INDIAN LAW REPORTS DELHI SERIES 2011 · 2012-07-19 · INDIAN LAW REPORTS DELHI SERIES 2011...
Transcript of INDIAN LAW REPORTS DELHI SERIES 2011 · 2012-07-19 · INDIAN LAW REPORTS DELHI SERIES 2011...
INDIAN LAW REPORTS
DELHI SERIES
2011(Containing cases determined by the High Court of Delhi)
VOLUME-6, PART-I(CONTAINS GENERAL INDEX)
EDITOR
MR. A.S. YADAVREGISTRAR (VIGILANCE)
CO-EDITORS
MS. NEENA BANSAL KRISHNA
(ADDITIONAL DISTRICT & SESSIONS JUDGES)
REPORTERS
MR. CHANDER SHEKHAR MS. ANU BAGAI
MR. TALWANT SINGH MR. SANJOY GHOSE
MR. GIRISH KATHPALIA MR. K. PARMESHWAR
MS. SHALINDER KAUR (ADVOCATES)
MR. V.K. BANSAL VINAY KUMAR GUPTA
MR. L.K. GAUR MR. KESHAV K. BHATI
MR. GURDEEP SINGH DEPUTY REGISTRAR
MS. ADITI CHAUDHARY
MR. ARUN BHARDWAJ
(ADDITIONAL DISTRICT
& SESSIONS JUDGES)
PUBLISHED UNDER THE AUTHORITY OF HIGH COURT OF DELHI,
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I.L.R. (2011) VI DELHI Part-I (November, 2011)
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NOMINAL-INDEX
VOLUME-VI, PART-I
NOVEMBER, 2011
Rajiv Goela and Anr. v. Delhi Development Authority ........................... 1
Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. ................................................ 8
K.L. Chandak v. Mr. Jai Chand & Ors. ................................................. 17
Susan Leigh Beer v. India Tourism Development Corporation Ltd. ...... 31
Anil Kumar Sharma @ Bobby v. Delhi State/NCT Delhi ....................... 82
Rajesh Kr. Chaturvedi v. Union of India & Ors. ................................. 106
Chamno Devi v. Smt. Usha & Ors. ..................................................... 133
Delhi Development Authority v. Hans Raj Batheja ............................... 141
Indian Associates v. The State and Others .......................................... 153
Yogesh Duggal & Ors. v. State & Ors. ............................................... 175
Bharat Vats v. Garima Vats .................................................................. 198
Commissioner of Income Tax v. M/s. Mediworld
Publications Pvt. Ltd. ..................................................................... 203
Faheem Ahmed v. Maviya @ Luxmi.................................................... 216
Commissioner of Income Tax v. M/s. SAS Pharmaceuticals ............. 243
Anand Prakash v. The Delhi State Co-Operative Bank Ltd. & Anr. .... 251
S.K. Mitra v. Asst. General Manager State Bank of India ................... 262
Babu Lal & Ors. v. Mahavir Singh @ Mahvir Prashad & Ors. ........... 270
R.D. Gupta & Ors. v. D.T.C. & Anr. .................................................. 277
Devendra Kumar v. Govt. of NCT of Delhi and Ors. ......................... 290
Arti Jethani v. Daehsan Trading (India) Pvt Ltd. & Ors. .................... 319
Akbari Begum & Ors. v. State ............................................................. 328
State GNCT of Delhi v. Mukesh .......................................................... 340
State (Govt. of NCT of Delhi) v. Girdhari LaL Verma........................ 354
IHHR Hospitality Pvt. Ltd. v. Bestech India Pvt. Ltd. ......................... 364
Jindal Stainless Limited & Anr. v. Union of India & Ors. ................... 373
Chugh Kathuria Engineers (P) Ltd. v. Delhi
Development Authority (DDA) ...................................................... 395
BSES Rajdhani Power Ltd. v. Union of India & Ors. .......................... 429
(ii)
(i)
SUBJECT-INDEX
VOLUME-VI PART-I
NOVEMBER, 2011
ARBITRATION ACT, 1940—Section 30 and 33—Indian
Contract Act, 1872—Section 15 and 16—Code of Civil
Procedure, 1908—Section 34, Order IX Rule 8, Order VI Rule
4—Petitioner was allotted work of construction of flats—
Disputes between parties referred to sole arbitrator—Award
rendered by arbitrator challenged before High Court—As
arbitrator had failed to consider a letter of petitioner accepting
responsibility for delay in execution of work, award partly set
aside and new arbitrator appointed to decide claims—Arbitrator
held delay in completion was on part of respondent—Award
challenged before High Court—Plea taken, impugned order is
not based on any evidence placed before arbitrator and that
there is an error apparent on face of award—There was no
pleading to support story that letter admitting delay was
obtained from petitioner under duress or coercion—Per contra
plea taken, arbitrator had considered evidence and concluded
delay was attributable to respondent at various stages of
work—Held—A plea of coercion or undue influence or duress
has necessarily to be specifically raised and pleaded as a fact—
Though Code of Civil Proceedure is not strictly applicable to
arbitral proceedings, Principles thereof, which are evolved to
achieve fairness in proceedings, are attached even to arbitral
proceedings—To permit a party to arbitration proceeding to
raise oral plea of ‘‘coercion’’ or ‘‘duress’’ or ‘‘undue
influence’’, would cause irreparable injustice to opposite party
as opposite party would be put to grave disadvantage in dealing
with such a vague and indefinite plea which is devoid of
particulars and specifics—Grant of extension of time by
respondent, till date of abandonment, cannot necessarily lead
to conclusion that delay was attributable to respondent, and
not petitioner—A party to a contract has option to accept
breach thereof by opposite party and require opposite party
to still complete contract—It is not that whenever there is
breach of contract by one party, opposite party should rescind
contract—Claim for tools & plants stationed at site for
prolonged period made rule of Court—Arbitrator appointed to
reconsider claims for expenses incurred for delayed work/
losses suffered by petitioner due to contract getting prolonged.
M/s. Chugh Kathuria Engineers (P) Ltd. v.
Delhi Development Authority (DDA) ........................... 395
ARBITRATION AND CONCILIATION ACT, 1996—Section
8—Petition filed by defendant for referring disputes raised by
plaintiff for arbitration after four weeks of filing Written
Statement—Plea taken, defendant had already pleaded in
written statement that there is arbitration agreement between
parties and this Court has no jurisdiction to adjudicate instant
suit—Applicants did not submit to jurisdiction of Civil Court
and application is maintainable even after filing of written
statement—Held—Defendants have already filed their Written
Statement and have disclosed their entire defence in main
proceedings and not in supplemental proceedings—Application
for referring disputes for Arbitration would be maintainable if
applicant had not filed his first statement on substance of
dispute—But when Written Statement is filed, it can hardly
be disputed that applicant has submitted not only first but
whole of his statement on dispute between parties. Mere
disclosure of arbitration agreement in Written Statement and
claiming civil Court has no jurisdiction to try suit would be
of no consequence unless Written Statement itself contains a
prayer for referring dispute for arbitration—Jurisdiction of
Civil Court is not ousted on account of arbitration agreement
between parties—It is ousted because of application filed under
Section 8 of Act, provided it otherwise confirms to
requirements laid down in Section.
Arti Jethani v. Daehsan Trading (India) Pvt
Ltd. & Ors. .................................................................... 319
(iv)
(iii)
BAR COUNCIL OF DELHI ELECTION RULES, 1968
(RULES)—Rule 31(A)(ii)—Consitutional Validity—Petitioner
secured maximum number of first preference votes amongst
the unsuccessful candidates in the election to Bar Council of
Delhi—A casual vacancy occurred—Petitioner’s
representation for co-opting him as member was rejected—
Present writ petition was filed on grounds that Rule 31(A)(ii)
was unconstitutional—No intelligible differentia between two
vacancies, caused when election is set aside and arising out
of death or resignation- co-option procedure to be followed
to fill both kind of vacancy by candidate who has secured
maximum first preference votes amongst unsuccessful
candidate—Respondents contended that nature of vacancies
are different—Method of co-option is to aviod re-election—
Inclusion of next man in different circumstances does not
invite wrath of equality clause. Held—Rule 31(A)(ii) is
constitutionally valid—Co-option is a permissible method for
filling casual vacancy the Rule confers power on electoral
college and not all voters to co-opt a member—Conferment
of such power is not arbitrary—Involvement of larger body
for co-option is unacceptable—Only qualification for being co-
opted-enumerated under Rule 7 and 7A of Rules.
Devendra Kumar v. Govt. of NCT of Delhi
and Ors. .......................................................................... 290
CENTRAL EXCISE ACT, 1994—Section 37B—Payment of
whole service tax exempted on services provided to a
Developer or Units of SEZ by any service provider, for
purpose of development, operation and maintenance of SEZ
or for setting up of a SEZ unit or for manufacture of goods
by SEZ Units, on satisfaction of certain conditions—Impugned
circular clarified that service tax is exempted on provision of
only such services which are rendered by service providers
to Developer or Unit for its authorized operation within area
of SEZ—Circular challenged in writ petition before High Court
—Plea taken, only condition required for availing exemption
from payment of service tax by a Developer/Entrepreneur is
that taxable service should be used for carrying on authorized
operations by Developer/Entrepreneurs—Location of service
provider or place of service is entirely irrelevant for purpose
of this exemption—Per contra plea taken, service tax
exemption is available only for services which are provided
to carry on authorized operation in a SEZ—Held—Only
condition that is required to be satisfied to avail service tax
benefit is that services must be rendered for purpose of
carrying out ‘‘authorized operations in a special economic
zone’’—If intention of legislature was to exempt only those
services from levy of service tax that are rendered within SEZ,
legislature would have categorically stated so in statute—A
subordinate legislation has to confirm to parent statute and any
subordinate legislation inconsistent to provisions of parent
statute is liable to be set aside—Circulars being executive/
administrative in character cannot supersede or override Act
and statutory Rules—Impugned circular seeks to impose a
condition that was not intention of legislature in SEZ Act or
Rules and is liable to be set aside.
M/s. Jindal Stainless Limited & Anr. v. Union of
India & Ors. .................................................................. 373
CODE OF CIVIL PROCEDURE, 1908—Order XXXIX, Rule
1 & 2—Suit for permanent injunction for restraining defendant
no.1 from poaching faculty members of defendant no. 1 or
from instigating them to quit the plaintiff company and join
them—Defendant objected that injunction claimed would have
the effect of curtailing the freedom given to its employees to
improve their future prospects and service conditions—Held—
There is no contract between the plaintiff company and
defendant no. 1 company not to poach on the employees of
each other—In the absence of any such contract, nothing in
law prevented defendant no. 1 company from approaching the
employees of plaintiff company and offering better service
conditions to them—Therefore, it cannot be said that any legal
(v) (vi)
injury was caused to the plaintiff-company by the alleged
poaching or any legal right, vesting in the plaintiff-company,
was violated by defendant No.1 company—Suit dismissed with
cost.
Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. ..................... 8
— Section 34, Order IX Rule 8, Order VI Rule 4—Petitioner was
allotted work of construction of flats—Disputes between
parties referred to sole arbitrator—Award rendered by
arbitrator challenged before High Court—As arbitrator had
failed to consider a letter of petitioner accepting responsibility
for delay in execution of work, award partly set aside and
new arbitrator appointed to decide claims—Arbitrator held
delay in completion was on part of respondent—Award
challenged before High Court—Plea taken, impugned order is
not based on any evidence placed before arbitrator and that
there is an error apparent on face of award—There was no
pleading to support story that letter admitting delay was
obtained from petitioner under duress or coercion—Per contra
plea taken, arbitrator had considered evidence and concluded
delay was attributable to respondent at various stages of
work—Held—A plea of coercion or undue influence or duress
has necessarily to be specifically raised and pleaded as a fact—
Though Code of Civil Proceedure is not strictly applicable to
arbitral proceedings, Principles thereof, which are evolved to
achieve fairness in proceedings, are attached even to arbitral
proceedings—To permit a party to arbitration proceeding to
raise oral plea of ‘‘coercion’’ or ‘‘duress’’ or ‘‘undue
influence’’, would cause irreparable injustice to opposite party
as opposite party would be put to grave disadvantage in dealing
with such a vague and indefinite plea which is devoid of
particulars and specifics—Grant of extension of time by
respondent, till date of abandonment, cannot necessarily lead
to conclusion that delay was attributable to respondent, and
not petitioner—A party to a contract has option to accept
breach thereof by opposite party and require opposite party
to still complete contract—It is not that whenever there is
breach of contract by one party, opposite party should rescind
contract—Claim for tools & plants stationed at site for
prolonged period made rule of Court—Arbitrator appointed to
reconsider claims for expenses incurred for delayed work/
losses suffered by petitioner due to contract getting prolonged.
M/s. Chugh Kathuria Engineers (P) Ltd. v.
Delhi Development Authority (DDA) ........................... 395
— Order XLI Rule 4—Maintainability of Appeal if all the legal
representatives are not impleaded—Respondent’s suit for
possession—Decreed—Appeal filed by only one legal
representative without impleading other legal representatives
was allowed by the Appellate Court—Same challenged in
second appeal. Held—Order XLI Rule 4 of the Code permits
one of the several plaintiffs or one of the several defendants
to obtain a reversal of the whole decree—Therefore even
assuming that the decree was against all the legal
representatives—Appeal filed by one legal was competent—
Further under Rule 33—Appellate Court has wide powers to
pass any decree and to make any order notwithstanding that
the appeal has been filed only by one person—Decree can be
passed against those respondents as well who have not filed
any appeal or objection—Condition being that they must be
parties to the suit.
Mr. K.L. Chandak v. Mr. Jai Chand & Ors. .............. 17
— Suit for declaration & Permanent Injunction—This appeal has
impugned the judgment and decree dated 05.3.2007 which had
endorsed the finding of the trial judge dated 20.7.2005 whereby
the suit filed by the plaintiff seeking a declaration and
permanent injunction to the effect that the plaintiff is the owner
of the property and the defendant be restrained from
interfering in the peaceful possession of the plaintiff, had been
dismissed—The plaintiff was in possession of the suit
property—She is a plaintiff had married Nek Ram—Nek
(vii) (viii)
Ram’s whereabouts were not known for last 16 years—
Defendant No.1 came in contact with the plaintiff about 15
years ago—The Plaintiff and the defendant No.1 thereafter got
married—Defendant no.1 did not disclose that he was already
married to one Satyawati and had children from the said
marriage—The fact came to the knowledge of the plaintiff
only in the year 1981—Defendant No.1 had played a fraud
upon her with an ulterior motive to grab her property—By
way of present suit plaintiff had sought decree of declaration
that the plaintiff is the owner of the suit property; permanent
injunction had also been sought restraining the defendant from
interfering in her peaceful possession—Defendant had denied
the version of the plaintiff—It was stated that the plaintiff was
tenant of the defendant no.1—The Court had disbelieved the
version set up by the plaintiff; suit was dismissed—This was
endorsed in the first appeal—Second appeal filed no perversity
has been pointed out—Except two statements no evidence
adduced by appellant to show that property was purchased
benami from her money by defendant No.1 in the name of
defendant No.2—Appeal dismissed.
Babu Lal & Ors. v. Mahavir Singh @ Mahvir
Prashad & Ors. ............................................................. 270
— Order 39, Rule 1 & 2—Permanent Injunction—Trade Marks
Act, 1999—Deceptive similarity—Plaintiff owning and
managing destination spas, luxury business leisure hotels in
India and abroad providing services under Trade Mark and
Service Mark ‘Ananda’—Pre-launch advertising campaign of
residential complex under name ‘Park View Ananda’ launched
by defendant for promoting residential complexes—Claim of
plaintiff that defendant adopted well known mark ‘Ananda’
to create association with plaintiff’s properties and to ride on
goodwill and reputation of plaintiff—Held, difficult to accept
that trade mark ‘Ananda’ had become a well known trade
mark or that it came to be associated exclusively with
plaintiff’s company so as to indicate a connection with the
plaintiff company—No material on record to show that the
mark ‘Ananda’ had acquired such a high brand equity in India
that its use by persons other than plaintiff would dilute its
reputation—Difficult to say that word ‘Ananda’ had become
distinctive with plaintiff company— No evidence of any legal
proceedings having been initiated by the plaintiff company
against registration and/or user of ‘Ananda’ by others—Goods
and services of defendant in wholly unrelated category
compared to plaintiff—Plaintiff failed to make out prima facie
case for grant of injunction against defendant—Application
dismissed.
IHHR Hospitality Pvt. Ltd. v. Bestech India
Pvt. Ltd. ......................................................................... 364
— Order XXXIII, Suit as an indigent person seeking damages—
Plaintiff injured while jumping and slipping into swimming pool
of hotel managed and maintained by Defendant—Said injury
resulted in Plaintiff becoming a quadriplegic—Injury allegedly
due to negligence of Defendant in maintenance of Swimming
Pool—Tiles of floor of swimming pool slippery because of
algae formation—Plaintiff jumped in, feet slipped on floor and
head hit wall of pool—Hence instant suit filed for damages
of Rs. 2 crores.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. .............................................................. 31
— Suit filed by duly authorised person—Power of attorney
granted to Plaintiff's father—Suit instituted as indigent
person—Application presented by father of Plaintiff—Plaintiff
exempted from presentation of application in person vide order
dated 22.01.1992—Plaintiff's father’s statement recorded—
Admitted that he holds power of attorney—Admittedly power
of attorney not filed along with plaint due to inadvertent
error—Same filed on 25.11.1991 vide application which was
allowed—Plaintiff's testimony amounted to clear ratification—
Procedural defects which do not go to the root of the matter
(ix) (x)
should not be permitted to defeat just cause—Ratio of Naresh
Kumar relied upon—Suit filed by duly authorised person.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. .............................................................. 31
— Nature of injuries—Evidence led—Nature of injuries were such
which resulted in fracture of cervical vertebrae—Resulted in
Plaintiff becoming a quadriplegic—Plaintiff represented school
in swimming—Member of State teams for water polo—
Member of Queensland Team—Plaintiff admittedly jumped into
shallow end of pool—Feet Slid forward—Head struck side of
pool—Plaintiff remembered bottom of pool to be slippery—
Nature of injuries stand determined.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. .............................................................. 31
— Cause of injuries—In written statement, Defendant did not plead
that Plaintiff dived into pool—Only in course of cross-
examination and arguments it was urged that Plaintiff did not
jump but dived into pool—Unless fact pleaded, no evidence
led can cure defect—Plaintiff contended that she jumped into
shallow end of pool, slipped and suffered injuries—Fully
supported by medical evidence—Theory propounded by
lifeguard also rejected as unreliable and practicably not possible.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. .............................................................. 31
— Maintenance of pool tiles—Evidence led—Glazed tiles
inherently slippery—This would be further accentuated by
present of algal material—Growth occurs first in shallow
end—Initial stages of algae growth, water may remain clear.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. .............................................................. 31
— Res ipsa loquitur—Employed when no direct material on
particular aspect—Things speak for themselves—Three
conditions—Incident of this kind could only occur on account
of slippery floor—Accident caused by agency or
instrumentality within exclusive control of Defendant—Third,
accident not caused by any voluntary contribution on part of
plaintiff—All three conditions met—Res lpsa Loquitur
applicable—Burden shifts to Defendant—Defendants failed to
provide plausible explanation for injury—Failed to meet burden
of proof—Hence injury sustained on account of negligence
of Defendant.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. .............................................................. 31
— Damages—Plaintiff awarded Rs. 5 lacs for expenditure
incurred under head of medical treatment—Rs. 50 Lacs
awarded on account of physical and mental anguish—Loss
of earnings—Qunatified at Rs. 1 crore and twenty seven
lacs—Plaintiff entitled to total sum alongwith simple interest
with effect from 22.01.1982.
Susan Leigh Beer v. India Tourism Development
Corporation Ltd. .............................................................. 31
CODE OF CRIMINAL PROCEDURE, 1973—Sections 235,
245, 325, 360, 361, 377—Aggrieved by judgment and order
on sentence, State preferred appeal on ground, sentence of
two and a half years imprisonment for conviction under
Section 376/511 IPC inadequate and calls for enhancement—
Also, Trial Court fell into error in not awarding minimum
sentence of five years for attempting rape—Per contra, amicus
curiae on behalf of Respondent urged that in appeal, by State
on ground of inadequacy of sentence, Accused/Respondent
at same time has liberty to plead for his acquittal or for
reduction of sentence—Thus, case to be considered on
merits—Held:- A proper sentence is amalgam of many factors
(xi) (xii)
such as the nature of the offence, circumstances extenuating
or aggravating offence, prior criminal record, if any, of
offender, age of offender as to employment, background of
offender with reference to education, home life, sobriety and
social adjustment, emotional and mental conditions of offender,
prospects for rehabilitation of offender, possibility of return
of offender to normal life in community, possibility of
treatment of training of offender, possibility that sentence may
serve as a deterrent to crime by offender or by others and
current community need, if any, for such a deterrent in
respect to particular type of offence—No reason found to
disturb conviction of Respondent, however, Court would
exercise and interfere with sentencing discretion of trial Court
“where inadequacy of sentence is gross or glaring or shocks
courts conscious”—In given facts and conspectus of
circumstances, does not warrant interference in order on
sentence.
State GNCT of Delhi v. Mukesh .................................. 340
— Sections 235, 245, 325, 360, 361, 377—Aggrieved by judgment
and order on sentence, State preferred appeal on ground,
sentence of two and a half years imprisonment for conviction
under Section 376/511 IPC inadequate and calls for
enhancement—Also, Trial Court fell into error in not awarding
minimum sentence of five years for attempting rape—Per
contra, amicus curiae on behalf of Respondent urged that in
appeal, by State on ground of inadequacy of sentence,
Accused/Respondent at same time has liberty to plead for his
acquittal or for reduction of sentence—Thus, case to be
considered on merits—Held:- A proper sentence is amalgam
of many factors such as the nature of the offence,
circumstances extenuating or aggravating offence, prior
criminal record, if any, of offender, age of offender as to
employment, background of offender with reference to
education, home life, sobriety and social adjustment, emotional
and mental conditions of offender, prospects for rehabilitation
of offender, possibility of return of offender to normal life in
community, possibility of treatment of training of offender,
possibility that sentence may serve as a deterrent to crime by
offender or by others and current community need, if any,
for such a deterrent in respect to particular type of offence—
No reason found to disturb conviction of Respondent,
however, Court would exercise and interfere with sentencing
discretion of trial Court “where inadequacy of sentence is gross
or glaring or shocks courts conscious”—In given facts and
conspectus of circumstances, does not warrant interference
in order on sentence.
State GNCT of Delhi v. Mukesh .................................. 340
CONSTITUTION OF INDIA, 1950—Article 226—Writ
Petition—Railway Protection Force (RPF) Rules, 1987—
Service Law—Petitioner constable in RPF attached with a
detachment deployed at railway station for static guard
alongwith ten others under the command of one head
constable—Deceased Naik Amarjeet Yadav was murdered at
railway station allegedly by petitioner—Petitioner annoyed with
deceased and had an argument with him—For that reason fired
three rounds from his service rifle at the deceased resulting
in instantaneous death—FIR registered by police u/s 302 IPC
against petitioner—In preliminary inquiry, allegations proved—
Disciplinary authority dismissed petitioner from service stating
that not reasonably practicable to hold a departmental inquiry—
In Appeal, order of disciplinary authority set aside and regular
departmental inquiry ordered on the charges of gross
remissness and negligence in discharge of duty, willful breach
of discipline and serious misconduct—He was kept under
suspension during the pendency—Charges proved against
him—Again dismissed from service by disciplinary authority—
Filed appeal against the order before Appellant Authority—
During the pendency of appeal, acquitted by the court due to
lack of evidence—Transpired that all witnesses examined in
the departmental inquiry not produced in criminal trial—
(xiii) (xiv)
Represented to the Appellate Authority in view of acquittal
relating to the same incident the punishment in departmental
inquiry be set aside—Appeal dismissed being time barred—
Filed revision before revisional authority—Revision
dismissed—Preferred writ petition—Contended, in view of the
fact that he has been acquitted in the criminal proceedings
based on same set of allegations which constituted the
gravamen of departmental proceedings the order of
Discriptionary Authority should be quashed—Further
contended that he could not participate in disciplinary
proceedings since he was not paid subsistence allowance—
Held—Departmental inquiry and criminal proceedings operate
in their distinct and mutually exclusive jurisdictional areas—
In a disciplinary proceedings the area of investigation covers
the field of (a) enforcement of discipline (b) level of integrity
(c) misconduct pertaining to devotion towards duty—In
criminal proceedings the area of investigation covers the
culpability from the point of view of criminal law—Standard
of proof in the two proceedings are different—In the former,
it is preponderance of probability and in the latter beyond
reasonable doubt—Rule of Evidence Act applicable in the
criminal trial; not applicable in the disciplinary proceedings
wherein any material having logical probative value to prove
or disprove the fact in issue relevant and admissible—In the
case in hand, the scope of departmental inquiry covering
disciplinary aspect wider and different and accordingly the
acquittal of the petitioner in the criminal proceedings has no
effect on the punishment of dismissal from service imposed
on him in the departmental proceedings—Further requirement
of furnishing a non-employment certificate by the suspended
employee to draw his subsistence allowance granted on
monthly basis to the employee to sustain himself—If the
suspended fails to submit the certificate, he cannot complain
about not getting the subsistence allowance—Writ Petition
Dismissed.
Rajesh Kr. Chaturvedi v. Union of India & Ors. ..... 106
— Article 226—Petition challenging the enquiry and the
proceedings being violative of service rules applicable to the
staff of respondent—Seeking quashing of order of retirement
and reinstatement into service—Petitioner was employed with
the respondent in 1993 as clerk-cum-typist—Lastly worked
as Manager—Charged with misconduct of making payments
against false credit entries—Misuse of powers and ignoring
the prescribed Banking rules—Not taking care of interest of
the bank and having tampered with the record of the Bank—
Inquiry conducted—Petitioner found guilty—Respondent
imposed a penalty of compulsory retirement on the
petitioner—Appeal preferred—Rejected by Board of
Directors—Petition—Challenged on the ground of
maintainability—Petitioner alleges that employees of respondent
are governed by Central Civil Services (Conduct) Rules, 1964
and Central Civil Services (Classification, Control and Appeal)
Rules 1965, which shows that it is State and hence writ
petition is maintainable—Held—Merely, because a Society
adopts the rules applicable to Government servants to its own
employees would not convert the said Co-opertative Society
into Government—Similarly, merely because the respondent
is performing banking function would also not make the writ
petition maintainable—It is not shown that the function so
performed by the respondent is monopolistic—According to
the document handed over by the petitioner himself there are
as many as 32 Co-opertaive Societies in Delhi performing the
banking functions—This is besides the other banks operating
in Delhi—Thus the said ground for maintainability of the writ
petition is also rejected—In view of the aforesaid dicta of the
Supreme Court, the reasons given in rejoinder do not justify
the maintainability of the writ petition not maintainable.
Anand Prakash v. The Delhi State Co-Operative Bank
Ltd. & Anr. .................................................................... 251
— Article 226—Industrial Disputes Act, 1947—Section 17-B—
Application under Section 17-B of the Act by workman
(xv) (xvi)
claiming that, he was not gainfully not employed since 1994—
Single Judge observed that the application was filed in 2006
after 12 years—Workman directed to file his statements of
bank accounts from 1994 till date, Telephone bills, whether
he resided in his own premises or rented premises and also
an affidavit in corporating these facts—Aggrieved, appellant
filed Letter Patent Appeal—The affidavit in terms of Section
17-B clearing stating that respondent workman was not
gainfully employed already filed—Such inquiry is not
permissible under Section 17-B—Held—It is the duty of the
Court to arrive at a conclusion with regard to the entitlement
of the benefit under Section 17-B of the Act keeping in view
the decisions in Dena Bank (supra), Viveka Nand Sethi (supra)
K.B. Singh & Ors. (supra), Vinod Kumar (supra) and
Bhagawan Giri (supra)—The writ court has to see whether
the workman received adequate remunertaion during such
period and whether the respondent-management has produced
ample material to show that the workman had been really
gainfully employed—Mere survival would not be enough—It
will depend upon the factum of adequacy of amount
received—In the case at hand, the learned Single Judge has
erroneously observed that the workman had filed an
application after 12 years as the same is not factually correct—
It is clear that the appellant filed the application in quite
promptitute—The information that have been directed by the
learned Single Judge to be given by the workman are in the
realm of roving enquiry putting the entire burden on the
workman—Such a roving enquiry, is unwarranted and,
accordingly, the order impugned set aside.
S.K. Mitra v. Asst. General Manager State Bank
of India ........................................................................... 262
— Article 226—Special Economic Zones Act, 2005—Section
26(1) (e), 26(2), 51, 55 and 58—Special Economic Zone
Rules, 2006—Rule 31—Central Excise Act, 1994—Section
37B—Payment of whole service tax exempted on services
provided to a Developer or Units of SEZ by any service
provider, for purpose of development, operation and
maintenance of SEZ or for setting up of a SEZ unit or for
manufacture of goods by SEZ Units, on satisfaction of certain
conditions—Impugned circular clarified that service tax is
exempted on provision of only such services which are
rendered by service providers to Developer or Unit for its
authorized operation within area of SEZ—Circular challenged
in writ petition before High Court —Plea taken, only condition
required for availing exemption from payment of service tax
by a Developer/Entrepreneur is that taxable service should be
used for carrying on authorized operations by Developer/
Entrepreneurs—Location of service provider or place of
service is entirely irrelevant for purpose of this exemption—
Per contra plea taken, service tax exemption is available only
for services which are provided to carry on authorized
operation in a SEZ—Held—Only condition that is required to
be satisfied to avail service tax benefit is that services must
be rendered for purpose of carrying out ‘‘authorized
operations in a special economic zone’’—If intention of
legislature was to exempt only those services from levy of
service tax that are rendered within SEZ, legislature would
have categorically stated so in statute—A subordinate legislation
has to confirm to parent statute and any subordinate legislation
inconsistent to provisions of parent statute is liable to be set
aside—Circulars being executive/administrative in character
cannot supersede or override Act and statutory Rules—
Impugned circular seeks to impose a condition that was not
intention of legislature in SEZ Act or Rules and is liable to be
set aside.
M/s. Jindal Stainless Limited & Anr. v. Union of
India & Ors. .................................................................. 373
GUARDIAN AND WARDS ACT, 1890—Jurisdiction—Minor
child born on 14.11.2008 in USA—Parents came to Delhi,
resided in house of father—Mother forced to leave matrimonial
(xvii) (xviii)
home along with minor child due to ill-treatment—Living in
Noida since 04.06.2009—Appellant filed petition under Section
25 of Guardians and Wards Act, 1890 for custody of minor—
Petition dismissed for want of territorial jurisdiction—Hence
present appeal—Petition to be filed where minor ordinarily
resides—Minor staying in Noida since 04.06.2009—Petition
filed after period of more than one year from date when wife
left matrimonial home along with minor—Ordinary place of
residence to be Noida—No illegality in impugned order.
Bharat Vats v. Garima Vats. ........................................ 198
— Section 9—Jurisdiction—Appellant states that application filed
on similar grounds—Same withdrawn—Hence could not file
similar application—Parties cannot confer jurisdiction where
Court has none—Only convenience of minor to be seen—No
application of res judicata or issue estoppels with respect to
interim applications—Appeal only filed to harass Respondent
and minor child—Appeal dismissed.
Bharat Vats v. Garima Vats ......................................... 198
INCOME TAX ACT, 1961—Section 28 (va), Section 55(2) (o)—
Capital gain and income from business—Assessee, engaged
in business of health care, print media and electronic media
communications, entered into specified assets transfer
agreement with another company for sale of all its rights.
Titles and interest in specified assets including the business
intellectual property rights alongwith goodwill and all rights
etc. for consideration of Rs. 3,80,02,500/-—Assessing Officer
held that the amount of Rs. 3,80,02,500/- is income and as
such taxable under the head business and professions instead
of being the capital gain as claimed by the assessee—In appeal,
CIT(A) accepted the contention of the assessee and held that
the said amount was not business income but long term capital
gain on transfer of assets—In further appeal of the revenue,
the ITAT upheld the decision of CITA—Hence, appeal to the
High Court under Section 260(A)(1) Income Tax Act—High
Court held, trademarks/brands, copyright and goodwill will
constitute assets of the business and are profit earning
apparatus and as such, sale thereof would lead to capital gain.
Commissioner of Income Tax v. M/s. Mediworld
Publications Pvt. Ltd. ................................................... 203
— Section 271 (1) (c)—This appeal arises out of the order of
the Income Tax Appellate Tribunal—A survey was carried out
at the business premises and godown of the respondent-
assessee on 06.01.2003—In that survey, discrepancies in cash,
stock and renovation were found—The assessee accepted this
difference and surrendered the amount—No attempt was made
by the assessee even after this surrender to retract therefrom
or to explain that there were no such discrepancies—
Assessment also reflected the surrendered amount in his
income tax returns—Assessing officer initiated separate penalty
proceedings which culiminated in imposition of penalty—CIT
(A) deleted the penalty by holding that there was no
concealment—Tribunal dismissed appeal filed by Revenue—
Instant appeal filed—It is to be kept in mind that Section
271(1)(c) of the Act is a penal provision and such a provision
has to be strictly construed. Unless the case falls within the
four-corners of the said provision, penalty cannot be
imposed—The penalty can be imposed only if concealment
is found in the income tax returns—Since the assessee, may
be after being exposed in survey, had made complete
disclosure of his income in his income tax return and they
was no concealment or non-disclosure of income, no penalty
could have been imposed—Appeal dismissed.
Commissioner of Income Tax v. M/s. SAS
Pharmaceuticals .............................................................. 243
INDIAN CONTRACT ACT, 1872—Section 15 and 16—Code
of Civil Procedure, 1908—Section 34, Order IX Rule 8, Order
VI Rule 4—Petitioner was allotted work of construction of
flats—Disputes between parties referred to sole arbitrator—
(xix) (xx)
Award rendered by arbitrator challenged before High Court—
As arbitrator had failed to consider a letter of petitioner
accepting responsibility for delay in execution of work, award
partly set aside and new arbitrator appointed to decide claims—
Arbitrator held delay in completion was on part of
respondent—Award challenged before High Court—Plea
taken, impugned order is not based on any evidence placed
before arbitrator and that there is an error apparent on face
of award—There was no pleading to support story that letter
admitting delay was obtained from petitioner under duress or
coercion—Per contra plea taken, arbitrator had considered
evidence and concluded delay was attributable to respondent
at various stages of work—Held—A plea of coercion or
undue influence or duress has necessarily to be specifically
raised and pleaded as a fact—Though Code of Civil Proceedure
is not strictly applicable to arbitral proceedings, Principles
thereof, which are evolved to achieve fairness in proceedings,
are attached even to arbitral proceedings—To permit a party
to arbitration proceeding to raise oral plea of ‘‘coercion’’ or
‘‘duress’’ or ‘‘undue influence’’, would cause irreparable
injustice to opposite party as opposite party would be put to
grave disadvantage in dealing with such a vague and indefinite
plea which is devoid of particulars and specifics—Grant of
extension of time by respondent, till date of abandonment,
cannot necessarily lead to conclusion that delay was
attributable to respondent, and not petitioner—A party to a
contract has option to accept breach thereof by opposite party
and require opposite party to still complete contract—It is not
that whenever there is breach of contract by one party,
opposite party should rescind contract—Claim for tools &
plants stationed at site for prolonged period made rule of
Court—Arbitrator appointed to reconsider claims for expenses
incurred for delayed work/losses suffered by petitioner due
to contract getting prolonged.
M/s. Chugh Kathuria Engineers (P) Ltd. v.
Delhi Development Authority (DDA) ........................... 395
INDIAN EVIDENCE ACT, 1872—Section 4 and 36—
Constitution of India, 1950—Article 25 and 26— Respondent
filed a petition for declaring registration of her marriage with
appellant to be of no effect—As per respondent, for
membership of library in Jama Masjid, appellant persuaded
respondent to convert to Islam for this purpose—Respondent
singed certain documents which appellant claimed to be
registration of marriage and conversion certificate and that by
virtue of those respondent became his wife—Petition allowed
by Trial Court—Order challenged in appeal—Plea taken, trial
Court committed jurisdiction error in entertaining suit of
respondent—Documentary evidence to prove conversion of
respondent from Hindu religion to Muslim religion ignored by
trial Court—Respondent did not file any objection to
registration of marriage—Per contra, plea taken respondent
had never changed her religion and there is no marriage which
can be said to have taken place between appellant and
respondent—Held—In certain situations one party to marriage
belonging to one religion can take a decision to embrace
religion of other party but such a conversion should not be
undertaken merely to achieve purpose of marriage—It should
be done to embrace new religion with a will and desire to
completely follow tenets of new religion while simultaneously
forsaking tenets of religion being professed by a person prior
thereto—Respondent got prepared her conversion certificate
to marry appellant—She feigned to have adopted another
religion for purpose of wordly gain of marriage—Trial Court
rightly held there was no conversion of respondent from
Hinduism to Islam—Except nikahnama nothing proved on
record to establish fact that essential requirement of offer and
acceptance was made by parties in presence and hearing of
witnesses—Registration of marriage was obtained in violation
of mandatory conditions required for purpose of registration
as parties had never lived together since their marriage—
Marriage certificate is conclusive evidence to prove its issuance
by a proper and competent marriage officer after following
due procedure prescribed under Act and Rules framed
(xxi) (xxii)
thereunder—Said conclusive evidence cannot come in way of
parties challenging such a marriage certificate or marriage
itself—No merit in present appeal.
Faheem Ahmed v. Maviya @ Luxmi ........................... 216
— Section 68—Attesting witnesses—Limitation Act, 1963—
Article 137—Deceased executed Will dated 12.08.1971;
expired on 20.02.1984—Husband pre-deceased her—Survived
by five sons and three daughters—Property in question
comprise of a house in Karol Bagh—Bequeathed the ground
floor in favour son O.P.- first floor in favour of son V.P.—
Not give any share to other children—Will got registered during
her life time on 21.02.1978—All children of the testatrix except
the legal heir of V.P. had filed no objection to grant of
probate—Grant of probate sought on November 1994—
Objections filed inter-alia-alleging Will not executed by testatrix
in sound and disposing mind—She was completely deaf in
1971-not possible for anybody to communicate with her to
make her understand the contents of the Will—Also challenged
the execution, validity, contents and attestations of the Will
on the ground testatrix did not know English language—ADJ
observed the testimony of attesting witness does not inspire
confidence—Full of contradictions on material points—Cast
serious doubt on genuineness of Will—Not explained why Will
got registered after seven years of its execution and delay of
nine years in filing the probate petition—Dismissed probate
petition—Preferred appeal—Held—While granting the probate,
Court is obliged to see that there was no legal impediment in
the grant of probate—The only attesting witness denied the
signature of testatrix firstly on the Will itself in his
examination-in-chief and only on the suggestion in cross-
examination after about two years he remembered the testatrix
signing the Will—Second attesting witness not examined—The
attestation of Will by second witness not even whispered by
attesting witness—Attesting witness accepted testatrix did not
know English-9 years delay in filing probate petition not
explained—No reason to interfered with the decision—Appeal
Dismissed.
Yogesh Duggal & Ors. v. State & Ors. ..................... 175
INDIAN PENAL CODE, 1860—Section 302/34, 364—Case of
the prosecution that on night of incident, one Chotu
(absconder) went near tent house of PW3 at 9 p.m. and
started urinating—One person (not examined as witness)
objected. Chotu slapped him and left threatening to “see” him
later—Later Chotu returned at the spot with the two appellants
and the three attacked the deceased—Appellant Anil Kumar
held the deceased by his mouth while appellant Tika Ram
caught hold of him and Chotu hit the deceased with an iron
rod on the head—PW13 and 16 woke up and raised an alarm
on which assailants fled—Trial Court convicted appellants for
offence u/s 302/34—Held, plan or site map drawn to scale is
admissible only if the witnesses corroborate the draftsman’s
statement that they showed him the places—Unclear if PW
16 could see the appellants when the deceased was attacked—
From evidence there is no doubt about the presence of
appellants in the assault—To attract common intention, mere
presence of co-accused is not always sufficient—No
universally acceptable formula that in such instances, the
intention to cause death cannot be attributed to such non-
participating co-accused; at the same time courts has to
recognize the need to exercised caution—Contention of the
appellants that even if they were present, their common
intention to kill deceased could not be proved beyond
reasonable doubt—Evidence established the presence of
accused and PW13 and PW16 having known them—None of
the witnesses deposed that either appellant was armed—
Appellants not present when earlier quarrel had taken place—
The person with whom, the main assailant Chotu quarrelled
was not examined—He was not present at spot of occurrence
and his connection or relationship with deceased not proved—
Weapon of offence (saria) not described by witnesses and
(xxiii) (xxiv)
also not produced—Description given by PW16 about role
played by each appellant not clear—In view of uncertainty as
to role played by each appellant, it would not be possible to
discern a common intention to cause death of deceased—It
can be inferred that they shared the intention with the co-
accused to cause injury enough to subdue or take care of the
deceased i.e. intention of causing bodily injury as was likely
to cause death amounting to an offence punishable u/s 304
Part I—Appeals partly allowed—Conviction u/s 302/34 altered
to one u/s 304 Part I/34.
Anil Kumar Sharma @ Bobby v. Delhi State/NCT
Delhi .................................................................................. 82
— Section 302 and 34—Aggrieved appellants challenged their
conviction under Section 302/34—They urged, prosecution
witnesses i.e. brothers, mother and husband of deceased
turned hostile—Also, dying declaration of deceased can not
be sole basis of conviction as no fitness certificate given by
Doctor either on the dying declaration or just prior to making
dying declaration—Per contra, prosecution contended
appellants being mother in law, Jethani (wife of husband’s elder
brother), Devrani (wife of husband’s younger brother) and
Nanad (husband’s sister) held guilty for having burnt deceased
alive who received 90% burn injuries—Dying declaration of
stellar quality and wholly reliable; therefore it could be made
sole basis of conviction even though some prosecution
witnesses turned hostile—Held:- Endorsement on the dying
declaration “taken in my presence” cannot substitute for a clear
cut certificate of fitness—Moreover, endorsement on MLC “fit
for statement” should bear signatures of the doctor—Contents
of dying declaration do not inspire much confidence and
language in which it was recorded, was clearly not of deceased
but that of a police officer, so case against appellants not free
from doubt—Appellants acquitted.
