by the provisions of Article 311 which give
protection to the government servants. The net result
is that it is only in those cases where the government
intends to inflict those three forms of punishments
that the government servant must be given a
reasonable opportunity of showing cause against the
action proposed to be taken in regard to him. It
follows, therefore, that if the termination of service is
sought to be brought about otherwise than by way of
punishment, then the government servant whose
service is so terminated cannot claim the protection of
Indian Law Reports (Delhi)
346
ILR (2010) II Delhi
A
A
Article 311(2) and the decisions cited before us and
referred to above, insofar as they lay down that
principle, must be held to be rightly decided.”
(Emphasis Supplied)
(Para 55)
B
B
C
C
D
D
To put it simply, the principle is that when a servant has right
to a post either under the terms of the contract of
employment, express or implied, or under the rules governing
the conditions of his service, the termination of the service
of such a servant is by itself and prima facie a punishment,
for it operates as a forfeiture of his right to hold that post or
that rank and to get the emoluments and other benefits
attached thereto. But if the servant has no right to the post,
as where he is appointed to a post, permanent or temporary
either on probation or on officiating basis, the termination of
his employment does not deprive him of any right and
cannot, therefore, by itself be a punishment.
(Para 65)
E
E
F
F
Important Issue Involved: A person appointed on
contractual basis does not enjoy the protection of Article
311 (2) as he is not a member of a Civil Service of the
Union or a All India Services or a Civil Services of a State
or holds a civil post under the Union or a State.
[Sh Ka]
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APPEARANCES:
FOR THE PETITIONERS
:
Petitioner in person.
FOR THE RESPONDENT
:
Mr. Gaurang Kanth & Ms. Biji
Rajesh, Advocates.
CASES REFERRED TO:
1.
Union Public Service Commission vs. Girish Jayanti Lal
Vaghela (2006) 2 SCC 482).
2.
Vishaka vs. State of Rajasthan (1997) 6 SCC 241
3.
Ramana Dayaram Shetty vs. International Airport
Authority of India (1979) 3 SCC 489).
Vishal Gupta v. Udai K. Lauria (S.N. Dhingra, J.)
4.
347
348
Parshotam Lal Dhingra vs. Union of India 1958 SCR A
828.
RESULT: Petition dismissed.
PRADEEP NANDRAJOG, J.
B
1. Between the years 2001-2002 Municipal Corporation of Delhi
(hereinafter referred to as “MCD”) appointed 41 doctors as Medical
Officers (Ayurveda) on contractual basis, including the petitioners who
are married to each other. The relevant portion of the letters containing C
the terms and conditions of the appointment of said Medical Officers
issued by MCD reads as under:“….With reference to his/her Walk-in-interview and approval of
Commissioner, Municipal Corporation of Delhi, Dr.Neena Shad/ D
Dr.Sunil Chaudhary is hereby given Offer of Appointment to the
post of Ayurvedic Vaid on contract basis at a fixed amount of
Rs.10,000/- per month initially for a period of six months, or till
such time the post is filled up on regular basis through UPSC, E
whichever is earlier subject to the following terms and conditions:1. The post is purely on contract basis for a period of six
months or till such time the post is filled up on regular basis by
CED through UPSC, whichever is earlier. The appointment can
terminated at any time on either side by giving one month’s
notice or by paying one month’s salary without assigning any
reason……” (Emphasis Supplied)
F
2. From time to time, MCD extended the term of appointment of G
the aforesaid Medical Officers including the petitioners. Remuneration of
the said Medical Officers was also enhanced.
3. On 13.07.2007 a complaint was made to the Commissioner
MCD by petitioner Neena Shad, who was then posted at Bihari Pur H
Ayurvedic dispensary, against one Shiv Dayal Kain, Compounder in the
said dispensary, inter-alia alleging that she was sexually harassed by the
said Compounder. In view of the complaint made by petitioner Neena
Shad, Commissioner, MCD directed Dr.Ashok Garg, Chief Medical Officer I
to investigate into the matter and submit a report in said regard.
4. On 16.07.2007 Dr.Ashok Garg, Chief Medical Officer, submitted
Indian Law Reports (Delhi)
ILR (2010) II Delhi
A a report wherein he opined that Mr.Shiv Dayal Kain ˇbe transferred
from Bihari Pur dispensary to Ayurvedic dispensary of Swami Dayanand
Hospital. He further opined that ‘I found no harassment with MOI/C by
the pharmacist. It has come to my notice that both are faulty one or the
B other issue.’
5. Thereafter one Mr.Shri Ram was appointed as Compounder in
Bihari Pur Ayurvedic Dispensary. Petitioner Neena Shad alleged that since
the said Compounder was not discharging his duties in a satisfactory
C manner she went to the office of Chairman, Medical Relief and Public
Health Committee on 22.11.2007 to complain about Compounder Shri
Ram where she was manhandled by Mr.Prakash Chand Dagar, Peon to
the Chairman, while she was waiting to meet the Chairman. The petitioner
filed a complaint with Commissioner, MCD regarding the said incident.
D
6. Considering the problems between petitioner Neena Shad and
Compounder Shri Ram, a decision was taken by the higher officials of
the Health Department of MCD on 23.11.2007 to transfer the petitioner
E from Bihari Pur dispensary to Nand Nagari dispensary.
7. On the same date i.e. 23.11.2007 Dr.Vidya Sagar Sharma, who
was officiating as DHO (ISM) accompanied by Dr. Ashok Garg, Chief
Medical Officer, visited Nand Nagari dispensary to facilitate petitioner
F Neena Shad in joining the said dispensary. Petitioner Neena Shad alleged
that Dr.Vidya Sagar had touched her in a derogatory manner. The police
was called on the spot to inquire into the matter.
8. In his defence, Dr.Vidya Sagar stated that on the directions of
G Chairman, Medical Relief and Public Health Committee he along with
Dr.Ashok Garg had gone to Nand Nagari dispensary to facilitate petitioner
Neena Shad in joining the said dispensary where petitioner Neena Shad
was present along with her husband Dr.Sunil Chaudhary. Petitioner Neena
H Shad and her husband unnecessarily picked up a fight with him and
thereafter called the police and falsely accused him of sexually harassing
Neena Shad.
I
9. An enquiry was conducted into the aforesaid matter by the
Office of Deputy Commissioner of Police and a report was submitted in
said regard, which report reads as under:“Allegations leveled by the Complainant against her Senior Doctor
Vishal Gupta v. Udai K. Lauria (S.N. Dhingra, J.)
349
Vidya Sagar Sharma and Dr.Ashok Garg are uncalled for as the A
entire episode took place in public where her husband was also
present. Allegations of molestation/Indecent behavior are false,
baseless and motivated.”
10. Thereafter petitioner Neena Shad filed a complaint against B
Dr.Vidya Sagar before Commissioner, MCD. In terms of the directions
issued by Supreme Court in the decision reported as Vishaka v State
of Rajasthan (1997) 6 SCC 241, Commissioner, MCD referred the
afore-noted two complaints filed by petitioner Neena Shad against Prakash C
Chand Dagar and Dr. Vidya Sagar respectively to Sexual Harassment
Complaints Committee (hereinafter referred to as “Committee”) comprising
of following members:- (i) Ms.Meera Akolia, Municipal Secretary, MCD;
(ii) Mr.P.K. Gupta, Director (Printing & Stationary), MCD; (iii)
D
Dr.Vireshwar, Chief Medical Officer, Town Hall Dispensary, MCD; (iv)
Ms.Meenakshi Sobti, P.R.O., Kasturba Hospital and (v) Ms.Aparna Bhat,
NGO Member.