Akbari Begum & Ors. v. State .................................... 328
— Section 363, 376, 511, Criminal Procedure Code, 1973—
Sections 235, 245, 325, 360, 361, 377—Aggrieved by judgment
and order on sentence, State preferred appeal on ground,
sentence of two and a half years imprisonment for conviction
under Section 376/511 IPC inadequate and calls for
enhancement—Also, Trial Court fell into error in not awarding
minimum sentence of five years for attempting rape—Per
contra, amicus curiae on behalf of Respondent urged that in
appeal, by State on ground of inadequacy of sentence,
Accused/Respondent at same time has liberty to plead for his
acquittal or for reduction of sentence—Thus, case to be
considered on merits—Held:- A proper sentence is amalgam
of many factors such as the nature of the offence,
circumstances extenuating or aggravating of offence, prior
criminal record, if any, of offender, age of offender as to
employment, background of offender with reference to
education, home life, sobriety and social adjustment, emotional
and mental conditions of offender, prospects for rehabilitation
of offender, possibility of return of offender to normal life in
community, possibility of treatment of training of offender,
possibility that sentence may serve as a deterrent to crime by
offender or by others and current community need, if any,
for such a deterrent in respect to particular type of offence—
No reason found to disturb conviction of Respondent,
however, Court would exercise and interfere with sentencing
discretion of trial Court “where inadequacy of sentence is gross
or glaring or shocks courts conscious”—In given facts and
conspectus of circumstances, does not warrant interference
in order on sentence.
State GNCT of Delhi v. Mukesh .................................. 340
— Section 161—Prevention of Corruption Act, 1947—Sections
5(1) (d) and Sections 5 (2)—Respondent was supervisor of
Delhi Cantt. Area—He demanded Rs. 400/- for correction of
electoral rolls and addition of votes deleted—Raid conducted—
Respondent apprehended—After trial, the respondent was
(xxv) (xxvi)
acquitted—Appeal preferred by State—Held—It is evident that
in the entire testimony of PW-3 it is nowhere stated that the
Respondent demanded money—This evidence of PW3 is also
corroborated by PW 4 who also in his testimony does not
state that the Respondent demanded money; rather has stated
that at no stage money was demanded by the Respondent
either initially or at the time of trap—To constitute an offence
under Section 161 IPC & Section 5 (1) (d) of the Prevention
Corruption Act it is necessary that there is a demand of money
and the same is accepted for doing a favour—Demand of
Money is a sine qua non for the conviction of the accused—
Thus, in the absence of demand and the presumption, the
offence punishable under Sections 161 and 5 (1) (d) read with
5 (2) of the PC Act has not been proved beyond reasonable
doubt by the prosecution in the present case.
State (Govt. of NCT of Delhi) v. Girdhari
LaL Verma ...................................................................... 354
— Section 323, 148, 149—Moral Turpitude—Respondent
workman was employee of Delhi Vidyut Board—On
04.05.1973, he was convicted for offences punishable under
Sections 148/302/323 and 149 IPC—In Criminal appeal, the
High Court of Punjab and Haryana found him guilty of
offences under Sections 323/149/148 of IPC but the charges
levelled against him under Section 302 IPC were not found
to have been proven—On 30.09.1996, his services terminated
on the ground that he had been convicted for offences which
involved moral turpitude—Industrial dispute raised—Labour
Court vide award dated 17.12.2005, directed his reinstatement
with back wages and consequential benefits—Appellant
invoked jurisdiction—The workman was involved in
commission of a serious criminal offence which involved
moral turpitude—The workman contends that finding recorded
by labour Court is impeccable and do not warrant
interference—Single Judge held—The imposition of
punishment was excessive—The award passed by the labour
Court did not warrant interference—Letters Patent Appeal—
Held—The punishment under Section 323 of the IPC has a
different contour but when a person is convicted under Section
148 of the Act, it establishes, in a way, the nature, attitude,
proclivity and propensity of the person concerned—The
petitioner was working as a peon in the Delhi Vidyut Board—
He got himself involved in a criminal case of this nature and
eventually, the conviction has been recorded under Sections
323/149 and 148 of the IPC—Regard being had to the
conviction in respect of the nature of an offence, as engrafted
under Section 148 of the IPC, we are disposed to think that
it involves an offence involving moral turpitude.
BSES Rajdhani Power Ltd. v. Union of India
& Ors. ............................................................................. 429
INDUSTRIAL DISPUTES ACT, 1947—Section 10—Indian Penal
Code, 1860—Section 323, 148, 149—Moral Turpitude—
Respondent workman was employee of Delhi Vidyut Board—
On 04.05.1973, he was convicted for offences punishable
under Sections 148/302/323 and 149 IPC—In Criminal appeal,
the High Court of Punjab and Haryana found him guilty of
offences under Sections 323/149/148 of IPC but the charges
levelled against him under Section 302 IPC were not found
to have been proven—On 30.09.1996, his services terminated
on the ground that he had been convicted for offences which
involved moral turpitude—Industrial dispute raised—Labour
Court vide award dated 17.12.2005, directed his reinstatement
with back wages and consequential benefits—Appellant
invoked jurisdiction—The workman was involved in
commission of a serious criminal offence which involved
moral turpitude—The workman contends that finding recorded
by labour Court is impeccable and do not warrant
interference—Single Judge held—The imposition of
punishment was excessive—The award passed by the labour
Court did not warrant interference—Letters Patent Appeal—
Held—The punishment under Section 323 of the IPC has a
(xxvii) (xxviii)
different contour but when a person is convicted under Section
148 of the Act, it establishes, in a way, the nature, attitude,
proclivity and propensity of the person concerned—The
petitioner was working as a peon in the Delhi Vidyut Board—
He got himself involved in a criminal case of this nature and
eventually, the conviction has been recorded under Sections
323/149 and 148 of the IPC—Regard being had to the
conviction in respect of the nature of an offence, as engrafted
under Section 148 of the IPC, we are disposed to think that
it involves an offence involving moral turpitude.
BSES Rajdhani Power Ltd. v. Union of India
& Ors. ............................................................................. 429
— Section 17-B—Application under Section 17-B of the Act by
workman claiming that, he was not gainfully not employed
since 1994—Single Judge observed that the application was
filed in 2006 after 12 years—Workman directed to file his
statements of bank accounts from 1994 till date, Telephone
bills, whether he resided in his own premises or rented
premises and also an affidavit in corporating these facts—
Aggrieved, appellant filed Letter Patent Appeal—The affidavit
in terms of Section 17-B clearing stating that respondent
workman was not gainfully employed already filed—Such
inquiry is not permissible under Section 17-B—Held—It is the
duty of the Court to arrive at a conclusion with regard to the
entitlement of the benefit under Section 17-B of the Act
keeping in view the decisions in Dena Bank (supra), Viveka
Nand Sethi (supra) K.B. Singh & Ors. (supra), Vinod Kumar
(supra) and Bhagawan Giri (supra)—The writ court has to
see whether the workman received adequate remunertaion
during such period and whether the respondent-management
has produced ample material to show that the workman had
been really gainfully employed—Mere survival would not be
enough—It will depend upon the factum of adequacy of
amount received—In the case at hand, as we perceive, the
learned Single Judge has erroneously observed that the
workman had filed an application after 12 years as the same
is not factually correct—It is clear that the appellant filed the
application in quite promptitute—The information that have
been directed by the learned Single Judge to be given by the
workman are in the realm of roving enquiry putting the entire
burden on the workman—Such a roving enquiry, is
unwarranted and, accordingly, the order impugned set aside.
S.K. Mitra v. Asst. General Manager State Bank
of India ........................................................................... 262
INDIAN REGISTRATION ACT, 1908—Registered Will—Grant
of Probate—Indian Evidence Act, 1872—Section 68—
Attesting witnesses—Limitation Act, 1963—Article 137—
Deceased executed Will dated 12.08.1971; expired on
20.02.1984—Husband pre-deceased her—Survived by five
sons and three daughters—Property in question comprise of
a house in Karol Bagh—Bequeathed the ground floor in favour
son O.P.- first floor in favour of son V.P.—Not give any share
to other children—Will got registered during her life time on
21.02.1978—All children of the testatrix except the legal heir
of V.P. had filed no objection to grant of probate—Grant of
probate sought on November 1994—Objections filed inter-alia-
alleging Will not executed by testatrix in sound and disposing
mind—She was completely deaf in 1971-not possible for
anybody to communicate with her to make her understand
the contents of the Will—Also challenged the execution,
validity, contents and attestations of the Will on the ground
testatrix did not know English language—ADJ observed the
testimony of attesting witness does not inspire confidence—
Full of contradictions on material points—Cast serious doubt
on genuineness of Will—Not explained why Will got registered
after seven years of its execution and delay of nine years in
filing the probate petition—Dismissed probate petition—
Preferred appeal—Held—While granting the probate, Court is
obliged to see that there was no legal impediment in the grant
of probate—The only attesting witness denied the signature
(xxix) (xxx)
of testatrix firstly on the Will itself in his examination-in-chief
and only on the suggestion in cross-examination after about
two years he remembered the testatrix signing the Will—
Second attesting witness not examined—The attestation of Will
by second witness not even whispered by attesting witness—
Attesting witness accepted testatrix did not know English-9
years delay in filing probate petition not explained—No reason
to interfered with the decision—Appeal Dismissed.
Yogesh Duggal & Ors. v. State & Ors. ..................... 175
INDIAN SUCCESSION ACT, 1925—WILL—Grant of
Probate—Appeal—Deceased, father of respondent no.1
executed registered Will in regard to self acquired property
in favour of respondent no.1, his daughter excluding wife and
son—Wife and son contested the proceedings for grant of
probate—Filed joint objections inter-alia Will obtained and
procured fraudulently—Respondent no.1 neither resident with
deceased at village nor looked after him—Right of deceased
to bequeath property through Will challenged—Property not
self acquired, being ancestral—Respondent no.1 contended
that deceased filed a suit against objector wherein admitted
execution of Will in favour of respondent no.1—Deceased
was suffering from cancer—Objector used to harass and
torture deceased during his last days—Deceased executed
GPA, Agreement to sell, Affidavit etc. in her favour and in
favour of her husband out of love and affection—Respondent
no.1 examined herself; attesting witnesses, officials of sub-
registrar—and witnesses to prove the drafting of Will and
attestation of other documents—Objectors examined
themselves—ADJ observed, none objected that, deceased was
not in sound, disposing mind or was incapable of understanding
consequences of disposition—Attesting witnesses
trustworthy—Execution of Will proved—Appellant admitted
litigations between them and the deceased—Appellant had filed
maintenance applications against deceased and was living
separately from the deceased—Even filed preventive
proceedings against deceased under Criminal Procedure
Code—ADJ Held—Strained relationship; pendency of civil and
criminal proceedings and living separately were valid grounds
in the mind of deceased to exclude his son and wife from
benefit of his estate—Conduct not unnatural—Question of
property being ancestral or self acquired left to be decided
by civil court of concerned jurisdiction—Held—Will
registered; proved by clerk; two attesting witnesses proved
the execution of Will—No evidence led by respondent to prove
Will in Question not signed by deceased testator—Admitted
criminal proceedings between deceased, and his wife and
sons—Appeal dismissed.
Smt. Chamno Devi v. Smt. Usha & Ors. ................... 133
— Section 278, 307—Late Rani Padmawati Devi died intestate
on 12.04.1987 leaving behind her husband, Raja Birendra
Bahadur Singh; two sons, namely Shivendra Bahadur Singh
(SBS) and Ravindra Bahadur Singh (RBS) and two daughters
Usha Devi and Sharda Devi—SBS filed Case No. 43/1987
seeking Letters of Administration under Section 278 of the
Indian Succession Act—The heirs of Late Rani Padmawati
Devi were respondent in the said petition—Issue was framed
on 18.3.1988—Letter of Administration granted to (LOA)
petitioners and petitioner SBS appointed as administrator—RBS
being the heir of her pre-deceased mother and claiming to have
1/5th share in the estate, filed application under Order IX Rule
13 of the CPC being IA No.4065/1988 on 18th July, 1988
setting aside the order dated 10th May, 1988 granting LOA—
Pending this application the petitioner under the authority of
LOA negotiated and entered into a sale transaction with the
appellant, Indian Associates. The purpose of transaction as
claimed by the petitioner as administrator was utilization of
the sale consideration to meet the liabilities relating to wealth
tax and income tax of the estate—According to appellant the
(xxxi) (xxxii)
agreement to sell was entered into on 9th September, 1988 and
a sale deed was executed by the administrator on 11th October,
1988, but the same was not registered by the sub-Registrar—
Miscellaneous petition filed before Madhya Pradesh High
Court—The said writ petition came to be dismissed by the
Madhya Pradesh High Court—It is noted that a case regarding
excess land than the prescribed limited under the Urban Land
Ceiling Act was pending against Rani Padmawati Devi since
1977 before the competent authority at Raipur (M.P.)—Certain
conditions/restriction on use and sale of land had been imposed
on Rani Padmawati Devi by the concerned authority of
Madhya Pradesh Government—Later, the concerned authority
granted permission to sell the lands—This was challenged by
respondent in Madhya Pradesh High Court by way of writ—
This writ was allowed and order dated 20th September, 1988
whereby permission was granted to sell the land was
quashed—The absolute power of disposal of property
conferred on an executor or administrator as envisaged under
sub-section (1) is subject to sub-section (2) of Section 307
of the Indian Succession Act. It was madatory to seek
permission of the Court granting the probate or the LOA. as
the case may be, before entering into transaction of disposal
of immovable property as vested in them in their capacity as
executor or the administrator—As per Section 317 of the Act,
the administrator was required to exhibit in the Court the
inventory containing full account of the properties including
the creditors and debtors—Mere agreement to sell would not
entitle the appellant to have much say in the present
proceeding—Of course, the appellant may have the remedy
somewhere else in some other proceedings—Unregistered sale
deed is not a complete sale—No doubt, the sale deed in the
present case was executed and presented before the Sub-
Registrar, but as noted above, same was not registered because
of persistent stay and also because of Urban Lan Ceiling Act—
Section 54 of the Transfer of Property Act, Stipulates that
sale or transfer of immovable property or other intangible thing
is to be only by way of registered sale deed/instrument—No
ground for inference—Appeal dismissed.
M/s Indian Associates v. The State and Others .......... 153
— Section 63 (c)—WILL—Indian Registration Act, 1908—
Registered Will—Grant of Probate—Indian Evidence Act,
1872—Section 68—Attesting witnesses—Limitation Act,
1963—Article 137—Deceased executed Will dated 12.08.1971;
expired on 20.02.1984—Husband pre-deceased her—Survived
by five sons and three daughters—Property in question
comprise of a house in Karol Bagh—Bequeathed the ground
floor in favour son O.P.- first floor in favour of son V.P.—
Not give any share to other children—Will got registered during
her life time on 21.02.1978—All children of the testatrix except
the legal heir of V.P. had filed no objection to grant of
probate—Grant of probate sought on November 1994—
Objections filed inter-alia-alleging Will not executed by testatrix
in sound and disposing mind—She was completely deaf in
1971-not possible for anybody to communicate with her to
make her understand the contents of the Will—Also challenged
the execution, validity, contents and attestations of the Will
on the ground testatrix did not know English language—ADJ
observed the testimony of attesting witness does not inspire
confidence—Full of contradictions on material points—Cast
serious doubt on genuineness of Will—Not explained why Will
got registered after seven years of its execution and delay of
nine years in filing the probate petition—Dismissed probate
petition—Preferred appeal—Held—While granting the probate,
Court is obliged to see that there was no legal impediment in
the grant of probate—The only attesting witness denied the
signature of testatrix firstly on the Will itself in his
examination-in-chief and only on the suggestion in cross-
examination after about two years he remembered the testatrix
signing the Will—Second attesting witness not examined—The
attestation of Will by second witness not even whispered by
attesting witness—Attesting witness accepted testatrix did not
(xxxiii) (xxxiv)
know English-9 years delay in filing probate petition not
explained—No reason to interfered with the decision—Appeal
Dismissed.
Yogesh Duggal & Ors. v. State & Ors. ..................... 175
LETTERS PATENT APPEAL—The appellant by the present LPA
has impugned the order dated 19.11.2009—Learned Single
Judge has quashed the demand for misuse charges and interest
as well as show cause notice—Further directed that on paying
Rs.6,37,123.73 towards misuse charges to the appellant, the
respondent’s application for conversion of the property from
lease hold to free hold shall be considered—The property
originally allotted to Tara Singh—Papers including Power of
attorney executed by Tara Singh submitted—Rs.43,337/- on
self assessment and Rs.10,561/- deposited towards
compensation fee pursuant to the letter written by the
appellant—Respondent received unstamped and unexecuted
conveyance deed with direction to get it stamped from the
Collector of Stamps—Respondent waited for about six years
and got the conveyance deed stamped on payment of
Rs.5,655/- and submitted the document vide receipt dated
30.10.2001—The property was being misused—In the present
case, the payment towards conversion charges including the
composition fee applicable as in cases of power of attorney
transaction was made on 20th December, 1994. Thereafter,
notice along with conveyance deed was sent to the respondent
on 7th March 1995 with direction to get it stamped from the
collector of Stamps. The aforesaid exercise was required to
be completed within 45 days, but the respondent had
deposited the original paper after getting the conveyance deed
stamped only on 6th October, 2001—It is held that the date
when the respondent had submitted the conveyance deed after
stamping should be treated as the date on which the complete
application for conversion was filed—The date on which the
respondent had made the payment or had received the copy
of the conveyance deed for stamping should be ignored and
should not be taken as the relevant point.
Delhi Development Authority v. Hans Raj Batheja ... 141
LIMITATION ACT, 1963—Article 137—Deceased executed Will
dated 12.08.1971; expired on 20.02.1984—Husband pre-
deceased her—Survived by five sons and three daughters—
Property in question comprise of a house in Karol Bagh—
Bequeathed the ground floor in favour son O.P.- first floor in
favour of son V.P.—Not give any share to other children—
Will got registered during her life time on 21.02.1978—All
children of the testatrix except the legal heir of V.P. had filed
no objection to grant of probate—Grant of probate sought on
November 1994—Objections filed inter-alia-alleging Will not
executed by testatrix in sound and disposing mind—She was
completely deaf in 1971-not possible for anybody to
communicate with her to make her understand the contents
of the Will—Also challenged the execution, validity, contents
and attestations of the Will on the ground testatrix did not
know English language—ADJ observed the testimony of
attesting witness does not inspire confidence—Full of
contradictions on material points—Cast serious doubt on
genuineness of Will—Not explained why Will got registered
after seven years of its execution and delay of nine years in
filing the probate petition—Dismissed probate petition—
Preferred appeal—Held—While granting the probate, Court is
obliged to see that there was no legal impediment in the grant
of probate—The only attesting witness denied the signature
of testatrix firstly on the Will itself in his examination-in-chief
and only on the suggestion in cross-examination after about
two years he remembered the testatrix signing the Will—
Second attesting witness not examined—The attestation of Will
by second witness not even whispered by attesting witness—
Attesting witness accepted testatrix did not know English-9
years delay in filing probate petition not explained—No reason
to interfered with the decision—Appeal Dismissed.
Yogesh Duggal & Ors. v. State & Ors. ..................... 175
(xxxv) (xxxvi)
PREVENTION OF CORRUPTION ACT, 1947—Sections 5(1)
(d) and Sections 5 (2)—Respondent was supervisor of Delhi
Cantt. Area—He demanded Rs. 400/- for correction of
electoral rolls and addition of votes deleted—Raid conducted—
Respondent apprehended—After trial, the respondent was
acquitted—Appeal preferred by State—Held—It is evident that
in the entire testimony of PW-3 it is nowhere stated that the
Respondent demanded money—This evidence of PW3 is also
corroborated by PW 4 who also in his testimony does not
state that the Respondent demanded money; rather has stated
that at no stage money was demanded by the Respondent
either initially or at the time of trap—To constitute an offence
under Section 161 IPC & Section 5 (1) (d) of the Prevention
Corruption Act it is necessary that there is a demand of money
and the same is accepted for doing a favour—Demand of
Money is a sine qua non for the conviction of the accused—
Thus, in the absence of demand and the presumption, the
offence punishable under Sections 161 and 5 (1) (d) read with
5 (2) of the PC Act has not been proved beyond reasonable
doubt by the prosecution in the present case.
State (Govt. of NCT of Delhi) v. Girdhari
LaL Verma ...................................................................... 354
RAILWAY PROTECTION FORCE (RPF) RULES, 1987—
Service Law—Petitioner constable in RPF attached with a
detachment deployed at railway station for static guard
alongwith ten others under the command of one head
constable—Deceased Naik Amarjeet Yadav was murdered at
railway station allegedly by petitioner—Petitioner annoyed with
deceased and had an argument with him—For that reason fired
three rounds from his service rifle at the deceased resulting
in instantaneous death—FIR registered by police u/s 302 IPC
against petitioner—In preliminary inquiry, allegations proved—
Disciplinary authority dismissed petitioner from service stating
that not reasonably practicable to hold a departmental inquiry—
In Appeal, order of disciplinary authority set aside and regular
departmental inquiry ordered on the charges of gross
remissness and negligence in discharge of duty, willful breach
of discipline and serious misconduct—He was kept under
suspension during the pendency—Charges proved against
him—Again dismissed from service by disciplinary authority—
Filed appeal against the order before Appellant Authority—
During the pendency of appeal, acquitted by the court due to
lack of evidence—Transpired that all witnesses examined in
the departmental inquiry not produced in criminal trial—
Represented to the Appellate Authority in view of acquittal
relating to the same incident the punishment in departmental
inquiry be set aside—Appeal dismissed being time barred—
Filed revision before revisional authority—Revision
dismissed—Preferred writ petition—Contended, in view of the
fact that he has been acquitted in the criminal proceedings
based on same set of allegations which constituted the
gravamen of departmental proceedings the order of
Discriptionary Authority should be quashed—Further
contended that he could not participate in disciplinary
proceedings since he was not paid subsistence allowance—
Held—Departmental inquiry and criminal proceedings operate
in their distinct and mutually exclusive jurisdictional areas—
In a disciplinary proceedings the area of investigation covers
the field of (a) enforcement of discipline (b) level of integrity
(c) misconduct pertaining to devotion towards duty—In
criminal proceedings the area of investigation covers the
culpability from the point of view of criminal law—Standard
of proof in the two proceedings are different—In the former,
it is preponderance of probability and in the latter beyond
reasonable doubt—Rule of Evidence Act applicable in the
criminal trial; not applicable in the disciplinary proceedings
wherein any material having logical probative value to prove
or disprove the fact in issue relevant and admissible—In the
case in hand, the scope of departmental inquiry covering
disciplinary aspect wider and different and accordingly the
acquittal of the petitioner in the criminal proceedings has no
(xxxvii) (xxxviii)
effect on the punishment of dismissal from service imposed
on him in the departmental proceedings—Further requirement
of furnishing a non-employment certificate by the suspended
employee to draw his subsistence allowance granted on
monthly basis to the employee to sustain himself—If the
suspended fails to submit the certificate, he cannot complain
about not getting the subsistence allowance—Writ Petition
Dismissed.
Rajesh Kr. Chaturvedi v. Union of India & Ors. ..... 106
SERVICE LAW—Petitioner constable in RPF attached with a
detachment deployed at railway station for static guard
alongwith ten others under the command of one head
constable—Deceased Naik Amarjeet Yadav was murdered at
railway station allegedly by petitioner—Petitioner annoyed with
deceased and had an argument with him—For that reason fired
three rounds from his service rifle at the deceased resulting
in instantaneous death—FIR registered by police u/s 302 IPC
against petitioner—In preliminary inquiry, allegations proved—
Disciplinary authority dismissed petitioner from service stating
that not reasonably practicable to hold a departmental inquiry—
In Appeal, order of disciplinary authority set aside and regular
departmental inquiry ordered on the charges of gross
remissness and negligence in discharge of duty, willful breach
of discipline and serious misconduct—He was kept under
suspension during the pendency—Charges proved against
him—Again dismissed from service by disciplinary authority—
Filed appeal against the order before Appellant Authority—
During the pendency of appeal, acquitted by the court due to
lack of evidence—Transpired that all witnesses examined in
the departmental inquiry not produced in criminal trial—
Represented to the Appellate Authority in view of acquittal
relating to the same incident the punishment in departmental
inquiry be set aside—Appeal dismissed being time barred—
Filed revision before revisional authority—Revision
dismissed—Preferred writ petition—Contended, in view of the
fact that he has been acquitted in the criminal proceedings
based on same set of allegations which constituted the
gravamen of departmental proceedings the order of
Discriptionary Authority should be quashed—Further
contended that he could not participate in disciplinary
proceedings since he was not paid subsistence allowance—
Held—Departmental inquiry and criminal proceedings operate
in their distinct and mutually exclusive jurisdictional areas—
In a disciplinary proceedings the area of investigation covers
the field of (a) enforcement of discipline (b) level of integrity
(c) misconduct pertaining to devotion towards duty—In
criminal proceedings the area of investigation covers the
culpability from the point of view of criminal law—Standard
of proof in the two proceedings are different—In the former,
it is preponderance of probability and in the latter beyond
reasonable doubt—Rule of Evidence Act applicable in the
criminal trial; not applicable in the disciplinary proceedings
wherein any material having logical probative value to prove
or disprove the fact in issue relevant and admissible—In the
case in hand, the scope of departmental inquiry covering
disciplinary aspect wider and different and accordingly the
acquittal of the petitioner in the criminal proceedings has no
effect on the punishment of dismissal from service imposed
on him in the departmental proceedings—Further requirement
of furnishing a non-employment certificate by the suspended
employee to draw his subsistence allowance granted on
monthly basis to the employee to sustain himself—If the
suspended fails to submit the certificate, he cannot complain
about not getting the subsistence allowance—Writ Petition
Dismissed.
Rajesh Kr. Chaturvedi v. Union of India & Ors. ..... 106
SPECIAL ECONOMIC ZONES ACT, 2005—Section 26(1) (e),
26(2), 51, 55 and 58—Special Economic Zone Rules, 2006—
Rule 31—Central Excise Act, 1994—Section 37B—Payment
of whole service tax exempted on services provided to a
(xxxix) (xl)
Developer or Units of SEZ by any service provider, for
purpose of development, operation and maintenance of SEZ
or for setting up of a SEZ unit or for manufacture of goods
by SEZ Units, on satisfaction of certain conditions—Impugned
circular clarified that service tax is exempted on provision of
only such services which are rendered by service providers
to Developer or Unit for its authorized operation within area
of SEZ—Circular challenged in writ petition before High Court
—Plea taken, only condition required for availing exemption
from payment of service tax by a Developer/Entrepreneur is
that taxable service should be used for carrying on authorized
operations by Developer/Entrepreneurs—Location of service
provider or place of service is entirely irrelevant for purpose
of this exemption—Per contra plea taken, service tax
exemption is available only for services which are provided
to carry on authorized operation in a SEZ—Held—Only
condition that is required to be satisfied to avail service tax
benefit is that services must be rendered for purpose of
carrying out ‘‘authorized operations in a special economic
zone’’—If intention of legislature was to exempt only those
services from levy of service tax that are rendered within SEZ,
legislature would have categorically stated so in statute—A
subordinate legislation has to confirm to parent statute and any
subordinate legislation inconsistent to provisions of parent
statute is liable to be set aside—Circulars being executive/
administrative in character cannot supersede or override Act
and statutory Rules—Impugned circular seeks to impose a
condition that was not intention of legislature in SEZ Act or
Rules and is liable to be set aside.
M/s. Jindal Stainless Limited & Anr. v. Union of
India & Ors. .................................................................. 373
SPECIAL MARRIAGE ACT, 1954—Section 7, 8, 13(2), 15(a),
16, 24(2), 25 (iii) (a & b), 39, 40 (c)—Indian Evidence Act,
1872—Section 4 and 36—Constitution of India, 1950—Article
25 and 26— Respondent filed a petition for declaring
(xli) (xlii)
registration of her marriage with appellant to be of no effect—
As per respondent, for membership of library in Jama Masjid,
appellant persuaded respondent to convert to Islam for this
purpose—Respondent singed certain documents which
appellant claimed to be registration of marriage and conversion
certificate and that by virtue of those respondent became his
wife—Petition allowed by Trial Court—Order challenged in
appeal—Plea taken, trial Court committed jurisdiction error in
entertaining suit of respondent—Documentary evidence to
prove conversion of respondent from Hindu religion to Muslim
religion ignored by trial Court—Respondent did not file any
objection to registration of marriage—Per contra, plea taken
respondent had never changed her religion and there is no
marriage which can be said to have taken place between
appellant and respondent—Held—In certain situations one
party to marriage belonging to one religion can take a decision
to embrace religion of other party but such a conversion should
not be undertaken merely to achieve purpose of marriage—It
should be done to embrace new religion with a will and desire
to completely follow tenets of new religion while
simultaneously forsaking tenets of religion being professed by
a person prior thereto—Respondent got prepared her
conversion certificate to marry appellant—She feigned to have
adopted another religion for purpose of wordly gain of
marriage—Trial Court rightly held there was no conversion
of respondent from Hinduism to Islam—Except nikahnama
nothing proved on record to establish fact that essential
requirement of offer and acceptance was made by parties in
presence and hearing of witnesses—Registration of marriage
was obtained in violation of mandatory conditions required for
purpose of registration as parties had never lived together since
their marriage—Marriage certificate is conclusive evidence to
prove its issuance by a proper and competent marriage officer
after following due procedure prescribed under Act and Rules
framed thereunder—Said conclusive evidence cannot come in
way of parties challenging such a marriage certificate or
marriage itself—No merit in present appeal.
Faheem Ahmed v. Maviya @ Luxmi ........................... 216
SPECIFIC RELIEF ACT, 1963—Agreement to sell—Father of
petitioner entered into agreement to sell suit property in year
1978—Suit for specific performance decreed by ADJ in
favour of plaintiff in year 1987—Civil appeal dismissed by
Supreme Court in year 2007—DDA demanded unearned
increase (UEI)—Demand challenged in High Court—Plea
taken, crucial date for determining market rate for UEI would
be date of agreement to sell and not date of decree of trial
Court—Per contra, plea taken up to time of decree of trial
Court, transaction between parties was incomplete and attained
finality after decision of Supreme Court—DDA acted
reasonably and took date of decree of trial Court as relevant
date—Held—For purpose of calculation of UEI, date of
transaction has necessarily to be date of agreement to sell
which indicates sale consideration—Transfer emanates from
agreement to sell itself as that would have logically led to
execution of sale deed—Supreme Court directed petitioner to
pay Rs. 5 lacs as a matter of good gesture—For all practical
purposes sale consideration should be sum mentioned in
agreement to sell plus Rs. 5 lacs—DDA directed to issue fresh
demand of UEI.
Rajiv Goela and Anr. v. Delhi Development
Authority ............................................................................. 1
TRADE MARKS ACT, 1999—Deceptive similarity—Plaintiff
owning and managing destination spas, luxury business leisure
hotels in India and abroad providing services under Trade
Mark and Service Mark ‘Ananda’—Pre-launch advertising
campaign of residential complex under name ‘Park View
Ananda’ launched by defendant for promoting residential
complexes—Claim of plaintiff that defendant adopted well
known mark ‘Ananda’ to create association with plaintiff’s
properties and to ride on goodwill and reputation of plaintiff—
Held, difficult to accept that trade mark ‘Ananda’ had become
a well known trade mark or that it came to be associated
exclusively with plaintiff’s company so as to indicate a
connection with the plaintiff company—No material on record
to show that the mark ‘Ananda’ had acquired such a high
brand equity in India that its use by persons other than plaintiff
would dilute its reputation—Difficult to say that word
‘Ananda’ had become distinctive with plaintiff company— No
evidence of any legal proceedings having been initiated by the
plaintiff company against registration and/or user of ‘Ananda’
by others—Goods and services of defendant in wholly
unrelated category compared to plaintiff—Plaintiff failed to
make out prima facie case for grant of injunction against
defendant—Application dismissed.
IHHR Hospitality Pvt. Ltd. v. Bestech India
Pvt. Ltd. ......................................................................... 364
VOLUNTARY RETIREMENT SCHEME (VRS)—Entitlement to
benefit of pension scheme—Respondent introduced VRS
before the pension scheme became operational—Appellants
contended that they opted for pension scheme and therefore
be paid pension fact that scheme became operational later-no
effect. Held—In LPA No.1262/2007 dated 5th October, 2007,
Delhi Transport Corporation vs. Kishan Lal Sehgal and
Ors. Held-entitled to pension-in W.P.(C) No. 14027/2009
[DTC Vs. Madhu Bhushan Anand, 2010 (172) DLT 668]
right to pension was denied as higher ex-gratia was paid-ratio
cannot be reconciled matter referred to larger bench.
R.D. Gupta & Ors. v. D.T.C. & Anr. ........................ 277
(xliii) (xliv)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
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1 2Rajiv Goela and Anr. v. Delhi Development Authority (S. Muralidhar, J.)
a sale, which could even be an illegal sale. Usually, the
guideline value or prevalent market rate of properties in the
locality would be considered for determining whether the
sale consideration shown in the agreement to sell reflects
the true market value for the purposes of calculating the
UEI. The difference between the sale consideration calculated
at such market value and the original premium charged for
the plot could give an indication of the profit earned for the
purposes of calculation of UEI. (Para 12)
Important Issue Involved: For the purpose of calculating
Unearned Increase, it is not possible to shift the date of
transaction from date of agreement to sell to some other
date on which trial Court decrees the suit for specific
performance.
[Ar Bh]
APPEARANCES:
FOR THE PETITIONERS : Mr. Sachin Chopra, Advocate.
FOR THE RESPONDENT : Mr. Rajiv Bansal, Advocate.
RESULT: Allowed.
S. MURALIDHAR, J.
1. The prayer in this writ petition is for a direction to quash a
demand of Rs.53,39,816/- raised in a sale permission letter dated 15th
January, 2009 issued by the Respondent Delhi Development Authority
(hereinafter referred to as ‘DDA’). The Petitioners seek a direction to the
DDA to re-issue a revised sale permission letter with the demand calculated
on the basis of rates prevalent on 24th March, 1978 in the areas adjoining
the area in which the property in question, that is at B-334, New Friends
Colony, is situated.
2. In relation to the property in question, the DDA executed a lease
deed on 2nd July, 1974 in favour of Shri D.N. Sharma for an amount
of Rs.24,096.14. Thereafter the father of the Petitioners, Shri Shyam
Shankar Goela entered into an agreement to sell dated 24th March, 1978
ILR (2011) VI DELHI 1
WP (C)
RAJIV GOELA AND ANR. ....PETITIONERS
VERSUS
DELHI DEVELOPMENT AUTHORITY ....RESPONDENT
(S. MURALIDHAR, J.)
WP (C) NO. : 9326/2009 DATE OF DECISION: 09.02.2011
Specific Relief Act, 1963—Agreement to sell—Father
of petitioner entered into agreement to sell suit
property in year 1978—Suit for specific performance
decreed by ADJ in favour of plaintiff in year 1987—
Civil appeal dismissed by Supreme Court in year 2007—
DDA demanded unearned increase (UEI)—Demand
challenged in High Court—Plea taken, crucial date for
determining market rate for UEI would be date of
agreement to sell and not date of decree of trial
Court—Per contra, plea taken up to time of decree of
trial Court, transaction between parties was incomplete
and attained finality after decision of Supreme Court—
DDA acted reasonably and took date of decree of trial
Court as relevant date—Held—For purpose of
calculation of UEI, date of transaction has necessarily
to be date of agreement to sell which indicates sale
consideration—Transfer emanates from agreement to
sell itself as that would have logically led to execution
of sale deed—Supreme Court directed petitioner to
pay Rs. 5 lacs as a matter of good gesture—For all
practical purposes sale consideration should be sum
mentioned in agreement to sell plus Rs. 5 lacs—DDA
directed to issue fresh demand of UEI.
The idea of charging UEI is to recover for the DDA a portion
of the profit/gain earned by the allottee of plot by virtue of
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with one Shri D.N. Sharma for sale of the property in question for a total
sale consideration of Rs.85,000/-. Annexure P-1 to the writ petition is a
receipt, which acknowledges payment by Shri Shyam Shankar Goela of
a sum of Rs.8,500/- and contains a clause that Shri Shyam Shankar
Goela will pay the balance amount of Rs.76,500/- “within 15 days from
the date the plan is approved by the DDA.”
3. When Mr. D.N. Sharma did not perform his part of the obligations,
the father of the Petitioners filed a suit, Civil Suit No.129/1980, for
specific performance of the agreement to sell dated 29th March 1978.
Suit No.129/1980 was decreed by the learned Additional District Judge
on 31st March, 1987. The learned ADJ held that the agreement/receipt
dated 24th March, 1978 was a proper agreement to sell between the
parties. The defendants were directed to execute the sale deed in respect
of the property in question in favour of Shri Shyam Shankar Goela.
4. Shri D.N. Sharma and his son preferred an appeal being RFA
No.350/1987 in this Court. A show cause notice was issued by the DDA
on 20th June, 1997 to Shri D.N. Sharma stating, inter alia, that it had
come to the notice of the DDA that Shri D.N. Sharma had “sold the plot
to Shri Shyam Shankar Goela without the prior permission of the lessor”
and thus committed breach of Clause II (6) (b) of the said sub-lease
deed. This was followed by further show cause notices dated 4th March,
1998 and 6th November, 1998 by the DDA to Shri D.N. Sharma.
5. Shri D.N. Sharma then filed Civil Writ Petition No. 898 of 1999
against the DDA in this Court in which it was prayed that DDA should
be restrained from cancelling the sub-lease deed in view of the judgment
dated 31st March, 1987 of the learned Additional District Judge in Suit
No.129/1980. In a reply filed to the said writ petition, the DDA accepted
that there had been an agreement dated 24th March, 1978 entered into
between Shri D.N. Sharma and Shri Shyam Shankar Goela, which
mentions the sale consideration as Rs.85,000/- and further that a sum of
Rs.8,500/- had been paid by Shri Shyam Shankar Goela to Shri D.N.
Sharma as part payment.
6. RFA No. 350 of 1987 was dismissed by this Court on 4th
September, 2001. Thereafter Shri Vishwanath Sharma, son of Shri D.N.
Sharma filed Civil Appeal No.6700/2004 in the Supreme Court. The said
appeal was dismissed by the Supreme Court on 26th February, 2007. In
its counter affidavit and the additional affidavit filed in the Supreme
Court, the DDA stated that it was entitled to recover unearned increase
(‘UEI’) since the property in question had been transferred through a sale
receipt dated 24th March, 1978. It was maintained by the DDA that
execution of the sale receipt and other documents amounted to an illegal
sale of the plot.
7. The Petitioners, as legal heirs of Shri Shyam Shankar Goela,
applied on 30th April, 2007 to the DDA for mutation of the property in
question in their names and for extension of time of two years to construct
a building on the plot. Further applications were made on 17th and 18th
July, 2007 by the Petitioners for early action on the above request.
Several reminders were sent in the months of August, September, October
and November, 2007. In the meanwhile, Shri D.N. Sharma, through his
legal heirs, filed an affidavit in C.W.P.No.898/1999 in this Court seeking
to withdraw the said writ petition. Thereafter on 15th January, 2009, the
impugned letter was issued by the DDA granting sale permission subject
to payment of Rs.53,39,816/- on account of UEI being 50% in the value
of the plot along with interest up to 31st January, 2009.
8. An order dated 1st June, 2010 was passed by this Court which
reads as under:-
“1. The petitioners have filed the present petition seeking directions
to quash the demand made by the DDA in the sum of
Rs.53,39,816/- as raised vide sale permission letter dated
15.1.2009. During the pendency of this matter, present application
has been filed by the petitioners seeking permission for mutation/
construction of building on the plot, on their depositing the entire
amount, as demanded by the DDA, without prejudice to their
rights and contentions.
2. Reply to this application has been filed. In paras 5 (a) to (d)
of the reply, the stand taken by the DDA is as under:
(a) On payment of Rs. 63,41,042/- (Rs.53,39,816 on account of
unearned increase interest upto 31.01.2009, demand which has
already been raised vide letter dated 15.01.2009 and Rs.
10,01,216/- on account of further interest upto 14.06.2010), the
DDA will grant mutation of the premises in question in favour
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5 6Rajiv Goela and Anr. v. Delhi Development Authority (S. Muralidhar, J.)
of the petitioners.
(b) DDA will also grant extension of time later on as per the
relevant policy.
(c) Conversion can only be applied in respect of the built up
property. DDA will process the case of the petitioners as per the
conversion policy as and when the petitioners apply for conversion
after completion of building on the plot in question subject to
fulfillment of all the relevant formalities.
(d) DDA will issue No Objection certificate only on clearance of
all the outstanding dues by the petitioners towards DDA.
3. Counsel for the petitioners, on instructions from Mr. Rajiv
Goela and Mr. Rahul Goela, petitioners, who are present in Court,
submits that petitioners are willing to accept the terms and
conditions as set out by the DDA in para 5 of the counter
affidavit.
4. Accordingly, the present application is allowed. Petitioner shall
deposit the amount, demanded by the DDA, within two weeks.
DDA shall carry out the necessary mutation within a period of
four weeks thereafter and also consider granting extension of
time for carrying out construction. The petitioners shall make
the deposit without prejudice to their rights and contentions and
subject to final outcome of the writ petition.
5. Application stands disposed of.”
9. In terms of the above order, the Petitioners paid the sum demanded
to DDA without prejudice to their rights and contentions.
10. Mr. Sachin Chopra, learned counsel for the Petitioners, relied
upon a Circular dated 16th August, 2005 whereby the DDA issued
guidelines for computing UEI. In para 1 of the Circular, it was stated that
the crucial date for determining the market rate for calculation of UEI
would be the date of the transaction, “whether in the form of sale/
transfer/transfer of shares etc......” It is submitted that the date of
transaction should be taken to be the date of the agreement to sell.
Instead, the DDA has taken the date of the trial court decree to be the
relevant date for determining the UEI. The DDA could not possibly go
against its own guidelines and dispute the agreement to sell, the validity
of which has been affirmed up to the Supreme Court.
11. The stand of Mr. Rajiv Bansal, learned counsel appearing for
the DDA is that up to the time of the judgment and decree of the trial
court dated 31st March, 1987, the transaction between the parties was
incomplete. It is stated that finality to the transaction was attained only
after the order dated 26th February, 2007 was passed by the Supreme
Court, dismissing the Civil Appeal No.6700/2004. It is submitted that
instead of taking that date to be the relevant date for the purpose of
calculating UEI, the DDA has in fact acted reasonably in taking the
relevant date for that purpose to be 31st March 1987. Consequently, the
sale permission letter dated 15th January 2009 was valid and did not call
for interference. As regards the Circular dated 16th August 2005, it is
stated that since the transaction between the parties was affirmed only
when the trial court decreed the suit for specific performance, the relevant
date should be 31st March, 1987. It is submitted that any noting to the
contrary in the file of the DDA did not amount to the decision of the
DDA. Mr. Bansal submitted that a perusal of the receipt/agreement to sell
would show that the sale was, in fact, not yet complete as no plan has
been submitted to the DDA for its approval.
12. The above submissions have been considered. The idea of
charging UEI is to recover for the DDA a portion of the profit/gain
earned by the allottee of plot by virtue of a sale, which could even be
an illegal sale. Usually, the guideline value or prevalent market rate of
properties in the locality would be considered for determining whether
the sale consideration shown in the agreement to sell reflects the true
market value for the purposes of calculating the UEI. The difference
between the sale consideration calculated at such market value and the
original premium charged for the plot could give an indication of the
profit earned for the purposes of calculation of UEI.
13. It is not possible to accept the contention of the DDA that the
date of transaction in the present case should be taken to be 31st March
1987, the date on which the trial court decreed the suit for specific
performance. No doubt that the sale had to take place within 15 days
from the date of approval of the plan by the DDA. However, without sale
permission being granted, there was no question of the plan submitted by
the Petitioners being approved by the DDA. Therefore, everything hinges
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on the sale permission to be granted by the DDA. The sale consideration
appears on the agreement to sell dated 24th March, 1978. For the purpose
of calculation of UEI, the date of transaction has necessarily to be taken
to be the date of 24th March, 1978, which indicates what the sale
consideration is. It is not the DDA’s case that the sale consideration, as
shown in the said document, is less than the prevalent market rate as on
that date. The parties had not agreed to any higher sale consideration. It
is not, therefore, possible to accept the submission that the date of
transaction can get shifted to some other date on which the trial court
decrees the suit for specific performance. The trial court, in doing so,
only affirmed that an agreement to sell was a valid document and that
a sale deed ought to have been executed in terms of such an agreement
to sell.
14. It was argued by Mr. Bansal that the words “sale/transfer/
transfer of shares etc…..” occurring in para 1 of the Circular dated 16th
August, 2005 would not include the date of an agreement to sell since
no transfer had actually taken place by virtue thereof. This militates
against the DDA’s understanding, as is evident from the affidavits filed
by it in the proceedings in the suit for specific performance, which went
up to the Supreme Court. The transfer in case emanates from the
agreement to sell itself as that would have logically led to the execution
of the sale deed for which the Petitioner’s father had to approach the
Civil Court.
15. As regards the sale consideration, although the agreement to sell
itself indicates it to be Rs.85,000/-, the total consideration now stands
increased by virtue of the judgment of the Supreme Court dated 26th
February, 2007. While dismissing the appeal filed by Shri Vishwanath
Sharma, the Supreme Court directed the Petitioners herein to pay a sum
of Rs.5 lacs “as a matter of good gesture”. It was argued by Mr. Sachin
Chopra, learned counsel for the Petitioners that this was not meant to
enhance the sale consideration but was an additional sum paid by the
Petitioners by way of a good gesture. However, it is in this case that
there cannot be an execution of the sale deed in terms of the decree for
specific performance without the Petitioners paying the aforementioned
additional sum of Rs.5 lacs to Shri Vishwanath Sharma. For all practical
purposes, therefore, the sale consideration should be taken to be Rs.85,000/
- plus Rs.5 lacs, i.e., Rs.5,85,000/-.
16. The DDA would, therefore, be justified in calculating the unearned
increase on the basis that the sale consideration for the property in
question is Rs.5,85,000/-.
17. Consequently, it is directed that the DDA will now issue a
revised sale permission by issuing the demand of unearned increase
calculated on the basis of the sale consideration being Rs.5,85,000/- with
interest and other charges calculated as per the DDA’s policy.
18. The Petitioners have already made a deposit of the amount of
Rs.53,39,816/- together with interest. The balance amount, if any, after
calculating the unearned increase payable by them in terms of this order,
will be refunded to the Petitioners by the DDA together with simple
interest @ 6% per annum on the differential amount, within a period of
four weeks from today.
19. The writ petition is disposed of with the above directions.
ILR (2011) VI DELHI 8
CS (OS)
FITZEE LTD. ....PLAINTIFF
VERSUS
BRILLIANT TUTORIALS (P.) LTD. ....DEFENDANT
(V.K. JAIN, J.)
CS (OS) NO. : 661/2005 DATE OF DECISION: 28.02.2011
Code of Civil Procedure, 1908—Order XXXIX, Rule 1 &
2—Suit for permanent injunction for restraining
defendant no.1 from poaching faculty members of
defendant no. 1 or from instigating them to quit the
plaintiff company and join them—Defendant objected
that injunction claimed would have the effect of
curtailing the freedom given to its employees to
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9 10Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. (V.K. Jain, J.)
improve their future prospects and service
conditions—Held—There is no contract between the
plaintiff company and defendant no. 1 company not to
poach on the employees of each other—In the absence
of any such contract, nothing in law prevented
defendant no. 1 company from approaching the
employees of plaintiff company and offering better
service conditions to them—Therefore, it cannot be
said that any legal injury was caused to the plaintiff-
company by the alleged poaching or any legal right,
vesting in the plaintiff-company, was violated by
defendant No.1 company—Suit dismissed with cost.
Assuming that defendant No.1-company had approached
the employees of the plaintiff-company and offered better
salaries to them, no legal right of the plaintiff-company has
been violated by defendant No.1-company by such an act
on its part. There is no contract between the plaintiff-
company and defendant No.1-company not to pouch on the
employees of each other. In the absence of any such
contract, nothing in law prevented defendant No.1-company
from approaching the employees of the plaintiff-company
and offering better service conditions to them. Therefore, it
cannot be said that any legal injury was caused to the
plaintiff-company by the alleged poaching or any legal right,
vesting in the plaintiff-company, was violated by defendant
No.1-company. (Para 13)
[Vi Ba]
APPEARANCES:
FOR THE PLAINTIFF : None.
FOR THE DEFENDANT : Mr. K.K. Rohtagi, for Defendant No.
1.
CASES REFERRED TO:
1. Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee (2009)
9 SCC 221.
2. Narbada Devi Gupta vs. Birendra Kumar Jaiswal (2003)8
SCC 745.
3. Superintendence Company of India vs. Krishan Murgai
(1981) 2 SCC 246.
4. Niranjan Shankar Golikari vs. The Century Spinning and
Mfg. Co., (1967) 2 SCR 378.
5. Judah vs. Isolyne Bose, AIR 1945 PC174.
6. W.H. Milsted and Son Ltd. vs. Hamp: (1921) 2 AC 158.
RESULT: Suit is dismissed with cost.
V.K. JAIN, J.
1. This is a suit for permanent injunction.
2. The plaintiff company is engaged in imparting specialized coaching
to students for the purpose of enabling them to get through JEE
examination conducted by various IITs all over the country. The plaintiff
claims to have attained immense goodwill and reputation on account of
constant good results in the aforesaid examination. The plaintiff company
has been appointing faculty members for conducting class room training
and coaching of students. It is claimed that the faculty members are
given training so as to maintain uniform standard of teaching, culture
etc., which is imparted on regular basis. It is further claimed that the
training to the faculty members includes lectures by the persons possessing
high skill and expertise, who give teaching tips to the faculty members,
and is imparted for a minimum period of three months. The plaintiff
company claims to be incurring substantial expenditure on the aforesaid
training.
3. Defendant No.1 is also a company engaged in coaching the
students, who want to appear in JEE examination conducted by IITs.
Defendant No.1 also imparts coaching to students for other competitive
examinations such as IIT-JEE, AIEEE, MBBS, IAS etc. It has been
alleged by the plaintiff that defendant No.1 has infrastructure to train
faculty and is dependent on the trained faculty members of the plaintiff
company and, therefore, it has been indulging in poaching so as to take
away trained faculty members of the plaintiff company in the middle of
sessions leaving the students in a lurch and causing immense loss to the
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Indian Law Reports (Delhi) ILR (2011) VI Delhi11 12Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. (V.K. Jain, J.)
plaintiff company. It is alleged that besides offering lucrative salary package
and other monetary benefits, defendant No.1 also represents the faculty
members of the plaintiff that their chances of growth are minimal with
the plaintiff company.
It is also alleged that defendant No.2 was targeted by defendant
No.1 for this purpose but he refused to accept the unethical offer given
to him and he was compelled to write a letter to the plaintiff company
informing him about the disturbance created by defendant No.1. It is
further alleged that defendant No.3 was also approached by defendant
No.1 in the similar manner with the object of getting trained faculty
members without imparting training to them.
4. The plaintiff has sought permanent injunction restraining defendant
No.1 from poaching the factually members of the plaintiff company
including defendant Nos. 2 and 3, or from instigating them to quit the
plaintiff company and join them. It has also sought injunction restraining
defendant Nos. 2 and 3, from joining defendant No.1 in the act of
poaching triggered by defendant No.1.
5. Defendant No.1 has contested the suit. It has taken a preliminary
objection that since the injunction claimed by the plaintiff would have the
effect of curtailing the freedom given to its employees to improve their
future prospects and service conditions by changing their employment,
no such injunction can be granted to the plaintiff. On merits, defendant
No.1 has denied that the plaintiff company is imparting any training to
its faculty members. Defendant No.1 has denied the alleged poaching and
having caused any loss to the plaintiff company.
6. Defendant No.2 was proceeded ex-parte vide order dated 25th
February, 2009 whereas the name of defendant No.3 was deleted from
the array of defendants vide order dated 9th April, 2009.
7. The following issues were framed on the pleadings of the parties:-
“1. Whether the plaintiff has any right to injunct the defendant
from poaching its faculty members? OPP.
2. Whether the plaintiff has trained its faculty & incurred any
costs in training, if so to what effect? OPP.
3. Relief.”
Issues No. 1 and 2
8. The plaintiff has filed the affidavit of Col. K.C. Oberoi (Retd.),
Senior Manager (HRD) by way of evidence whereas defendant No.1 has
filed the affidavit of his Manager (HRD), Mr. D.K. Gupta by way of
evidence.
9. In his affidavit by way of evidence, Mr K.C. Oberoi has stated
that all faculty members and staff of the plaintiff-company are required
to undergo training to maintain uniform standard of teaching, philosophy
of the company and to work cohesively as a team. The training is
imparted in terms of manual Ex.P-4. He has further stated that substantial
expenditure involved in training the faculty members so that success rate
of students is remarkably good with more chances of success. He has
also stated that the defendant-company indulges in taking away their
trained faculty members, by enticing them and by offering a little more
salary perks, etc. According to him, this is done in the middle of the
session, thereby leaving the students in a lurch. He has further stated that
defendant No.2 was approached by defendant No. 1, but he refused to
accept the offer given to him and wrote a letter Ex.P-5 in this regard.
According to him, Ex.P-7 is the letter which defendant No. 3 had written
to the plaintiff-company.
10. In rebuttal, Mr D.K. Gupta of defendant No.1-company has
stated that defendants 2 and 3 are not the faculty members of the
plaintiff-company and, in fact, they do not exist. He has further stated
that defendant No.1-company never approached either defendant No. 2
or defendant No. 3 with any offer, for any purpose. He has also stated
that two false and frivolous cases have been filed by the plaintiff-company
against defendant No. 1 before MRTP Commission with a view to destroy
the energies of defendant No. 1-company and to harass it.
11. The first question which comes up for consideration in this
regard is as to whether the plaintiff has been able to prove that defendant
No. 1 had made any attempt to instigate or entice its employees, to quit
the service of plaintiff and join defendant No. 1-company. No employee
has been produced by the plaintiff-company to prove that any officer/
official of defendant No. 1-company had approached him and offered
employment with defendant No. 1-company. The case of the plaintiff in
this regard is based wholly upon three documents Ex.P-5, Ex.P-6, Ex.P-
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13 14Fitzee Ltd. v. Brilliant Tutorials (P.) LTd. (V.K. Jain, J.)
7. Ex.P-5 is the letter purporting to be written by defendant No. 2 to Mr
Partha Haldar, Centre In-charge (NW) of the plaintiff-company, whereas
Ex.P-6 is the letter purporting to be written by Mr Partha Haldar to the
Chairman of the plaintiff-company. Ex.P-7 is the letter purporting to be
written by defendant No. 3 to the Managing Director of the plaintiff-
company. The letter Ex.P-6 only refers to the offer alleged to have been
made by defendant No. 1-company to defendant No. 2 Ateet Mittal, to
join defendant No.1-company on a big salary. No offer is alleged to have
been made by defendant No.1-company to Mr Partha Haldar himself, nor
does he claim to be a witness to Mr Ateet Mittal, being approached by
defendant No.1-company to join its service on a higher salary. Therefore,
this document does not prove the alleged pouching by defendant No.1.
As regards the letters Ex.P-5 and P-7, neither Mr Ateet Mittal, who
purports to have been written the letter Ex.P-5, nor Dr P. K. Sharma,
who purports to have been written the letter Ex.P-7, have not been
produced in the witness-box. Even if it is assumed that the documents
Exs.P-5 and P-7 have been duly proved by the plaintiff-company, that by
itself, does not amount to proving the contents of these documents. It
is a settled proposition of law that mere proving a document does not
prove its contents and a document by itself is not an evidence of the
facts stated therein. The fact in issue before the Court cannot be proved
merely by proving the signature and handwriting on a document since the
document, by itself, does not constitute truthfulness of its contents. The
truthfulness or otherwise of the contents of a document can be proved
only by legally admissible evidence, i.e., the evidence of a person who
is in a position to vouchsafe for the truthfulness of those contents.
12. In Judah v. Isolyne Bose, AIR 1945 PC174, the issue before
the Court was whether the testatrix was so seriously ill as would result
in impairment of her testamentary capacity. To substantiate the degree of
illness, a letter and two telegrams written by a nurse were tendered in
evidence. The question was whether in the absence of any independent
evidence about the testamentary capacity of the testatrix the contents of
the letter could be utilized to prove want of testamentary capacity. In
these circumstances, the Privy Council observed that the fact that a letter
and two telegrams were sent by itself would not prove the truth of the
contents of the letter and, therefore, the contents of the letter bearing on
the question of lack of testamentary capacity would not be substantive
evidence. It was held that the contents of the letter and telegram were
not the evidence of the facts therein and mere proof of handwriting of
a document would not tantamount to proof of all the contents or the
facts stated in the document therein.
In Malay Kumar Ganguly v. Dr. Sukumar Mukherjee (2009) 9
SCC 221, Supreme Court observed that a document becomes admissible
in evidence unless its author is examined and that the contents of a
document cannot be said to have been proved unless he is examined and
subjected to cross-examination in a Court of law.
In Narbada Devi Gupta v. Birendra Kumar Jaiswal (2003)8
SCC 745, Supreme Court, inter alia, observed as under:
‘‘The legal position is not in dispute that mere production and
marking of a document as exhibit by the court cannot be held,
to be a due proof of its contents. Its execution has to be proved
by admissible evidence that is by the evidence of those persons
who can vouchsafe for the truth of the facts in issue.‘
In the absence of production of the author of Exs.P-5 and P-7 in
the witness-box, the allegations of poaching contained in these documents,
cannot be said to have been proved by the plaintiff-company. It is,
therefore, difficult to dispute that no evidence has been led by the plaintiff-
company to prove the alleged pouching.
13. Assuming that defendant No.1-company had approached the
employees of the plaintiff-company and offered better salaries to them,
no legal right of the plaintiff-company has been violated by defendant
No.1-company by such an act on its part. There is no contract between
the plaintiff-company and defendant No.1-company not to pouch on the
employees of each other. In the absence of any such contract, nothing
in law prevented defendant No.1-company from approaching the
employees of the plaintiff-company and offering better service conditions
to them. Therefore, it cannot be said that any legal injury was caused to
the plaintiff-company by the alleged poaching or any legal right, vesting
in the plaintiff-company, was violated by defendant No.1-company.
14. Coming to the relief sought against defendant No.2 (defendant
No.3 has already been deleted from the array of defendants), no employer
can perpetually prevent its employee from quitting its service and joining
another employer. If, however, the employment is for a specified period
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and there is an agreement between the employer and the employee,
whereby the employee undertakes to serve the employer during that
period and not to join the services of any other employer during that
period, it would be permissible in law for the employer to seek enforcement
of the negative agreement. Even if such a term is agreed by an employee,
it would be wholly unconscionable and cannot be enforced. The plaintiff-
company does not claim that the employment of defendant No.2 was for
a specific period and it had an agreement with him not to leave the
services of the plaintiff-company during that period.
15. If there is a covenant between the employer and the employee,
whereby the employee is required to serve the employer in perpetuity,
such a restraint on the right of the employee to engage in any trade of
his choice would be wholly unreasonable and unnecessary for the protection
of the employer. To press a negative covenant not to leave the services
or not to serve any other employer would be wholly unlawful if it is not
restricted to a specified reasonable period and would constitute an
unreasonable and unconscionable restraint on his legal right to engage
himself into any trade, business or employment. The contract to serve
a particular employer either in perpetuity or for a specified period cannot
be enforced by a Court.
The negative agreement between the employer and the employee,
whereby the employee undertakes not to serve any other employer during
the period of his employment provided it is a specified and reasonable
period as also not to join any other employer engaged in a competing
business would be valid and enforceable so long as it is for a specified
period which is not found to be unreasonable or excessively harsh.
In Superintendence Company Of India (supra), the Supreme
Court, inter alia, observed as under:
“A contract in restraint of trade is one by which a party restricts
his future liberty to carry on his trade, business or profession in
such manner and with such persons as he chooses. A contract
of this class is prima facie void, but is becomes binding upon
proof that the restriction is justifiable in the circumstances as
being reasonable from the point of view of the parties themselves
and also of the community.”
16. In Niranjan Shankar Golikari vs The Century Spinning
and Mfg. Co., (1967) 2 SCR 378, there was a contract of employment
for five years. The employee Niranjan Shankar left the services of the
respondent-company four years before the expiry of the contract,
whereupon the respondent-company filed a suit for enforcing the negative
covenant which restrained him from engaging in or carrying on competing
business or serving in any capacity with an employer engaged in competing
business. The injunction sought by the plaintiff was confined to the
period ending 15th March, 1968 which was the last day of the five year
term of the contract. Supreme Court was of the view that restraints
during the period of contract are generally not regarded as restraints on
trade and, therefore, are outside the purview of Section 27 of the Contract
Act. It was also of the view that the restrictions operating from the term
of the contract may be void if they are excessively harsh or
unconscionable.
17. In Superintendence Company of India vs Krishan Murgai
(1981) 2 SCC 246, Supreme Court had an occasion to deal with a post
service restraint. Clause 10 of the Contract of employment placed the
employee Krishna Murgai under post-service restraint that he shall not
serve in any other competing firm for two years at the place of his last
posting. Clause 10 was operative for a period of two years after the
employee leaving the company. The services of the employee were
terminated by the employer. Supreme Court held that the negative covenant
against working during the term of the contract is not in restraint of trade
and that the doctrine of restraint on trade never applies during the
continuance of the contract. In W.H. Milsted and Son Ltd. v. Hamp:
(1921) 2 AC 158, the contract of service was terminable only by notice
of the employer. The contract was held to be bad in law on account of
being wholly one sided.
18. The plaintiff, therefore, is not entitled to any injunction even
against defendant No.2. In any case, this is not the case of the plaintiff
that defendant No.2 was likely to join the service of defendant No.1. The
case of the plaintiff is other way round and according to the plaintiff-
company, defendant No.2 firmly declined the offer made by defendant
No.1 to join its services. Therefore, the plaintiff had no cause of action
to file the present suit against defendant No.2. The issues are decided
against the plaintiff and in favour of the defendants.
Indian Law Reports (Delhi) ILR (2011) VI Delhi
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17 18Mr. K.L. Chandak v. Mr. Jai Chand & Ors. (Indermeet Kaur, J.)
Issue No. 3
In view of my findings on issue No. 1 and 2, the plaintiff is not
entitled to any relief.
ORDER
For the reasons given in the preceding paragraphs, the suit is
dismissed with costs. I am satisfied that the suit was false and vexatious
to the knowledge of the plaintiff and the plaintiff had no legal right to
claim the relief sought in this suit and it appears that the suit was filed
only with a view to harass a competitor and drag it into litigation. Defendant
No.1, therefore, is entitled to compensatory costs in terms of Section
35A of the Code of Civil Procedure. In view of the provisions contained
in sub-Section (2) of Section 35A of CPC, the amount of compensatory
costs cannot exceed Rs 3,000/-. I, therefore, in addition to usual costs o
the suit, also award compensatory costs amounting to Rs 3,000/- t
defendant No.1.
Decree sheet be prepared accordingly.
ILR (2011) VI DELHI 17
RSA
MR. K.L. CHANDAK ....APPELLANT
VERSUS
MR. JAI CHAND & ORS. ....RESPONDENTS
(INDERMEET KAUR, J.)
RSA NO. : 85/2004 AND DATE OF DECISION: 01.03.2011
CMS. NO. : 4643/2004 &
10869/2004
Code of Civil Procedure, 1908 (CPC)—Order XLI Rule
4—Maintainability of Appeal if all the legal
representatives are not impleaded—Respondent’s suit
for possession—Decreed—Appeal filed by only one
legal representative without impleading other legal
representatives was allowed by the Appellate Court—
Same challenged in second appeal. Held—Order XLI
Rule 4 of the Code permits one of the several plaintiffs
or one of the several defendants to obtain a reversal
of the whole decree—Therefore even assuming that
the decree was against all the legal representatives—
Appeal filed by one legal was competent—Further
under Rule 33—Appellate Court has wide powers to
pass any decree and to make any order
notwithstanding that the appeal has been filed only by
one person—Decree can be passed against those
respondents as well who have not filed any appeal or
objection—Condition being that they must be parties
to the suit.
Order XLI Rule 4 of the Code reads as under:-
‘‘4. One of several plaintiffs or defendants may
obtain reversal of whole decree where it
proceeds on ground common to all- Where there
are more plaintiffs or more defendants then one in a
suit, and the decree appealed from proceeds on any
ground common to all the plaintiffs or to all the
defendants, any one of the plaintiffs or of the
defendants may appeal from the whole decree, and
thereupon the Appellate Court may reverse or vary
the decree in favour of all the plaintiffs or defendants,
as the case may be.”
Order XLI Rule 4 of the Code thus permits one of the
several plaintiffs or one of the several defendants to obtain
a reversal of the whole decree. Even assuming that the
decree of dismissal (dated 18.09.1995) was a decree against
all the legal representatives of Bhani Ram, the appeal filed
by one legal representative namely Jai Chand was competent.
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Indian Law Reports (Delhi) ILR (2011) VI Delhi19 20Mr. K.L. Chandak v. Mr. Jai Chand & Ors. (Indermeet Kaur, J.)
Rule 33 of the said Order is relevant. It reads as under:-
‘‘Power of Court of Appeal.-The Appellate Court shall
have power to pass any decree and make any order which
ought to have been passed or made and to pass or make
such further or other decree or order as the case may
require, and this power may be exercised by the Court
notwithstanding that the appeal is as to part only of the
decree and may be exercised in favour of all or any of the
respondents or parties, although such respondents or parties
may not have filed any appeal or objection, [and may, where
there have been decrees in cross-suits or where two or
more decrees are passed in one suit, be exercised in
respect of all or any of the decrees, although an appeal may
not have been filed against such decrees]:´
Rule 33 of this Order give wide powers to the appellate
court to pass any decree and to make any order
notwithstanding that the appeal has been filed only by one
person; decree can be passed against those respondents
as well who have not filed any appeal or objection; condition
being that they must be parties to the suit. This provision is
based on the salutary principle that the appellate Court
should have the powers to do complete justice between the
parties. It confer a wide discretionary power on the appellate
court notwithstanding the fact that the appeal is with regard
to a part of a decree or that the parties in whose favour the
power is proposed to be exercised has not filed any appeal
or cross-objection. The words “as the case may require” in
fact has been given the widest power to the appellate Court
to pass any order or decree to meet the ends of justice.
Order XLI Rule 4 of the Code has to be read in conjunction
with Order XLI Rule 33 of the Code which thus empowers
the appellate court to do complete justice between the
parties by passing such an order which ought to have been
passed or made although none of the parties affected of the
decree have appealed against it. The judgments relied upon
by learned counsel for the appellant on this score are all
inapplicable to the facts of the instant case. These are on
the issue of abatement and if & when it arises; each case
is distinct. In 33 (1987) DLT 363 Chander Bhan and
Others Vs. Pehlad and Others a Bench of this Court had
held that where one of the original defendants had died and
his legal heirs had not been brought on record, appeal filed
by the co-defendant when the case of both the defendant
was common was maintainable; it had not abated. In 1980
RLR 440 Banarsi Das etc. Vs. Mewa Devi it was held that
where an eviction order is made against more than one
tenant and all the tenants do not appeal or are made
respondents even then eviction order can be got set aside
by one of the tenants by filing an appeal. (Para 9)
Important Issue Involved: Order XLI Rule 4 of the Code
thus permits one of the several plaintiff’s or one of the
several defendants to obtain a reversal of the whole decree.
Even assuming that the decree of dismissal was against all
the legal representatives, the appeal filed by one legal
representative was competent.
[Sa Gh]
APPEARANCES:
FOR THE APPELLANT : Mr. Vinod Tyagi, Advocates.
FOR THE RESPONDENTS : Mr. D.K. Rustagi & Mr. B.S. Bagga,
Advocates.
CASES REFERRED TO:
1. Budh Ram & Others vs. Bansi & Others JT 2010 (8) SC
115.
2. Mahant Dhangir & Another vs. Shri Madan Mohan &
Others. AIR 1988 SC 54.
3. Suns Majhi vs. Bhairab Prasad Bahera, AIR 1978 Orissa
91.
4. Chander Bhan and Others vs. Pehlad and Others 33 (1987)
DLT 363.
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21 22Mr. K.L. Chandak v. Mr. Jai Chand & Ors. (Indermeet Kaur, J.)
5. Vasant Appanna Mang. & Others vs. Gangadhar
Madhavarao Inamdar & Others, AIR 1983 NOC 119
(KANT).
6. Banarsi Das etc. vs. Mewa Devi 1980 RLR 440.
7. Fakirmohan Rana & others vs. Sri Basanti Debi
Thakurani & Others, AIR 1978 Orissa 224.
8. Prem Singh vs. Smt. Raj Rani Devi, AIR 1977 HP 56.
9. Rshmabai & Others vs. Sona Puna Patil & Another, AIR
1974 Bombay 118.
10. Nathu & Others vs. Laxmi Narani & others, AIR 1974
Rajasthan 152.
11. Rajabibi & Others vs. S. Ameerali & Another AIR 1974
Karanatak 115.
12. Jamal Uddin & another vs. Mosque at Mashakganj &
others. AIR 1973 Allahabad 328.
13. Ramagya Prasad Gupta & Others vs. Murli Prasad &
Others, AIR 1972 SC 1181.
14. Mahabir Prasad vs. Jage Ram & Others 1971 (1) SCC
265.
15. Aswini Kumar Roy & Another vs. Kshitish Chandra Sen
Gupta & Others, AIR 1971 Canclutta 252.
16. Ch. Surat Singh & Others vs. Manohar Lal & Others,
AIR 1971 SC 240.
17. Dev Raj Anand vs. Bhagwandas & Another, AIR 1971
SC 241.
18. Union of India vs. Shree Ram Bohra & Others, AIR 1965
SC 1531.
19. Badri Narain & Others vs. East Indian Railway &
Another, AIR 1927 Patna 23.
RESULT: Appeal dismissed.
INDERMEET KAUR, J.
1. This appeal has impugned the judgment and decree dated
02.01.2004 which had reversed the findings of the trial Judge dated
18.09.1995. Vide the judgment and decree dated 18.09.1995, the suit
filed by the plaintiff Jai Chand seeking possession of the suit property i.e.
property bearing Plot No. G-36, Shakarpur, Shahdara Delhi measuring
100 square yards had been dismissed. Vide the judgment and decree
dated 02.01.2004, this finding was reversed; the suit of the plaintiff stood
decreed.
2. The factual matrix is as follows:-
(i) The plaintiff claimed to be the owner of the aforenoted suit
premises. He had purchased it vide sale deed dated 14.08.1985 (Ex. PW-
1/2). The possession of the plot had been delivered to him. He had
constructed one room along with a kitchen.
(ii) Defendant sometime in the year 1980 had tress-passed into the
suit property and raised an unauthorized construction therein. Inspite of
requests, the defendant had failed to deliver the vacant possession of the
suit land to the plaintiff. Suit was accordingly filed.
(iii) In the written statement, the preliminary objection was that the
suit has not been properly valued for the purpose of court fee and
jurisdiction; plaintiff has no right/title in the property. Defendant is the
lawful owner of the suit premises which he had purchased from Santosh
Rani who in turn had purchased it from Mohan Lal and Mohan Lal had
purchased the said property from Inderjeet Singh. Inderjeet Singh was
the owner by virtue of a sale deed dated 13.02.1970 (Ex. DW-3/1). In
the alternative, the defendant had also set up a plea of adverse possession.
(iv) On the pleadings of the parties, the following seven issues were
framed:-
‘‘1. Whether the suit has not been properly valued for the
purposes of court fee and jurisdiction? OPD
2. Whether the suit is bad for non-joinder for necessary
parties? OPD
3. Whether the suit has not been signed by the competent
person? OPP
4. Whether the suit is barred by time? OPD
5. Whether the plaintiff is the owner of the suit premises?
OPP
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Indian Law Reports (Delhi) ILR (2011) VI Delhi23 24Mr. K.L. Chandak v. Mr. Jai Chand & Ors. (Indermeet Kaur, J.)
6. Whether the plaintiff is entitled to the decree of permanent
injunction as asked for in the plaint? OPP
7. Relief.”
(v) Two additional issues were also framed thereafter. Oral and
documentary evidence was led by the respective parties which included
two witnesses on behalf of the plaintiff and nine witnesses on behalf of
the defendant.
(vi) Issues No. 1 to 4 were decided in favour of the plaintiff; issues
No. 5 & 6 were decided against the plaintiff. Trial Court was of the view
that the plaintiff has not been able to establish his ownership in the suit
property; per contra oral and documentary evidence adduced by the
defendant established that he is in possession of the suit land since 1980;
balance of convenience was in favour of the defendant. Suit was dismissed.
The additional issues had been left open by the trial court. No positive
finding was returned on this count.
(vii) The impugned judgment had not challenged the findings on
issues No. 1 to 4 for the reason they had been returned in favour of the
plaintiff. On issues No. 5 & 6, the Court was of the view that the
plaintiff had established that he is the owner of 100 square yards of plot
No. G-36; the contention of the defendant that although he had purchased
75 square yards of suit land bearing No. G-33-A, he had failed to show
that G-33-A had thereafter been converted to G-36. This contention of
the defendant had been repelled; the identity of the suit property was
established; it was held that the defendant was in occupation of 100
square yards of land whereas he had purchased 75 square yards of land.
He was held to be in illegal and unlawful possession of the plot of land
owned by the plaintiff. Suit of the plaintiff was decreed. Additional issues
framed qua adverse possession had also been decided against the plaintiff;
the finding returned was that the plea of adverse possession set up by
the defendant had not been established.
3. This is a second appeal. After its admission on 26.08.2008, the
following four substantial questions of law have been formulated. They
read as under:-
‘‘1. Whether a decree passed by trial court in a suit for possession
and injunction dismissing that suit is joint and indivisible qua six legal
representatives of a sole plaintiff who died during pendency of the suit
substituted under Order XXII of the Code of Civil Procedure?
2. Whether first appeal is maintainable if all legal representatives of
a deceased plaintiff are not impleaded therein while such decree appealed
from is joint and indivisible?
3. Whether courts have rightly decided the question of limitation?
4. Whether the learned first Appellate Court has erred in law in
expanding the scope of first appeal by adjudicating the additional issues
Nos. 1 and 2 which were not decided by the learned trial court and the
respondent No. 1 himself not having prayed for the adjudication thereof
by the learned Additional District Judge?”
4. On substantial questions of law No. 1 & 2, learned counsel for
the appellant has submitted that the appeal is not maintainable. The suit
had been filed by Bhani Ram through his legal representatives. There
were six legal representatives namely his one widow, two sons and three
daughters. This suit had been dismissed on 18.09.1995 which was a
decree against all the plaintiffs. It is pointed out that the appeal has been
filed before the first appellate Court only by one legal representative
namely Jai Chand without impleading the other legal representatives. The
impugned judgment had decreed the suit of the plaintiff on 02.01.2004;
result of this decree is that the suit stands decreed qua Jai Chand but qua
other legal representatives of the deceased Bhani Ram, the suit stood
dismissed on 18.09.1995 which judgment has since attained a finality.
The judgment of the first appellate court reversing that decree qua one
legal representative alone would be inconsistent with the decree of
18.09.1995; such inconsistent decrees cannot be allowed to stand. To
substantiate this proposition, learned counsel for the appellant has placed
reliance upon AIR 1988 SC 54 Mahant Dhangir & Another Vs. Shri
Madan Mohan & Others. It is contended that the parties before the
lower court should be represented before the appellate court in the absence
of which if there are two inconsistent decrees, they cannot be permitted
to operate. For the same proposition reliance has also been placed upon
AIR 1971 SC 240 Ch. Surat Singh & Others Vs. Manohar Lal &
Others, AIR 1971 SC 241 Dev Raj Anand Vs. Bhagwandas & Another,
AIR 1972 SC 1181 Ramagya Prasad Gupta & Others Vs. Murli
Prasad & Others, AIR 1965 SC 1531 Union of India Vs. Shree Ram
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25 26Mr. K.L. Chandak v. Mr. Jai Chand & Ors. (Indermeet Kaur, J.)
Bohra & Others, AIR 1983 NOC 119 (KANT) Vasant Appanna Mang.
& Others Vs. Gangadhar Madhavarao Inamdar & Others, AIR 1978
Orissa 91 Suns Majhi Vs. Bhairab Prasad Bahera, AIR 1978 Orissa
224 Fakirmohan Rana & others Vs. Sri Basanti Debi Thakurani &
Others, AIR 1974 Bombay 118 Rshmabai & Others Vs. Sona Puna
Patil & Another, AIR 1977 HP 56 Prem Singh Vs. Smt. Raj Rani
Devi, AIR 1974 Rajasthan 152 Nathu & Others Vs. Laxmi Narani &
others, AIR 1971 Canclutta 252 Aswini Kumar Roy & Another Vs.
Kshitish Chandra Sen Gupta & Others, AIR 1927 Patna 23 Badri
Narain & Others Vs. East Indian Railway & Another, AIR 1974
Karanatak 115 Rajabibi & Others Vs. S. Ameerali & Another and
AIR 1973 Allahabad 328 Jamal Uddin & another Vs. Mosque at
Mashakganj & others. Reliance has also been placed upon JT 2010 (8)
SC 115 Budh Ram & Others Vs. Bansi & Others. It is pointed out
that the suit was even otherwise barred by limitation; Article 65 of the
First Schedule of the Limitation Act , 1963 prescribes a period of 12
years for filing a suit for possession and this period of 12 years has to
be counted from the date when the possession of the defendant becomes
adverse. It is submitted that the defendant was in adverse possession
through his predecessor namely Smt. Santosh Rani who in turn had
purchased this property from Mohal Lal who in turn had purchased it
from Inderjeet Singh in 1970 and as such the adverse possession of the
defendant stood established from 1970. The suit filed by the plaintiff in
1984 was beyond this period of 12 years; it was barred by limitation and
this has not been correctly construed by the trial court or in the impugned
judgment. On the last substantial question of law, it has been urged that
the additional issues i.e. question of adverse possession has been decided
by the first appellate court when no argument had been urged on this
score; it is pointed out that these issues had been left open by the trial
court and the first appellate court has committed an error in deciding the
additional issues when neither party had pressed them. It has lastly been
urged that this Court is a Court of equitable jurisdiction and admittedly
since both the parties had alleged that they had purchased the suit property
from their respective purchasers through registered documents, it would
be proper if this Court orders demarcation of the property to be effected
through the appointment of a Local Commissioner; the controversy could
be rested.
5. Arguments have been countered. Learned counsel for the
respondents has placed reliance upon 1971 (1) SCC 265 Mahabir Prasad
Vs. Jage Ram & Others to substantiate his contention that in view of
provisions of Order 41 Rule 4 of the Code of Civil Procedure (hereinafter
referred to as the “Code”) even if one single plaintiff or defendant is
joined in appeal proceedings, the appeal is competent. It is submitted that
in this case a relinquishment deed of June, 1994 had been executed by
the remaining five legal heirs in favour of the present respondent namely
Jai Chand thereby relinquishing their shares in the suit property in his
favour; it was in these circumstances that the appeal came to be filed by
the appellant alone. The appeal was well competent and does not suffer
from any infirmity. Even otherwise this plea was never raised before the
first appellate court. It is pointed out that the plea of limitation now set
up before this appellate Court is a mixed question of fact and law and
cannot be gone into as no cross appeal had been filed by the appellant
before the first appellate court challenging the findings of the trial Judge
on the question of limitation which had been returned in favour of the
plaintiff/ respondent. This submission cannot now be adverted to. It is
further submitted that the question of adverse possession was rightly
decided by the impugned judgment. The findings on no score call for any
interference.
6. Record has been perused. The substantial questions of law as
formulated and noted hereinabove shows that the appellant has not
challenged the impugned judgment on its merit. He is not aggrieved by
the findings returned on issues No. 5 & 6 whereby the impugned judgment
had noted that the plaintiff by virtue of his sale deed Ex. PW-1/2 was
the owner of the suit land; this measured 100 square yards and had
municipal No. G-36; the claim of the defendant that G-36 had become
G-33A had been rejected; the suit land in possession of the defendant
was also 100 square yards; case set up but the defendant was that in
terms of Ex. DW-3/1 which was the first sale document in favour of his
predecessor Inderjeet Singh was for 75 square yards; suit land comprised
of 100 square yards; the defendant was held to be an unauthorized
occupant of 100 square yards which was owned by the plaintiff; suit for
possession was accordingly decreed. This fact finding returned in the
impugned judgment has not been assailed as is evident from the substantial
questions of law formulated by this Court.
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7. Admittedly suit had been filed by Bhani Ram. During the course
of the trial, he had expired and his six legal representatives including his
one widow, two sons and three daughters had been impleaded. Trial
Judge had dismissed the suit of the plaintiff (who were then represented
through his six legal representatives) on 18.09.1995. This was a dismissal
against all the legal representatives of the plaintiff who were a collective
body and the representatives of deceased Bhani Ram. Appeal had been
filed by Jai Chand alone. The other legal representatives had not joined
the proceedings in the appellate court. The contention before the first
appellate court was that the other legal representatives in terms of a
registered relinquishment deed dated June, 1994 (admitted document)
had relinquished their shares in favour of Jai Chand. This document is
prior in time to the date of dismissal of the suit which was on 18.09.1995.
In terms of this relinquishment deed Jai Chand alone was the owner of
the suit land. This relinquishment deed although had seen the light of the
day before the first appellate court yet this being an admitted document
clearly prescribes that in June, 1994 Jai Chand was the owner of the suit
land; he alone was the interested party. The decree of dismissal of the
suit on 18.09.1995 was thus a decree against Jai Chand alone. It did not
affect the other legal representatives as they had no right or title left in
the property at that time.
8. The first appellate Court had reversed this finding of the trial
court on 01.02.2004. It had decreed the suit of Jai Chand. The question
of an inconsistency in the two decrees does not arise; rights of Jai Chand
alone had been affected. The first judgment dismissing his suit on
18.09.1995 was a dismissal of the rights of Jai Chand alone; before the
appellate Court the suit of Jai Chand alone was decreed. The other legal
representatives having relinquished their rights in favour of Jai Chand had
no interest left in the suit property. Even before the first appellate court,
no such objection was taken; no cross-appeal or cross objections were
filed.
9. Order XLI Rule 4 of the Code reads as under:-
‘‘4. One of several plaintiffs or defendants may obtain
reversal of whole decree where it proceeds on ground
common to all- Where there are more plaintiffs or more
defendants then one in a suit, and the decree appealed from
proceeds on any ground common to all the plaintiffs or to all the
defendants, any one of the plaintiffs or of the defendants may
appeal from the whole decree, and thereupon the Appellate Court
may reverse or vary the decree in favour of all the plaintiffs or
defendants, as the case may be.”
Order XLI Rule 4 of the Code thus permits one of the several
plaintiffs or one of the several defendants to obtain a reversal of the
whole decree. Even assuming that the decree of dismissal (dated
18.09.1995) was a decree against all the legal representatives of Bhani
Ram, the appeal filed by one legal representative namely Jai Chand was
competent. Rule 33 of the said Order is relevant. It reads as under:-
‘‘Power of Court of Appeal.-The Appellate Court shall have
power to pass any decree and make any order which ought to
have been passed or made and to pass or make such further or
other decree or order as the case may require, and this power
may be exercised by the Court notwithstanding that the appeal
is as to part only of the decree and may be exercised in favour
of all or any of the respondents or parties, although such
respondents or parties may not have filed any appeal or objection,
[and may, where there have been decrees in cross-suits or where
two or more decrees are passed in one suit, be exercised in
respect of all or any of the decrees, although an appeal may not
have been filed against such decrees]:”
Rule 33 of this Order give wide powers to the appellate court to
pass any decree and to make any order notwithstanding that the appeal
has been filed only by one person; decree can be passed against those
respondents as well who have not filed any appeal or objection; condition
being that they must be parties to the suit. This provision is based on the
salutary principle that the appellate Court should have the powers to do
complete justice between the parties. It confer a wide discretionary power
on the appellate court notwithstanding the fact that the appeal is with
regard to a part of a decree or that the parties in whose favour the power
is proposed to be exercised has not filed any appeal or cross-objection.
The words “as the case may require” in fact has been given the widest
power to the appellate Court to pass any order or decree to meet the ends
of justice. Order XLI Rule 4 of the Code has to be read in conjunction
with Order XLI Rule 33 of the Code which thus empowers the appellate
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29 30Mr. K.L. Chandak v. Mr. Jai Chand & Ors. (Indermeet Kaur, J.)
court to do complete justice between the parties by passing such an
order which ought to have been passed or made although none of the
parties affected of the decree have appealed against it. The judgments
relied upon by learned counsel for the appellant on this score are all
inapplicable to the facts of the instant case. These are on the issue of
abatement and if & when it arises; each case is distinct. In 33 (1987)
DLT 363 Chander Bhan and Others Vs. Pehlad and Others a Bench
of this Court had held that where one of the original defendants had died
and his legal heirs had not been brought on record, appeal filed by the
co-defendant when the case of both the defendant was common was
maintainable; it had not abated. In 1980 RLR 440 Banarsi Das etc. Vs.
Mewa Devi it was held that where an eviction order is made against
more than one tenant and all the tenants do not appeal or are made
respondents even then eviction order can be got set aside by one of the
tenants by filing an appeal.