11. During the pendency of proceedings of Sexual Harassment E
Complaints Committee, a report was submitted by Dr.M.L. Khatri, DHO
(ISM) in March 2008 regarding the conduct of petitioner Neena Shad,
the relevant portion whereof reads as under:“Dr.Neena Shad is working as Medical Officer (Ay.) on contract F
basis since 2001 and presently posted at Ay. Dispensary Nand
Nagri. During her stay in various dispensaries her behavior
towards with junior and subordinate staff was not found
satisfactory. It came into notice that the officer who asked for
G
her punctuality and behave properly to juniors, she always leveled
allegations of sexual harassment upon everyone. It has happened
with previous DHO Dr.V.P. Kanoji and the junior staff who
worked/working under her supervision in a awful situation which
is created by her for her own interest. It is pertinent to say that H
during last year Deptt. made so many transfers of pharmacists
but none of them was interested to work under her with the fear
of leveling false sexual harassment charges….” (Emphasis
Supplied)
I
12. The first hearing of the Committee took place on 15.05.2008.
In the said hearing, the notices for appearance before Committee were
350
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ILR (2010) II Delhi
A issued to the petitioners, Ms.Sudesh Kumari, Ms.Renu Gill, Dr.Vidya
Sagar Sharma and Dr.Ashok Garg. The hearing was adjourned to
22.05.2008.
13. On the next hearing i.e. 22.05.2008 Dr.M.L. Khatri, DHO (ISM),
B informed the Committee that the notices for hearing could not be served
upon the petitioners. Regarding the non-service of notices to the petitioners,
Dr.M.L. Khatri stated before the Committee that when contacted over
telephone regarding the service of the notices the petitioners stated that
C they will personally collect the notices from the office but they did not
come to the office. In view of non-service of notices to the petitioners,
the Committee decided that the notices for appearance be delivered in the
respective dispensaries where the petitioners are working and waited for
the status of service of notices.
D
14. In the meantime, witnesses; Dr.Vidya Sagar, Dr.Ashok Garg,
Ms.Renu Gill and Ms.Sudesh Kumari were examined.
15. Dr.Vidya Sagar reiterated the defence taken by him before the
E police. Dr.Ashok Garg duly corroborated the statement of Dr.Vidya Sagar
and firmly denied that any incident of sexual harassment had taken place
on 23.11.2007 as alleged by petitioner Neena Shad.
16. Ms.Renu Gill who had worked as ANM with petitioner Neena
Shad for a period of over two months stated that petitioner Neena Shad
used to cry for no reason and pick up fights with other members of
staff. That husband of Neena Shad used to accompany her to the
dispensary and attend patients even though he was posted at another
G dispensary. That Neena Shad used to come to the dispensary late, take
away the attendance register of the dispensary to her residence and bring
her child to the dispensary every day. That she had sought the transfer
from the dispensary in question due to the behavior of Neena Shad.
F
H
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17. Ms. Sudesh Kumari who was posted as Compounder in Nand
Nagari dispensary stated that Neena Shad used to cry easily and pick up
fights with people. Regarding incident of sexual harassment, she stated
that Dr.Vidya Sagar had no occasion to touch Neena Shad.
18. Regarding the service of notice to petitioner Neena Shad, the
pharmacist in Nand Nagari dispensary informed the Committee that Neena
Shad had left the Committee around noon stating that she was going to
Vishal Gupta v. Udai K. Lauria (S.N. Dhingra, J.)
351
352
the office for some work. Regarding the service of notice to petitioner A
Sunil Chaudhary, the petitioner was not found present in the dispensary
at the time when the dispatch rider reached there. Mr.Keshav Das,
Compunder refused to receive the notice and stated that Dr.Sunil
Chaudhary had left the office to collect the notice personally, which B
statement was found to be untrue by the Committee.
19. At about 04.00 P.M. one Keshav Dass, Compounder came in
the office of Committee to collect the notice of Dr.Sunil Chaudhary.