10. Substantial questions of law No. 1 & 2 are answered accordingly.
11. Substantial questions of law 3 & 4 are bordered on issue of
limitation. Issue No. 3 had been framed by the trial court on this point.
This issue had been decided in favour of the plaintiff. Obviously, the
plaintiff was not aggrieved by this finding; he had restricted his appeal
only on the findings of the trial Judge on issues no. 5 & 6. Issue No.
3 was never his grievance. No cross-appeal or cross-objection had been
filed by the defendant/appellant. The appellant cannot now raise this issue
in second appeal. Even otherwise this was a mixed question of fact and
law; it was not question of law alone. Facts have necessarily to be gone
into to answer the plea as to whether the suit was within limitation or
outside limitation.
12. At this stage, it would also be relevant to state that additional
issues which related to adverse possession had been left open by the trial
Judge. The impugned judgment had returned a finding that the defence
set up by the defendant of adverse possession is negatived; it had been
rejected. The impugned judgment had nowhere faulted in arriving at this
conclusion. This finding had been returned in the last but one para of the
impugned judgment. It reads as follows:-
‘‘The respondent-defendant has set up ownership on the basis of
title documents, against the claim of the appellant-plaintiff having purchased
the suit property on 25.04.1981 and further has disputed the identity of
the property and thus, the plea of adverse possession is not available to
the respondent-defendant. Moreover, the respondent-defendant has traced
his possession over the suit property from Mrs. Santosh Rani, who had
come in possession of the suit property only in the year 1979 vide GPA
‘Mark-I’ and thus the possession of the respondent-defendant has not
matured to the status of being adverse to the appellant-plaintiff. Therefore,
it cannot be said that the respondent-defendant has become the owner of
the suit property by adverse possession.
In view of the aforesaid discussion, the judgment and decree dated
18.09.1995 of the ld. trial court is set aside and the suit of the appellant-
plaintiff is decree and the appellant- plaintiff shall be the possession of
the property bearing No. G-36, Laxmi Nagar, Shakarpur, Shahdara, Delhi-
110092 and the respondent defendant is restrained from creating any
third party interest in the suit property.”
13. The submission of learned counsel for the appellant that these
additional issues could not have been decided when the appellant had not
assailed is a plea bereft of any merit. A first appellate court is duty bound
to reappreciate and re-examine the pleas taken by the respective parties
including the re-appreciation and re-examination of the evidence both oral
and documentary. It is not the case of the appellant that the evidence
before the first appellate court to decide these additional issues was
insufficient or some other evidence had to be led by the defendant. No
perversity has been pointed out on the merits of this finding; only contention
being that these additional issues could not have been decided in the
absence of any plea in this behalf. There is no merit in this contention.
Plea of adverse possession set up by the defendant having being negatived,
the question of limitation by adverting to the provisions of Article 65 do
not have to be gone into. Article 65 deals with recovery of immoveable
property where the defendant sets up the claim of adverse possession.
This claim has been rejected.
14. The case set up by the plaintiff is that he is the owner of the
suit property and he claimed his possession from the defendant who is
an unauthorized occupant. The defendant had also set up a counter claim
of ownership; he having purchased it from Santosh Rani who in turn had
purchased it from Mohan Lal who had vide Ex.DW-3/1 purchased it
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from Inderjeet Singh. In one breath the defendant was claiming ownership
in his own right and in the second breath he was claiming adverse
possession. This plea of adverse possession tracing it back to the first
purchaser i.e. Inderjeet Singh is absolutely absurd; plea of adverse
possession was available to the defendant; Inderjeet Singh is nowhere in
the said category. These are even otherwise two inconsistent pleas and
cannot be taken.
15. The plea of equity set up by the appellant also has no force.
Suit had been filed on 21.02.1984. The documentary evidence relied
upon by the defendant i.e. Ex. DW-1/1, Ex.DW-2/1 & Ex. DW-2/2 were
all documents which were after the date of filing of the suit; contention
of the respondent is that these documents had been created; they were
forged; they were rejected on this count; under these circumstance equity
does also not lie in favour of such a party.
16. The substantial questions of law 3 & 4 are answered against the
appellant.
17. There is no merit in this appeal.
18. Appeal as also pending applications are dismissed.
ILR (2011) VI DELHI 31
CS (OS)
SUSAN LEIGH BEER ....PLAINTIFF
VERSUS
INDIA TOURISM DEVELOPMENT ....DEFENDANT
CORPORATION LTD.
(BADAR DURREZ AHMED, J.)
CS (OS) NO. : 1298/1982. DATE OF DECISION: 03.03.2011.
(A) Code of Civil Procedure, 1908—Order XXXIII, Suit as
an indigent person seeking damages—Plaintiff injured
while jumping and slipping into swimming pool of
hotel managed and maintained by Defendant—Said
injury resulted in Plaintiff becoming a quadriplegic—
Injury allegedly due to negligence of Defendant in
maintenance of Swimming Pool—Tiles of floor of
swimming pool slippery because of algae formation—
Plaintiff jumped in, feet slipped on floor and head hit
wall of pool—Hence instant suit filed for damages of
Rs. 2 crores, Held;
(B) Suit filed by duly authorised person—Power of attorney
granted to Plaintiff's father—Suit instituted as indigent
person—Application presented by father of Plaintiff—
Plaintiff exempted from presentation of application in
person vide order dated 22.01.1992—Plaintiff's father’s
statement recorded—Admitted that he holds power of
attorney—Admittedly power of attorney not filed along
with plaint due to inadvertent error—Same filed on
25.11.1991 vide application which was allowed—
Plaintiff's testimony amounted to clear ratification—
Procedural defects which do not go to the root of the
matter should not be permitted to defeat just cause—
Ratio of Naresh Kumar relied upon—Suit filed by duly
authorised person.
From the above, it is clear that in the plaint itself it has been
stated that the same was being signed, verified and instituted
by Mr G. L. Beer on behalf of his daughter on the basis of
the power of attorney dated 15.01.1982. Inadvertently, that
power of attorney had not been filed along with the plaint
and was subsequently filed on 25.11.1991 by virtue of an
application being IA 12075/1991 which was allowed and the
power of attorney was taken on record. Apart from this, the
plaintiff has clearly testified that the contents of the plaint
were correct and that the same had been instituted by her
father on her instructions. There is, thus, a clear ratification
on her part. It is not a case where a person has instituted
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33 34 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
a suit representing himself to be an authorized agent and
where the principal has refuted the claim. Mr G. L. Beer,
undoubtedly, verified and filed the plaint as an agent of the
plaintiff. This fact has been confirmed by the plaintiff herself.
The Supreme Court in the case of United Bank of India v.
Naresh Kumar (supra) clearly held that the procedural
defects which do not go to the root of the matter should not
be permitted to defeat a just cause and that there is
sufficient power in the Courts, under the Code of Civil
Procedure, to ensure that injustice is not done to any party
who has a just cause. The Supreme Court further observed
that as far as possible a substantive right should not be
allowed to be defeated on account of a procedural irregularity
which is curable. In the case before the Supreme Court, the
issue arose with regard to the authority of a person to sign
the pleadings on behalf of a company. The Court observed
that a person may be expressly authorized to sign pleadings
on behalf of a company, for example by the Board of
Directors passing a resolution to that effect or by a power
of attorney being executed in favour of any individual. It was
specifically observed that even in the absence of such a
resolution or a power of attorney, in cases where pleadings
have been signed by one of its officers, a Corporation could
ratify the said action of its officer in signing the pleadings
and that such ratification could be expressed or implied. It
was further held that the Court could, on the basis of the
evidence on record, after taking into account all the
circumstances of the case, especially with regard to the
conduct of the trial, come to the conclusion that the
corporation had ratified the act of signing of the pleading by
its officer. In the present case, I find that it has come in
evidence that the plaintiff had decided to commence the
action for compensation when her treatment ended and she
realized that she would not recover any further. She had
clearly stated that she had asked her father to institute the
present suit and had even authorized him by executing the
power of attorney dated 15.01.1982. The present suit had
been instituted by her father as her authorized attorney.
Even if I do not go into the matter of admissibility of the
document of power of attorney, the action of the plaintiff‘s
father in signing, verifying and filing the plaint stands fully
ratified by the plaintiff. Therefore, the only conclusion that
can be arrived at is that the suit had been filed by a duly
authorized person and this issue is accordingly decided in
favour of the plaintiff and against the defendant.
(Para 25)
(C) Nature of injuries—Evidence led—Nature of injuries
were such which resulted in fracture of cervical
vertebrae—Resulted in Plaintiff becoming a
quadriplegic—Plaintiff represented school in
swimming—Member of State teams for water polo—
Member of Queensland Team—Plaintiff admittedly
jumped into shallow end of pool—Feet Slid forward—
Head struck side of pool—Plaintiff remembered bottom
of pool to be slippery—Nature of injuries stand
determined.
This part of her testimony has gone unchallenged. From the
above evidence, it is clear that the plaintiff has been able to
establish that she had gone to take a swim along with her
family members in the swimming pool at Akbar Hotel at
about 5 pm on 05.05.1978. That when she jumped into the
pool from the shallow end, her feet, on touching the floor of
the pool, slid forward as the same was slippery. Because of
this, her head hit the side of the swimming pool. Consequent
thereupon, she suffered the injuries to her cervical spine
and the lacerated injury on her head. The injury caused to
the cervical spine and particularly the 6th and 7th vertebra,
as indicated above, resulted in her ultimately becoming a
quadriplegic, i.e., not having any sensation below her neck.
In layman‘s language, she was paralyzed neck downwards.
It is also clear from the testimony of PW4 Dr J. A. Smith that
there was no chance of her recovery and the injury sustained
by her was for life. (Para 34)
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Thus the nature of the injuries stand determined.
(Para 35)
(D) Cause of injuries—In written statement, Defendant did
not plead that Plaintiff dived into pool—Only in course
of cross-examination and arguments it was urged that
Plaintiff did not jump but dived into pool—Unless fact
pleaded, no evidence led can cure defect—Plaintiff
contended that she jumped into shallow end of pool,
slipped and suffered injuries—Fully supported by
medical evidence—Theory propounded by lifeguard
also rejected as unreliable and practicably not possible.
From the testimony of the plaintiff‘s mother PW19 Mrs P. J.
Beer also, the plaintiff‘s version of the manner in which she
suffered the injury is fully corroborated. Although, all the
three witnesses namely, the plaintiff, her father Mr G. L.
Beer and her mother Mrs P. J. Beer were subjected to
lengthy cross-examination, nothing has been elicited from
these witnesses in the course of such cross-examination so
as to cast any doubt on their testimonies with regard to the
exact manner in which the incident occurred.
It may be noted that in the written statement, the defendant
did not plead that the plaintiff had dived into the pool. Yet,
in the course of cross-examining the witnesses and in the
course of arguments, it was strongly urged on behalf of the
defendant that the plaintiff did not jump into the pool from
the shallow end but dived into the pool. It is an established
principle that unless a fact is pleaded, no amount of evidence
led in respect of that alleged fact can cure the defect. The
plaintiff‘s case that she jumped into the pool at the shallow
end and that her feet slipped on the slippery floor of the
pool as a result of which she hit her head and sustained
injuries is fully supported by the medical evidence on record.
Both PW4 Dr J.A. Smith and PW22 Dr Arjun Dass Sehgal
have opined that the injury caused to the plaintiff was
largely a flexion injury and not a compression injury, which
would have resulted in a burst fracture. These opinions are
clearly in corroboration of the testimonies of the plaintiff, her
father Mr G. L. Beer and her mother Mrs P. J. Beer. It has
come in evidence that a flexion injury of the kind suffered by
the plaintiff could not have been caused by the head hitting
the floor of the pool as a result of a vertical or near vertical
dive. In that eventuality the injury would have been a burst
fracture or a serious compression injury. It would not have
been a flexion injury. In the present case the evidence
indicates that the injury was a flexion injury caused by the
sudden forward hinging of the head on account of the head
hitting the wall of the swimming pool. This injury is entirely
consistent with the plaintiff‘s case and is completely
contraindicated if the version of the defendant, of the
plaintiff diving into the pool and thereafter hitting the head
on the floor of the pool, is to be accepted. Clearly, the
cause of injury was as narrated by the plaintiff, that is, by
jumping into the pool and not as suggested by the learned
counsel for the defendant, that is, by diving. The counsel for
the defendant was at pains to cross-examine the doctors
and particularly PW4 Dr J. A. Smith and PW22 Dr Arjun
Dass Sehgal with regard to the injury caused to the plaintiff
being a compression injury or a flexion injury. According to
the defendant, the plaintiff suffered a burst fracture and a
compression injury which was consistent with the plaintiff
having dived into the pool and hit her head on the floor of
the pool. On the other hand, the plaintiff‘s case was that she
had suffered a flexion injury where the head hinges forward
with great force. (Para 45)
As mentioned above, both Dr J. A. Smith and Dr Arjun Dass
Sehgal were subjected to extensive cross-examination on
the point as to whether the injury was a flexion injury or a
compression injury. From the testimonies of both these
witnesses, it is apparent that they have not been shaken
from their stand that the injury was a flexion injury caused
by forward hinging of the head. In such a situation, the
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37 38 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
The witness produced on behalf of the defendant to testify
as to the maintenance of the pool was DW2 Mr Balram
Verma. I have already indicated above that this witness is
not reliable. However, assuming that what he says is correct,
let me examine as to whether his testimony reveals that the
pool was properly maintained. DW2 Mr Balram Verma stated
that he was appointed as a lifeguard at Akbar Hotel and he
holds a degree in physical education. He stated that the
duty of a lifeguard at Akbar Hotel was first to see on arrival
at the pool that the pool was clean. Thereafter, his duty was
to sit there to ensure that the life of any guest swimming in
the pool was not at risk. He stated that the procedure for
cleaning of the pool is that in the evening bleaching powder
and alum are put into the water which makes the dust settle
at the bottom of the pool. Next day, in the morning, the
brush which is attached to the suction cleans the dust on
the bottom of the pool and the dirty water is pumped out of
the pool. The housemen also mop the entire area around
the swimming pool starting from the change room before
any guest is allowed to enter the swimming pool. He stated
that the board at the swimming pool displays ‘pool closed’ in
the morning and the same is removed only after the cleaning
has been done and after he has checked the pool. He
further stated that the engineer of the hotel had given him
strips of paper in order to check the chemicals in the water
of the pool. The strip of paper had a number of colours on
its upper part and lower part. After dipping the same into the
water of the pool, he used to match the colour of the strip
with the colours shown on the upper part of the strip. In case
the colour of the paper strip dipped into the water of the
pool matched the colour at serial No. 7 or 8 of the upper
part of the strip, it implied that the water had been properly
chlorinated. However, this witness in his cross-examination
does not appear to know anything about algae. When he
was asked as to under what circumstances algae get
deposited on the floor of the swimming pool, he stated that
he did not know. With regard to the photographs which were
hypothesis of the plaintiff having dived into the pool is
clearly contraindicated. (Para 47)
As a result of the aforesaid discussion, it has been
established on the part of the plaintiff that the cause of
injury was the fact that the plaintiff jumped into the pool at
the shallow end and that her feet slid forward on account of
the bottom of the pool being slippery. This resulted in her
head hitting the side of the pool which ultimately resulted in
her becoming a quadriplegic. The theory and hypothesis of
diving into the pool which had been put forward by the
learned counsel for the defendant, both in the course of
cross-examination of the plaintiff‘s witnesses as well as by
the defendant‘s witnesses and in the course of arguments
before this Court, is clearly not established. It is not
established on account of the evidence on record nor is it
established on account of probabilities. The plaintiff,
admittedly, was an expert swimmer. She would not have
dived into the pool vertically downwards at the shallow end
knowing the water to be only 2-1/2 to 3 feet deep. In any
case, even if she had dived into the pool, she could have
avoided impact on her head by pushing away with her
hands which are normally extended in the case of a dive.
There is evidence of her swimming coach to indicate that
she was well trained in all swimming manoeuvres which
include diving and if she were to dive, she would have
adopted the correct posture, namely, with the hands extended
ahead to protect from the impact of the water. All these
factors clearly establish that the assertion made by the
plaintiff with regard to the manner in which the injury was
caused, stands established and the hypothesis propounded
by the defendant stands disproved. (Para 54)
(E) Maintenance of pool tiles—Evidence led—Glazed tiles
inherently slippery—This would be further accentuated
by present of algal material—Growth occurs first in
shallow end—Initial stages of algae growth, water may
remain clear.
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shown to him, which clearly indicate algae growth and
deposits, the said witness stated that the photographs were
taken when the pool had been closed and in winter time.
(Para 64)
(F) Res ipsa loquitur—Employed when no direct material
on particular aspect—Things speak for themselves—
Three conditions—Incident of this kind could only
occur on account of slippery floor—Accident caused
by agency or instrumentality within exclusive control
of Defendant—Third, accident not caused by any
voluntary contribution on part of plaintiff—All three
conditions met—Res lpsa Loquitur applicable—Burden
shifts to Defendant—Defendants failed to provide
plausible explanation for injury—Failed to meet burden
of proof—Hence injury sustained on account of
negligence of Defendant.
This witness, I have already indicated, cannot be believed.
In any event, he does not have any specialized knowledge
with regard to management of algal growth in the swimming
pool. The fact of the matter is that there is evidence to
indicate that the floor of the swimming pool was slippery and
it is because of that the plaintiff suffered the injury. The floor
of the swimming pool would not have been slippery had the
pool been properly maintained. It is at this juncture that the
principle of res ipsa loquitur can also be employed. That is
a rule of evidence which is employed when there is otherwise
no direct material on a particular aspect of the matter. Since
the floor of the swimming pool was not examined on the date
of the incident itself and samples were not taken on that
date, there is no direct evidence to indicate that there was
algal growth in the pool or that there was other slimy
material on the floor of the pool. It is in circumstances such
as this that the principle of res ipsa loquitur is applied as a
rule of evidence, because the things speak for themselves.
Res ipsa loquitur is a Latin phrase which is defined in
Black's Law Dictionary in the following words: “The thing
speaks for itself”. The doctrine of res ipsa loquitur is
described in detail in a decision of this Court in Klaus
Mittelbachert v East India Hotels Ltd : 65 (1997) DLT
428, which reads as under:-
“Under the doctrine of res ipsa loquitur a plaintiff
establishes a prima facie case of negligence where
(1) it is not possible for him to prove precisely what
was the relevant act or omission which set in train the
events leading to the accident, and (2) on the evidence
as it stands at the relevant time it is more likely than
not that the effective cause of the accident was some
act or omission of the defendant or of someone for
whom the defendant is responsible, which act or
omission constitutes a failure to take proper care for
the plaintiff’s safety. There must be reasonable
evidence of negligence. However, where the thing
which causes the accident is shown to be under the
management of the defendant or his employees, and
the accident is such as in the ordinary course of
things does not happen if those who have the
management use proper care, it affords reasonable
evidence, in the absence of explanation by the
defendant, that the accident arose from want of care.
Three conditions must be satisfied to attract
applicability of res ipsa loquitur: (i) the accident must
be of a kind which does not ordinarily occur in the
absence of someone's negligence; (ii) it must be
caused by an agency or instrumentality within the
exclusive control of the defendant; (iii) it must not
have been due to any voluntary action or contribution
on the part of the plaintiff. (See Ratanlal & Dhirajlal
on Law of Torts , edited by Justice G.P. Singh, 22nd
edition 1992, pp 499-501 and the Law of Negligence
by Dr Chakraborti, 1996 edition, pp 191-192.).
In the light of the aforesaid decision, it needs to be examined
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41 42 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
as to whether the above conditions apply to the present
case. First of all, it has to be determined as to whether the
accident is of a kind which does not ordinarily occur in the
absence of someone‘s negligence. It is common knowledge
that people and most particularly younger persons jump into
the swimming pool. Unless and until there is some negligence,
the injury of the kind indicated in the present case would not
ordinarily occur. When one jumps into the swimming pool in
the shallow end, one does not expect that on the feet
reaching the floor of the swimming pool, the same would slip
on account of the floor being slippery. Ordinarily, when one
jumps into the swimming pool, at the shallow end, the feet
do hit the floor of the pool but they remain firmly grounded.
The incident of the kind involved in the present case could
only occur on account of the slippery floor. This takes me to
the second aspect and that is that the accident must have
been caused by an agency or instrumentality within the
exclusive control of the defendant. The defendant was
entirely responsible for the maintenance and operation of
the same and therefore this condition is also satisfied. The
third condition is that the accident must not have been
caused by any voluntary action or contribution on the part
of the plaintiff. Here, again, I find that there was no
contributory negligence on the part of the plaintiff. The
plaintiff merely jumped into the swimming pool in the shallow
end as she may have done on hundreds of occasions being
a person more than accustomed to swimming and one who
spent many hundreds of hours in and around the swimming
pool. (Para 65)
It is, therefore, clear that all the three conditions necessary
for application of the doctrine of res ipsa loquitur stand
satisfied. (Para 66)
Once this happens, the burden shifts to the defendant to
rebut the evidence of negligence. In Municipal Corporation
of Delhi v. Subhagwanti & Ors: AIR 1966 SC 1750, the
Supreme Court described the shifting of the burden, relying
on Halsbury's Laws of England, 2nd Ed., Vol. 23, as
under:-
“An exception to the general rule that the burden of
proof of the alleged negligence is in the first instance
on the plaintiff occurs wherever the facts already
established are such that the proper and natural
inference immediately arising from them is that the
injury complained of was caused by the defendant's
negligence, or where the event charged as negligence
‘tells its own story’ of negligence on the part of the
defendant, the story so told being clear and
unambiguous. To these cases the maxim res ipsa
loquitur applies. Where the doctrine applies, a
presumption of fault is raised against the defendant,
which if he is to succeed in his defence, must be
overcome by contrary evidence, the burden on the
defendant being to show how the act complained of
could reasonably happen without negligence on his
part.”
The defendant has not provided any plausible
explanation as to how the plaintiff could have suffered
the injury that she did. Consequently, the defendant
has failed to meet its burden of proof in showing as
to how the plaintiff came to be injured without their
negligence. Such burden not having been discharged,
by employing the doctrine of res ipsa loquitur, it is
clear that it was on account of the defendant‘s
negligence that the floor of the swimming pool was
slippery on account of which the injury was sustained
by the plaintiff. (Para 67)
(G) Damages—Plaintiff awarded Rs. 5 lacs for expenditure
incurred under head of medical treatment—Rs. 50
Lacs awarded on account of physical and mental
anguish—Loss of earnings—Qunatified at Rs. 1 crore
and twenty seven lacs—Plaintiff entitled to total sum
Rs.1,82,00,000/- alongwith simple interest with effect
from 22.01.1982.
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Important Issue Involved: Res ipsa loquitur is employed
when no direct material on particular aspect—Things speak
for themselves—Three conditions—Incident of this kind could
only occur on account of slippery floor—Accident caused
by agency or instrumentality within exclusive control of
Defendant—Third, accident not caused by any voluntary
contribution on part of Plaintiff—All three conditions met—
Res Ipsa Loquitur applicable—Burden shifts to Defendant—
Defendants failed to provide plausible explanation for injury—
Failed to meet burden of proof—Hence injury sustained on
account of negligence of Defendant.
[Sa Gh]
APPEARANCES:
FOR THE PLAINTIFF : Mr. Madan Bhatia, Sr. Advocate with
Mr. Anup Kumar Sinha Advocate.
FOR THE DEFENDANT : Mr. K.T.S. Tulsi Sr. Advocate with
Mr. Amitabh Marwah, Mr. R.S.
Mathur & Ms. Evneet Uppal,
Advocate.
CASES REFERRED TO:
1. Klaus Mittelbachert vs. East India Hotels Ltd : 65 (1997)
DLT 428.
2. United Bank of India vs. Naresh Kumar: 1996 (6) SCC
660.
3. Municipal Corporation of Delhi vs. Subhagwanti & Ors:
AIR 1966 SC 1750.
RESULT: Suit Decreed in favour of the Plaintiff.
BADAR DURREZ AHMED, J.
1. The plaintiff has prayed for a decree of Rs. 2,00,00,000/- (rupees
two crores) by way of damages as also interest at the rate of 18% p.a.
on the said amount from the date of presentation of the plaint till actual
payment. The plaintiff has made the said claim on the basis of an incident
which happened on 05.05.1978 in the swimming pool of Akbar Hotel
which was managed and maintained by the defendant —India Tourism
Development Corporation Limited. The plaintiff, who was staying in the
said hotel along with her parents and brother, was injured in the said
swimming pool as a result of which she became a quadriplegic. According
to the plaintiff, the injury which had been caused to her was on account
of the negligence on the part of the defendant in the maintenance of the
swimming pool. Insofar as the defendant is concerned, while the fact
that the plaintiff received the injury on 05.05.1978 in the said swimming
pool is not denied, it has been contended that the injury was a result of
the plaintiff‘s own negligence and the defendant cannot be held liable for
the same.
2. Briefly put, the case hinges upon three facets. The first being
that according to the plaintiff the injury was caused when she jumped
into the swimming pool at the shallow end and her feet slipped on the
tiled floor of the swimming pool. As a result, she hit her head on the
vertical wall of the swimming pool and incurred the injury which led to
her becoming a quadriplegic. On the other hand, the defendant contends
that the plaintiff received the injury as a result of diving at the shallow
end and not as a result of jumping. Consequently, no negligence could
be attributed to the defendant. The second facet, which is connected
with the first, is the issue as to whether the tiles of the floor of the
swimming pool were slippery because of algae formation? It is the plaintiff‘s
case that they were and, therefore, there was clear negligence on the part
of the defendant inasmuch as the swimming pool had not been properly
maintained and kept safe for the residents of the hotel. The defendant,
on the other hand, contended that the swimming pool was properly
maintained and that, in any event, the injury which resulted was because
of the plaintiff diving into the pool and not because of her jumping as
suggested by the plaintiff. The third facet is that, in case there is a
finding in favour of the plaintiff that the injury caused to her was because
of the defendant’s negligence, the quantum of compensation is to be
determined. These are the broad parameters of this case.
Averments in the Plaint:
3. In the plaint, it is alleged that in May, 1978, the plaintiff was on
vacation in India along with her parents and stayed in Akbar hotel situated
at New Delhi which was being run and managed by the defendant. On
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45 46 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
05.05.1978, during her stay in the hotel, the plaintiff went to the swimming
pool at about 5:15 pm for a swim. It is stated that the plaintiff was an
experienced swimmer, having been a Queensland (Australia) underage
champion and was also a member of the Queensland Women’s Water
Polo Team for a number of years. It is averred that in the beginning of
1978, the plaintiff had also been invited to join the Australian Women‘s
Water Polo Team and was expected to travel to Germany with the
Australian Team in August, 1979.
4. On the fateful day, that is, on 05.05.1978, at about 5:15 pm, the
plaintiff jumped into the swimming pool from the shallow end, opposite
the diving board. According to the plaint, the plaintiff had reason to
believe that the bottom of the pool was not slippery and had been kept
clean of all slimy material which otherwise accumulates if the pool is not
properly cleaned. According to the plaintiff, it is an implied representation
by the owner of the swimming pool that the floor of the pool is not
slippery and is safe for persons using the pool to stand on the floor of
the pool without slipping. According to the plaintiff, the defendant had
been extremely negligent in covering the floor of the pool with glazed
tiles which were very slippery and also in not cleaning and maintaining
the floor sufficiently, resulting in the growth and accumulation of slime
on the tiles. Because of this, as soon as the plaintiff jumped into the
water and her feet touched the floor of the pool, they slipped, resulting
in loss of control by the plaintiff and the plaintiff fell backwards and her
head hit against the wall of the pool.
5. It is further averred that as a result of the aforesaid fall, the
plaintiff suffered serious head and back injuries and was unable to swim
out of the pool. The plaintiff’s father and brother sensing that the plaintiff
had been injured and on noticing blood in the water, immediately swam
to the plaintiff‘s assistance and lifted her out of the pool carefully.
Subsequently, the plaintiff was removed by ambulance to the Holy Family
Hospital, Okhla, New Delhi where she was treated by Dr Arjun Sehgal
and Professor Ramamurthi, who had come from Madras. As per the
plaint, the said Dr Sehgal diagnosed that the plaintiff had suffered a head
injury with fracture dislocation of the cervical dorsal column causing
paralysis of the four limbs and loss of sphincter control. It is stated that
Dr Sehgal later advised that the plaintiff should be transported to her
home in Brisbane, Australia. After a prolonged hospitalization in Delhi,
accompanied by a neurosurgeon and another doctor, the plaintiff was
flown to Australia. From 16.06.1978 to 27.10.1978 the plaintiff remained
admitted in the Spinal Unit of Princess Alexandra Hospital, Brisbane and
from 13.11.1978 to 18.11.1978 in the Spinal Unit of Royal North Shore
Hospital, Sydney, Australia. It is further stated in the plaint that despite
sustained medical treatment, the plaintiff has not been able to recover
from the spinal injuries which are of a permanent character and have
physically incapacitated the plaintiff for the rest of her life. She is now
permanently confined to a wheel chair, being a quadriplegic.
6. It is alleged in the plaint that apart from the physical agony and
mental anguish which the plaintiff underwent during her treatment, the
plaintiff also suffered emotional and psychological pain which will live
with her as long as she lives. According to the plaintiff, she had a very
bright and fruitful future ahead of her but the same was cut-short by the
said permanent disability suffered by the plaintiff on account of utter
negligence and carelessness of the defendant, its employees, servants and
agents. It is alleged that the defendant was under a duty to keep its
swimming pool safe for the purposes of swimming. According to the
plaintiff, the incident speaks for itself and the plaintiff is entitled to the
benefit of the maxim of res ipsa loquitur. The sum of Rs. 2 crores which
has been claimed by the plaintiff by way of damages has been computed
as under:-
(i) Expenses incurred by the
plaintiff on medical treatment
and care in India and Australia - Rs. 20,00,000.00
(ii) Damages on account of physical
pain, mental anguish and psychological
anguish and loss of education - Rs. 50,00,000.00
(iii) Damages on account of loss of earnings
for the rest of her life - Rs. 1,30,00,000.00
Total - Rs. 2,00,00,000.00
Consequently, a decree of Rs. 2 crores along with interest at the rate of
18% p.a. from the date of presentation of the plaint till realization has
been prayed for by the plaintiff.
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Averments in the Written Statement:
7. A preliminary objection was taken by the defendant that the
plaint was not filed by a duly authorized person. According to the
ˇdefendant, the plaint has been signed and verified by Mr Geoffrey Beer
as the alleged attorney of Ms Susan Leigh Beer but the alleged power of
attorney has neither been filed with the plaint nor is there any list of
documents / reliance filed with the plaint making a reference to the same.
8. The defendant also took the plea that the suit is liable to be
dismissed for non-joinder of a necessary party. According to the defendant,
while it is admitted that the defendant had been running a five-star hotel
known as Akbar Hotel, the defendant was only a lessee from the New
Delhi Municipal Committee, which is the owner of the building and the
premises including the swimming pool. According to the defendant the
NDMC was, therefore, a necessary party. Since the plaintiff had not
impleaded the NDMC as a party to the suit, the same was liable to be
rejected for non-joinder of a necessary party.
9. As per the written statement, Mr Geoffrey Beer and the plaintiff
stayed at the hotel as alleged. However, it is further stated that the guests
registered at the hotel could use the swimming pool entirely at their risk
and responsibility and that there was no express or implied obligation on
the part of the hotel in this behalf. According to the defendant, the hotel
merely permits the guests to swim if they so choose at their absolute
volition without any charge for the same or consideration whatsoever. It
was even contended that, therefore, merely because a guest may choose
to swim at the swimming pool, it cannot create a contract or fall within
the ambit of any contractual relationship in this regard and no question
of any breach of contract arose at all. It was stated that any guest, who
uses the swimming pool, does so on an .as is. basis. It is further stated
that insofar as the children of guests are concerned, the parents are
entirely responsible for the safety of the children in the pool and that even
otherwise, according to the rules, the defendant does not accept any
responsibility for any accident. It was also contended that as regards the
construction of the swimming pool, the same had been done by the
NDMC and that it conformed to the well accepted and well recognized
standards.
10. The defendant further stated that the plaintiff did not observe
the rules with regard to the use of the swimming pool and was herself
wholly negligent and, in any event, no claim would lie against ITDC.
11. The defendant further stated in the written statement that the
plaintiff should not have jumped into the pool from the shallow end and
that swimmers have necessarily to use the diving board and dive into the
deep end of the swimming pool. According to the defendant, the jumping
or diving at the shallow side by the plaintiff was wholly wrong, negligent
and contrary to the well accepted norms of swimming and in violation
of the laid down rules. It was further alleged that there are fixed stairs
built into the swimming pool for going into the swimming pool and
obviously the plaintiff did not enter the swimming pool through the stairs,
which was a wholly negligent act on her part. According to the defendant,
the plaintiff had been negligent in jumping into the pool from the shallow
end even assuming, without admitting that she had jumped into the pool
as alleged by her. The defendant stated that the incident happened otherwise
than what was alleged. The defendant denied that the bottom of the pool
was slippery and also denied that the plaintiff slipped in the swimming
pool as alleged. It was also contended that the plaintiff had not even
jumped into the swimming pool as alleged by her. The defendant stated
that the swimming pool was cleaned according to the well recognized
standards and on the date of the incident also the swimming pool had
been cleaned. Accordingly, it was not slippery. The defendant stated that
as a matter of fact, the injury to the plaintiff could not have been suffered
as a result of the plaintiff jumping and slipping in the swimming pool as
alleged.
12. The defendant stated that swimming pools with glazed tiles are
well accepted. It was again denied that the tiles covering the floor of the
pool at the said hotel were slippery as alleged or otherwise and that the
defendant did not keep the floor of the pool clean or did not properly
maintain the same.
13. In the written statement it is further stated that as a matter of
fact, the plaintiff and her brother were playing in and around the swimming
pool and all of a sudden the accident happened. The defendant denied the
averments and allegations in the plaint to the effect that her feet had
touched the floor of the pool and that they slipped resulting in the loss
of control of the plaintiff and that her head hit against the wall of the
pool. It was further averred in the written statement that the injury
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49 50 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
caused to the plaintiff did not permit her to remember correctly anything
of what had actually happened. According to the defendant, even the
parents and brother of the plaintiff could not describe the accident when
the defendant made enquiries in this behalf from them after the accident
and before they left the hotel. The defendant further stated that there was
a lifeguard in attendance who had immediately gone to rescue the plaintiff
after seeing the sudden accident and that the pool was well marked
indicating the depth of water at different places. The plaintiff was entirely
responsible for the incident.
14. In paragraph 11 of the written statement, it is admitted that the
plaintiff, after having suffered the injury, did not swim out of the pool.
However, it is stated that it was an employee of the defendant, who was
the attendant at the swimming pool, who was responsible for bringing
the plaintiff out of the water. As per the written statement, the parents
of the plaintiff were not close to the pool but were at a distance relaxing
in the chairs. The plaintiff’s brother, however, was close to the pool but
he was dazed at that point of time and could not say as to what happened.
The defendant denied that the parents of the plaintiff had seen the incident
or that they had rescued the plaintiff as alleged in the plaint.
15. Interestingly, in the written statement the defendant has denied
that the plaintiff had suffered any spinal injuries or any injuries of a
permanent character. It was denied that the plaintiff was in any way
physically incapacitated.
16. The insensitivity of the defendant is disclosed by the following
averment in the written statement:-
“It is clear that the injuries whatever they were, did not affect
the mobility of the plaintiff which is evident also from the fact
that she had been found fit to travel soon after the accident and
she could have travelled even earlier than she did.”
17. The defendant has also stated that it had a daily routine for
cleaning of the swimming pool according to standard procedure and
processes, before the swimming pool is opened for use every day. Thus,
according to the defendant, there was neither any chance at all of the
swimming pool being slippery or unsafe nor was it slippery or unsafe.
According to the defendant, it had provided the help and assistance of
a lifeguard, notified the conditions subject to which the pool could be
used as licencees, displayed information regarding different depths of the
water at different places by markings in bold English letters. The defendant
stated that the incident was the result of violations of the conditions for
use of the pool on the part of the plaintiff and because of the utter
negligence on the part of the plaintiff. The defendant denied that the
principle of res ipsa loquitur would apply. The defendant also denied that
any damages or losses, as claimed, were caused to the plaintiff.
Consequently, the defendant contended that the suit be dismissed with
costs.
Issues:
18. On the basis of the averments made in the plaint and the written
statement, the following nine issues were framed:-
1. Whether the suit has been filed by duly authorized person?
2. Whether New Delhi Municipal Committee was owner of
the building of Akbar Hotel and was a necessary party?
3. Whether the tiles covering the floor of the swimming pool
were slippery?
4. Whether the floor of the swimming pool was not clean
and had not been properly maintained, resulting in the
growth and accumulation of slime on the tiles?
5. Whether the plaintiff suffered injuries on account of the
nature and condition of the bottom of the pool and due to
ˇnegligence of the hotel? If so, what injuries were suffered
by her?
6. Whether the plaintiff was required to observe any rules in
the use of swimming pool and she did not observe the
said rules and was herself negligent for the injuries suffered,
if any?
7. Whether the swimming in the pool was at the risk and
responsibility of the plaintiff (the guest) and there was no
obligation on the hotel in this behalf?
8. Whether the defendant was in legal duty to keep the
swimming pool safe for swimming of guests and the
plaintiff was entitled to the benefit of the maxim res ipsa
loquitur?
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9. To what amount, if any, the plaintiff is entitled?
As many as 22 witnesses have been examined on behalf of the
plaintiff. Of these the most important are PW1 (the plaintiff herself),
PW2 Mr G.L. Beer (the plaintiff’s father), PW4 Dr J. A. Smith
(Neurosurgeon— expert witness), PW8 Mr G. L. McDonald (expert
witness), PW14 Mr K. R. Dobson (expert witness), PW18 Mr L. I. Sly
(expert witness), PW19 Mrs P. J. Beer (the plaintiff‘s mother) and
PW22 Dr Arjun Dass Sehgal (the doctor who initially treated the plaintiff
at Holy Family Hospital). It appears that there is some error in the
assigning of numbers to these witnesses. The error is that Mrs P. J.
Beer, who is shown at serial No. 19 of the list of witnesses, has been
assigned the number ‘PW19’. However, Dr Arjun Dass Sehgal, who is
shown at serial No. 22 of the list of witnesses, has also been assigned
the number ‘PW19’. Therefore, for the purposes of this suit, I would
treat Mrs P. J. Beer as PW19 and Dr Arjun Dass Sehgal as PW22. This
anomaly has probably appeared because 21 witnesses were examined in
Australia and one witness, that is, Dr Arjun Dass Sehgal was examined
in Delhi. The defendant examined two witnesses, namely, DW1 Dr G.
G. Manshramani and DW2 Balram Verma (the lifeguard at Akbar Hotel).
Issue No. 1:
19. It has been contended by the defendant that the suit has not
been filed by a duly authorized person. It is an admitted position that the
plaint was filed on 21.01.1982 and the same purports to have been filed
by the plaintiff through her attorney (Geoffrey Beer), who was appointed
as the attorney by the plaintiff by virtue of a power of attorney dated
15.01.1982. The said Geoffrey Beer is the plaintiff‘s father. He had
signed and verified the plaint in New Delhi on 21.01.1982 claiming to be
the attorney of the plaintiff as per the said power of attorney dated
15.01.1982.
20. According to the defendant, the power of attorney dated
15.01.1982 did not accompany the plaint and that it was filed for the first
time on 15.11.1991, after almost 10 years. It was also contended that the
said power of attorney cannot be regarded as valid or authentic as it is
allegedly not executed in the presence of a notary nor has it been
authenticated by a notary. It was also contended that the plaintiff, despite
ample opportunity, failed to get the power of attorney duly proved and
exhibited. Consequently, it has been argued that Mr G. L. Beer cannot
be regarded as an authorized agent under Order 3 Rule 2 CPC and,
therefore, the suit was not properly verified, signed or instituted and,
therefore, the same is liable to be dismissed on this ground.
21. On behalf of the plaintiff, it was urged that the suit had been
instituted by a duly authorized person. The plaintiff had authorized her
father Mr G. L. Beer by virtue of the said power of attorney dated
15.01.1982 and even otherwise to institute the suit as also to sign and
verify the plaint on her behalf. It is clear that the plaintiff had become
virtually immovable because she had become a quadriplegic on account
of the said incident. It was, therefore, extremely difficult, if not impossible,
for her to travel to New Delhi from Australia to present the plaint. It is
in these circumstances that the plaintiff had authorized her father Mr G.
L. Beer to sign, verify and file the plaint. She had also executed a power
of attorney dated 15.01.1982. It was also contended on behalf of the
plaintiff that, in any event, the plaintiff has clearly testified that she had
authorized Mr G. L. Beer to institute the present suit. Thus, in any event,
there was a clear ratification on her part. The learned counsel for the
plaintiff also placed reliance on the judgment of the Supreme Court in the
case of United Bank of India v. Naresh Kumar: 1996 (6) SCC 660
wherein it was, inter alia, held that ratification can be proved later and
that a mere irregularity in procedure should not defeat a substantive right
of an individual.
22. The present suit was instituted as an indigent person‘s application
being IPA 1/1982. The order passed in IPA 1/1982 on 22.01.1982 clearly
records that the application was presented by the father who held a
power of attorney from the applicant who was stated to be paralyzed and
was in Australia. By virtue of the said order dated 22.01.1982, the
applicant (the plaintiff herein) was exempted from presentation of the
application in person and the father of the applicant (plaintiff) was allowed
to do the same. It was also directed as under:-
“Let the authorized agent and father of the plaintiff be examined.”
Thereafter, on 22.01.1982 itself, the statement of Mr Geoffrey Beer (the
plaintiff‘s father) was recorded on solemn affirmation and was, inter
alia, to the following effect:-
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53 54 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
“plaintiff is my daughter. I hold power of attorney from the
plaintiff in my favour to file the present petition. She does not
own any immovable property…………… She is completely
paralyzed and unable to work. She is, therefore, unemployed.
She has no source of income other than the pension given to her
by Australian Government........ She is unable to pay the court
fees on the claim………… I am fully aware of the matter in
controversy in this suit. The claim is correct and well-founded.
I am able to answer all material questions..
Subsequently, by an order dated 24.09.1982, IPA 1/1982 was directed
to be numbered and registered as a suit. From this, it is clear that the
plaintiff‘s father Mr G. L. Beer had appeared before this Court on
22.01.1982 and had categorically stated that he held a power of attorney
from the applicant. The plaint also indicated that it had been signed by
Mr G. L. Beer as the attorney of the plaintiff on the basis of a power
of attorney dated 15.01.1982.
23. The plaintiff came to the witness box as PW1 and, in response
to the question as to whether she felt she was going to recover after the
treatment at Melbourne in 1980-1981, she answered:-
“I think at the end of this treatment I realized that I was not
going to recover any more mobility or sensation and we decided
by that time to commence this court action for compensation.”
A further question was put to her as to whether in 1981 she decided to
file this action herself. She answered in the affirmative. She also stated
that the suit was filed at her instance in early 1982 and that she had
authorized her father to file the suit. She also stated that she had executed
a power of attorney in his favour for this purpose. As there was some
controversy before the court examiner in Australia with regard to whether
the power of attorney should be marked as an exhibit or simply marked,
the said examiner marked the document both as Exhibit PW1/17 and as
Mark ‘A’. Of course, the plaintiff PW1 admitted her signature on the said
document of power of attorney. In her testimony, the plaintiff (PW1)
also stated that whatever has been stated in the plaint is correct.
24. I also noticed from the record that an application (IA 12075/
1991) had been filed for placing the power of attorney of the plaintiff in
favour of her father on the record of the case. Along with the application
was an affidavit of one Mr Mohan Lal, who was the clerk of Mr Madan
Bhatia, who was the Advocate on behalf of the plaintiff. In the said
affidavit dated 15.01.1991, it is stated that the plaintiff‘s father Mr G. L.
Beer had handed over the power of attorney in his favour for being filed
in this Court when the suit had been filed. It is further stated that he had
been informed that when the evidence was being recorded in Brisbane,
Australia it was discovered that the said power of attorney was not on
the record of the case. When the counsel for the plaintiff returned to
India, the said clerk checked the personal files lying in the office of the
said counsel and discovered that the power of attorney was in those files.
The said clerk further stated that the said power of attorney had not been
filed on account of inadvertence and because of an accidental slip. On
the said application No. 12075/1991, this Court, by an order dated
25.11.1991, directed that the power of attorney executed by the plaintiff
in favour of her father, which had been filed along with the application,
be kept on record.
25. From the above, it is clear that in the plaint itself it has been
stated that the same was being signed, verified and instituted by Mr G.
L. Beer on behalf of his daughter on the basis of the power of attorney
dated 15.01.1982. Inadvertently, that power of attorney had not been
filed along with the plaint and was subsequently filed on 25.11.1991 by
virtue of an application being IA 12075/1991 which was allowed and the
power of attorney was taken on record. Apart from this, the plaintiff has
clearly testified that the contents of the plaint were correct and that the
same had been instituted by her father on her instructions. There is, thus,
a clear ratification on her part. It is not a case where a person has
instituted a suit representing himself to be an authorized agent and where
the principal has refuted the claim. Mr G. L. Beer, undoubtedly, verified
and filed the plaint as an agent of the plaintiff. This fact has been
confirmed by the plaintiff herself. The Supreme Court in the case of
United Bank of India v. Naresh Kumar (supra) clearly held that the
procedural defects which do not go to the root of the matter should not
be permitted to defeat a just cause and that there is sufficient power in
the Courts, under the Code of Civil Procedure, to ensure that injustice
is not done to any party who has a just cause. The Supreme Court
further observed that as far as possible a substantive right should not be
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allowed to be defeated on account of a procedural irregularity which is
curable. In the case before the Supreme Court, the issue arose with
regard to the authority of a person to sign the pleadings on behalf of a
company. The Court observed that a person may be expressly authorized
to sign pleadings on behalf of a company, for example by the Board of
Directors passing a resolution to that effect or by a power of attorney
being executed in favour of any individual. It was specifically observed
that even in the absence of such a resolution or a power of attorney, in
cases where pleadings have been signed by one of its officers, a
Corporation could ratify the said action of its officer in signing the
pleadings and that such ratification could be expressed or implied. It was
further held that the Court could, on the basis of the evidence on record,
after taking into account all the circumstances of the case, especially
with regard to the conduct of the trial, come to the conclusion that the
corporation had ratified the act of signing of the pleading by its officer.
In the present case, I find that it has come in evidence that the plaintiff
had decided to commence the action for compensation when her treatment
ended and she realized that she would not recover any further. She had
clearly stated that she had asked her father to institute the present suit
and had even authorized him by executing the power of attorney dated
15.01.1982. The present suit had been instituted by her father as her
authorized attorney. Even if I do not go into the matter of admissibility
of the document of power of attorney, the action of the plaintiff‘s father
in signing, verifying and filing the plaint stands fully ratified by the
plaintiff. Therefore, the only conclusion that can be arrived at is that the
suit had been filed by a duly authorized person and this issue is accordingly
decided in favour of the plaintiff and against the defendant.
Issue No. 2:
26. This issue, although framed, was not pressed by the learned
counsel for the defendant at the time of hearing and, therefore, the same
is not being dealt with.
Issue Nos. 3-8:
27. These issues are being discussed together as they are all
inextricably linked with each other. Essentially these issues require the
Court to determine the following:-
(1) Nature of the injuries suffered by the plaintiff (issue No.5);
(2) Cause of the injury; whether caused by jumping as alleged
by the plaintiff or diving as propounded by the defendant
(issue No.5);
(3) It is obvious that if the cause of injuries is diving, the
plaintiff‘s case falls to the ground. In case the injuries
have been caused by jumping into the pool, the plaintiff
has to further establish:-
(i) that the tiles at the floor of the swimming pool were
slippery, as they were not properly maintained (issue
Nos. 3, 4 & 8); and
(ii) that the plaintiff was herself not negligent (issues 6 & 7)
Nature of injuries:
28. With regard to the nature of the injuries suffered by the plaintiff,
the testimony of PW22 Dr Arjun Dass Sehgal, who treated the plaintiff,
is most material. According to Dr Sehgal, the plaintiff‘s X-ray showed
that there was a fracture of cervical-7 vertebra. She also had a lacerated
wound on the top of her head going to the left of the midline. According
to him, she suffered a compression fracture of the cervical seventh
vertebra. According to him, that was a flexion injury. He further stated
that the plaintiff had a permanent disability and because of the injury, her
legs, bowel and bladder were paralyzed. She had permanent disability and
she had no sensation of pain or touch or temperature below the cervical
column. He stated that the plaintiff was admitted on 05.05.1978 and was
transferred to Australia on 13.06.1978 and that he had accompanied the
plaintiff to Australia. He further stated that the X-rays were taken on his
advice and they are exhibited as Exhibits PW1/7 to PW1/16.
29. PW4 Dr J. A. Smith, who specialized in neurosurgery, stated
that the plaintiff had consulted her. He stated that he had seen the X-rays
of her spinal injury and had also examined her. He categorically stated
that after seeing the plaintiff and seeing her X-rays, there was no possibility
of a recovery from the spinal injury which she had sustained. He stated
that her injury was permanent. In fact, he had given a report which has
been marked as Exhibit PW4/1. He re-affirmed what he stated in the said
report. Dr Smith stated that a compression injury would be different
from a flexion injury of the cervical spine. But, he clarified that one
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57 58 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
would have to define the ways in which the injuries are to be described.
According to him, if one considers a flexion injury then there was some
degree of compression occurring in that type of injury and that a degree
of compression is usually in the anterior portions of the vertebral bodies.
Thus, according to the said witness, it cannot always be said that ‘it is
this sort of injury or that sort of injury’. However, Dr Smith stated that
it is a matter of describing what one sees on the X-rays in relation to
what happened clinically. He stated that he tried to clarify by stating that
if the present case was a true vertical compression injury, then one might
expect that the features would be that of a burst fracture. And, according
to Dr Smith, the present case is not one of burst fracture.
30. Exhibit PW2/33 indicates the external injury to be a contusion
lacerated wound about 1 inch long in the left parietal area just along the
mid line. Exhibit PW19/1 which is the admission and discharge report at
Holy Family Hospital, New Delhi, indicates the diagnosis of the plaintiff
to be “Quadriplegia Š # C6-7
”. Exhibit PW19/3, which is the case summary
and discharge record at Holy Family Hospital, indicates the investigation
to reveal that the plaintiff‘s injury caused “quadriplegia Š # cervical
spine”. The X-rays were shown to indicate a fracture in the cervical
spine at C6-7
. There was no fracture in the skull. The X-ray report which
forms part of Exhibit PW19/3 indicates .no fracture shown in skull,
fracture C6 &
7 with slight ant. sliding of C
7 under C
6”.
31. From the above evidence, it is abundantly clear that the nature
of the injuries were such which resulted in the fracture of the 6th and
7th cervical vertebrae with slight anterior sliding of the 7th vertebra
under the 6th vertebra. This resulted in the plaintiff becoming a quadriplegic.
32. At this juncture, it would be relevant to examine the testimony
of the plaintiff, who was examined as PW1. She stated that she represented
her school in swimming every year of her high school life. She attended
the Queensland State Championship for under-10s in the butterfly stroke
and she was a member of many State teams for water polo as well. She
also represented the under-18 team and the open women’s team of her
State. She had travelled to Tasmania and to New Zealand and on those
occasions her team had won the gold medal. She had also been invited
into the Australian team to tour the United States but she had previously
been committed to travel to New Zealand so she chose to travel to New
Zealand. She stated that she was a member of the Queensland team and
was a co-captain of the team which travelled to New Zealand.
33. The plaintiff further stated in her testimony that she had gone
to take a swim on 05.05.1978 in the swimming pool at Akbar Hotel at
about 5 O‘clock. According to her, it had been a hot day and they had
gone down to the pool; her father, mother, her younger brother and
herself. When they got to the pool side area, her father, brother and
mother went ahead to get into the pool and she stopped at the edge of
the pool to take off her robe and her sandals. Thereafter, she stated that
she remembered that her hair got tangled in the strap of her swimming
costume. She took time to fix that up and to untangle it. Then she walked
over to the shallow end of the pool and she jumped into the pool. She
stated that when she jumped in the pool she felt that her feet touched the
bottom of the pool and immediately they slid forward throwing her
backwards against the side of the pool. She felt her head strike the side
of the pool. Then her brother and father came over and supported her
in the pool and they, with the help of another person, whom she did not
know, lifted her on to the side of the pool. She stated that she remembered
that her father was being very careful in lifting her and he supported her
very gently but very strongly and her head was very stable in the lifting.
She stated that when her feet touched the bottom of the pool, she found
it to be very slippery and immediately both her feet slid forward. She
stated that her body was tingling at that time, right from her shoulders
down to her feet. And, then her body started to go numb. She stated that
she also had a small cut on the back of her head where it struck the side
of the pool and there was a bit of blood in the water of the pool. She
stated that while they were waiting for the ambulance, they transported
her on a stretcher-like thing to the manager‘s room where they waited
for about two hours. Thereafter, she was transported to Holy Family
Hospital in the said ambulance. Dr Arjun Sehgal was present at Holy
Family Hospital and he took charge of the case. He arranged to have the
X-rays taken etc.
34. This part of her testimony has gone unchallenged. From the
above evidence, it is clear that the plaintiff has been able to establish that
she had gone to take a swim along with her family members in the
swimming pool at Akbar Hotel at about 5 pm on 05.05.1978. That when
she jumped into the pool from the shallow end, her feet, on touching the
floor of the pool, slid forward as the same was slippery. Because of this,
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her head hit the side of the swimming pool. Consequent thereupon, she
suffered the injuries to her cervical spine and the lacerated injury on her
head. The injury caused to the cervical spine and particularly the 6th and
7th vertebra, as indicated above, resulted in her ultimately becoming a
quadriplegic, i.e., not having any sensation below her neck. In layman‘s
language, she was paralyzed neck downwards. It is also clear from the
testimony of PW4 Dr J. A. Smith that there was no chance of her
recovery and the injury sustained by her was for life.
35. Thus the nature of the injuries stand determined.
Cause of injuries:
36. It is now to be seen, what is the exact cause of the injuries.
The plaintiff‘s version has already been referred to above. According to
her, she jumped from the shallow end of the pool and her feet touched
the bottom of the pool. The floor of the pool was very slippery as a
result of which her feet slid forward and her head struck the side of the
pool. In the course of cross-examination, she was asked as to whether
she entered the pool from the same side as her parents. She answered
by stating that her mother entered the pool using the ladder and that her
father entered from the same side as her and she thought her brother
went around to the right side of the pool. When she was asked as to how
she knew that she had entered the pool from the shallow end, she
answered, because it looked shallow. The counsel for the defendant
remarked and questioned — “It looked shallow. And, how many different
pools would you have done swimming by then?” The answer ˇgiven by
the plaintiff was that she would have swam in many hundreds of pools
in her life. Then she was asked a question as to what is the difference
between a jump and a dive? She answered that a dive is when you dive
into the water and when you have your hands out ahead to break the
impact of the water on your face or on your head and a jump is when
you jump feet first into the pool. The counsel for the defendant questioned
the plaintiff that the place of the head injury could not have been caused
by striking against the wall of the pool. To this, the plaintiff answered
that she was injured in the way that she remembered and the way that
she had deposed earlier. She jumped in and her feet slipped on the bottom
of the pool and she fell back striking her head against the side of the
pool. She further stated that whether it was actually the edge of the pool
or side of the pool, she was not in a position to say with certainty,
because it happened in a fraction of a second. The counsel for the
defendant also put it to her that she could have only sustained the injury
if she had struck her head against the bottom of the pool. To this, her
pointed answer was “my head was nowhere near the bottom of the pool.
I jumped in feet first”.
37. A different situation was put to the plaintiff by the learned
counsel for the defendant. He questioned that with regard to the likelihood
of the injury having been received on the face, after one dives into the
pool, was it not possible that on account of some misjudgment, when
one is about to strike the bottom of the pool, in order to save one‘s face,
one would turn one‘s head towards the water to push oneself upwards.
The plaintiff answered that that is not possible at all. If such a thing were
to happen, she would have merely used her hands to push her head away
from the bottom of the pool. Then, the learned defence counsel suggested
that “if your hands are unable to stop then to save your face you would
turn your head towards the bottom of the pool”. To this, also, the
plaintiff replied that she could not imagine any circumstance where she
would turn her head towards the bottom of the pool. She stated that she
would have lifted her head away from the bottom of the pool and that
would be a natural reaction— “to turn your head away rather than
towards something being hit”.
38. From the above, it is clear that the effort of the defendant‘s
counsel was to propound an alternate theory for the cause of the plaintiff‘s
injury. The first alternative was that the plaintiff took a dive in the
shallow end of the pool and hit her head on the bottom of the pool. The
second alternative propounded was that the plaintiff took a dive in the
shallow end of the pool and seeing that she had miscalculated her dive
as she was fast approaching the bottom of the pool, she turned her head
and thereby got injured on the back of her head. Both these alternative
hypotheses were clearly rejected by the plaintiff, who stood firm with
her initial statement that she sustained the injury when she jumped into
the pool from the shallow end and the floor of the pool being slippery,
her feet slid forward and her head hit the side wall of the pool.
39. PW2 Mr G. L. Beer stated in his examination-in-chief that he
had represented his school in swimming. As a soldier in World War II,
he was the backstroke champion of the 2nd 9th Regiment. He also stated
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61 62 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
to be a backstroke champion of the Fourth Brigade of the AAF and that
he was a member of the Scuba Association and that he was a diver. Mr
G. L. Beer stated that the angle at which one would dive from the edge
of a pool, not from a racing block but from the edge of the pool, would
be 15 degrees. On being asked the question as to when somebody was
to dive into the pool from the shallow end of the pool, what would be
the angle of the dive, Mr G. L. Beer answered—15 degrees. He further
stated that from the starting blocks since they are higher than the edge
of the pool, the angle of the dive would be close to 30 degrees.
40. With regard to the manner in which the incident took place,
PW2 Mr G. L. Beer stated that his son entered the pool just before his
wife and himself. His wife entered through the ladder because she did not
like immersing quickly. He walked past the ladder and as he had an
injured knee at that time and was on a crutch, he sat on the edge of the
pool and then slipped into the water so as to avoid any jar to his knee,
which would be caused by jumping in. He stated that the plaintiff entered
the pool after them. He said that she removed her gown and sandals
while his wife and he swam to the centre of the pool and their son was
possibly half way from the centre of the pool. He stated that they
watched the plaintiff walk down the edge of the path where she had
draped her gown and sandals. She came straight from the bottom of the
path at the shallow section and jumped into the water from the edge of
the pool. The water was about 2’ 6’’ deep at that point. He then saw her
slip backwards and disappear under the water. He believed that she may
have struck her head. Then, he stated that his wife was obviously also
watching because she called out “Sue’s hurt”. He then immediately swam
where the plaintiff was. His son Nicholas had also obviously seen the
incident and he reached the plaintiff before him (Mr G. L. Beer). The said
witness positively stated that he saw the plaintiff slipping backwards. He
stated that although he did not see her head striking against anything, but
she disappeared under the water and he feared that she struck her head
under the wave trap.
41. He further stated that when he reached the place where the
plaintiff was, his son Nicholas was supporting her. She was on her back,
face upwards and she had a small cut on the top of her head which he
estimated was between half and three quarters of an inch long. He stated
that there was a little bit of blood coming out of the cut and it is then
that he realized that she had struck her head on the edge of the pool.
42. PW2 Mr G. L. Beer further stated that the plaintiff was quite
conscious, but dazed and he went around the other side of her. His son
Nicholas was on that side. He asked a bystander to help him lift her from
the pool. With great care they lifted her and slid her over the edge of the
pool. He stated that he was conscious that his foot slipped on the glazed
tiles on the floor of the pool. He knelt beside her and she said “Oh no
please”. He asked her to gently move her toes and fingers and found to
his horror that she could not move them. He then asked a bystander to
get the manager of the hotel and a doctor. It is further stated by the said
witness that after some time two men arrived, one with a portmanteau
and he turned out to be Dr Chowdhry and the other, he presumed, was
the manager of the hotel. The said witness was angered by the fact that
the said doctor merely said that the plaintiff was suffering from concussion
and that she should be taken to the hospital for the night in the hotel car.
He demanded that an ambulance be called with a specialist doctor. The
manger suggested that the plaintiff be lifted but the witness Mr G. L.
Beer absolutely refused to allow her to be moved. However, they gently
moved her on to a lylo because it was very hot at the pool side. According
to this witness the ambulance took about two hours to arrive which was
an incredibly long time. Thereafter, she was taken to Holy Family Hospital.
A doctor was attending, whose name was later found to be Dr Arjun
Sehgal. He required X-rays to be taken. The doctor told him that her
daughter had suffered a spinal injury and she was paralyzed from the
chin down.
43. From the testimony of PW2 Mr G. L. Beer also it is apparent
that the plaintiff suffered the injury in the manner indicated by her, that
is, when she jumped into the pool in the shallow end, her feet slipped on
the floor of the pool and slid forward and in the process she hit the back/
top of her head on the side of the pool which ultimately resulted in the
fracture of her cervical column around the 6th /7th cervical vertebra.
This is what caused her to be paralyzed from chin down.
44. PW19 Mrs P. J. Beer, the plaintiff‘s mother also indicated the
manner in which the incident took place on 05.05.1978. She said that
approximately at 5 pm the four of them went to the pool. They had come
down in the elevator and walked from the ramp to the pool. According
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to her, the plaintiff stopped to take off her robe and her sandals. Her son
Nicholas went on ahead a little further near the ladder and dived into the
pool. Her husband and she followed. Her husband sat on the side of the
pool because he had bad knee injury and slowly slipped into the water
and swam to the centre of the pool. She climbed down the ladder. She
stated that when she swam to the centre of the pool her husband was
there and her son was a little further closer to the edge. She turned
around to see if the plaintiff was following her and saw her at the edge
of the pool. She jumped into the water, slipped and hit her head. She
disappeared under the water then she surfaced again and was lying on
her back. She stated that her feet slipped in the pool and she slipped
backwards and she called to her husband “Sue has been hurt”. She stated
that her son had seen the accident and was already swimming towards
her and then her husband also swam towards her. She swam back to the
ladder to get out of the pool as quickly as possible. Her son Nicholas was
supporting the plaintiff when her husband arrived and he helped to support
her. A stranger came along, whom they did not see before or after, who
helped in lifting the plaintiff out of the pool very-very carefully. She
stated that thereafter the manager of the hotel and a doctor arrived. The
doctor said that she had a concussion and that there was no serious
injury to the top of her head and he suggested that she be put in a car
and taken to a hospital for observation overnight. She was distressed and
she was sitting beside her daughter at the pool and the cement was very
hot because it was an extremely hot day. She tried to sprinkle water over
the plaintiff so that she did not burn on the concrete. She enquired from
the plaintiff as to whether she was alright and the plaintiff stated .my
hands and my legs are going numb. They are tingling and going numb..
Mrs P. J. Beer further stated that the hotel manager suggested that the
plaintiff be taken to hospital in a hotel car but her husband objected very
strongly and said that she must go in an ambulance.
45. From the testimony of the plaintiff‘s mother PW19 Mrs P. J.
Beer also, the plaintiff‘s version of the manner in which she suffered the
injury is fully corroborated. Although, all the three witnesses namely, the
plaintiff, her father Mr G. L. Beer and her mother Mrs P. J. Beer were
subjected to lengthy cross-examination, nothing has been elicited from
these witnesses in the course of such cross-examination so as to cast
any doubt on their testimonies with regard to the exact manner in which
the incident occurred.
It may be noted that in the written statement, the defendant did not
plead that the plaintiff had dived into the pool. Yet, in the course of
cross-examining the witnesses and in the course of arguments, it was
strongly urged on behalf of the defendant that the plaintiff did not jump
into the pool from the shallow end but dived into the pool. It is an
established principle that unless a fact is pleaded, no amount of evidence
led in respect of that alleged fact can cure the defect. The plaintiff‘s case
that she jumped into the pool at the shallow end and that her feet slipped
on the slippery floor of the pool as a result of which she hit her head
and sustained injuries is fully supported by the medical evidence on
record. Both PW4 Dr J.A. Smith and PW22 Dr Arjun Dass Sehgal have
opined that the injury caused to the plaintiff was largely a flexion injury
and not a compression injury, which would have resulted in a burst
fracture. These opinions are clearly in corroboration of the testimonies
of the plaintiff, her father Mr G. L. Beer and her mother Mrs P. J. Beer.
It has come in evidence that a flexion injury of the kind suffered by the
plaintiff could not have been caused by the head hitting the floor of the
pool as a result of a vertical or near vertical dive. In that eventuality the
injury would have been a burst fracture or a serious compression injury.
It would not have been a flexion injury. In the present case the evidence
indicates that the injury was a flexion injury caused by the sudden forward
hinging of the head on account of the head hitting the wall of the
swimming pool. This injury is entirely consistent with the plaintiff‘s case
and is completely contraindicated if the version of the defendant, of the
plaintiff diving into the pool and thereafter hitting the head on the floor
of the pool, is to be accepted. Clearly, the cause of injury was as
narrated by the plaintiff, that is, by jumping into the pool and not as
suggested by the learned counsel for the defendant, that is, by diving.
The counsel for the defendant was at pains to cross-examine the doctors
and particularly PW4 Dr J. A. Smith and PW22 Dr Arjun Dass Sehgal
with regard to the injury caused to the plaintiff being a compression
injury or a flexion injury. According to the defendant, the plaintiff suffered
a burst fracture and a compression injury which was consistent with the
plaintiff having dived into the pool and hit her head on the floor of the
pool. On the other hand, the plaintiff‘s case was that she had suffered
a flexion injury where the head hinges forward with great force.
46. I have already set out what PW4 Dr J. A. Smith stated in his
testimony. He categorically stated that the injury caused to the plaintiff
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65 66 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
office where first-aid articles were kept and then he applied ice and
bandage on the head of that girl. He stated that he as well as the girl‘s
father asked her to shake her leg but she was not able to move her leg
and she started weeping.
49. If this witness is to be believed, the plaintiff took a vertical dive
in the shallow portion of the swimming pool. In his cross-examination,
he was asked as to what was the distance between the wall of the pool
and the place on the floor where the girl struck her head. His answer was
— ‘two feet’. I am straightaway inclined to agree with Mr Madan Bhatia,
the learned senior counsel who appeared on behalf of the plaintiff, that
this would be a virtual impossibility. From the edge of a pool at the
shallow end where the water was only 2’ 6’’ to 2’ 9’’ deep, it would
be impossible for any person to take a vertical dive and hit his or her
head within two feet of the wall. According to the evidence on record,
the plaintiff was about 5’ 6’’ in height. If she was standing on the edge
of the pool in a stationary position, she would probably have to jump six
feet into the air to enable her body to turn so that it could make a vertical
impact with the water in the pool. This could not have been done and
in fact was not done as no witness has testified to this. Apart from that,
Mr Verma stated that the girl and boy were running and they were
playing the game of catching each other and it was then that she took
a vertical dive in the shallow portion of the swimming pool. When a
person is in motion, it would be impossible for that person to have hit
his head on the floor of the swimming pool within two feet of the edge.
The momentum would take that person much ahead. Therefore, the
theory propounded by this witness is only to be stated to be rejected.
50. This witness cannot be believed also because he stated that
there was a bump in the middle of the head of the girl and it had become
reddish. There is no such evidence. Apart from this, he stated that he had
bandaged the head of the girl. There is no corroborative evidence of this
either. He stated that the father of the girl had not entered the swimming
pool and he was near the counter. But, in the written statement in
paragraph 11, it is stated that the parents were at a distance relaxing in
the chairs. Again, this witness states that the plaintiff‘s father was
accompanied only by his son and daughter (the plaintiff). In fact, it was
suggested to the witness that Mr Beer was accompanied not only by his
one son and one daughter but also his wife. The witness stated that this
was not a burst fracture which is indicative of a compression injury.
According to PW4 Dr J. A Smith, a burst fracture would be caused
when a weight falls on the body or the body with weight falls to the
ground in a vertical position. He stated that when a body strikes the
object in an inclined angle and not at a 90 degree angle, it would cause
a combination of flexion along with compression. The said witness stated
that the injury in the present case was certainly one of flexion. He,
however, clarified that when we know what happens to the anterior part
of the vertebrae in a flexion injury then, there is a degree of compression
occurring there. He, however, reiterated that the fracture in the instant
case was a flexion fracture. The injury in the present case was described
by the said witness as one where the head moves forward and the chin
almost touches the chest. This is what is known as forward hinging.
47. As mentioned above, both Dr J. A. Smith and Dr Arjun Dass
Sehgal were subjected to extensive cross-examination on the point as to
whether the injury was a flexion injury or a compression injury. From
the testimonies of both these witnesses, it is apparent that they have not
been shaken from their stand that the injury was a flexion injury caused
by forward hinging of the head. In such a situation, the hypothesis of
the plaintiff having dived into the pool is clearly contraindicated.
48. In an attempt to support the hypothesis that the plaintiff dived
into the pool, the defendant also produced DW2 Mr Balram Verma in the
witness box. DW2 Mr Balram Verma was stated to have been posted at
Akbar Hotel as a lifeguard. According to him, he had joined ITDC on
10.03.1978. Mr Verma stated that on 05.05.1978 he was present at the
swimming pool in his lifeguard gear and the manager was sitting with
him. One elderly man accompanied by two children, one of whom was
a boy and the other was a girl, came to the pool, in a playful mood and
they kept their towels near the very first umbrella on the pool. The boy
and the girl were playing the game of catching each other. While doing
so, the girl suddenly took a vertical dive in the shallow portion of the
swimming pool. According to this witness, he immediately ran on seeing
this incident and the other guests also shouted. The other guests, who
were from Aeroflot, also helped him in holding the girl. According to
him, he placed the girl on the floor on the edge of the pool and he found
that there was a bump on the middle of the head of that girl and it had
become reddish. He stated that he obtained ice and bandage from his
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was wrong and he was accompanied only by his son and ˇdaughter.
This statement also contradicts what is stated in the written statement
where it is admitted that the parents were at a distance relaxing in the
chairs. This witness has also stated that the girl had stretched her hands
while diving into the pool. But, again, there is no injury caused to the
hands of the plaintiff. The testimony of this witness cannot be believed
for two reasons. The first being that he is unreliable and is not telling the
truth and the second being that his version of the incident is practicably
not possible.
51. This leaves me to discuss the testimony of DW1 Dr G.G.
Manshramani. This witness has tried to assist the defendant by stating
that the external injury caused to the plaintiff on the head could never
have been caused when a person falls backwards. This witness has
apparently contradicted himself at various places in the course of his
cross-examination. For example, a question was put to him that when a
person dives into the pool and his head hits the bottom of the pool but
his head does not hinge forward, would there still be force of flexion?
He answered—yes. Then a question was put to him what force is flexion?
He answered—when the head hinges forward? So this witness says in
answer to the first question that even when the head does not hinge
forward, there will still be force of flexion and in answer to the second
question, he says that the force of flexion is there when the head hinges
forward. The witness was then asked that if a person jumps into the
pool, slips and falls backward and his head hits a wall at the back with
great force, his head may suffer both flexion and compression injuries?
To this, the witness answered—it will mainly be flexion injury. In other
words, even from this witness it has been elicited in cross-examination
that the injury caused by jumping and slipping and then hitting the head
on the wall of the pool would be a flexion injury.
52. However, this witness, according to me, cannot be relied upon
and is an interested witness. He had accompanied the counsel for the
defendant to Australia and even played a role in helping the learned
counsel for the defendant in cross-examining the plaintiff‘s witnesses in
Australia. Furthermore, he is not an expert in the sense that he is not
even a surgeon, what to speak of being a neurosurgeon. He has no
experience with regard to spinal injuries and has admitted to only having
taught neurology as a part of medicine and not as a speciality. He has
admitted that he was engaged by ITDC to go to Brisbane, Australia and
had actively assisted the counsel for the defendant.
53. The learned counsel for the defendant drew my attention to the
medical record of the Holy Family Hospital, New Delhi. He submitted
that Exhibit PW19/2 is the MLC pertaining to the plaintiff. The history
indicated in the MLC reads as under:-
“H/o sustained injury when Pt. dived into swimming pool at
about 6:45 pm today………”
He then referred to Exhibit PW19/3 which is the case summary and
discharge record, which again indicates the alleged history to be that the
patient sustained injury “after diving into swimming pool”. Exhibit PW19/
4 is the history sheet of the plaintiff at Holy Family Hospital, New Delhi.
In this document also it is indicated that the .patient dived into pool in
Akbar Hotel, hit her head on the floor of the pool and sustained injury
over the head………….. Exhibit PW19/6, which is the consultation record
of the same hospital, also indicates “dived in swimming pool”. Exhibit
PW19/5, which is part of the consultation record, again refers to .diving..
This noting is apparently signed by Dr A. D. Sehgal. However, Exhibit
PW2/34, which is another document from the hospital record, indicates
that the plaintiff “jumped into pool”. From the aforesaid documents barring
Exhibit PW2/34, the learned counsel for the defendant, submitted that it
was apparent that it was a diving incident and not a jumping incident as
alleged by the plaintiff. However, what is important to remember is that
the first document in the series of documents is Exhibit PW19/2, which
is the MLC which was prepared at the hospital. Dr B.B Middha, who
prepared the said MLC, has not been examined as a witness and, therefore,
it cannot be determined as to who told him about the history of the
patient. All the other documents from the hospital record are merely
reproductions of what was first recorded in the MLC Exhibit PW19/2.
When the source itself is unclear, these documents would not be
determinative of whether the plaintiff dived into the swimming pool or
jumped into the swimming pool. In fact, Exhibit PW2/34, which is in Dr
Seghal’s hand, records that the plaintiff jumped into the pool. In cross-
examination of Dr Sehgal, this aspect of the matter has not been
questioned. In any event, I agree with the submission made by the
learned counsel for the plaintiff that the exact manner in which the
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Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
incident took place, in other words, whether it was the result of a dive
or jump, was not of much consequence to the doctor and they were
concentrating on and were merely concerned in treating the patient. Even
the record of the hospital in Australia, as indicated in Dr Davies‘s report
shows the same history as that of having sustained the injury in a dive.
But, that again is merely a reproduction of the hospital record at Holy
Family Hospital. In fact, Dr Davies‘s report shows that the injury is 6.
long lacerated wound. This is ex facie wrong inasmuch as the admitted
position is that wound on her head was a one inch long contused lacerated
wound. Consequently, not much reliance, if at all, can be placed on Dr
Davies‘s report. It is, therefore, clear that the hospital record referred to
above cannot be relied upon to establish as to whether the plaintiff dived
into the pool or jumped into the pool. I have already indicated that, based
upon the testimonies of the plaintiff, PW2 Mr G. L. Beer and PW19 Mrs
P. J. Beer as well as the evidence given by the doctors — PW4 Dr J.A
Smith and PW22 Dr Arjun Dass Sehgal, the manner in which the injury
was caused, stands established. The injury was caused by the fact that
the plaintiff’s feet slipped on the floor of the swimming pool when she
jumped into the pool in the shallow end.
54. As a result of the aforesaid discussion, it has been established
on the part of the plaintiff that the cause of injury was the fact that the
plaintiff jumped into the pool at the shallow end and that her feet slid
forward on account of the bottom of the pool being slippery. This
resulted in her head hitting the side of the pool which ultimately resulted
in her becoming a quadriplegic. The theory and hypothesis of diving into
the pool which had been put forward by the learned counsel for the
defendant, both in the course of cross-examination of the plaintiff‘s
witnesses as well as by the defendant‘s witnesses and in the course of
arguments before this Court, is clearly not established. It is not established
on account of the evidence on record nor is it established on account of
probabilities. The plaintiff, admittedly, was an expert swimmer. She would
not have dived into the pool vertically downwards at the shallow end
knowing the water to be only 2-1/2 to 3 feet deep. In any case, even if
she had dived into the pool, she could have avoided impact on her head
by pushing away with her hands which are normally extended in the case
of a dive. There is evidence of her swimming coach to indicate that she
was well trained in all swimming manoeuvres which include diving and
if she were to dive, she would have adopted the correct posture, namely,
with the hands extended ahead to protect from the impact of the water.
All these factors clearly establish that the assertion made by the plaintiff
with regard to the manner in which the injury was caused, stands
established and the hypothesis propounded by the defendant stands
disproved.
Were the tiles slippery and the pool not properly maintained?
55. The plaintiff‘s case is that glazed tiles were used in the swimming
pool. This fact has not been denied by the defendant. The plaintiff‘s case
further is that not only were glazed tiles used in the swimming pool but
that those tiles had become slippery on account of slime accumulating
thereon as a result of algae growth because the pool was not properly
maintained by the defendant. The defendant, however, has denied that
the pool was not properly maintained. The defendant also denied that the
tiles were slippery.
56. Certain photographs of the pool were taken after some months
and they have been placed on record. Those photographs were taken in
the winter months when the pool was not operational and there was no
water in it. There is no doubt that those photographs do indicate
accumulation of dirt in the grouting which could possibly include algae
also. But, these photographs cannot be used by the plaintiff inasmuch as
they do not pertain to the period when the pool was operational, that is,
during the summer months. The incident took place on 05.05.1978 when
the pool was fully operational. The question of the pool floor being
slippery on account of poor maintenance has to be examined keeping this
in mind.
57. PW14 K. R. Dobson has been brought to the witness box by
the plaintiff as an expert on swimming pool maintenance. The said witness
has a Bachelor of Applied Sciences degree in Applied Chemistry from the
Queensland Institute of Technology. He is also a member of the Royal
Australian Chemical Institute and a member of Clean Air Society of
Australia. In his role as Chief Chemist of the Department of Chemical
Engineering at the University, he stated that he acts as a consultant for
the university in a number of enquiries for the past 13 years or so. He
stated that in connection with problems that people meet in maintaining
swimming pools, he has been consulted. According to him, the more
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common occurrence in maintenance of the swimming pool is algal growth
or growth of organisms in the pool. He stated that his main area of
specialization was the manner in which certain chemicals affect algal
growth in pools. According to him, algal growth would occur in almost
all pools at some level. He stated that there are a number of techniques
for maintenance of pools and the most common technique is that of the
maintenance of levels of hypochloride or chlorine. He further submitted
that for proper maintenance of a pool, the growth of the algal material
is not per se checked but what is checked are the levels of chemicals
which are maintained in the pool to keep the algal level at bay.
58. PW14 Mr K. R. Dobson submitted that there are three aspects
which are associated with the maintenance of a pool to keep algal growth
at bay. The first is the measurement and maintenance of chlorine levels
in the pool. The second is filtration of water. Most swimming pools have
a pump and a filter associated with it to filter out any growth or particles
that may be present in the water. The third is brushing of the surface
of the pool. It is at the surfaces where algal growth occurs.
59. The said witness further stated that it was possible for algal
growth to occur in a pool even though the water might be clear. He
stated that in the early stages of algal growth, when the algae are first
starting to grow on the surface of the pool, the water will still appear
clear whilst the algae are growing. Those parameters are usually met if
the chlorine levels drop to a low level. This can either happen because
of allowing the chlorine levels to drop, or in some cases in warm climates
there is a cycle in the levels of chlorine associated with the maintenance
of the pool. He further stated that this might also happen on account of
inadequate brushing of the surface of the pool. Mr Dobson reiterated that
the three issues associated with the maintenance of the swimming pool
are maintenance of chlorine level, filtration and brushing. The correct
maintenance of a swimming pool incorporates the combination of all
three of those techniques and failure to observe the correct maintenance
procedures in all those three areas could lead to problems with algal
growth.
60. He also submitted that chlorine chemistry is complex and that
one of the parameters affecting the maintenance of levels of chlorine in
a swimming pool, is temperature. The higher the temperature the faster
chlorine will be consumed. He stated that at temperatures greater than
25°C, it would be strongly advisable that chlorine levels be checked
twice daily. The witness further stated that the most common colour of
algae is green. Though, in various cases the colour can be darker almost
to a black colour and the intensity of the colour can vary with the strain
of algal growth that is present and the severity of the growth. Importantly,
he stated that in many cases in the early stages of algal growth, it may
not be in fact visible through the water. He also stated that, as a rule,
at the shallow end algal growth will generally occur before it will in the
deeper end.
61. The testimony of Mr Lindsay Ian Sly also indicates that the
algal growth takes place because of sunlight. Mr G. L. McDonald stated
that ceramic tiles were inherently prone to accidents as they are slippery
and growth of algae would increase the possibility of slipping. He also
stated that usually glazed tiles are not used for Olympic size pools.
62. From the above evidence, it is apparent that glazed tiles are
inherently slippery and this would be further accentuated by the presence
of algal material. The growth of algae in the swimming pool occurs first
in the shallow end and later at the deep end. The growth of algae is
controlled by proper pool maintenance procedures. The procedures include:
(i) maintaining a proper chlorine level; (ii) filtration of water; and (iii)
brushing of the pool surface. If there is any deficiency in any of the three
measures, then growth of algae would result particularly in wimming
pools which are exposed to bright sunlight such as in India in the month
of May. It is also indicated that in the initial stages when there is growth
of algae in the swimming pool, it may not even be visible and the water
may be clear but the surface of the swimming pool which includes the
tiles on the floor would become slippery. Mr K. R. Dobson stated that
initially it is the grouting area which is first affected by the algal growth.
It is important to remember that Mr Dobson said that in temperatures
which exceed 25°C, the chlorine level should be checked at least twice
a day because chlorine gets consumed much faster in higher temperatures.
63. All these factors coupled with the testimony of the plaintiff and
71 72
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73 74 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
that of her father Mr G.L. Beer and her mother Mrs P.J. Beer, point in
the direction of the tiles in the floor of the swimming pool being slippery
on account of improper maintenance of the swimming pool. This could,
of course, be countered by the defendant by leading evidence to establish
and show that the pool was properly maintained.
64. The witness produced on behalf of the defendant to testify as
to the maintenance of the pool was DW2 Mr Balram Verma. I have
already indicated above that this witness is not reliable. However, assuming
that what he says is correct, let me examine as to whether his testimony
reveals that the pool was properly maintained. DW2 Mr Balram Verma
stated that he was appointed as a lifeguard at Akbar Hotel and he holds
a degree in physical education. He stated that the duty of a lifeguard at
Akbar Hotel was first to see on arrival at the pool that the pool was clean.
Thereafter, his duty was to sit there to ensure that the life of any guest
swimming in the pool was not at risk. He stated that the procedure for
cleaning of the pool is that in the evening bleaching powder and alum are
put into the water which makes the dust settle at the bottom of the pool.
Next day, in the morning, the brush which is attached to the suction
cleans the dust on the bottom of the pool and the dirty water is pumped
out of the pool. The housemen also mop the entire area around the
swimming pool starting from the change room before any guest is allowed
to enter the swimming pool. He stated that the board at the swimming
pool displays ‘pool closed’ in the morning and the same is removed only
after the cleaning has been done and after he has checked the pool. He
further stated that the engineer of the hotel had given him strips of paper
in order to check the chemicals in the water of the pool. The strip of
paper had a number of colours on its upper part and lower part. After
dipping the same into the water of the pool, he used to match the colour
of the strip with the colours shown on the upper part of the strip. In case
the colour of the paper strip dipped into the water of the pool matched
the colour at serial No. 7 or 8 of the upper part of the strip, it implied
that the water had been properly chlorinated. However, this witness in
his cross-examination does not appear to know anything about algae.
When he was asked as to under what circumstances algae get deposited
on the floor of the swimming pool, he stated that he did not know. With
regard to the photographs which were shown to him, which clearly
indicate algae growth and deposits, the said witness stated that the
photographs were taken when the pool had been closed and in winter
time.
65. This witness, I have already indicated, cannot be believed. In
any event, he does not have any specialized knowledge with regard to
management of algal growth in the swimming pool. The fact of the
matter is that there is evidence to indicate that the floor of the swimming
pool was slippery and it is because of that the plaintiff suffered the
injury. The floor of the swimming pool would not have been slippery had
the pool been properly maintained. It is at this juncture that the principle
of res ipsa loquitur can also be employed. That is a rule of evidence
which is employed when there is otherwise no direct material on a
particular aspect of the matter. Since the floor of the swimming pool was
not examined on the date of the incident itself and samples were not
taken on that date, there is no direct evidence to indicate that there was
algal growth in the pool or that there was other slimy material on the
floor of the pool. It is in circumstances such as this that the principle
of res ipsa loquitur is applied as a rule of evidence, because the things
speak for themselves. Res ipsa loquitur is a Latin phrase which is defined
in Black's Law Dictionary in the following words: “The thing speaks for
itself”. The doctrine of res ipsa loquitur is described in detail in a decision
of this Court in Klaus Mittelbachert v East India Hotels Ltd : 65
(1997) DLT 428, which reads as under:-
“Under the doctrine of res ipsa loquitur a plaintiff establishes a
prima facie case of negligence where (1) it is not possible for
him to prove precisely what was the relevant act or omission
which set in train the events leading to the accident, and (2) on
the evidence as it stands at the relevant time it is more likely than
not that the effective cause of the accident was some act or
omission of the defendant or of someone for whom the defendant
is responsible, which act or omission constitutes a failure to take
proper care for the plaintiff’s safety. There must be reasonable
evidence of negligence. However, where the thing which causes
the accident is shown to be under the management of the
defendant or his employees, and the accident is such as in the
ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in
the absence of explanation by the defendant, that the accident
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arose from want of care. Three conditions must be satisfied to
attract applicability of res ipsa loquitur: (i) the accident must be
of a kind which does not ordinarily occur in the absence of
someone's negligence; (ii) it must be caused by an agency or
instrumentality within the exclusive control of the defendant; (iii)
it must not have been due to any voluntary action or contribution
on the part of the plaintiff. (See Ratanlal & Dhirajlal on Law
of Torts , edited by Justice G.P. Singh, 22nd edition 1992, pp
499-501 and the Law of Negligence by Dr Chakraborti, 1996
edition, pp 191-192.).