When questioned by the members of the Committee, he informed that C
Dr.Sunil Choudhary had sent him to collect the notice. When further
inquiries were made from Keshav Dass he feigned fainting. The members
of the Committee were of the view that Keshav Dass was under the
tremendous influence of Dr.Sunil Chaudhary and feared his wrath.
D
20. In the meantime, the Committee sent the dispatch rider to the
residence of the petitioners to serve the notices where the petitioners
treated him very badly. First the petitioners refused to receive the notices
falsely stating that they do not reside there. When the dispatch rider E
insisted upon serving the notices, the petitioners seized the keys of the
motorcycle of the dispatch rider whereupon the police was called. It was
only upon the intervention of the police that the petitioners returned the
keys to the dispatch rider.
F
21. In view of the afore-noted uncooperative and obstructive behavior
of petitioner Neena Shad, the Committee chose not to give any further
opportunity to her to present her case before the Committee and submitted
its report inter-alia opining that the allegations of sexual harassment leveled
G
by petitioner Neena Shad against Dr.Vidya Sagar and Mr.Prakash Chand
Dagar are false and baseless. The relevant portion of the report of the
Committee reads as under:“CONCLUDING COMMENTS
This is one of the strangest cases that the Committee has received.
The Complaints Committee on Sexual Harassment was set up to
provide speedy redressal to the victims of sexual harassment.
The Committee comprises of Senior Officers of MCD and the
complaints are heard on priority basis to ensure that women are
not harassed. However, the present case seems to be a case of
total abuse of this fora. The Committee takes strong objection to
A
B
C
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Indian Law Reports (Delhi)
ILR (2010) II Delhi
the conduct of the complainant due to the following reasons: a
Although she was given a hearing of over 2 hours on the first
day of hearing totally uninterrupted, the complainant chose to
call the Chairperson of the Committee late at night to discuss the
case and she had to be firmly told to refrain from making those
calls;
b. The cross examination was fixed to facilitate the hearing. The
complainant was advised that she would be intimated about the
date and she should appear before the Committee. However, not
only did she not appear, she misbehaved with the Dispatch Rider
specially sent to her residence by calling the police. This incident
also subjected senior officials of the MCD to harassment and
humiliation late into the night;
c. After having got the notice, Dr.Shad feigned the illness by
stating that both she and her husband have taken ill and cannot
before the Committee;
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d. The Complainant had made allegations against a Peon in the
office of Chairman, MRPH Committee, a compounder, Shiv Dayal
and Dr.Vidya Sagar Sharma. However, before the Committee
she first stated that she does not want to pursue against the Peon
and Shiv Dayal. She then changed her statement and stated that
she would like to think about it. She has not intimate the Committee
till about her decision;
e. When the Committee tried to contact her at the dispensary
during working hours, she was found absent from the dispensary.
She had not taken permission to leave the dispensary during
working hours. She had informed her pharmacist that she was
going out on official work and misled her;
f. Dr.Vidya Sagar in his statement before the Committee also
brought to the attention of the Committee the manner in which
the complainant along with her husband had threatened other
staff by calling the police, going to their houses with hooligans
etc. The Committee had looked at the file containing these
complaints and is surprised as to why no action was taken by
the department…..
Punjab Tractors Ltd. v. International Tractors Ltd. (Rajiv Sahai Endlaw, J.)353
The Committee's responsibility is only to look into the merits of A
the allegations of sexual harassment. However, due to the shocking
conduct of the complainant, her husband Dr.Sunil Chaudhary
and certain other persons of the Health Department, the Committee
is constrained to make the following observations.
B
a. The doctor couple seem to have terrorized the department as
the DHO, (ISM) Dr.M.L.Khatri, the pharmacists and other staff
was visibly scared of them;
b. The administration of the DHO (ISM) is very weak. Although C
he was aware about the conduct of both the doctors and their
indiscipline, he allowed them to go scot free;
c. The complainant herself has shown highly insubordinate
D
behavior. She had herself admitted that she had questioned
Dr.Vidya Sagar why he visited her dispensary. She never marked
her attendance at the hospital, refused to receive the notices sent
by this Committee. She also did not respect the hierarchy. She
went above the departmental officers directly to the Commissioner E
and when it suited her also met the Chairman for routine
administration matters;
RECOMMENDATIONS:
F
The Committee makes the following recommendations.