In the light of the aforesaid decision, it needs to be examined as to
whether the above conditions apply to the present case. First of all, it has
to be determined as to whether the accident is of a kind which does not
ordinarily occur in the absence of someone‘s negligence. It is common
knowledge that people and most particularly younger persons jump into
the swimming pool. Unless and until there is some negligence, the injury
of the kind indicated in the present case would not ordinarily occur.
When one jumps into the swimming pool in the shallow end, one does
not expect that on the feet reaching the floor of the swimming pool, the
same would slip on account of the floor being slippery. Ordinarily, when
one jumps into the swimming pool, at the shallow end, the feet do hit
the floor of the pool but they remain firmly grounded. The incident of
the kind involved in the present case could only occur on account of the
slippery floor. This takes me to the second aspect and that is that the
accident must have been caused by an agency or instrumentality within
the exclusive control of the defendant. The defendant was entirely
responsible for the maintenance and operation of the same and therefore
this condition is also satisfied. The third condition is that the accident
must not have been caused by any voluntary action or contribution on
the part of the plaintiff. Here, again, I find that there was no contributory
negligence on the part of the plaintiff. The plaintiff merely jumped into
the swimming pool in the shallow end as she may have done on hundreds
of occasions being a person more than accustomed to swimming and
one who spent many hundreds of hours in and around the swimming
pool.
66. It is, therefore, clear that all the three conditions necessary for
application of the doctrine of res ipsa loquitur stand satisfied.
67. Once this happens, the burden shifts to the defendant to rebut
the evidence of negligence. In Municipal Corporation of Delhi v
Subhagwanti & Ors: AIR 1966 SC 1750, the Supreme Court described
the shifting of the burden, relying on Halsbury's Laws of England, 2nd
Ed., Vol. 23, as under:-
“An exception to the general rule that the burden of proof of the
alleged negligence is in the first instance on the plaintiff occurs
wherever the facts already established are such that the proper
and natural inference immediately arising from them is that the
injury complained of was caused by the defendant's negligence,
or where the event charged as negligence ‘tells its own story’ of
negligence on the part of the defendant, the story so told being
clear and unambiguous. To these cases the maxim res ipsa
loquitur applies. Where the doctrine applies, a presumption of
fault is raised against the defendant, which if he is to succeed
in his defence, must be overcome by contrary evidence, the
burden on the defendant being to show how the act complained
of could reasonably happen without negligence on his part.”
The defendant has not provided any plausible explanation as to how the
plaintiff could have suffered the injury that she did. Consequently, the
defendant has failed to meet its burden of proof in showing as to how
the plaintiff came to be injured without their negligence. Such burden not
having been discharged, by employing the doctrine of res ipsa loquitur,
it is clear that it was on account of the defendant‘s negligence that the
floor of the swimming pool was slippery on account of which the injury
was sustained by the plaintiff.
68. In view of the foregoing discussion, issues No. 3-8 are decided
in favour of the plaintiff and against the defendant.
Issue No. 9:
69. This issue is concerned with the computation of the damages
to which the plaintiff is entitled. The plaintiff has claimed a decree in the
sum of Rs. 2,00,00,000/- (rupees two crores) along with interest at the
rate of 18% per annum on the said amount from the date of presentation
of the plaint till its realization in favour of the plaintiff and against the
defendant. The said amount of Rs. 2,00,00,000/- has been claimed by the
plaintiff on the following basis:-
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77 78 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
(i) Expenses incurred by the plaintiff
on medical treatment and care in
India and Australia - Rs. 20,00,000.00
(ii) Damages on account of physical
pain, mental anguish and psychological
anguish and loss of education - Rs. 50,00,000.00
(iii) Damages on account of loss of
earnings for the rest of her life - Rs. 1,30,00,000.00
Total - Rs. 2,00,00,000.00
Insofar as the expenses incurred on the medical treatment and care in
India and Australia are concerned, certain bills and receipts have been
produced in evidence. They are as follows:-
Sl. Exhibit Detail Amount
No. No. AUD/Rs.
1. PW18/2 Medical aids and equipment $ 814.50
supplied to plaintiff through
Queensland Department of
Health- to be reimbursed
2. PW18/1 - Do - $ 1011.50
3. PW2/3 Dr B. N Chopr Rs. 60/-
4. PW2/4 Dr B. Ramamurthi Rs. 4250/-
5. PW2/8 Holy Family Hospital No. Rs. 4042.50
53121
6. PW2/10 - Do - Rs. 2847.25
Receipt No. 53627
7. PW2/11 - Do - Rs. 2459.60
Receipt No. 53907
8. PW2/12 - Do - Rs. 2285
Receipt dated 13.6.78
9. PW2/14 - Do - Rs. 90.50
10. PW2/16 Receipt dated 22.08.78 Rs. 2925
11. PW2/17 Receipt dated 22.08.78 Rs. 2925
12. PW2/19 Dr Arjun Sehgal Rs. 10500
13. PW2/20 Dr Arjun Sehgal Rs. 12000
14. PW2/22 Dr Arjun Sehgal Rs. 13916
15. PW2/24 Dr (Mrs) Sehgal Rs. 8000
16. PW2/25 Ticket (Airline charges) Rs. 7134
17. PW2/26 Chemist bill dated 3.6.78 Rs. 39.20
18. PW2/27 Medical equipment dated 7.6.78 Rs. 435
19. PW2/28 Hired refrigerator for hospital Rs. 340
room on 10.5.78
20. PW2/29 Accommodation and meals $ 57.80
for Dr Arjun Sehgal in Brisbane
21. PW2/30 Ambulance service on 21.7.78 $ 50
22. PW2/31 - Do - $ 50
23. PW2/32 Ambulance service on 26.6.78 $ 30
24. PW2/35 Various receipts for $3500 (approx.)
physiotherapy and Chiropractor
charges in 1978 and 1979.
TOTAL in Indian rupees Rs. 125000 (approx.)
[after converting AUD [Rs. 74249.05 +
into INR at the exchange $ 5513.80
rate of 1 AUD = Rs. 9 (=Rs. 49,624.2)
(approx.) in 1982 = Rs. 123873.25]
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Indian Law Reports (Delhi) ILR (2011) VI Delhi79 80 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
The total of which comes to approximately Rs. 1,25,000/-. It may
be noted that the amounts paid in Australian Dollars have been converted
to Indian rupees at the exchange rate of Rs. 9 (approximately) = 1
Australian Dollar (AUD), which is the equivalent exchange rate prevalent
in 1982. It may also be pointed out that the payment for Australian
Dollars have been made during the year 1979-1984 and, therefore, the
rate as applicable in the year 1982 has been taken as an average. However,
the amount claimed in the plaint under the head of expenses incurred for
medical treatment and care in India and Australia is to the extent of Rs.
20,00,000/- (rupees twenty lacs). I may also note that PW1 (S. L. Beer)
as well as PW2 (Mr G. L. Beer) have deposed with regard to the
expenses incurred by them. PW2 Mr G. L. Beer has stated that he
incurred medical expenses of Holy Family Hospital as well as of Dr
Sehgal and the attendant charges. He stated that Dr Sehgal‘s air fare to
and fro Australia was also paid by him and he had to incur the additional
expense of seats in Thai International Airways because of the stretcher
on which his daughter (the plaintiff) was to be transported from New
Delhi to Australia. There were other expenses attached to the transfer in
Sydney and their stay there as well as ambulance transport. Expenses
were incurred on account of visiting English Neurosurgeon, Dr Wilson
and other expenses for doctor / Chiropractor in Brisbane. He also had to
make several alterations to his house, such as alteration to the toilet,
widening of doorways, placing of protective covers over sections of
carpet because of the wheelchair which was used by his daughter. He
also had to incur the expense of building all the physiotherapy equipment
and of prosthetic appliances. He also had to establish a specialized carport
and had to construct ramps so that the plaintiff could enter and exit the
car. Because of the treatment, which his daughter was receiving, he had
to maintain himself and his son in Brisbane and his wife and daughter in
Melbourne. He stated that the expenditure incurred by him up to 1982,
when he filed the suit, on medical expenditure under various heads and
other expenditure for the care of the plaintiff would amount to
approximately Australian Dollars 1,50,000. Thus, according to the
testimony of PW2 (Mr G. L. Beer), an amount of approximately Rs.
13,50,000/- (as per the said exchange rate of Rs. 9 = 1 AUD) was
incurred under the head of expenses incurred for medical treatment and
care in India and Australia. However, I find that the amount mentioned
in the bills and receipts, which have been exhibited, is only Rs.1,25,000/
-. Considering the fact that not all bills and receipts may have been kept,
I feel that the expenditure incurred under the head medical treatment and
care in India and Australia ought to be assessed at about Rs. 5,00,000/
- (rupees five lacs) instead of what is claimed in the plaint.
70. With regard to the quantification of damages on account of
physical pain, mental anguish and psychological anguish as well as loss
of education, I feel that the figure of Rs. 50,00,000/- (rupees fifty lacs),
which has been quantified and claimed by the plaintiff, is a reasonable
figure and, therefore, the same ought to be allowed.
71. I am left with quantifying the damages on account of loss of
earnings for the rest of her life. It has come in the evidence of both the
plaintiff as PW1 and her father Mr G. L. Beer (PW2) that under normal
circumstances, the plaintiff would have entered the workforce at the age
of about 21 years. However, because of the incident, her education was
derailed, which she was able to complete much later and that she started
work at the age of 26 years. Thus, there was a clear loss of income for
five years between the ages 21 and 26. Apart from this, the plaintiff has
deposed that on the date of her deposition in 1991 she was earning about
Australian Dollars 30,000 per annum. It has also come in evidence that
had she not suffered the severe handicap of being a quadriplegic, her
income would have been between Australian Dollars 45,000 to 50,000
per annum. It has also been stated in her deposition that because of the
fact that she was a quadriplegic, her work life would, in all likelihood,
not extend beyond the age of 45 years whereas, normally, she would
have worked up to the age of 65 years. Exhibit PW6/1 is a life expectancy
certificate which indicates that in Australia a female born on 24.01.1961
would be expected to live up to the age of approximately 80 years. This
means that once she retires from work, she would have to spend many
years on pension alone which would, according to her testimony, not be
sufficient to enable her to live independently because as per her testimony,
she would also require somebody to provide house-keeping services as
well have a live-in attendant to see to her day-to-day needs. Consequently,
the figure of Rs. 1,30,00,000/- was claimed as damages on account of
loss of earnings for the rest of her life.
72. Assuming that on an average the plaintiff would earn 45,000
Australian Dollars per annum throughout her period of employment, her
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81 82 Susan Leigh Beer v. India Tourism Development Corp. Ltd. (Badar Durrez Ahmed, J.)
total earnings, under normal circumstances, would have been 45,000 x
44 = 19,80,000 Australian Dollars. The period of 44 years has been taken
on the assumption that she would start work at the age of 21 years and
continue to work, under normal circumstances, till the age of 65 years.
She has stated that she was earning 30,000 Australian Dollars and that
she has been working since the age of 26 years and would be expected
to continue to work till she attained the age of 45 years. Thus, during
these 19 years, she would have earned 19 x 30,000 = 5,70,000 Australian
Dollars. Consequently, the loss of earnings would be 14,10,000 Australian
Dollars (19,80,000 – 5,70,000). The said amount converted into Indian
rupees at the exchange rate of Rs. 9 = 1 AUD as prevalent in 1982 would
amount to Rs. 1,26,90,000/- (rounded off to Rs. 1,27,00,000/-). This
amount very closely matches the amount of damages of Rs. 1,30,00,000/
- (rupees one crore thirty lacs) which the plaintiff has claimed in the
present suit. In the result, the plaintiff is entitled to – (i) Rs. 5,00,000/
- (rupees five lacs) on account of expenses incurred towards medical
treatment and care in India and Australia; (ii) Rs. 50,00,000/- (rupees
fifty lacs) towards damages on account of physical pain, mental anguish
and psychological anguish and loss of education; and (iii) Rs. 1,27,00,000/
- (rupees one crore twenty seven lacs) on account of damages for loss
of earnings for the rest of her life. The total sum of which comes to Rs.
1,82,00,000/- (rupees one crore eighty two lacs) as on the date of the
filing of the suit.
73. Thus, the plaintiff is entitled to a decree in the sum of Rs.
1,82,00,000/- (rupees one crore eighty two lacs) along with simple interest
thereon at the rate of 6% per annum w.e.f 22.01.1982 till the date of the
decree and future simple interest on the said amount at the rate of 10%
per annum till its realization. It is decreed accordingly. The formal decree
be drawn up at the earliest.
ILR (2011) VI DELHI 82
CRL. A.
ANIL KUMAR SHARMA @ BOBBY ....APPELLANT
VERSUS
DELHI STATE/NCT DELHI ....RESPONDENT
(S. RAVINDRA BHAT & G.P. MITTAL, JJ.)
CRL. A. NO. : 386/1997 & DATE OF DECISION: 07.03.2011
CRL. A. NO. : 30/1998
India Penal Code, 1860—Section 302/34, 364—Case of
the prosecution that on night of incident, one Chotu
(absconder) went near tent house of PW3 at 9 p.m.
and started urinating—One person (not examined as
witness) objected. Chotu slapped him and left
threatening to “see” him later—Later Chotu returned
at the spot with the two appellants and the three
attacked the deceased—Appellant Anil Kumar held the
deceased by his mouth while appellant Tika Ram caught
hold of him and Chotu hit the deceased with an iron
rod on the head—PW13 and 16 woke up and raised an
alarm on which assailants fled—Trial Court convicted
appellants for offence u/s 302/34—Held, plan or site
map drawn to scale is admissible only if the witnesses
corroborate the draftsman’s statement that they
showed him the places—Unclear if PW 16 could see
the appellants when the deceased was attacked—
From evidence there is no doubt about the presence
of appellants in the assault—To attract common
intention, mere presence of co-accused is not always
sufficient—No universally acceptable formula that in
such instances, the intention to cause death cannot
be attributed to such non-participating co-accused; at
the same time courts has to recognize the need to
exercised caution—Contention of the appellants that
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even if they were present, their common intention to
kill deceased could not be proved beyond reasonable
doubt—Evidence established the presence of accused
and PW13 and PW16 having known them—None of the
witnesses deposed that either appellant was armed—
Appellants not present when earlier quarrel had taken
place—The person with whom, the main assailant Chotu
quarrelled was not examined—He was not present at
spot of occurrence and his connection or relationship
with deceased not proved—Weapon of offence (saria)
not described by witnesses and also not produced—
Description given by PW16 about role played by each
appellant not clear—In view of uncertainty as to role
played by each appellant, it would not be possible to
discern a common intention to cause death of
deceased—It can be inferred that they shared the
intention with the co-accused to cause injury enough
to subdue or take care of the deceased i.e. intention
of causing bodily injury as was likely to cause death
amounting to an offence punishable u/s 304 Part I—
Appeals partly allowed—Conviction u/s 302/34 altered
to one u/s 304 Part I/34.
In the present case, the appellants presence has been
proved. Equally, the fact that PW-13 and PW-16 knew them
has been established. However, none of these witnesses
deposed that either of the appellants were armed. The
quarrel alluded to by the prosecution witnesses was a trivial
one, and crucially, the appellants were not present when it
took place. Puzzlingly, Salam, with whom the main assailant
(Chotu) quarrelled, was not examined. He was not at the
spot of occurrence; his connection or relationship with the
deceased, has not been proved. All that has come on
record is that Tika Ram was known to Chotu. Now, if the
prosecution version’s is to be accepted that the two appellants
had known that Chotu was armed with a deadly weapon, i.e.
a Sariya, one could have understood the intention if the
weapon had been described, since concededly it has not
been produced. PW-16’s description about the role played
by each Appellant is not too clear. Anil, he says, held the
deceased by the mouth; and Tika Ram held his hands. The
deposition suggests that one held him from the front, while
the other held him from the back, and further that Chotu
inflicted the injuries on the face and head. If this is an
accurate description, either the assailant must have faced
the deceased directly, or inflicted the blows, sideways. In
either case, he would have taken care to land the blows with
some precision, since one of the accomplices was holding
the lower part of the deceased’s face. That would, in turn
imply, that the accused was either accurate or that the
weapon was a small and compact one, or both. Now in the
state of all these uncertainties as to the role played by each
of the Appellant, it would not be possible to discern a
common intention to cause death of the deceased Moin.
Their presence is undeniable; under the circumstance, it
can be inferred that they shared the intention with the co-
accused, to cause injury enough to subdue or “take care” of
Moin. Under the circumstances, they can be attributed with
the intention of causing bodily injury as was likely to cause
death, amounting to an offence punishable under Section
304 Part I. (Para 28)
Important Issue Involved: (A) Plan or site map drawn to
scale is admissible only if the witnesses corroborate the
draftsman’s statement that they showed him the place.
(B) To attract common intention, mere presence of co-
accused is not always sufficient the sharing of common
intention has to be specifically proved.
[Ad Ch]
APPEARANCES:
FOR THE APPELLANTS : Mr. Bhupesh Narula, amicus Mr.
Madhav Khurana, Advocate.
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85 86 Anil Kumar Sharma @ Bobby v. Delhi State/NCT Delhi (S. Ravindra Bhat, J.)
FOR THE RESPONDENT : Mr. Lovkesh Sawhney, APP.
CASES REFERRED TO:
1. Ramvir vs. State of U.P.(2009) 15 SCC 254.
2. Prakash vs. State of Madhya Pradesh, 2006 (7) SCC
496.
3. Balbir Singh vs. State of Punjab,(2005) 9 SCC 299.
4. Ramesh Singh vs. State of MP 2004 (110) Cr. LJ. 3354.
5. State of Himachal Pradesh vs. Prem Chand 2002 (10)
SCC 518.
6. Raju Trambak Magare vs. State of Maharastra 2001 (10)
SCC 385.
7. Ramashish Yadav and Ors. vs. State of Bihar; 2000 SCC
(Crl.).
8. Badruddin vs. State of U.P., (1998) 7 SCC 300.
9. Mohd. Sagir vs. The State Cr.A. No. 14/1997.
10. Jagdish Narain vs. State of UP 1996 (8) SCC 199).
11. Smt. Tripta vs. State of Haryana [AIR 1993 SC 948].
12. Dajya Moshya Bhil vs. State of Maharashtra, 1984 Supp
SCC 373.
13. Ram Prasad vs. State of U.P., (1976) 1 SCC 406.
14. Godhu & Anr. vs. State of Rajasthan 1975 (3) SCC 241.
15. Tori Singh vs. State of UP 1962 (1) Cri LJ 469.
16. Ramzan Ali vs. King Emperor 1925 Oudh 322.
RESULT: Appeals partly allowed.
S. RAVINDRA BHAT, J.
1. In these two appeals, the common judgment and order of the
Learned Sessions Judge, dated 18.09.1997, in SC No. 45/96 has been
impugned. The appellants were convicted of the offence punishable under
Sections 302/34 IPC, and sentenced to life imprisonment, and fined
Rs.2,000/-; in default, directed to undergo RI for six months. They were,
however acquitted of the charge under Section 364, IPC.
2. The prosecution had alleged that on the night of 14.07.1994, one
Chotu, who was driving tempo No. DBL 2712, went near Roshan Tent
House (owned by Roshan Lal, PW-3) at around 9:00 PM, and started
urinating by the side of a drum, kept near the tent house. Apparently, one
Abdul Salam objected to this; taking offence, Chotu slapped him, and
left, threatening to “see” him, later. It was alleged that later, around 3:15
AM, Chotu returned to the spot, with two accomplices, i.e. the two
appellants in this case. It was alleged that the trio attacked Mohammed
Moin (“the deceased”). Anil Kumar is alleged to have held the deceased
by the mouth, and Tika Ram had caught hold of him. Chotu is alleged
to have hit the deceased with an iron rod on the head. When others, i.e.
PWs-13 and 16 woke up due to the noise, they raised an alarm, at which
Chotu and the appellants are alleged to have fled the spot, in the tempo,
i.e. DBL 2712. PW-13 and PW-16 allegedly woke up PW-3; he in turn
woke up Sanjay, his son PW-4. The latter two witnesses took the deceased
to Safdarjung Hospital. It was alleged that as soon as this information
was received, a Diary entry was made by the police (Ex. PW2/A) and
sent to SI Subhash Chand. The latter moved an application (marked as
Ex. PW-20/A during the trial) to examine the deceased. The doctors
allegedly refused, stating that he was unfit to make a statement. Mohd.
Moin died later, at about 11 AM, the next morning, i.e. 15.07.1994.
3. After considering the postmortem report, and recording the
statements of various witnesses, as well as making recoveries of material
objects, the police submitted its report, pressing charges against the
appellants and Chotu. The appellant Anil Kumar was arrested shortly
after the death of Mohd. Moin; Tika Ram was arrested on 22.12.1994.
Chotu could not be arrested, and was declared an absconder. The Trial
Court framed charges under Sections 364 and 302/34 IPC. However, it
convicted the appellants of charges only under Sections 302/34. For its
conclusions, the impugned judgment relied mainly on the testimonies of
PWs 13 and 16, as well as PW-3 and PW-4.
4. It is argued on behalf of Anil, the appellant in Cr. Ap. 30/1998,
that the impugned judgment is unsustainable since the Trial Court has
drawn erroneous conclusions about the alleged incident. It is contended
that PW-13, one of the eyewitnesses, did not assign any specific role to
Anil, and even stated that he and Tika Ram were beating the deceased,
an allegation falsified by the MLC and the Post Mortem report, which no
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where corroborate that the deceased had suffered any injury other than
the solitary one on the head, which proved fatal. This clearly conflicts
with the deposition of PW-16. Considering that the witness PW-13 was
also an eyewitness, the conflict about the alleged role of Anil, in the
whole episode results in undermining the credibility of the prosecution
story regarding the nature of the alleged incident, and the assault on the
deceased.
5. Mr. Madhav Khurana, Learned amicus for one of the appellants
submitted that apart from the lack of clarity regarding the role attributable
to the appellants Anil and Tika Ram, the prosecution did not even recover
the weapon of offence, i.e. Sariya, used to inflict the solitary lethal blow.
It was argued that the only armed individual, concededly according to the
prosecution allegations, was Chotu; he never did stand trial as he absconded.
In the absence of recovery of the murder weapon, and the lack of any
motive, on the part of Anil, the impugned judgment erroneously concluded
that he was guilty of the offence punishable under Section 302/34 IPC.
6. It is submitted that the entire role of either appellant is unclear,
and the testimonies of the two so called eye witnesses cannot be relied
upon to convict him, under Sections 302/34 IPC. In this context, it was
submitted that whereas PW-13 says earlier quarrel was between Tika
Ram and Salam, PW-16 deposed that the earlier quarrel was between
Chotu and Salam. In any case, there was no enmity between the deceased
and any of the appellants before the Court. This conflict in the two
eyewitness versions, is significant, because mere presence of the appellants,
as alleged accomplices of Chotu in the absence of any motive, and the
fact that the main assailant did not trial, is insufficient to convince a
criminal court to render a finding of guilt on a charge of murder. Similarly,
learned counsel submitted that PW-13 did not furnish any details about
the roles attributed to either appellant, in the alleged assault on the deceased,
but merely stated that all the accused were beating him. However, PW-
16 stated that Anil was holding him, while Chotu gave the deceased
Sariya blows. It was argued that significantly, the Trial Court did not
consider that in the previous, police version of PW16, there was no
mention of PW-13; he however, improved on this aspect, in the testimony
in court.
7. Learned counsel relied on Godhu & Anr v. State of Rajasthan
1975 (3) SCC 241 to say that once in respect of the charge under
Section 364 IPC, acquittal is recorded, the other facts have to be proved.
The Supreme Court had ruled, in the above decision, as follows:
“We have given the matter our consideration and are of the
opinion that the effect of the acquittal of the two accused for the
offence under Section 364 Indian Penal Code is that in arriving
at the conclusion whether the accused are guilty of the offence
of murder or not, we should proceed upon the assumption that
the prosecution allegation that the accused had forcibly taken
Gheru inside Banwari's baithak has not been substantiated. The
prosecution would have to bring the charge home to the accused
independently of that allegation. If, however, the prosecution
establishes the charge against the accused independently of that
allegation, there would be no legal impediment or infirmity in the
conviction of the accused. It needs also to be emphasised that
the fact that an allegation has not been substantiated does not
necessarily go to show that the allegation is false. An allegation
may be correct and still it may not be substantiated at the trial.
The effect of the acquittal of the accused under Section 364
Indian Penal Code would only be, as already mentioned earlier,
that for the charge of murder the prosecution cannot rely upon
the evidence that the deceased was dragged inside Banwari's
baithak by the two accused…”
Such being the position in law, argued the learned counsel, the prosecution
could not rely on evidence to say that the accused had dragged or
restrained the deceased, and was under an obligation to independently
establish the role of each appellant in the killing of the deceased.
8. It was next argued that the charge of common intention to
murder the deceased, by invoking Section 34, was not proved in this
case, as far as the appellants were concerned. Both eyewitnesses clearly
testified about Chotu’s role as the primary aggressor. In view of the
conflicting testimonies of PWs 13 and 16, who did not state a consistent
story as regards such involvement, the prosecution was unable to establish
common intention. The mere circumstance that they accompanied Chotu
could not be held against them, to conclude that they too had the intention
of participating in a murderous assault on the deceased. Reliance was
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placed on Ram Prasad v. State of U.P., (1976) 1 SCC 406, where it
was held that:
“Facts 1, 2 and 3 do not establish the sharing of any common
intention by the appellants of committing the murder of Ram
Chandra. The knowledge of the appellants as recorded in fact 4
that the lathis would be fully and effectively used in the process
of forcibly occupying the land is not sufficient to establish the
common intention of committing a crime punishable under Section
302. This could be a relevant fact if they would have been 5 in
number and would have formed an unlawful assembly the common
object of which was to forcibly occupy the land. Fact 7 also
does not establish any common intention. Facts 5 and 6 are not
accurately recorded. On the doctor’s evidence Ram Chandra had
only 3 injuries — two injuries on the head caused by lathis and
only one at the buttock. In such a situation it is difficult to
attribute common intention of causing the death of Ram Chandra
to appellants Harbans and Kalwa. There is nothing to indicate
that the appellants had arrived at the scene with a preplanned
common intention of causing the death of Ram Chandra. The
manner of assault as deposed to by the prosecution witnesses
does not necessarily lead to the conclusion that all the four
appellants had developed a common intention at the time of the
occurrence. Giving of two lathi blows by the two appellants who
were armed with lathis did not suffice to show the common
intention of the other two appellants….”
9. Reliance was next placed on Dajya Moshya Bhil v. State of
Maharashtra, 1984 Supp SCC 373, where it was held that:
“If the three shared the common intention to commit murder of
Gunjarya as is now contended obviously Appellants 2 and 3
would not come unarmed. It is admitted by the prosecution that
at that time Appellant 1 was armed with a dharya but Appellants
2 and 3 were unarmed. It would be contrary to common sense
to hold that Appellants 2 and 3 accompanied Appellant 1 with the
avowed object of committing murder of Gunjarya yet came
unarmed. Their intention by this very tell-tale circumstance is
contra-indicated. Let it be made clear here that in order to attract
Section 34 it is not sufficient to prove that each of the participating
culprits had the same intention to commit a certain act. What is
the requisite ingredient of Section 34 is that each must share the
intention of the other. Appellants 2 and 3 though they were in the
company of the Appellant 1 were shown to be unarmed. The
High Court has overlooked this most important circumstance.
11. The next question is as to what offence Appellants 2 and 3
have committed. Even though they came unarmed when they
chased Gunjarya with Appellant 1 who was armed with a dharya
a weapon of cutting and pelted stones, an inference of common
intention being formed on the spur of the moment can be made.
The fact that Appellant 1 was armed with a dharya and Appellants
2 and 3 pelted stones causing injuries may permit an inference
that Appellants 2 and 3 could have shared the common intention
with Appellant 1 of causing grievous hurt to deceased Gunjarya.
Therefore in the circumstances of this case the minimum common
intention that can be attributed to Appellants 2 and 3 is one of
causing grievous hurt with a sharp-cutting weapon like a dharya.
Thus Appellants 2 and 3 are shown to have committed an offence
under Section 326 read with Section 34 of the Indian Penal Code
and they should be convicted accordingly. In the facts and
circumstances of this case each of them must be sentenced to
suffer rigorous imprisonment for 3 years.”
Similarly, counsel relied on Ramzan Ali v King Emperor 1925 Oudh
322 to say that even if the prosecution is said to establish that in the facts
of this case, the appellants were present, they could not be said to have
shared the intention of causing Moin’s death, which could have been
harboured by Chotu, since he alone was armed with a sariya.
10. It was submitted further, that the prosecution has several
infirmities, such as the non examination of Abdul Salam, with whom a
quarrel is supposed to have taken place the night previous to the incident,
as well as two policemen, i.e. Constables Sunil Kumar (the duty policeman
who informed the police station about the admission of deceased to the
hospital), Raj Kumar, who is supposed to have delivered a copy of the
DD to the IO, and the photographer who allegedly photographed the
scene of crime. It was further emphasized that both PW-13 and PW-16
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stated that the deceased was wearing a baniyan (vest) at the time of the
incident; yet the CFSL report Ex. PW-18/H revealed that a shirt was also
sent for blood examination. The prosecution failed to explain how that
shirt was recovered, and did not lead any evidence in that regard. Similarly,
there were discrepancies in regard to the raid – evident from the testimony
of PW-8 who stated that Anil was with the raiding party before the raid,
whereas PW-20 stated that he PW-8 joined the raiding party before
Anil’s arrest. Other discrepancies in the prosecution evidence go to the
effect that though PW-14 and PW-20 stated that the rukka was sent to
police station to get the case registered, PW-16 stated that no policeman
was sent to the Police Station from the hospital. Also, PW-16 stated that
no sketch was prepared on the basis of his information, which is contrary
to the version of PW-6. The amicus, Mr. Khurana, thus argued that
having regard to this state of contradictory evidence, and the absence of
the weapon of attack, as well as the assailant, it was unsafe for the Trial
Court to have convicted the appellants Anil Kumar and Tika Ram.
11. Mr. Bhupesh Narula, learned amicus appearing for Anil Kumar,
adopted the submissions made on behalf of Tika Ram. He relied on the
decision of the Supreme Court reported as Ramvir v. State of U.P.(2009)
15 SCC 254, to say that in this case, the appellants could not be fastened
with criminal liability for murder, based on their common intention, by
application of Section 34, as they were unarmed, and could not be
attributed with constructive intention. It was held, by the Supreme Court,
in the said decision, that:
“18. It was next submitted by the counsel appearing for the
appellants that presence of Appellants 2 and 3 should have been
held to be doubtful. It was submitted by the prosecution that
Appellants 2 and 3 caught hold of the deceased Yashpal whereupon
Appellant 1 gave a knife-blow to the deceased Yashpal which
proved to be fatal. We have analysed the said evidence very
carefully and very minutely and also appreciated the contention
raised on behalf of the counsel for Appellants 2 and 3.
19. The evidence adduced to establish the guilt of Appellants 2
and 3 are that Appellant 1 had come to the place of occurrence
along with a knife in his hand and he came out of nearby bushes
whereas the other two accused came from another place. They
allegedly came out of the field, caught hold of the deceased and
embraced him. If Appellants 2 and 3 were embracing the deceased,
a knife-blow could not have been given in that manner by
Appellant 1 on the chest of the deceased. It is not stated by the
prosecution that the said two Accused 2 and 3 were embracing
him from behind. Nature of the evidence adduced and role ascribed
to them appear to us to be highly improbable. They are, therefore,
entitled to benefit of doubt.
20. The aforesaid attack with the help of the knife pierced through
the lung and went through the chest. All the three appellants are
brothers and apparently there was some rivalry between the two
groups in the village. Considering the facts and circumstances of
the case, we find that the story put up by the prosecution
regarding the role of Appellants 2 and 3 is exaggerated and
improbable.
21. There is no allegation that these two persons i.e. Appellants
2 and 3 were carrying any weapon in their hands. It is also
proved that they were coming to the place of occurrence from
another direction. Therefore, the role ascribed to Appellants 2
and 3 is found to be unbelievable. Their presence at the place of
occurrence is also doubtful and therefore we extend benefit of
doubt so far as Appellants 2 and 3 are concerned.”
12. Counsel also relied on the decision reported as Mohd. Sagir v.
The State (Cr.A. No. 14/1997, decided on 27/10/2009 by a Division
Bench of this court), to the following effect:
“In Ramashish Yadav and Ors. v. State of Bihar; 2000 SCC
(Crl.)9 it was observed that the principle of joint liability in doing
of a criminal act under Section 34 of IPC is essentially based in
the existence of common intention animating the accused leading
to the doing of a criminal act in furtherance of such intention.
The distinct feature was stated to be the element of participation
in action and a pre-arranged plan which is proved either from
conduct or from circumstances or from any incriminating facts.
The Supreme Court went on to observe that :
“It requires a pre-arranged plan and it presupposes
prior concert. Therefore, there must be prior meeting of
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minds. The prior concert of meeting of minds may be
determined from the conduct of the offenders unfolding
itself during the course of action and the declaration made
by them just before mounting the attack. It can also be
developed at the spur of the moment but there must be
pre-arrangement or pre-mediated concert.”
14. In the given facts of the case, the accused persons came and
caught hold of the deceased whereafter the other accused came
with a gandasa and gave blows with it and the same was held
not to form a common intention of all the four accused to cause
death of the deceased.
15. We find substance in the plea of the learned counsel for the
appellant though we have no doubt that there was a common
intention formed on the part of the appellant and Kamruddin
when they visited the deceased at 4 A.M. in the morning and the
appellant caught hold of the feet of the deceased while Kamruddin
hit him with a hard object like a wooden paya of a cot. The
question however remains what was this common intention?
16. In our considered view, from the testimony of the witnesses,
we cannot come to the conclusion that the appellant and
Kamruddin shared a common intention to cause death of the
deceased.
17. The role assigned to the appellant is that he held the feet of
the deceased while his co-accused Kamruddin hit the deceased
with a rod or a “paya”. In the absence of user of a dangerous
weapon like knife, pistol or a katta etc., which would normally
be used in such a situation where there is an intention to cause
death of a person, at best what can be inferred from the evidence
is that the appellant shared a common intention with his co-
accused Kamruddin to cause grievous injury to the deceased.”
13. Mr. Narula also relied on the judgment of the Supreme Court,
reported as Balbir Singh v. State of Punjab,(2005) 9 SCC 299, and
Badruddin v. State of U.P., (1998) 7 SCC 300 to the same effect. In
Balbir Singh, it was observed that:
"8. Coming to the nature of the offence committed by the
appellants, there is evidence to the effect that the appellants only
wanted to teach a lesson to Tara Singh. They were aggrieved by
the fact that deceased Tara Singh had purchased the agricultural
land which they expected to get from Gurdial Kaur. Two of the
assailants were armed with axes, but they did not use the sharp
edge of those weapons and the injuries sustained by deceased
Tara Singh would show that there were no deep penetrating
injuries….Appellants Gora Singh and Balbir Singh are not alleged
to have caused any fatal injury to the deceased Tara Singh. Gora
Singh, though armed with a “kulhari” (axe), used the blunt portion
of that axe. Sikandar Singh was armed with a “sotti” (wooden
stick). He caught hold of deceased Tara Singh to enable the
other assailants to cause injury to him and Sikandar Singh himself
gave sotti-blows on the back of the deceased which resulted in
causing fracture of the ribs and, in turn, piercing of the lung
tissues of the deceased Tara Singh. There is no dispute that
these injuries were caused on Tara Singh. It is clear that Sikandar
Singh dealt the fatal blows which ultimately resulted in the death
of the deceased. If the entire prosecution evidence is considered
in the background of the so-called motive alleged, it is very
difficult to discern that these appellants had any common intention
to cause the death of the deceased. The sotti-blows dealt on the
back of deceased Tara Singh proved fatal causing fracture of
ribs which pierced his lung tissues.
9. On careful analysis of the prosecution evidence and the role
played by each one of the appellants, we are of the view that the
evidence does not show that these appellants shared a common
intention to cause the death of the deceased. However, appellant
Sikandar Singh caused injuries on deceased Tara Singh which
proved to be fatal at the end. The act committed by Sikandar
Singh would come within the offence punishable under Section
304 Part I IPC as he could be attributed with the knowledge that
the injury caused by him is likely to cause death. The grievous
injuries caused by other appellants, namely, Gora Singh and Balbir
Singh, would fall within the mischief of Section 326 IPC."
Similarly, in Badruddin it was held that:
“4. The High Court noted that the relations between the deceased
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and the others were strained on account of a dispute with regard
to “sahan” (open yard) of the Mosque of Shah Bhukhari and that
after Friday’s prayer, there was some altercation between the
two groups; the one consisting of the said four persons and the
other consisting of the deceased and PW 1. Thereafter, the
appellant and the said three persons came armed with a knife and
lathis, as noted above, surrounded the deceased near his door
while Nizamuddin dealt blows to him with a knife, Siddiqui beat
him with lathi. PWs 3 and 5 stated that the appellant, Hafiz and
Siddiqui inflicted blows on the said three eyewitnesses with lathis.
From the above facts, it is difficult to sustain the conclusion that
there was common intention between the appellant and other
persons to kill the deceased. Though establishing common
intention is a difficult task for the prosecution, yet, however
difficult it may be, the prosecution has to establish by evidence,
whether direct or circumstantial, that there was a plan or meeting
of mind of all the assailants to commit the offence, be it
prearranged or on the spur of the moment but it must necessarily
be before the commission of the crime. Where direct evidence
is not available, it has to be inferred from the circumstantial
evidence. In the instant case, it is stated that the deceased alone
was assaulted by Nizamuddin with a knife and Siddiqui with a
lathi. The appellant dealt blows with a lathi not to the deceased
but to other witnesses. There is no direct evidence of common
intention. There is no case nor evidence of exhortation by him
or of the fact that with a view to keep the said witnesses away
from interfering and to facilitate Nizamuddin to kill the deceased,
the appellant assaulted the said witnesses. Having regard to the
facts and circumstances of the case, it is not possible to arrive
at the conclusion that the appellant and others shared common
intention to kill the deceased Shaukat Ali. Consequently, we are
unable to sustain the conviction of the appellant for the offence
under Sections 302/34 IPC. However, on the facts, we confirm
the conviction and sentence under Sections 323/34 IPC awarded
by the courts below. As the appellant has already served out the
sentence for the offence convicted, therefore, he is directed to
be released forthwith unless he is required to be detained in any
other case. The appeal is accordingly allowed…”
It is submitted that the prosecution has not proved that Anil had gone to
the spot, at the relevant time, along with the other accused and the
prosecution has also not proved the recovery of tempo and Anil Kumar’s
arrest. In the circumstances, his conviction is unsustainable, and has to
be set aside.
14. Mr. Lovkesh Sawnheny, the learned APP, submitted that the
testimonies of the two eyewitnesses showed that the deceased was sleeping
when he was attacked by the accused; and at that time three persons
came to the site. One was armed with a Sariya. That indicated
preparedness. Though the two eyewitnesses did not attribute any overt
attack to the two appellants before the court, yet their action in restraining
the victim and gagging him, shows intention to fatally injure a helpless
target. Here, stressed the APP, premeditation implied the element of
surprise, due to night attack, to eliminate resistance. The appellants were
aware that their co-accused was armed with a Sariya, with the necessary
intention to launch a murderous assault. Further, there was a single blow,
which was lethal, and was inflicted on a vital part of the victim’s body.
All these disclosed a planned and calculated attack. The appellants Anil
Kumar and Tika Ram went together with this intention, with Chotu; in
the dead of the night. They had seen the Sariya; therefore, submitted the
APP, it was idle for them to argue or fall back on ignorance about the
true intent of the assaulter, who inflicted the lethal blow.
15. It was argued next that the definition of “Murder” in Section
300 (3) and (4) aptly describe the facts of the present case, and the
mental status of the appellants. The said provisions read as follows:
“300 MURDER.
(1) Except in the cases hereinafter excepted, culpable homicide
is murder…
................. .................
(3) If it is done with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death, or
(4) If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such
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bodily injury as is likely to cause death, and commits such act
without any excuse for incurring the risk of causing death or
such injury as aforesaid…:
The APP argued that when the appellants accompanied Chotu, they had
seen the Sariya. This showed their awareness. The deadly nature of the
weapon, eliminates any intention other than the one to kill. It was further
contended that the circumstances in this case disclose the common
intention of all the accused, who went armed to the deceased. The time,
3:15 AM was crucial, as it was the time to catch someone sleeping and
defenseless. In these circumstances, knowledge and intention to kill Moin
had to be imputed to the accused appellants.
16. It was urged that PW13 and PW16 were natural witnesses;
they informed the owner of the tent shop, PW-3 and his son, PW-4. The
removal of the injured to hospital, and recording of statement by police,
indicate an integrally connected chain of events. The timing of the rukka
indicated that there was no scope of maneuvering, or cooking up a story.
The assault took place at about 3:15 AM or so, and the injured was
rushed immediately to the hospital. There, the rukka was prepared, and
sent at 4:40 AM. In the circumstances, the testimonies of PW-13 and
PW-16 about Chotu carrying the weapon as well as presence of the two
appellants, is credible. The nature of weapon used, is corroborated by
medical evidence. In addition to the fatal blow, there are bruises in the
eye of the deceased. It was lastly urged that the court cannot be swayed
by minor discrepancies in the testimonies of witnesses, particularly if
they had seen the incident, and that motive (or the lack of it) in such
cases, assumes a secondary position. The APP argued that the shirt
recovered and sent to CFSL, was not used as a circumstance by the trial
judge, to convict the appellants.
17. In this case, the post-mortem report (PW-9/A) discloses the
following injuries, on the deceased’s person, and their cause:
“ The following external injuries were found on the dead body:
1. Right eye was black
2. lacerated wound of size 4x 0.2 x 1 cm present on the
interior part in the midline on top of head. It is
anteroposteriorly placed. Its interior end was 10 cm above
the bridge of nose.