1. The present complaint of sexual harassment is rejected as
there is no merit in the complaint;
2. Contract staff should not be given independent charge of the
dispensaries.
G
3. Strict disciplinary action is recommended against both Dr.Neena
Shad and Dr.Sunil Chaudhary for abusing the process of law, H
taking law onto their own hands and showing total disregard to
the committee as well as other Senior Officers of their
department;” (Emphasis Supplied)
22. In view of the recommendations contained in the afore-noted
report of the Committee, Commissioner MCD took a decision on
17.06.2008 not to continue with the engagement of the petitioners with
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354
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A
ILR (2010) II Delhi
MCD as both of them were a nuisance and no subordinate person was
ready to work at the dispensary where they could be posted.
23. On 15.07.2008 an Office Order was issued by MCD extending
the term of appointment of 35 out 39 Medical Officers who were similarly
B
placed as the petitioners. The extensions could not be granted to 4
Medical Officers due to the fact that DHO (ISM) did not forward their
Performance Appraisals to the concerned authority.
C
24. On 03.07.2008 Office Order(s) were issued by MCD dispensing
with the services of the petitioners. The said Office Order(s) reads as
under:-
E
“Dr.Sunil Choudhary/Neena Shad was employed in MCD on
contract basis as Medical Officer (Ayurveda). His/her period of
contract has expired on 07.05.2008. The Competent Authority
has not approved his/her re-engagement and hence, he/she is no
more in Municipal services. This issues with the prior approval
of the Competent Authority.”
F
25. On 01.08.2008 Office Order(s) were issued by MCD granting
extensions to 4 Medical Officers who were not granted extensions earlier
due to non-receipt of their Performance Appraisals as also to 26 Medical
Officers who were junior to the petitioners.
D
26. Aggrieved by the Office Order dated 03.07.2008 issued by
MCD, petitioner Neena Shad filed a writ petition bearing ˇNo.7037/2008
under Articles 226 and 227 of Constitution of India before this Court. At
G this juncture, it would be most apposite to note some of the averments
made by the petitioner in the said petition:-
H
I
“1. That your humble Petitioner is aggrieved by the letter/order
no 378/ADC (H)/2008 dated 03-07-2008 in which the services
of the petitioner was removed on the pretext that the competent
authority has no approved her re-engagement and hence she is
no more in Municipal Services. While other persons whoare
junior and the senior from the petitioner still working with the
respondents…..
…
15. That it is submitted that the said posts are still not filled by
Punjab Tractors Ltd. v. International Tractors Ltd. (Rajiv Sahai Endlaw, J.)355
356
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the Union Public Service Commission and the other persons who A
was employed with the petitioner is still working with the
respondents.
A
….
29. Thereafter petitioner Neena Shad filed another writ petition
B bearing No.11791/2009 under Articles 226 and 227 of Constitution of
India before this Court inter-alia highlighting that MCD had meted out a
most discriminatory treatment to her by extending the term of appointment
of all the 39 Medical Officers who were similarly placed as the petitioners
C including the four Medical Officers who were not given extension in the
first instance as also of 26 Medical Officers who were junior to the
petitioners, which petition stood transferred to Principal Bench, Central
Administrative Tribunal, New Delhi for adjudication.
B
17. That it is submitted that the respondent twice appointed on
the contract basis approx. 35 doctors with the same conditions
as the same applied in the case of the petitioner.
18. That the services of the petitioner removed with no reason C
and except that the authorities did not extend the contract period.
No reason has been assigned why the period of the petitioner
and her husband have not been extended out of the complete list.
….
D
GROUNDS:
….
D BECAUSE the services of the petitioner was terminated on the E
basis of pick and choose;
E BECAUSE no reason has been assigned why only the petitioner
and her husband’s services were terminated/not extended while
other persons are still working with the respondent;
F
F BECAUSE there were other person/doctors who are either
junior or senior to the petitioner is still working with the
respondents;
G
G BECAUSE the impugned order is the violation of Article 14
and 21 of Constitution of India;
…..” (Emphasis Supplied)
27. Vide order dated 26.09.2008 this Court dismissed the said writ
petition on the ground that a contractual appointment does not confer any
legal right upon the holder of such a post and it is the prerogative of the
employer to allow the contractual appointee to continue him in service
and the court cannot interfere if such a discretion exercised is by the
employer unless the discretion is found to be vitiated by mala fide or
extraneous considerations.
H
I
28. Aggrieved by the order dated 26.09.2008 passed by this Court,
petitioner Neena Shad filed letters patent appeal before a Division Bench
of this Court, which appeal was dismissed vide order dated 24.10.2008.
D
30. Vide impugned judgment and order dated 28.04.2010, the Tribunal
dismissed the petition filed by petitioner Neena Shad on the ground that
even though facts and circumstances of the case do suggest that a
discriminatory treatment was meted out to petitioner Neena Shad, she is
E not entitled to any relief in view of the fact that the present application
is based on the same cause of action as the Writ Petition No.11791/2009
filed by Neena Shad before this Court, which petition stood dismissed by
this Court. The relevant portion of the impugned judgment is being noted
herein under:F
“5. Pursuant to notice issued by this Tribunal, the respondent
has entered appearance and filed its reply contesting the claim of
the applicant. It is significant to mention that on the basic facts
with regard to employment of the applicant and her husband on
G
contractual basis, the dates of their employment, and employment
of others along with the applicant on same terms and conditions,
there is no dispute at all. There is no dispute either with regard
to 26 doctors being appointed after appointment of the applicant
H
on same terms and conditions. The applicant, the basic facts as
mentioned above, contends that she and her husband have been
discriminated. There are hardly any arguments by the learned
counsel representing the respondent to counter the plea raised by
the respondent………
I
9. Having heard the applicant and Shri Bhardwaj, learned counsel
representing the respondent, we are of the view that even though,
Punjab Tractors Ltd. v. International Tractors Ltd. (Rajiv Sahai Endlaw, J.)357
the applicant may appear to have a case of discriminatory
treatment meted out to her, but because of her filing writ petition
for the same relief and on the plea of discrimination as well, it
would be difficult to give any relief to her. We are of the firm
view that the pleadings with regard to discrimination meted out
to the applicant were indeed made in the earlier writ petition filed
by her and the relief asked for, in any case, was the same as has
been asked for in the present Application. The mere fact that
nothing with regard to discrimination came to be referred to by
the learned single Judge who dismissed the petition, may not
entitle the applicant to file fresh petition for the same cause of
action. Even though, as mentioned above, the plea of the applicant
is based upon discrimination, the same did not come to be referred
to or discussed, but once, it was taken, the applicant ought to
have stressed upon the same, and if yet aggrieved, she could
seek remedies like review or appeal against the orders passed by
the learned single Judge/Division Bench, but fresh petition on the
same plea would be impermissible. We are conscious that by
virtue of provisions contained in Section 22 of the Act of 1985,
the Tribunal is not bound by the procedure laid down in the
Code of Civil Procedure, but, at the same time, as per the
provisions contained in the same very section, it shall be guided
by the principles of natural justice. Provisions contained in Section
11 CPC are in fact based upon the principle of natural justice
that no one can be vexed twice for the same cause of action.
Even if, therefore, provisions of Section 11 CPC may not be
strictly applicable in the present case, principles of natural justice
would come in the way of the applicant in asking for any relief
having already lost her cause up to the Division Bench of the
Hon’ble High Court of Delhi.