The following internal injuries were found on the dead
body:
1. Effusiol on blood was found in the interior half of the
scalp. Suture separation fracture was present in the
coronal suture. It is present throughout its length. Thick
subdural, haematoma was present all over cerebral
hemisphere.
2. Contuion haemotoma was present on the outer surface
of right temporal lobe. Brain stem haemorrhage was
present. Weight was 1450 gm, oedematus.
Time since death was about 22 hours. The cause of death was
head injury following blunt force impact. Injury no.2 was sufficient
to cause death in the ordinary course of nature. Blood/blood
gauze/ clothes were sealed and handed over to the police.”
18. In the present case, the main witnesses relied on by the
prosecution and the Trial Court are PW-13 and PW-16. PW-13, Mohd.
Manzoor deposed that at about 3.50 he was woken up by some noise and
he saw that Tika Ram, Anil Kumar and Chotu were beating the deceased
(Mohd. Moin). He raised an alarm and these three fled in tempo No.
2712. Tarbaz (PW-16) went and woke up Sanjay (son of the owner) and
he, alongwith Tarbaz and Roshan Lal (owner of tent house) took deceased
to the hospital. He went to the hospital later on and then came back to
the spot with the police. He says that earlier Tika Ram had quarrelled
with another tent house worker, i.e Salam. On cross examination he said
that there were 10-20 other tent house employees, sleeping on the road.
He claimed to be employed in Roshan Tent House since 1984, and also
deposed that PW16 and Salam were working in that tent house for about
7-8 years prior to the day of the incident. He claimed to know accused
Anil Kumar, since he had worked in Roshan Tent House for 2 years but
did not know about Tika Ram and Chotu’s employment. According to
him the distance between where he was sleeping and the place of
occurrence was 30 meters. He did not know, from which portion of the
body Moin was bleeding but knew there was swelling in his eye. . He
reached the hospital at about 4 AM. The Police had recorded his statement
at Roshan Tent House at about 7 AM on the day of the incident. The
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Police met him in the hospital at about 3.15 AM and he was there for
about one hour and then from there went to the house of accused Anil
Kumar with two police officials.
19. PW-16 Tabrez deposed that on 14.07.94 at about 9 PM Chotu
Ram came in Tempo No. DBL 2712 and started urinating in front of the
Tent house, which was objected to, by Salam. Chotu slapped Salam and
threatened him that he would “see” him later on. Then at around 3.15
AM he heard some noise and woke up and saw that Anil Kumar had
pressed the mouth of deceased and Tika Ram had caught hold of Moin
(the deceased) and Chotu gave a blow on the head of deceased (with an
iron rod) and hit him other parts of the body as well. He raised an alarm
at which the accused fled from the spot in Tempo No. DBL 2712. As
per his statement Manzoor too (PW13) woke up. He then went and woke
up the owner and his son and they took the deceased to Safdarjung
Hospital. Police officials came to the hospital and recorded his statement
and later he, along with the police went to the spot. The police seized
a blood stained road metal, sample road metal and shirt. At about 2:45PM
two police officials came and informed, that accused Anil Kumar was in
his house and therefore they went there. Anil Kumar was arrested and
his personal search memo was drawn in his presence. PW-16 says that
he had been working at the Tent House for the past one year and that
Manzoor was working prior to that. The deceased had joined work about
two months prior to him. On cross examination he said that Manzoor
was sleeping in a Tempo and that the place of incidence was about 10
paces from where he was sleeping. He deposes that police officials had
come along with him to the spot at about 7 AM and stated that no police
official was sent to the police station from the hospital. He went on to
say that he had mentioned to the police about the shirt that was found
at the spot was the one that Anil Kumar had pressed the mouth of the
deceased with. However in the cross examination, he admitted that in the
previous statement at Ex.PW16/A, there was no mention of such detail.
He said that the deceased was unconscious and bleeding a lot from his
head. He states that when the shirt was seized from the spot there were
some members of the public present, none of whom were joined at the
time of seizure of the shirt or at the time of arrest of the accused Anil
Kumar.
20. PW 20 Subhash Chander, deposed to, on receiving DD No. 20
A, going, along with Const. Ram Dutt, to Safdarjung Hospital. He was
not permitted to record statement of Moin as doctors said he was not
fit to give statement. He recorded the statements of PW 3, PW 4, PW
13, and PW 16 at the Hospital. He then sent the rukka through a constable
to get the case registered. Then later, he, along with Constable Ram Dutt
and PW 4 and PW 16 came to the spot and got the scene photographed.
He prepared the site plan at the pointing out of PW 16. He also seized
from the spot, blood stained road metal, sample road metal and one shirt
found lying at the spot Ex. P-1 through Memo Ex. PW4/C. He then
formed a raiding party in which Rajeev (PW8) also joined, and went to
accused Anil’s house and arrested him. Thereafter, on the pointing out
of Anil, Tempo No. 2712 was seized from behind the NDSE-I petrol
pump. Further, in cross examination he stated that accused Anil was
arrested at the pointing out of PW-16. He further deposed that PW-16
had not disclosed that Anil had thrown a shirt at the spot and neither had
he disclosed the colour or the description of the shirt seized from the
spot. He said that no witness had mentioned to him about Tika Ram
wearing a shirt. He agreed that no public person was asked to join, (even
though some were present) when the shirt was seized.
21. PW-3 Roshan, the tent owner where PW-13 and PW-16 worked,
corroborated their versions, to the extent of being woken up after the
assault on the deceased; he deposed to having been informed about the
attack, and having taken the deceased, in an injured condition, to the
Safdarjung hospital, in the early hours of the morning, along with his
son, Sanjay (PW-4). PW-4 Sanjay supported the deposition of his father
about the details of the attack, learnt by both of them, from their
employees, and having taken the injured to the hospital. He also supported
the prosecution story about recoveries made. Both PW-3 and PW-4
mentioned that Anil Kumar had worked with them for some time earlier;
they were able to identify him.
22. From the above discussion, it is apparent that the deceased was
attacked at about 3-15 AM in the night intervening 14/15.07.1994. The
prosecution had urged that there was some petty quarrel, the cause of
which was Chotu, (who was driving tempo No. DBL 2712) going near
Roshan Tent House (owned by Roshan Lal, PW-3) at around 9:00 PM,
and urinating nearby. It was alleged that one Abdul Salam objected to
this. Chotu took offence, slapped him, and left the place threatening to
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“see” him (cause Salam harm), later. According to PW-13, the deceased
was beaten by Chotu, Anil Kumar and Tika Ram. PW-16 stated that Anil
Kumar held the deceased by the mouth, whereas Tika Ram restrained his
hand, and Chotu attacked him with a Sariya. PW-13 witnessed the incident
from a Tempo, in which he had been sleeping, and woke up at the
commotion, and from a distance of about 30 meters from the spot. PW-
16 claims to have witnessed the incident about 20 paces from the place
of occurrence. No doubt, PW-16 did not mention about the presence of
PW-13 in the statement under Section 161 CrPC recorded by the police.
However, what is common in the depositions of the two witnesses is that
they identified both the appellants, whom they knew. No suggestion was
put to them about adequacy or otherwise of light or conditions of visibility,
which means that there is no dispute that they could have seen and
identified the attackers at that hour. Furthermore, a reading of the rukka,
which records the earliest version, discloses that it was dispatched at
4:40 AM. It corroborates the time of attack, by showing it to be 3:15
AM. Initially, the police had registered a case under Section 307 IPC;
Moin’s statement was sought to be recorded. However, the doctor
attending him at the time, declined permission, as he was medically unfit
to make a statement. The statement of PW-16 was recorded then. In
material particulars, what was recorded then was deposed to by him. No
doubt, in that statement, PW-16 did not mention about the rukka being
sent to the police station. However, in the circumstances, that is an
inconsequential detail, since such witnesses may not be expected, normally
to notice or discern such minute facts.
23. PW-16 does not mention, in his deposition, about the presence
of PW-13. Now, although a sketch PW-20/D was sought to be placed
on record, and deposed as having been prepared by PW-20 after
consultation with PW-16 (according to the document, on 15.07.1994),
PW-16 contradicted that version and stated that a sketch was prepared
with his assistance by a draftsman about 2-3 months after the incident.
If that is correct, PW20/D has no evidentiary value, as it is hit by Section
162, Cr. PC. Such a plan or site map drawn to the scale is admissible
only if the witnesses corroborate the draftsman’s statement that they
showed him the places. (Ref. Tori Singh v. State of UP 1962 (1) Cri
LJ 469; State of Himachal Pradesh v. Prem Chand 2002 (10) SCC
518; and Jagdish Narain v. State of UP 1996 (8) SCC 199). Therefore,
it is unclear where PW-13 was sleeping, and whether PW-16 could spot
him at the time when he saw the deceased being attacked.
24. As regards the contradictions sought to be made out by the
appellants counsel regarding the recoveries, or the place and time of
Anil’s arrest the identity of the shirt, and so on, are concerned, they
cannot be termed major discrepancies which can amount to reasonable
doubts about the prosecution version regarding the presence and identity
of the appellants. Therefore, there cannot be any doubt about the presence
and due identification of the appellants in the assault upon the deceased
Moin, by Chotu.
25. It would now be necessary to consider whether the prosecution,
which has successfully proved the presence and identity of the appellants
before the court, was able to prove that they had the common intention
with the aggressor, so as to be criminally responsible for murder. Here,
the contradictions between the versions of PW-13 and PW16 become
important. It is clear enough from PW-16’s evidence that none of the
appellants before the court were armed. They were accomplices, alleges
the prosecution, which also points out at Section 300 (4) IPC, stressing
that they had accompanied one armed with a deadly weapon, which
could have been used only for one purpose, in the dead of the night.
While that contention sounds attractive, the court is also mindful that in
order to attract criminal responsibility, mere presence of the co-accused
is not always sufficient. Section 34 IPC, in cases involving single blow
by an accused, to fasten guilt for murder on co-accused, has engaged
the attention of courts on several occasions. While there is no universally
acceptable formula that in such instances, the intention to cause death
cannot be attributed to such non-participating co-accused, at the same
time, courts have to recognize the need to exercise caution.
26. The rationale for fixing joint responsibility on a co-accused
who does not participate in the actual attack, but might play a covert
role, or might even be a mere by stander, was explained by the Supreme
Court, in the following words, in Ramesh Singh v. State of MP 2004
(110) Cr. LJ. 3354:
“As a general principle in a case of criminal liability it is the
primary responsibility of the person who actually commits the
offence and only that person who has committed the crime can
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be held to guilty. By introducing Section 34 in the penal code
the Legislature laid down the principle of joint liability in doing
a criminal act. The essence of that liability is to be found in the
existence of a common intention connecting the accused leading
to the doing of a criminal act in furtherance of such intention.
Thus, if the act is the result of a common intention then every
person who did the criminal act with that common intention
would be responsible for the offence committed irrespective of
the share which he had in its perpetration. Section 34 IPC
embodies the principles of joint liability in doing the criminal act
based on a common intention. Common intention essentially being
a state of mind it is very difficult to produce direct evidence to
prove such intention. Therefore, in most cases it has to be
inferred from the act like, the conduct of the accused or other
relevant circumstances of the case. The inference can be gathered
by the manner in which the accused arrived at the scene, mounted
the attack, determination and concert with which the attack was
made from the nature of injury caused by one or some of them.
The contributory acts of the persons who are not responsible for
the injury can further be inferred from the subsequent conduct
after the attack. In this regard even an illegal omission on the
part of such accused can indicate the sharing of common
intention. In otherwords, the totality of circumstances must be
taken into consideration in arriving at the conclusion whether the
accused had the common intention to commit an offence of
which they could be convicted. (Noor Mohammad Yusuf
Momin, AIR 1971 SC 855) (1971 Cri LJ 793 : AIR 1971 SC
885).”
27. In this case, the appellants have relied on several judgments of
the Supreme Court, and of this court, to contend that even if they were
present, their common intention to kill the deceased could not be proved
beyond reasonable doubt. The authorities cited by them undoubtedly
support such a proposition. Similarly, in Smt. Tripta v. State of Haryana
[AIR 1993 SC 948] the deceased died after some time of the attack. A
lacerated wound on the left side of scalp was found. The appellant went
to him (the deceased) to question as to why he had transferred his lands.
It was held that the deceased’s response must have irked her, and the
main accused started assaulting him (the deceased). Having regard to the
role played by the appellant, it was held that no case under Section 302/
34 was made out as she had no role to play in causing injuries to other
persons present there, although the main accused had assaulted them. In
Prakash v. State of Madhya Pradesh, 2006 (7) SCC 496, where the
accused, one of the four assailants of the deceased, had hit him on the
leg, and one of the others had inflicted a single fatal blow on the head,
as in the present case, the Supreme Court held that common intention to
cause injury of the kind punishable under Section 304 Part I had been
proved. Likewise, in Raju Trambak Magare v. State of Maharastra
2001 (10) SCC 385 two important facts which weighed with the court
in concluding that the two appellants before the Supreme Court did not
share the common intention of the assailants, to kill the deceased, was
that though their role in dragging him (deceased) was established, it was
unclear from the evidence how they beat him, and further that they were
unarmed, and could not have known that the other two accused would
have inflicted fatal injuries which caused death. In Dajya Moshya Bhil
(supra) the Supreme Court refused to uphold a conviction under Section
302, by attributing common intention, and found that their presence in
the scene of crime was established, but their being unarmed, and no
proof having been led about the injuries inflicted upon the deceased, and
lastly, the absence of motive or common intention, (because of their
absence at the time, in relation to an insult, which was allegedly given
to the principal accused) resulted in their diminished criminal liability. The
conviction was therefore, altered from Section 302 to 326, IPC.
28. In the present case, the appellants presence has been proved.
Equally, the fact that PW-13 and PW-16 knew them has been established.
However, none of these witnesses deposed that either of the appellants
were armed. The quarrel alluded to by the prosecution witnesses was a
trivial one, and crucially, the appellants were not present when it took
place. Puzzlingly, Salam, with whom the main assailant (Chotu) quarrelled,
was not examined. He was not at the spot of occurrence; his connection
or relationship with the deceased, has not been proved. All that has come
on record is that Tika Ram was known to Chotu. Now, if the prosecution
version’s is to be accepted that the two appellants had known that Chotu
was armed with a deadly weapon, i.e a Sariya, one could have understood
the intention if the weapon had been described, since concededly it has
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not been produced. PW-16’s description about the role played by each
Appellant is not too clear. Anil, he says, held the deceased by the mouth;
and Tika Ram held his hands. The deposition suggests that one held him
from the front, while the other held him from the back, and further that
Chotu inflicted the injuries on the face and head. If this is an accurate
description, either the assailant must have faced the deceased directly, or
inflicted the blows, sideways. In either case, he would have taken care
to land the blows with some precision, since one of the accomplices was
holding the lower part of the deceased’s face. That would, in turn imply,
that the accused was either accurate or that the weapon was a small and
compact one, or both. Now in the state of all these uncertainties as to
the role played by each of the Appellant, it would not be possible to
discern a common intention to cause death of the deceased Moin. Their
presence is undeniable; under the circumstance, it can be inferred that
they shared the intention with the co-accused, to cause injury enough to
subdue or “take care” of Moin. Under the circumstances, they can be
attributed with the intention of causing bodily injury as was likely to
cause death, amounting to an offence punishable under Section 304 Part
I.
29. In view of the above findings, the two appeals, Crl. A. No. 386/
1997 and Crl. A.No. 30/1998 are partly allowed; the appellants’ conviction
under Section 302/34 is altered to one under Section 304 Part I, read
with Section 34. The appellants shall undergo rigorous imprisonment for
7 years; the sentence of fine, is, however not disturbed.
30. The appellants shall appear before the trial Court after two
weeks on 22.03.2011 and continue remainder of sentence, if any.
ILR (2011) VI DELHI 106
WP(C)
RAJESH KR. CHATURVEDI ....PETITIONER
VERSUS
UNION OF INDIA & ORS. ....RESPONDENTS
(PRADEEP NANDRAJOG & SURESH KAIT, JJ.)
WP(C) NO. : 1270/1998 DATE OF DECISION: 15.03.2011
Constitution of India, 1950—Article 226—Writ Petition—
Railway Protection Force (RPF) Rules, 1987—Service
Law—Petitioner constable in RPF attached with a
detachment deployed at railway station for static guard
alongwith ten others under the command of one head
constable—Deceased Naik Amarjeet Yadav was
murdered at railway station allegedly by petitioner—
Petitioner annoyed with deceased and had an argument
with him—For that reason fired three rounds from his
service rifle at the deceased resulting in instantaneous
death—FIR registered by police u/s 302 IPC against
petitioner—In preliminary inquiry, allegations proved—
Disciplinary authority dismissed petitioner from service
stating that not reasonably practicable to hold a
departmental inquiry—In Appeal, order of disciplinary
authority set aside and regular departmental inquiry
ordered on the charges of gross remissness and
negligence in discharge of duty, willful breach of
discipline and serious misconduct—He was kept under
suspension during the pendency—Charges proved
against him—Again dismissed from service by
disciplinary authority—Filed appeal against the order
before Appellant Authority—During the pendency of
appeal, acquitted by the court due to lack of
evidence—Transpired that all witnesses examined in
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Indian Law Reports (Delhi) ILR (2011) VI Delhi107 108Rajesh Kr. Chaturvedi v. Union of India (Pradeep Nandrajog, J.)
the departmental inquiry not produced in criminal
trial—Represented to the Appellate Authority in view
of acquittal relating to the same incident the
punishment in departmental inquiry be set aside—
Appeal dismissed being time barred—Filed revision
before revisional authority—Revision dismissed—
Preferred writ petition—Contended, in view of the fact
that he has been acquitted in the criminal proceedings
based on same set of allegations which constituted
the gravamen of departmental proceedings the order
of Discriptionary Authority should be quashed—Further
contended that he could not participate in disciplinary
proceedings since he was not paid subsistence
allowance—Held—Departmental inquiry and criminal
proceedings operate in their distinct and mutually
exclusive jurisdictional areas—In a disciplinary
proceedings the area of investigation covers the field
of (a) enforcement of discipline (b) level of integrity
(c) misconduct pertaining to devotion towards duty—
In criminal proceedings the area of investigation
covers the culpability from the point of view of criminal
law—Standard of proof in the two proceedings are
different—In the former, it is preponderance of
probability and in the latter beyond reasonable doubt—
Rule of Evidence Act applicable in the criminal trial;
not applicable in the disciplinary proceedings wherein
any material having logical probative value to prove
or disprove the fact in issue relevant and admissible—
In the case in hand, the scope of departmental inquiry
covering disciplinary aspect wider and different and
accordingly the acquittal of the petitioner in the criminal
proceedings has no effect on the punishment of
dismissal from service imposed on him in the
departmental proceedings—Further requirement of
furnishing a non-employment certificate by the
suspended employee to draw his subsistence
allowance granted on monthly basis to the employee
to sustain himself—If the suspended fails to submit
the certificate, he cannot complain about not getting
the subsistence allowance—Writ Petition Dismissed.
To summarize the legal position, honorable acquittal in the
criminal case is not conclusive in regard to the order of
punishment imposed upon the delinquent officer in a
departmental proceeding in every case and the same
depends upon the fact situation involved in a given case.
The criminal and departmental proceedings operate in their
own distinct and mutually exclusive jurisdictional areas. In a
disciplinary proceeding, the area of investigation covers the
field of (a) enforcement of discipline, (b) level of integrity,
and (c) misconduct pertaining to devotion of duty. In criminal
proceedings, the area of investigation covers the culpability
from the point of view of criminal law. Standard of proof in
the two proceedings is entirely different. In the former it is
“preponderance of probabilities”, in the latter, it is “proof
beyond reasonable doubt”. In a criminal trial, the only
evidence admissible is that which is admissible under the
provisions of the Evidence Act. A tribunal conducting an
enquiry in a disciplinary proceeding is not bound by the
rules of evidence. Any material which has a logically probative
value to prove or disprove the facts in issue is relevant and
admissible. (Para 36)
Important Issue Involved: (A) The acquittal in the criminal
case on the same allegations does not entitle the delinquent
employee exoneration from the disciplinary proceedings.
(B) Departmental inquiry and criminal proceedings operate
in their distinct and mutually exclusive jurisdictional areas in
a disciplinary proceedings the area of investigations covered
the field of (a) enforcement of discipline (b) level of integrity
(c) misconduct pertaining to devotion of duty; in criminal
proceedings the area of investigations covers the culpability
from the point of view of criminal law.
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109 110Rajesh Kr. Chaturvedi v. Union of India (Pradeep Nandrajog, J.)
(C) Standard of proof in the two proceedings are different
- in the former it is preponderance of probability and in the
latter beyond reasonable doubt.
(D) Rule of evidence act applicable in the criminal trial not
applicable in the disciplinary proceedings wherein any material
having logical probative value to prove or disprove the fact
in issue is relevant and admissible.
[Gu Si]
APPEARANCES:
FOR THE PETITIONER : Mr. Sumeet Sharma, Mr. Harsh Lata
Vats, Advocates for Mr. Prashant
Bhushan, Advocate.
FOR THE RESPONDENTS : Dr. Ashwani Bhardwaj, Advocate.
CASES REFERRED TO:
1. Captain M. Paul Anthony vs. Bharat Gold Mines Ltd
(1999) 3 SCC 679.
2. Ghanshyam Das Shrivastav vs. State of M.P. (1973) 1
SCC 656.
RESULT: Writ Petition Dismissed.
PRADEEP NANDRAJOG, J.
1. On 20.06.1984 the petitioner was appointed as a Constable in
Railway Protection Special Force (hereinafter referred to as “RPSF”). In
the year 1990 the petitioner was attached with detachment of E Coy of
7th Battalion, RPSF, which detachment took over the static guard of
Malsian-Shahkot railway station outpost (herein after referred to as the
“Railway Station”) with effect from 29.06.1990. It be noted here that
following persons attached with the detachment were deployed at the
railway station for static station guarding duty under the command of HC
Rup Singh Bardloi: (i) petitioner; (ii) Naik Amarjit Yadav (herein after
referred to as the deceased); (iii) Naik Govind Shah; (iv) Naik Indresh
Prasad Yadav; (v) Naik Sher Singh; (vi) Const.Sat Pal Singh; (vii)
Const.Birsa Torpo; (viii) Const.Ram Pratap; (ix) Const.Ram Lakhan and
(x) Cook B.B.Ghose.
2. On 08.07.1990 the deceased Nk.Amarjit Yadav was murdered at
the railway station. It was alleged by the other members of the detachment
that the petitioner was annoyed with the deceased as he had an argument
with him due to which reason he fired three rounds from his service rifle
at the deceased which resulted in the instantaneous death of the deceased.
On the said basis, the police registered an FIR No.119/1990 under Section
302 IPC against the petitioner.
3. Inspector Ram Sanehi, Coy Commander of the said detachment,
conducted a preliminary inquiry into the incident during which he recorded
the statements of the members of the detachment. In his report dated
14.07.1990 Inspector Ram Sanehi opined that HC Rup Singh Bardloi,
Naik Sher Singh, Const. Sat Pal Singh and Const.Birsa Torpo had fabricated
a false story and concealed true facts with respect to the role played by
them in preventing the incident and in apprehending the petitioner after
he had murdered the deceased. It was further opined by Inspector Ram
Sanehi that the said persons had shirked from their responsibility inasmuch
as they did not take adequate steps in preventing the incident of the
murder of the deceased and apprehending the petitioner and thus
recommended a departmental action to be taken against them in said
regard. As regards the petitioner, he prima facie opined a case being
made out to proceed against the petitioner in a departmental inquiry.
4. Thereafter the department issued a charge sheet to the petitioner
which reads as under:-
“Gross remissness and negligence in the discharge of duty, willful
breach of discipline and serious misconduct in that Constable
Rajesh Kumar Chaturvedi:-
1. On 8.7.90 at about 21/30 hours, while on guarding duty at
Malsian-Shahkot Railway Station in Punjab he engaged himself in
hot discussion using filthy language with Naik Govind Shah and
subsequently with Naik Amarjit Yadav on his objection and created
ugly scene.
2. He misused the arms and ammunitions issued to him for
safety and security purposes, by opening 3 rounds fire on NK
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Amarjit Yadav, without any reasonable cause, which resulted
into death of the Naik on the spot on 8.7.90 at about 21/30
hours.”
5. Vide order dated 02.11.1990, the Disciplinary Authority held that
it is not reasonably practicable to hold a departmental enquiry against the
petitioner as he is charged with an offence punishable with death and that
the evidence of the members of the detachment present at the railway
station at the time of the occurrence establishes the charges leveled
against the petitioner and inflicted the punishment of dismissal of service
upon the petitioner.
6. Aggrieved by the order dated 02.11.1990 passed by the
Disciplinary Authority, the petitioner filed an appeal under Rule 212 of
Railway Protection Force Rules, 1987 (hereinafter referred to as the
“Rules”) before the Appellate Authority. Holding that the view taken by
the Disciplinary Authority that it is not reasonably practicable to hold a
departmental enquiry against the petitioner as he is charged with an
offence punishable with death is fallacious, vide order dated 19.02.1992,
the Appellate Authority allowed the appeal filed by the petitioner. It was
directed by the Appellate Authority that the petitioner be reinstated in
service but placed under suspension as he is involved in a case registered
in respect of an offence punishable under Section 302 IPC and that the
department may initiate fresh departmental proceedings against the
petitioner.
7. Vide Office Order No.7Bn/E/PF/CT-RKC/92-2164 dated
09.06.1992 issued by the Competent Authority, the petitioner was placed
under suspension with effect from 09.06.1992. On the same date i.e.
09.06.1992 the department issued another office order, the relevant portion
whereof reads as under:-
“The Head quarters of constable Rajesh Kumar Chaturvedi of ‘E’
coy No.7Bn/RPSF/Lumding, who has been placed under vide
Order No.7Bn/E/PF/CT-RKC/92-2164 dated 9.6.92, is fixed at
No.7Bn/RPSF/Lumding for all purposes.
He will draw subsistence allowance during the period of
suspension in terms of Rule-2014 Indian Railway Establishment
Manual to an amount equal to the leave salary which he was
drawn if he had been on leave on half average pay or on half pay
ˇand in addition, dearness allowance on the basis of such leave
salary.
No payment of subsistence allowance will be charged unless
he submit certificate by 15th of the month that he is not engaged
in any other employment, business, profession or vocation.
He will not leave the Bn/HQ/Lumding without permission and
will give his attendance at Bn. HQ Roznamcha daily at 8.00 hrs,
14.00 hrs and 20.00 hrs. He will also attend all normal and
surprise roll calls and fire alarms” (Emphasis Supplied)
8. Vide Office Order No.7Bn/E/DAR/MAJ/J/92-2283 dated
23.06.1992 the department issued a fresh charge sheet to the petitioner
for initiation of departmental proceedings under Section 9(1) of Railway
Protection Force Act, 1957 read with Rule 153 of Railway Protection
Force Rules, 1987 against the petitioner. The charges framed against the
petitioner read as under:-
“Gross remissness and negligence in the discharge of duty, willful
breach of discipline and serious misconduct in that Constable
Rajesh Kumar Chaturvedi:-
1. That on 8.7.90 at about 21.30 hrs while on station guarding
duty at Malsian Shah Kot (Punjab) with Arms and Ammunition
engaged himself in hot discussion by using filthy and un-
parliamentary language with NK Govind Shah and subsequently
with NK Amarjit Yadav. On objection by NK Amarjit Yadav, he
created an ugly scene. Thus, he failed to respect the code of
behavior and maintain an attitude of complete discipline.
2. He misused govt. Arms and Ammunition in that on 8.7.90 at
about 21.45 hrs, he fired 3 rounds from his service rifle
No.4307577 Butt No.996, after one another at his colleague, NK
Amarjit Yadav killing him on the spot, which resulted into the
seizure of Arms/Ammunition by GRPS/JUC vide case No.119/90
dt. 9.7.90.”
9. An Inquiry Officer was appointed who recorded the preliminary
statement of the petitioner wherein he denied the charges leveled against
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him. Thus, the Inquiry Officer proceeded to record the testimony of
various witnesses and we note that the Inquiry Officer has not assigned
a number to the witness in the chronological order in which the witnesses
were examined, but has assigned a number to the witness with reference
to the serial number at which his name found mentioned in the list of
witnesses.
10. Naik Govind Shah PW-4, deposed that on 08.07.1990 a tiff had
taken place between him and the petitioner and they hurled abuses against
each other. At about 09.45 P.M. Head Constable Rup Singh Bardloi
informed him that the petitioner had fired three rounds from his service
rifle at the deceased.
11. On 30.06.1992 the department examined two witnesses namely,
Const.Virsa Torpo PW-6 and Const.Ram Lakhan PW-8.
12. Const.Virsa Torpo PW-6, deposed that on 08.07.1990 at around
09.30 P.M. the petitioner and Naik Govind Shah were arguing with each
other and using indecent language. At that time the deceased came there
and scolded Naik Govind Shah for using indecent language, which greatly
infuriated the petitioner. Thereafter the petitioner and Naik Govind Shah
went outside to eat food; the deceased followed them and also went
outside. After sometime the petitioner went inside the camp and lay down
on the bed. Naik Govind Shah went after the petitioner and counseled
him to eat his food upon which both of them came outside. Immediately
thereafter the petitioner went inside the camp and lay down on his bed.
After sometime he went outside to answer the call of the nature. While
he was coming back to his outpost he saw that the petitioner had loaded
his rifle and that he was coming out of the camp. The petitioner met him
and threatened him to get out of his way. Thereafter he went to the
Guard Commander HC Rup Singh and apprised him with the aforesaid
facts. In the meanwhile he heard a firing sound followed by the scream
of the deceased. He informed HC Rup Singh who was wearing uniform
at that time about the said fact. In the meanwhile, the second round was
fired upon which he again went to HC Rup Singh to apprise him with
the said fact but the door of the camp was shut. He opened the door and
in the meanwhile third round was fired. After sometime Const.Ram
Pratap, Naik Indresh Prasad and Const.Ram Pratap apprehended the
petitioner. That the petitioner did not have his service rifle in his hand
when he was caught. On 09.07.1990 the officials of GRP Jalandhar
came to the spot and seized the service rifle of the petitioner and some
empty and live rounds from the spot. Be it noted here that the petitioner
did not put any question to the witness during the cross-examination that
someone else has used his rifle to murder the deceased.
13. Const.Ram Pratap PW-8, deposed that on 08.07.1990, after
finishing his duty he went to the mess to eat food and that Naik Indresh
Prasad was also eating food in the mess at that time. At that time the
petitioner and Naik Govind Shah were drinking liquor and hurling abuses
at each other. The deceased objected to the use of abusive language by
Naik Govind Shah, which greatly infuriated the petitioner. After sometime
he and Indresh Prasad were sitting on a bench outside the camp when
again an argument took place between the petitioner and the deceased
after which the petitioner went inside the camp. Sometime thereafter he
heard a firing sound followed by the scream of the deceased and he saw
that the petitioner was standing near the gate with his rifle in his hand.
It did not take any time for him to figure out that the petitioner has fired
a shot at the deceased. Immediately thereafter the petitioner fired second
shot at the deceased after which he and Indresh Prasad got up from the
bench. The petitioner ran and fired third shot at the deceased from a
close range. Thereafter he and Indresh Prasad started running towards
Nakodar. After running for some distance he and Indresh Prasad realized
that the petitioner was running behind them and that his rifle was not in
his hand at that time upon which he and Indresh Prasad apprehended the
petitioner and took him inside the camp. Upon receipt of the information
of the incident of the murder of the deceased the officials of GRP
Jalandhar came to the spot and seized the service rifle of the petitioner
and three empty and five live rounds from the spot. Be it noted here that
the petitioner did not put any question to the witness during the cross-
examination that someone else has used his rifle for murdering the
deceased.
14. On 01.07.1992 the department examined two witnesses namely
HC Rup Singh Bardloi PW-2 and Const.Ram Lakhan PW-7.
15. HC Rup Singh Bardloi PW-2, deposed that on 08.07.1990 at
about 09.30 P.M. the petitioner and Naik Govind Shah were arguing with
each other and using indecent language. The deceased objected to the use
of abusive language by Naik Govind Shah, which greatly infuriated the
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petitioner. Thereafter he counseled the petitioner, deceased and Naik
Govind Shah to stay calm and maintain peace in the camp. After sometime
they sat for eating food; that the deceased sat on a bench near the
booking window of the office of Station master and that Indresh Prasad,
Ram Lakhan and Ram Pratap came there and sat with the deceased. At
the same time Naik Govind Shah sat alone on a bench to eat his food
and was joined by the petitioner after sometime. However the petitioner
did not finish his food; threw away his food and lay down on his bed.
Five-seven minutes thereafter the petitioner came outside with his rifle
and fired three rounds at the deceased. Thereafter the petitioner threw his
rifle and started running but was apprehended by the staff. Upon receipt
of the information of the incident of the murder of the deceased the
officials of GRP Jalandhar came to the spot and seized the service rifle
of the petitioner and three empty and five live rounds from the spot. Be
it noted here that the petitioner did not put any question to the witness
during the cross-examination that someone else has used his rifle for
murdering the deceased.
16. Const.Ram Lakhan PW-7, deposed that on 08.07.1990 he was
resting in the camp after finishing his duty when at around 08.30 P.M.
he saw that the petitioner and Naik Govind Shah were drinking liquor and
using indecent language against each other. The deceased objected to the
use of abusive language by Naik Govind Shah, which greatly infuriated
the petitioner. In the meantime he took his food and started eating on the
bench kept outside the camp. While he was eating his food Govind Shah
and the petitioner came there to eat their food but the petitioner did not
finish his food and threw away his tiffin. In the meantime the deceased
also came there and said that the petitioner is in habit of using abusive
language upon which he counseled the deceased to remain calm. The
petitioner threatened the deceased and hurled abuses at the deceased.
Thereafter the petitioner went inside the camp and the deceased was
present outside. He also went inside the camp and came back to the
bench after sometime. At that time, Naik Indresh Prasad, Const. Ram
Pratap and the deceased were sitting on the bench. In the meantime the
petitioner fired a round from his service rifle at the deceased which hit
the right knee of the deceased. Thereafter the petitioner fired two more
shots which hit the stomach and left ear of the deceased. The deceased
had screamed when the first bullet fired by the petitioner hit him. The
petitioner left his service rifle near the bench and started running upon
which he, Const. Ram Pratap and Indresh Prasad apprehended the
petitioner and took him inside the camp. Upon receipt of the information
of the incident of the murder of the deceased the officials of GRP
Jalandhar came to the spot and seized the service rifle of the petitioner
and three empty and five live rounds from the spot. Be it noted here that
the petitioner did not put any question to the witness during the cross-
examination that someone else has used his rifle for murdering the
deceased.
17. Thereafter the petitioner did not appear before the Inquiry Officer
and thus was proceeded ex-parte. Witnesses examined thereafter by the
department, were not cross-examined by the petitioner, for the obvious
reason he did not participate in the enquiry any further.
18. On 27.07.1992 the department examined three witnesses namely
Naik Indresh Prasad PW-3, Const.Satpal Singh PW-5 and ‘Cook’ B.B.
Ghosh PW-9.
19. Indresh Prasad Yadav PW-3, deposed that on 08.07.1990 at
around 09.20 P.M. he along with Const.Ram Pratap went to the mess
to eat food. While he and Const.Ram Pratap were eating food in the mess
he saw that the petitioner and Naik Govind Shah were drinking liquor on
the bed of the petitioner and using abusive language towards each other.
In the meantime the deceased came there and objected to the use of
abusive language by Naik Govind Shah, which greatly infuriated the
petitioner. Thereafter the petitioner went out in anger; Naik Govind Shah
followed him and the deceased lay down on his bed. While he and
Const.Ram Pratap were going out to wash utensils they saw that the
petitioner and Naik Govind Shah were sitting on a bench. In the meantime
the deceased came outside and sat on another bench and he and Const.
Ram Pratap joined the deceased. While eating food the petitioner was
hurling abuses at the deceased which was strongly objected by the
deceased. In the meantime the petitioner went inside the camp and Naik
Govind Shah followed him. After sometime Naik Govind Shah came out
of the camp and sat on a bench. Few minutes thereafter after loading his
rifle the petitioner came out of the camp and fired a shot. At that time
they were sitting outside on a bench. The first shot fired by the petitioner
hit on the right leg of the deceased upon which the deceased screamed.
The petitioner fired second shot at the deceased which hit the right side
of the stomach of the deceased. Thereafter the petitioner fired a third
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shot at the deceased from a close range. Upon firing of the third shot
by the deceased they started running towards Nakodar. After sometime
he saw that the petitioner was coming without rifle in his hand and that
Const. Ram Pratap and Ram Lakhan had apprehended him and taken him
inside the camp. On 09.07.1990 the officials of GRP Jalandhar came to
the spot and seized the service rifle of the petitioner and three empty and
five live rounds from the spot.
20. Const.Satpal Singh PW-5, deposed that on 08.07.1990 at about
09.30 P.M. he went to the mess for eating food. When he came back
to the camp after washing his utensils he saw that the petitioner and Naik
Govind Shah were drinking liquor and using abusive language against
each other. He objected to the use of abusive language by the petitioner
and Naik Govind Shah but they did not listen to him. Thereafter he went
outside the camp to answer the call of nature and was smoking when
he heard sound of firing of three shots. When he went inside the camp
he heard Const.Virsa Torpo informing HC Rup Singh Bardloi that the
petitioner had fired the shots. When he went outside he saw that Naik
Indresh Prasad, Const. Ram Pratap and Const. Ram Lakhan had
apprehended the petitioner. On 09.07.1990 the officials of GRP Jalandhar
came to the spot and seized the service rifle of the petitioner and three
empty and five live rounds from the spot.
21. ‘Cook’ B.B. Ghosh PW-9, deposed that on 08.07.1990 he had
gone to the storeroom of the mess to get some food items when he saw
that the petitioner and Naik Govind Shah were drinking liquor on the bed
of the petitioner and using abusive language against each other. Ten
minutes thereafter the deceased came there and objected to the use of
abusive language by Naik Govind Shah, which greatly infuriated the
petitioner. The deceased went outside and after sometime the petitioner
and Naik Govind Shah also went outside. Around 09.35 P.M. the petitioner
came in the camp and lay down on his bed. Thereafter he started eating
his food. While he was eating his food he heard the sound of firing of
a shot. He left his food and went in the camp. Few minutes thereafter
he heard the sound of firing of two shots. He came out of the camp and
was running towards public library when he was met by the petitioner.
The petitioner told him that he would not harm him and handed his rifle
to him. He handed over the said rifle to HC Rup Singh.
22. On 28.07.1992 the department examined one witness namely,
Inspector Ram Sanehi PW-1.
23. Inspector Ram Sanehi PW-1, deposed that he is working as
Coy Commander of E Coy of 7th Battalion, RPSF and that he had
conducted an inquiry into the incident of murder of the deceased. He
seized the extract of Individual Allotment Register from the department,
which extract records that the rifle seized by the police from the spot of
murder of the deceased was allotted to the petitioner and that the petitioner
had received the said rifle on 23.12.1988. He seized the extract of Daily
Arm/Ammunition Issue and Return Register from the department, which
extract records that the rifle which was seized from the spot of the
murder of the deceased along with fifty rounds were allotted to the
petitioner on 29.06.1990 and that only 42 rounds were recovered from
the petitioner on 09.07.1990.
24. On 22.10.1992 the department examined one witness namely
Const. Sher Singh PW-10 who deposed that on 08.07.1990 he was
performing his duty of guarding the station when at around 09.30 P.M.
he heard the agitated voice of the deceased. On hearing the same he went
away from his outpost and saw that the petitioner was lying on his bed
and that rest of the staff members were sitting outside and that some
were eating food. Thereafter he went back to his outpost. Within few
minutes of his reaching the outpost he heard the sound of firing of a shot
followed by the scream of the deceased. Thereafter he again heard the
sound of firing of a shot upon which he made inquiries from HC Rup
Singh who told him to go back to the outpost. He followed the instructions
of HC Rup Singh and went back to the outpost. HC Rup Singh called
Const. Virsa Torpo and went outside where he sternly instructed the
petitioner to throw his rifle. Immediately thereafter the petitioner fired a
third shot upon which the staff members apprehended him.
25. Vide report dated 12.11.1992, the Inquiry Officer indicted the
petitioner of all the charges framed against him. The relevant portion of
the report of the Enquiry Officer reads as under:-
“…..
Considering the above facts based on oral and documentary
evidence on record:
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(1) It is a fact that Const. Rajesh Kumar Chaturvedi on 8.7.90
at about 21.30 hrs while on static station guarding duty at Malshian
Shah Kot with Arm/Ammn engaged himself in hot discussion by
using filthy and unparliamentary language with NK/Govind Shah
and subsequently with NK/Amarjit Yadav and on objection by the
deceased he (delinquent) created ugly scene.
(2) It is a fact that CT/Rajesh Kumar Chaturvedi failed to respect
the code of conduct of behavior and maintain an attitude of
complete discipline.
(3) It is a fact that CT/Rajesh Kumar Chaturvedi misused Govt’s
Arm/Ammn on 08.07.90 at about 21/45 hrs in that he fired 3
rounds from his service rifle No.4307577 BUT No.996 at NK/
Amarjit Yadav after one another killing him on the spot.
(4) It is a fact that .303 No.4307577 BUT No.996 with 3 empty
rounds and 5 live rounds (4 in magazine and one in chamber)
was seized by SHO/GRPS/JUC on 9.7.90 vides crime No.119/
90 U/S 302 IPC registered against delinquent CT/Rajesh Kumar
Chaturvedi on 9.7.90.
(5) It is a fact that the delinquent CT/Rajesh Kumar Chaturvedi
was arrested in case No.119/90 U/S 302 IPC on 9.7.90.
Reasons and remarks for findings:
The enquiry was conducted without prejudice and the delinquent
CT/Rajesh Kumar Chaturvedi has been afforded a reasonable
opportunity. The delinquent Constable failed to defend his case
miserably. He did not produce any oral or documentary evidence
to defend his case. He deliberately avoided attending enquiry on
his own sweet will on dates fixed by enquiry officer when the
enquiry was in progress.
The delinquent is trained personnel and well acquainted with
the working of RPSF. He should have obeyed orders and
instructions of his senior subordinates on 8.7.90 and avoided his
involvement in such heinous crime in which he used 3 rounds
from his service rifle and fired at his colleague NK/Amarjit Yadav
killing him on the spot.
He was bound to respect the code of behavior and maintain
an attitude of complete discipline while on or off duty, deployed
for static station guarding duty. He should have not used filthy
and unparliamentary language against any staff when he was
with Arm/Ammn under his charge for Govt’s duty. He should
not have expressed his anger or irritation against his co-workers.