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A
A
Court for the relief. Second petition on the same ground for the
same relief cannot be entertained. The same is thus dismissed.
There shall, however, be no order as to costs.” (Emphasis
Supplied)
B
B
31. After the dismissal of the application filed by petitioner Neena
Shad, her husband Sunil Choudhary filed an application under Section 19,
Administrative Tribunals Act, 1985 before the Tribunal inter-alia taking
the same grounds as taken by petitioner Neena Shad in her application.
C
C
D
E
F
G
12. In view of the discussion made above, even though, prima H
facie it appears that the applicant may have a case for retention
in service on the ground of discriminatory treatment meted to
her, we are unable to grant any relief to her. The applicant
appears to have chosen a wrong cause of action. As mentioned I
above, in our view, her remedy lay in requesting the Hon’ble
High Court for review or else, approach the Hon’ble Supreme
32. Vide impugned judgment dated 02.07.2010, the Tribunal dismissed
the application filed by petitioner Sunil Choudhary on the ground that the
same is barred by limitation in view of Section 21 of Administrative
Tribunals Act, 1985 which provides that an application should be filed
D before the Tribunal within a year of passing of final order by the concerned
authority. It was held by the Tribunal that the cause of action for filing
the present application arose on 03.07.2008 when MCD issued the office
order dispensing with the services of the petitioner, which is a final order
E within the meaning of Section 20 of Administrative Tribunals Act, 1985
and thus petitioner ought to have filed the application on or before
02.07.2009 whereas he filed the same in the year 2010.
33. Aggrieved by the judgment dated 02.07.2010 passed by the
Tribunal,
petitioner Sunil Choudhary filed a review application before the
F
Tribunal on the ground that the office order dated 03.07.2008 issued by
MCD was not a final order within the meaning of Section 20 of
Administrative Tribunals Act, 1985 inasmuch as a representation dated
28.01.2009 was filed by the petitioner against the said office order and
G
the same was not considered by MCD.
34. Vide order dated 11.08.2010, the Tribunal dismissed the aforesaid
review application filed by petitioner Sunil Choudhary on the ground that
H the petitioner has not been able to demonstrate that there was an error
apparent on the face of the record in the judgment dated 02.07.2010
passed by the Tribunal.
I
35. Aggrieved by the judgments dated 28.04.2010 and 02.07.2010
and the order dated 11.08.2010 passed by the Tribunal, the petitioners
have filed the above-captioned petitions under Articles 226 and 227 of
Constitution of India.
Punjab Tractors Ltd. v. International Tractors Ltd. (Rajiv Sahai Endlaw, J.)359
360
36. During the hearing of the above captioned petitions, the A
petitioners, who appeared in person, advanced following 3 submissions:-
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Kehar Singh and Anr. v. State (Pradeep Nandrajog, J.)
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Kehar Singh and Anr. v. State (Pradeep Nandrajog, J.)
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Kehar Singh and Anr. v. State (Pradeep Nandrajog, J.)
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Kehar Singh and Anr. v. State (Pradeep Nandrajog, J.)
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Major General A.K. Kapur, VSM v. U.O.I. (Sanjay Kishan Kaul , J.) 387
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Major General A.K. Kapur, VSM v. U.O.I. (Sanjay Kishan Kaul , J.) 389
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Major General A.K. Kapur, VSM v. U.O.I. (Sanjay Kishan Kaul , J.) 391
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Preeti Kapur v. Anshuman Kapur & Ors. (Vipin Sanghi, J.)
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Deewan Arora v. Tara Devi Sen & Ors. (S. Ravindra Bhat, J.)
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Deewan Arora v. Tara Devi Sen & Ors. (S. Ravindra Bhat, J.)
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Commnr. of Income Tax, Delhi-IV v. DLF Power Ltd. (A.K. Sikri, J.) 445
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Anil Suri & Ors. v. Vikrant Khanna & Anr. (Vipin Sanghi, J.)
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