The use of Arm/Ammn should always be justified. The
delinquent should have avoided misuse of Govt’s Arm/Ammn by
keeping balance of his mind for good and real purpose.
There is too much aggressive act by Const. R.K. Chaturvedi
in using of Arm/Ammn against NK/Amarjit Yadav which is
intolerable and unjustified. According to departmental Rules of
RPF/Act-1987, the misconduct and indiscipline act resorted to
while working in Armed Force have tarnished the good image of
the Force and the delinquent has also lost his credibility and
integrity in the capacity of the member of the Force.
Findings: On perusal of oral and documentary evidence available
on record from prosecution and defence side and for reasons
and remarks mentioned for findings, the charges leveled against
the delinquent CT/Rajesh Kumar Chaturvedi have been proved
beyond doubt and he is found guilty of charge No.1 & Charge
No.2.”
26. After considering the aforesaid report dated 12.11.1992 submitted
by the Inquiry Officer and the representation filed by the petitioner against
the said report, vide order dated 11.01.1993 the Disciplinary Authority
held that the charges leveled against the petitioner have been proved and
inflicted the punishment of dismissal of service upon the petitioner.
27. Aggrieved by the order dated 11.01.1993 passed by the
Disciplinary Authority, the petitioner filed an appeal before the Appellate
Authority.
28. All this while, the trial in respect of the FIR registered against
the petitioner was in progress before the court of Sessions Judge,
Jalandhar, Punjab. During the course of the trial, the prosecution examined
six witnesses namely, Dr. V.K. Khullar PW-1, Romesh Thapar PW-2,
Const.Ram Lakhan PW-3, Const.Ram Pratap PW-4, Inspector Ram Sanehi
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PW-5 and Inspector Sat Pal PW-6. Vide judgment dated 10.06.1996 the
learned Sessions Judge acquitted the petitioner of the charge of having
committed the murder of the deceased. The reasons which led the learned
Sessions Judge to come to the said conclusion are as follows: - (i) the
circumstance that there was delay in registration of the FIR in the present
case inasmuch as the Investigating Officer reached the spot at about 2.40
A.M. on 09.07.1990 but the FIR was registered on the basis of the
statement of HC Rup Singh at about 6.15 A.M. on 09.07.1990 when seen
in light of the facts that Inspector Ram Sanehi had submitted in his report
dated 14.07.1990 that HC Rup Singh and other staff members had
fabricated a false story to conceal true facts and that there was considerable
delay in sending the copy of the FIR to the Area Magistrate in compliance
of Section 157 Cr.P.C. leads to a very strong presumption that the police
had gained time to contrive evidence against the petitioner; (ii) the account
of eye-witnesses Const.Ram Pratap and Ram Lakhan that the petitioner
did not shoot the deceased on an impulse when he had an argument with
him but that there was a time gap between the periods when the petitioner
had an argument with the deceased and when the petitioner fired shots
at the deceased is improbable inasmuch as passions cool down after
passage of time, more so when seen in the light of deposition of Inspector
Ram Sanehi that there is no place in the post where a staff member could
safely keep his rifle and that rifle of a staff member can easily be picked
up and used by anyone while such staff member is sleeping or has gone
to washroom etc; (iii) the testimonies of eye-witnesses Const.Ram Pratap
and Ram Lakhan do not inspire confidence as they are replete with
contradictions and improvements, which contradictions and variations
though minor assume significance in the facts of the present case (The
contradictions pointed out by the learned Trial Judge in the testimony of
Const.Ram Lakhan and Const.Ram Pratap primarily pertained to the
manner in which ˇthe petitioner threw his rifle after firing shots at the
deceased; the conduct of the staff members immediately after the
commission of the murder of the deceased by the petitioner and
apprehension of the petitioner by the staff members and the circumstances
in which the police seized the rifle and empties found at the spot); (iv)
there is a variation between ocular and medical evidence in the present
case inasmuch as first, third and fifth wounds found on the person of
the deceased were found to be blackened which suggests that the petitioner
had fired shots at the deceased from a close range whereas the eye-
witnesses deposed that the petitioner had fired first two shots at the
deceased from a distance of 8-9 yards; (v) there was considerable delay
in the deposit of the rifle and empties seized by the police from the spot
in the Forensic Science Laboratory; (vi) the report of the ballistic expert
that the empties recovered from the spot were fired from the service rifle
of the petitioner cannot be taken into consideration for the ballistic expert
has given no reasons in support of the conclusion arrived by him and
(vii) the investigation conducted by the police in the present case is
defective inasmuch as the Investigation Officer has omitted to mention
certain details in the inquest report and the site plan prepared by him.
29. On 22.02.1997 the petitioner wrote a letter to the Appellate
Authority wherein he informed the Authority about the factum of pendency
of his appeal and the passing of judgment dated 10.06.1996 by the
criminal court acquitting him of the charge of the murder of the deceased
framed ˇagainst him. Vide order dated 27.08.1997 the Appellate Authority
dismissed the appeal filed by the petitioner on the ground that the appeal
dated 22.02.1997 filed by the petitioner is time-barred in terms of provisions
of RPF Rules, 1987.
30. Aggrieved by the order dated 27.08.1997 passed by the Appellate
Authority, the petitioner filed a revision before the Revisional Authority
inter-alia contending that in view of the fact that the he has been acquitted
in the criminal proceedings based on same set of allegations which
constituted the gravamen of the departmental proceedings instituted against
him the order passed by the Disciplinary Authority dismissing him from
the service should be quashed and that the departmental proceedings
instituted against him stood vitiated for the reason he was not able to
participate in the said proceedings due to the failure of the department to
pay subsistence allowance to him by the department, which revision was
dismissed vide order dated 26.11.1997. On the issue of acquittal of the
petitioner in the departmental proceedings, it was held by the Revisional
Authority that since the charges framed against the petitioner in the
departmental and criminal proceedings were different the acquittal of the
petitioner in the criminal proceedings has no effect on the departmental
proceedings instituted against him. On the issue of non-payment of
subsistence allowance to the petitioner, it was held by the Revisional
Authority that the petitioner did not submit a certificate to the department
to the effect that he is not engaged in any other employment, business,
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profession or vocation as required in terms of the suspension order dated
09.06.1992. It was further held by the Revisional Authority that the
suspension order dated 09.06.1992 required the petitioner to not to leave
the Battalion Headquarters without permission, which condition was also
violated by the petitioner thereby disentitling him for payment of subsistence
allowance.
31. Aggrieved by the orders dated 11.01.1993, 27.08.1997 and
26.11.1997 passed by the Disciplinary Authority, Appellate Authority and
Revisional Authority respectively, the petitioner has filed the present petition.
32. During hearing of the present petition, following two submissions
were advanced by the learned counsel for the petitioner:-
A The first submission advanced by the learned counsel for the
petitioner was that for the same set of facts which constituted
the gravamen of the departmental proceedings against the
petitioner FIR No.119/21990 was registered under Section 302
IPC. Counsel argued that when in the criminal proceedings
predicated upon same set of facts as departmental proceedings
the petitioner stood acquitted on merits, it was incumbent upon
the Appellate/Revisional Authority to attach due weightage to the
finding of innocence arrived at by the criminal court and quash
the order passed by the Disciplinary Authority running contrary
to the decision of the criminal court. In support of the said
submission, strong emphasis was placed by the counsel upon the
decision of the Supreme Court reported as Captain M. Paul
Anthony v Bharat Gold Mines Ltd (1999) 3 SCC 679.
B The second submission advanced by the learned counsel for
the petitioner that in view of the fact that the petitioner was
unable to participate in the disciplinary proceedings due to the
failure of the department to pay subsistence allowance to him the
entire proceedings instituted against the petitioner stood vitiated
and as a necessary consequence thereof the order of punishment
passed by the Disciplinary Authority against the petitioner cannot
be sustained. In support of the said submission, strong emphasis
was placed by the counsel upon the decision of Supreme Court
reported as Ghanshyam Das Shrivastav v State of M.P. (1973)
1 SCC 656. It was further contended by the counsel that the
Revisional Authority failed to note that the petitioner had not
submitted the necessary certificate with the department in the
month of June 1992. It was further argued that the petitioner
was not required to submit the necessary certificate in every
month during the period of the suspension.
33. The questions that whether the criminal and departmental
proceedings launched against a delinquent employee can proceed
simultaneously and that what is the effect of acquittal of a delinquent
employee in the criminal proceedings on the punishment imposed upon
him in the departmental proceedings which crop up perennially in the
service matters has yet again arisen in the present case.
34. The afore-noted questions were examined in great detail by
Supreme Court in Anthony’s case (supra). The facts of the said case
were that the appellant was employed as a Security Officer in the
respondent. On 02.06.1985 a raid was conducted by the police at the
house of the appellant from where a mining sponge gold ball and gold-
bearing sand were recovered. On the same day, an FIR was registered
against the appellant, who was placed under suspension on 03.06.1985.
On the next day i.e. 04.06.1985 a charge sheet was issued to the appellant
proposing a regular departmental enquiry against him with regard to the
recovery of the above articles from his house. The appellant made a
representation to the Disciplinary Authority inter-alia contending that the
departmental proceedings initiated against him be postponed till the
conclusion of the criminal case registered against him, which representation
was rejected. Aggrieved from the aforesaid, the appellant filed a writ
petition before Karnataka High Court seeking a direction to restrain the
respondent from proceeding with the departmental proceedings till the
conclusion of the criminal case. While disposing of the said petition, the
High Court issued a direction to consider deferring the departmental
proceedings if found expedient to do so. The respondent did not defer
the departmental proceedings and continued the same. The appellant did
not participate in the said proceedings and thus was proceeded ex-parte.
On 10.05.1986 the Enquiry Officer submitted his report to the Disciplinary
Authority wherein he held the appellant to be guilty of the charges leveled
against him. The Disciplinary Authority accepted the report of the Enquiry
Officer and inflicted the punishment of dismissal from service upon the
appellant. Aggrieved by the aforesaid, the appellant filed a writ petition
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before a Single Judge of Karnataka High Court, which petition was
allowed by the Single Judge. However in appeal, the Division Bench set
aside the judgment of the Single Judge. Aggrieved thereof, the appellant
filed a special leave petition before the Supreme Court and advanced two
contentions namely, (i) the departmental proceedings instituted against
the appellant ought to have been stayed till the conclusion of the criminal
case registered against him and (ii) the entire disciplinary proceedings
which were held ex-parte stood vitiated for the appellant could not
participate in the said proceedings due to failure of the department to pay
subsistence allowance to him. After examining the entire case-law on the
point, the Court allowed the appeal filed by the appellant. The relevant
portion of the judgment of the Court reads as under:-
12. This question, as observed earlier, is of a perennial nature
and has arisen more often than not in spite of the judicial
pronouncements, specially by this Court, having settled the
question and provided the answer. Still, the problem is raised
either by the employer or by the employee in one or the other
form. In the instant case, the order of dismissal had already been
passed before the decision of the criminal case which ultimately
resulted in the acquittal of the appellant. Whether the acquittal
coupled with other circumstances, specially ex parte
proceedings, of the case, will have the effect of vitiating the
departmental proceedings or the order of dismissal passed against
the appellant, is the question which is to be considered in this
appeal.
13. As we shall presently see, there is a consensus of judicial
opinion amongst the High Courts whose decisions we do not
intend to refer to in this case, and the various pronouncements
of this Court, which shall be copiously referred to, on the basic
principle that proceedings in a criminal case and the departmental
proceedings can proceed simultaneously with a little exception.
As we understand, the basis for this proposition is that
proceedings in a criminal case and the departmental proceedings
operate in distinct and different jurisdictional areas. Whereas in
the departmental proceedings, where a charge relating to
misconduct is being investigated, the factors operating in the
mind of the disciplinary authority may be many such as
enforcement of discipline or to investigate the level of integrity
of the delinquent or the other staff, the standard of proof required
in those proceedings is also different than that required in a
criminal case. While in the departmental proceedings the standard
of proof is one of preponderance of the probabilities, in a criminal
case, the charge has to be proved by the prosecution beyond
reasonable doubt. The little exception may be where the
departmental proceedings and the criminal case are based on the
same set of facts and the evidence in both the proceedings
is common without there being a variance.
…..
22. The conclusions which are deducible from various decisions
of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case
can proceed simultaneously as there is no bar in their being
conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are
based on identical and similar set of facts and the charge in the
criminal case against the delinquent employee is of a grave nature
which involves complicated questions of law and fact, it would
be desirable to stay the departmental proceedings till the
conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave
and whether complicated questions of fact and law are involved
in that case, will depend upon the nature of offence, the nature
of the case launched against the employee on the basis of evidence
and material collected against him during investigation or as
reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be
considered in isolation to stay the departmental proceedings but
due regard has to be given to the fact that the departmental
proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being
unduly delayed, the departmental proceedings, even if they were
stayed on account of the pendency of the criminal case, can be
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resumed and proceeded with so as to conclude them at an early
date, so that if the employee is found not guilty his honour may
be vindicated and in case he is found guilty, the administration
may get rid of him at the earliest.
…..
34. There is yet another reason for discarding the whole of the
case of the respondents. As pointed out earlier, the criminal case
as also the departmental proceedings were based on identical set
of facts, namely, “the raid conducted at the appellant’s residence
and recovery of incriminating articles therefrom”. The findings
recorded by the enquiry officer, a copy of which has been
placed before us, indicate that the charges framed against the
appellant were sought to be proved by police officers and panch
witnesses, who had raided the house of the appellant and had
effected recovery. They were the only witnesses examined by
the enquiry officer and the enquiry officer, relying upon their
statements, came to the conclusion that the charges were
established against the appellant. The same witnesses were
examined in the criminal case but the Court, on a consideration
of the entire evidence, came to the conclusion that no search
was conducted nor was any recovery made from the residence
of the appellant. The whole case of the prosecution was thrown
out and the appellant was acquitted. In this situation, therefore,
where the appellant is acquitted by a judicial pronouncement
with the finding that the “raid and recovery” at the residence of
the appellant were not proved, it would be unjust, unfair and
rather oppressive to allow the findings recorded at the ex
parte departmental proceedings to stand.
35. Since the facts and the evidence in both the proceedings,
namely, the departmental proceedings and the criminal case were
the same without there being any iota of difference, the distinction,
which is usually drawn as between the departmental proceedings
and the criminal case on the basis of approach and burden of
proof, would not be applicable to the instant case
….” (Emphasis Supplied)
35. The entire case law on the point including its earlier decision
in Anthony’s case (supra) was reviewed by the Supreme Court in the
decision reported as Management, Pandiyan Roadways Corporation
Ltd v N. Balakrishnan (2007) 9 SCC 755 wherein it was held as
under:-
“…..20. However, there is another aspect of the matter which
cannot be lost sight of. The respondent, in the meanwhile, has
been acquitted. The factum of his acquittal has been taken into
consideration by the Division Bench, which was considered to
be an additional factor. Ordinarily, the question as to whether
acquittal in a criminal case will be conclusive in regard to the
order of punishment imposed upon the delinquent officer in a
departmental proceeding is a matter which will again depend
upon the fact situation involved in a given case.
21. There are evidently two lines of decisions of this Court
operating in the field. One being the cases which would come
within the purview of Capt. M. Paul Anthony v. Bharat Gold
Mines Ltd.20 and G.M. Tank v. State of Gujarat21. However,
the second line of decisions show that an honourable acquittal in
the criminal case itself may not be held to be determinative in
respect of order of punishment meted out to the delinquent officer,
inter alia, when: (i) the order of acquittal has not been passed on
the same set of facts or same set of evidence; (ii) the effect of
difference in the standard of proof in a criminal trial and
disciplinary proceeding has not been considered (see Commr. of
Police v. Narender Singh22), or; where the delinquent officer
was charged with something more than the subject-matter of the
criminal case and/or covered by a decision of the civil court (see
G.M. Tank21, Jasbir Singh v. Punjab & Sind Bank23 and
Noida Entrepreneurs’ Assn. v. Noida24, para 18).….” (Emphasis
Supplied)
36. To summarize the legal position, honorable acquittal in the
criminal case is not conclusive in regard to the order of punishment
imposed upon the delinquent officer in a departmental proceeding in
every case and the same depends upon the fact situation involved in a
given case. The criminal and departmental proceedings operate in their
own distinct and mutually exclusive jurisdictional areas. In a disciplinary
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129 130Rajesh Kr. Chaturvedi v. Union of India (Pradeep Nandrajog, J.)
proceeding, the area of investigation covers the field of (a) enforcement
of discipline, (b) level of integrity, and (c) misconduct pertaining to
devotion of duty. In criminal proceedings, the area of investigation covers
the culpability from the point of view of criminal law. Standard of proof
in the two proceedings is entirely different. In the former it is
“preponderance of probabilities”, in the latter, it is “proof beyond reasonable
doubt”. In a criminal trial, the only evidence admissible is that which is
admissible under the provisions of the Evidence Act. A tribunal conducting
an enquiry in a disciplinary proceeding is not bound by the rules of
evidence. Any material which has a logically probative value to prove or
disprove the facts in issue is relevant and admissible.
37. Keeping the afore-noted judicial parameters in mind, we proceed
to examine that whether the instant case comes ˇwithin the purview of
Anthony’s case (supra) or in the second line of decisions noted in
Balakrishan’s case (supra).
38. From the afore-noted conspectus of facts, it is apparent that
the petitioner was facing only one charge in the criminal proceedings of
having committed the murder of the deceased by misusing arms and
ammunitions provided to him by the government. Charges framed in the
departmental proceedings as noted in para 8 above show that in the
departmental proceedings, a much wider area was being covered. Field
of service pertaining to the enforcement of discipline was there in the
departmental proceedings, apart from field of misconduct (based on
commission of murder of the deceased and misuse of governments.
arms and ammunitions). The charge of murder of the deceased was only
one of the charges in the departmental proceedings. The misbehavior of
the petitioner with his colleagues was the other area of the departmental
proceedings. It, therefore, cannot be said that the criminal case and
departmental proceedings were grounded on identical set of facts, though
we may hasten to add that the facts pertaining to both charges were
intertwined and in the context of the motive for the crime, the facts
pertaining to the first charge would fall for consideration at the criminal
trial.
39. Another circumstance which is worth noticing is that in the
instant case, there is a lot of difference between the evidence led before
the Domestic Enquiry and before the Criminal Court. Only two staff
members namely Const.Ram Pratap and Const.Ram Lakhan were
examined at the trial ˇbefore the learned Court of Sessions, whereas in
the Domestic Enquiry, minus the deceased and the petitioner, all the
remaining eight staff members were examined. Thus, the evidence led by
the prosecution in the criminal case was inchoate due to which reason
the criminal court did not get a clear picture of the incident of the murder
of the deceased. Not only that, due to the deficient evidence led by the
prosecution the Criminal Court could not correctly appreciate the import
of the report dated 14.07.1990 of Inspector Ram Sanehi, which report
heavily weighed with the criminal court in coming to the conclusion that
the case set up by the prosecution against the petitioner does not inspire
confidence.
40. In Anthony’s case (supra) a fact which heavily weighed with
the Supreme Court in coming to conclusion that the acquittal of the
employee in said case in the criminal proceedings led to quashing of the
order of punishment passed by the disciplinary authority in the departmental
proceedings was that the employee could not appear in the departmental
enquiry and defend himself due to the failure of the department to pay
subsistence allowance to him. Whereas in the instant case, the petitioner
appeared before the Inquiry Officer till the middle of the enquiry and
thereafter stopped appearing due to no fault of the department as would
be demonstrated by us in the subsequent paras.
41. We must highlight that at the departmental proceedings, a very
vital piece of evidence was brought to light, but for unexplainable reasons,
before the Criminal Court, the prosecution chose not to lead such a vital
piece of evidence. The same was an extract of the Arms and Ammunitions
Register which contained the recordings that one rifle and fifty rounds
were allotted to the petitioner on 29.06.1990 and that only forty two
rounds were recovered from the petitioner on 09.07.1990. The entry in
the register was exhibited at the departmental enquiry. The fact that eight
out of fifty rounds allotted to the petitioner were not accounted for by
the petitioner coupled with the facts that three empty rounds and the said
rifle loaded with five live rounds were seized by the police from the place
of the occurrence leads to a strong presumption that the rifle allotted to
the petitioner was used for murdering the deceased, which fact in turn
speaks volumes about the guilt of the petitioner. Whereas the criminal
court has proceeded on the premise that there is no evidence to establish
that the rifle allotted to the petitioner was used for murdering the deceased,
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Indian Law Reports (Delhi) ILR (2011) VI Delhi131 132Rajesh Kr. Chaturvedi v. Union of India (Pradeep Nandrajog, J.)
a close reading of the judgment dated 10.06.1996 of the criminal court
shows that the aforesaid extract was either not produced by the prosecution
before the criminal court or if the same was produced by the prosecution
it was not noticed by the criminal court for there is no reference to the
said extract in the entire judgment.
42. In view of the aforesaid discussion, it has to be held that the
instant case clearly does not come within the purview of Anthony’s
case (supra) and that acquittal of the petitioner in the criminal proceedings
has no effect on the punishment of dismissal of service imposed upon
the petitioner in the departmental proceedings initiated against him.
43. When a government employee is placed under suspension, the
government is duty bound to pay subsistence allowance to such employee
during the period of the suspension. The subsistence allowance which is
normally less than the pay and allowance which an employee would have
been entitled to get had he not been suspended from service is paid to
an employee to enable him to sustain himself during the period of the
suspension.
44. The question which has really arisen in the present case is that
whether the petitioner was required to submit the necessary certificate to
the department every month during the period of the suspension.
45. In our opinion, the answer to the aforesaid question is in
affirmative. The subsistence allowance is paid to an employee in each of
the month when he is unable to sustain himself during the period of the
suspension. In such circumstances, it was incumbent upon the petitioner
to certify in every month that he is not able to sustain himself in order
to avail payment of subsistence allowance in the said month but the
needful was not done by the petitioner. We thus find no force in the
submission of the petitioner that he was not able to attend the enquiry
due to failure of the department to pay subsistence allowance to him. It
may be highlighted that in the order suspending the petitioner it was
clearly brought to his notice that by the 15th of each month a certificate
of non-employment had to be filed and only then would the subsistence
allowance be released.
46. Having repelled the submissions advanced by the petitioner, we
proceed to determine that whether the findings arrived at by the Inquiry
Officer and accepted by the Disciplinary/Revisional Authority are correct?
47. As already noted herein above, it is recorded in the extract of
Arms and Ammunition produced before the Enquiry Officer that one rifle
and fifty rounds were allotted to the petitioner on 23.06.1990 and that
only forty two rounds were recovered from the petitioner on 09.07.1990.
The fact that eight out of fifty rounds allotted to the petitioner were not
recovered from the petitioner coupled with the facts that three empty
rounds and the said rifle loaded with five live rounds were seized by the
police from the place of the occurrence leads to a very strong presumption
that the rifle allotted to the petitioner was used for murdering the deceased.
Who could use the rifle of the petitioner for murdering the deceased
other than the petitioner himself? No defence was taken by the petitioner
that someone else had used his rifle for murdering the deceased inasmuch
as no questions in said regards were put by the petitioner to the witnesses
cross-examined by him. The fact that the rifle of the petitioner was used
for murdering the deceased lends due corroboration to the depositions of
the staff members examined before the Inquiry Officer that the petitioner
had fired three shots at the deceased. This evidence itself incriminates the
petitioner and if we add on thereto the testimony of the eye-witnesses at
the departmental enquiry, only two of whom were examined before the
Court of Sessions, we find no infirmity in the ˇfindings arrived at by the
Inquiry Officer accepted by the Disciplinary/Revisional Authority.
48. In view of the above discussion, we find no merit in the instant
petition. The same is hereby dismissed.
49. No costs.
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133 134Smt. Chamno Devi v. Smt. Usha & Ors. (Mool Chand Garg, J.)
ILR (2011) VI DELHI 133
FAO
SMT. CHAMNO DEVI ....APPELLANT
VERSUS
SMT. USHA & ORS. ....RESPONDENTS
(MOOL CHAND GARG, J.)
FAO NO. : 40/2009 DATE OF DECISION: 28.03.2011
Indian Succession Act, 1925—WILL—Grant of Probate—
Appeal—Deceased, father of respondent no.1 executed
registered Will in regard to self acquired property in
favour of respondent no.1, his daughter excluding
wife and son—Wife and son contested the proceedings
for grant of probate—Filed joint objections inter-alia
Will obtained and procured fraudulently—Respondent
no.1 neither resident with deceased at village nor
looked after him—Right of deceased to bequeath
property through Will challenged—Property not self
acquired, being ancestral—Respondent no.1
contended that deceased filed a suit against objector
wherein admitted execution of Will in favour of
respondent no.1—Deceased was suffering from
cancer—Objector used to harass and torture deceased
during his last days—Deceased executed GPA,
Agreement to sell, Affidavit etc. in her favour and in
favour of her husband out of love and affection—
Respondent no.1 examined herself; attesting
witnesses, officials of sub-registrar—and witnesses to
prove the drafting of Will and attestation of other
documents—Objectors examined themselves—ADJ
observed, none objected that, deceased was not in
sound, disposing mind or was incapable of
understanding consequences of disposition—Attesting
witnesses trustworthy—Execution of Will proved—
Appellant admitted litigations between them and the
deceased—Appellant had filed maintenance
applications against deceased and was living
separately from the deceased—Even filed preventive
proceedings against deceased under Criminal
Procedure Code—ADJ Held—Strained relationship;
pendency of civil and criminal proceedings and living
separately were valid grounds in the mind of deceased
to exclude his son and wife from benefit of his estate—
Conduct not unnatural—Question of property being
ancestral or self acquired left to be decided by civil
court of concerned jurisdiction—Held—Will registered;
proved by clerk; two attesting witnesses proved the
execution of Will—No evidence led by respondent to
prove Will in Question not signed by deceased
testator—Admitted criminal proceedings between
deceased, and his wife and sons—Appeal dismissed.
I have heard the counsel for the parties and have examined
the record. The Will in this case dated 2.9.2002 is a
registered Will. The registration thereof has been proved by
the clerk from the Registrar’s office. It is attested by two
witnesses who both have appeared in the witness box. They
both have filed their affidavits in support of the attestation of
the Will by them and execution of the Will by the deceased
testator. They both have appeared for the cross-examination
but the respondents have not been able to take out anything
which may prove that the affidavits were not filed by them or
that the Will in question was not executed by the deceased.
In fact, the suggestions given by the appellants are only to
the effect that the Will is a forged document which is also a
suggestion given to the propounder of the Will. However, no
evidence has been led by the respondent to prove that Will
in question was not signed by the deceased testator.
(Para 11)
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Indian Law Reports (Delhi) ILR (2011) VI Delhi135 136Smt. Chamno Devi v. Smt. Usha & Ors. (Mool Chand Garg, J.)
deceased Sh. Mahabir, father of respondent No.1/Usha, had executed a
registered Will on 22.05.2003 in respect of his allegedly self acquired
property i.e. agricultural land situated in village Tehri, Daulatpur, Delhi
and one residential house measuring 272 sq. yards situated in old Lal
Dora of 1908-09 of village Hiranki, Delhi in favour of respondent No.1
who was looking after and taking care of him. Soon after the death of
her father, respondent No.1 filed a probate petition before the Additional
District Judge, Tis Hazari on 12.07.2004.
3. The deceased was survived by this wife and son, who contested
the proceedings and filed joint objections. According to them, Will in
question had been obtained and procured fraudulently by respondent
No.1 in collusion with the witnesses as the deceased had no desire to
give away his properties to respondent No.1. It is also stated that
respondent No.1 neither resided in the village with the deceased nor
looked after him at any time. The right of the deceased to bequeath the
property through Will was also challenged on the ground that those were
ancestral properties and not his self acquired properties.
4. Replication was filed by respondent No.1, who relied upon the
contents of Civil Suit No. 662/2002 allegedly filed by the deceased against
the objectors, wherein he admitted the execution of Will in favour of
respondent No.1. She also alleged that the objectors used to harass and
torture the deceased and were not serving him during his last days as he
was suffering from cancer. She also alleged that the deceased also executed
GPA, agreement to sell, affidavit, etc. in her favour and in the favour of
her husband out of love and affection as they were maintaining him and
providing him necessary help for survival.
5. On the pleadings of parties, following issues were framed by the
Additional District Judge:-
“1. Whether late Mahabir had executed a valid and enforceable
Will dated 22.05.2003 as claimed by the petitioner? OPP
2. Whether the petitioner is entitled for grant of Letter of
Administration/Probate in respect of aforesaid Will? OPP
3. Whether the petition is liable to be dismissed for objections
raised by the respondents? OPR
Important Issue Involved: (i) Previous litigations between
the testator and the persons excluded from bequeath are
valid ground for testator to exclude those persons from the
benefit of estate. (ii) The probate court cannot decide the
question of property being self acquired or ancestral property,
it is for the civil court to decide the same.
[Gu Si]
FOR THE APPELLANT : Mr. Ajay Kumar Chopra, Advocate.
FOR THE RESPONDENTS : Mr. D.S. Patial, Advocate for R-1
Mr. U.K. Malik Advocate for R-2.
CASE REFERRED TO:
1. Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas
Kataria, I (2009) SLT 172.
RESULT: Appeal Dismissed.
MOOL CHAND GARG, J.
1. This appeal has been filed by the appellant against the impugned
judgment dated 4.11.2008 passed by the Additional District Judge, Tis
Hazari in Probate Case No.236/06/04 granting probate of the Will Ex.PW1/
2 in favour of Smt.Usha, respondent No.1 subject to her complying with
other formalities. The grant of probate was further made subject to the
following:-
“….the exact measurement and valuation of the land and house
in question shall be got ascertained from the collector concerned
before completion of necessary formalities. An inventory of the
properties of the deceased shall be exhibited in Court within six
months from the date of grant of certificate of Letter of
Administration and the petitioner shall thereafter file a statement
of account within one year. It is clarified that question of right,
title and share in the properties in question as well as legality and
validity of alleged sale transaction though Ex.PW1/4 to 6 is not
decided by this Court.”
2. Briefly stating the facts giving rise to filing of this case are that
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Smt. Chamno Devi v. Smt. Usha & Ors. (Mool Chand Garg, J.)
harass him. The Additional District Judge further observed that, “Deceased
in this plaint of civil suit also mentioned about execution of one Will in
favour of his daughter i.e. petitioner. Though the Will referred in the
plaint is not the present Will but an earlier Will however one thing is clear
from the above facts that the deceased had no cordial relations with the
respondents and he wanted to give his properties to petitioner after
excluding respondents i.e. his wife and son. The strained relationship,
pendency of civil and criminal proceedings and living separately might be
the valid grounds in the mind of the deceased to exclude his own wife
and son form the benefit of his estate. Exclusion of respondents from the
benefits of his estate through the Will in such circumstances cannot be
said as unnatural conduct on the part of the deceased and accordingly
Will in question cannot be seen with any doubt. RW-1 did not even know
that her husband died due to throat cancer whereas RW-2 admitted this
fact. RW-2 admitted that his deceased father used to pay his as well his
mother’s maintenance. RW-1 and 2 also admitted that deceased was
unemployed and was only doing cultivation. I have no ground to disbelieve
the version of the petitioner that despite being married lady she was living
in the village, looking after the deceased, medically treating him, serving
him in his old age as well as also making payments of maintenance of
respondents on behalf of deceased. Husband of the petitioner admittedly
was serving in the Army and used to visit his house after taking leave
from his office once or twice in a year. In that situation, conduct of the
petitioner in not living in her matrimonial house and living in the village
to look after his old father can be said as justified and believable especially
when deceased’s wife and son were living separately. Mere fact that the
petitioner failed to show how much expenses she incurred on the deceased
for his maintenance or medical treatment and failed to produce any
medical bill or from where she paid sale consideration of the property to
the deceased is not a ground to reject the Will in question.”
10. On the other hand, dealing with the testimony of PW-2 and
PW-3, the Additional District Judge has observed that,
“PW-2 and 3 are the attesting witnesses of the Will. Though
their affidavit of examination in chief may not have been attested
strictly as per law but these witnesses had tendered their respective
affidavit at the time of starting of evidence so some lacunas in
attestation of the affidavits is not a sufficient ground to reject the
137 138
4. Relief.”
6. In order to prove her case, Smt.Usha/respondent No.1 examined
six witnesses including herself as PW-1, Sh.Shishan and Sh.Jai Kumar,
attesting witnesses of the Will as PW-2 and PW-3 respectively. She also
examined PW-4 Sh.Jagbir Singh, an official from the office of Sub
Registrar to prove the registration of the Will. Sh.S.K.Rana and
Sh.R.C.Joshi appeared as PW-5 and PW-6 to prove drafting of the Will
and attestation of other documents.
7. On the other hand, both the objectors have stepped in the witness
box and examined themselves as RW-1 and RW-2.
8. The Additional District Judge decided all the issues against the
objectors and in favour of respondent No.1. With regard to the execution
and attestation of the Will left by the deceased, while observing that
nobody has objected that the deceased was not having sound and disposing
mind at the time of executing the Will or he was incapable to understand
the consequences of disposition, the Additional District Judge relying
upon the testimony of two attesting witnesses and propounder of the Will
and other documents executed by the deceased just after the execution
of the Will in favour of the propounder of the Will held that, Will in
question was executed by the deceased in favour of respondent No.1/
Smt.Usha and that the attestation thereof was also proved by the
testimonies of PW-2 and 3, who are trustworthy and unimpeachable
witnesses.
9. On the other hand, the Additional District Judge brushed aside
the statements made by RW-1 and RW-2 inasmuch as there was admission
on the part of the objectors that litigations were going between the
deceased and objectors. RW-1 admitted in her cross-examination that she
had filed a petition for maintenance against the deceased in the court
which was pending since 1982. She also admitted that she and her son
were living separately from the deceased. Even criminal proceedings
under Section 107/151 Cr.P.C. were also initiated two three times against
the deceased by RW-1. Respondent No.1 had placed on record the copy
of the plaint of the suit for injunction filed by the deceased against the
respondents which is Ex.RW1/P-1 and it was not disputed by the objectors.
The contents of the plaint show that the deceased was not happy with
the behaviour and conduct of the respondent who used to torture and
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same to discard the whole statement of these two witnesses.
PW-2 and 3 proved how and in which manner, the Will was
executed. They while identifying their own signatures also
identified signature and thumb impression of the deceased on the
Will. They also stated that the Will was executed by the deceased
after understanding its contents in Hindi language. In my opinion,
the testimony of PW-2 and 3 have proved the due execution of
the Will and fulfilment of all formalities as required under Section
63 of Indian Succession Act. Nothing in the cross examination
of these two witnesses anything has come on record which
create doubts about the genuineness and the due execution of the
Will in question. The objection raised that Will in question was
procured with collusion of attesting witnesses is liable to be
rejected. PW-2 and 3 are trustworthy and unimpeachable
witnesses. They cannot be termed as interested witnesses because
they have equal and similar relationship with the respondents as
well as that of petitioner. From the statement of PW-2 and 3, it
also appears that Will was executed by the deceased without any
pressure, influence or coercion and it was his voluntarily Will.
Otherwise also, Will was registered and in case of registered
document, a presumption of due execution also arises.
Endorsement of Sub-Registrar on the Will also point out that
deceased had executed the Will voluntarily without any pressure
after understanding the contents and nature of disposition.
There is no dispute of the fact that deceased had some
agricultural lands in the village Tehri. Mere no giving of details
of that land in the Will is not sufficient to reject it. Whatever land
deceased owned can be ascertained from revenue record and its
valuation can be found later on at the time of completion of
necessary formalities. If respondents have any dispute about the
correctness of the quantum of measurement of the land, then
that dispute can be sorted out in civil proceedings but not in the
present case. After considering the merits of the case, I am of
the view that Will Ex.PW1/2 is duly proved the last and duly
executed Will of the deceased and there exist no ground to
decline the relief claimed by the petitioner on basis of this Will.
Accordingly both these issues are decided in favour of the
petitioner and against the respondents.”
11. I have heard the counsel for the parties and have examined the
record. The Will in this case dated 2.9.2002 is a registered Will. The
registration thereof has been proved by the clerk from the Registrar’s
office. It is attested by two witnesses who both have appeared in the
witness box. They both have filed their affidavits in support of the
attestation of the Will by them and execution of the Will by the deceased
testator. They both have appeared for the cross-examination but the
respondents have not been able to take out anything which may prove
that the affidavits were not filed by them or that the Will in question was
not executed by the deceased. In fact, the suggestions given by the
appellants are only to the effect that the Will is a forged document which
is also a suggestion given to the propounder of the Will. However, no
evidence has been led by the respondent to prove that Will in question
was not signed by the deceased testator.
12. It has also been admitted by the appellant that there were
criminal proceedings pending between the deceased, his wife and his
son, which explains the reasons as to why the deceased wife and the son
have not been granted benefit of the estate left by the deceased.
13. As far as the plea of the appellant that the property in question
was not the self-acquired property of the deceased, the Additional District
Judge has taken note thereof and has put a rider to the grant by observing
that the question of right, title and share in the properties in question as
well as legality and validity of the alleged sales transaction through Ex.PW2/
4 to 6 is not decided by the probate court and it has been kept open.
14. The appellant has relied upon a judgment delivered in the case
of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria, I
(2009) SLT 172. Having gone through the contents of the aforesaid
judgment, I do not find anything which may help the appellant in
succeeding in appeal. Consequently, the appeal is dismissed with no
orders as to costs.
15. LCR be sent back along with a copy of this order.
CM No.2221/2009(Stay)
Dismissed as having become infructuous.
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141 142Delhi Development Authority v. Hans Raj Batheja (Sanjiv Khanna, J.)
ILR (2011) VI DELHI 141
LPA
DELHI DEVELOPMENT AUTHORITY ....APPELLANT
VERSUS
HANS RAJ BATHEJA ....RESPONDENT
(DIPAK MISRA, CJ. AND SANJIV KHANNA, J.)
LPA NO. : 121/2010 DATE OF DECISION: 30.03.2011
Letters Patent Appeal—The appellant by the present
LPA has impugned the order dated 19.11.2009—
Learned Single Judge has quashed the demand for
misuse charges and interest as well as show cause
notice—Further directed that on paying Rs.6,37,123.73
towards misuse charges to the appellant, the
respondent’s application for conversion of the
property from lease hold to free hold shall be
considered—The property originally allotted to Tara
Singh—Papers including Power of attorney executed
by Tara Singh submitted—Rs.43,337/- on self
assessment and Rs.10,561/- deposited towards
compensation fee pursuant to the letter written by the
appellant—Respondent received unstamped and
unexecuted conveyance deed with direction to get it
stamped from the Collector of Stamps—Respondent
waited for about six years and got the conveyance
deed stamped on payment of Rs.5,655/- and submitted
the document vide receipt dated 30.10.2001—The
property was being misused—In the present case, the
payment towards conversion charges including the
composition fee applicable as in cases of power of
attorney transaction was made on 20th December, 1994.
Thereafter, notice along with conveyance deed was
sent to the respondent on 7th March 1995 with direction
to get it stamped from the collector of Stamps. The
aforesaid exercise was required to be completed
within 45 days, but the respondent had deposited the
original paper after getting the conveyance deed
stamped only on 6th October, 2001—It is held that the
date when the respondent had submitted the
conveyance deed after stamping should be treated as
the date on which the complete application for
conversion was filed—The date on which the
respondent had made the payment or had received
the copy of the conveyance deed for stamping should
be ignored and should not be taken as the relevant
point.
In the present case, the payment towards conversion charges
including the composition fee applicable as in cases of
power of attorney transactions was made on 20th December,
1994. Thereafter, notice along with conveyance deed was
sent to the respondent on 7th March, 1995 with a direction
to get it stamped from the Collector of Stamps. The aforesaid
exercise was required to be completed within 45 days, but
the respondent had deposited the original papers after
getting the conveyance deed stamped only on 6th October,
2001. We are, in these circumstances, inclined to hold that
the date when the respondent had submitted the conveyance
deed after stamping should be treated as the date on which
the complete application for conversion was filed. The date
on which the respondent had made the payment or had
received the copy of the conveyance deed for stamping
should be ignored and should not be taken as the relevant
point. The gap between the date on which the full payment
was made i.e. 20th December, 1994 and when the notice for
conveyance deed for stamping was sent on 7th March, 1995
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Indian Law Reports (Delhi) ILR (2011) VI DelhiDelhi Development Authority v. Hans Raj Batheja (Sanjiv Khanna, J.) 143 144
and the date on which the stamped conveyance deed was
deposited i.e. 30th October, 2001 is substantial.
(Para 16)
When the respondent had submitted the stamped conveyance
deed, the circular dated 26th June, 2001 was in force and
as per the said circular, misuse charges could be calculated
up to 26th August, 1999 or up to the date of vacation of
misuse, whichever was earlier. As per the appellant, the
misuse was continuing on the said date when conveyance
deed after stamping by Collector of Stamps was deposited.
Nothing prevented the appellant from computing the misuse
charges in terms of the circular dated 26th June, 2001. The
aforesaid circular dated 26th June, 2001 continued and
ruled in the field, till the new circular dated 11th August,
2003 was issued. The time gap between submission of
papers i.e. the stamped conveyance deed on 30th October,
2001 and 11th August, 2003 or the date mentioned therein
17th July, 2003 is substantially long and there is a gap of
nearly 20 months. Nothing stopped the appellant DDA from
raising the demand in terms of the circular dated 26th June,
2001 during this period. Appellant has not explained this
delay. The last inspection was on 4th January, 2002. The
circular dated 26th June, 2001 even applied to the cases
which had been closed and the applications had been
rejected. For the same reasons the 2007 circular will not be
applicable. We have applied principles of equity and fair
play to arrive at the aforesaid conclusion. Conduct of the
both sides has been balanced. While the respondent delayed
submission and presentation of the stamped conveyance
deed, the appellant also took its own time to compute and
calculate the misuse charges. Till the misuse charges were
communicated, obviously the respondent would not have
made payment. This delay and default on the part of
appellant should not prejudice and cast a higher financial
burden on the respondent. (Para 17)
Important Issue Involved: Principles of equity and fair
play require that the conduct of the both sides should be
balanced. While the respondent delayed submission and
presentation of the stamped conveyance deed, the appellant
also took its own time to compute and calculate the misuse
charges. Till the misuse charges were communicated,
obviously the respondent would not have made payment.
This delay and default on the part of appellant should not
prejudice and cast a higher financial burden on the
respondent.
[Ch Sh]
APPEARANCES:
FOR THE APPELLANT : Mr. Ajay Verma, Advocate.
FOR THE RESPONDENT : Mr. Neeraj Jain, Advocate.
CASE REFERRED TO:
1. Hans Raj Bhateja vs. Delhi Development Authority and
Another W.P.(C) No.3631/2008.
RESULT: Appeal is partly allowed.
SANJIV KHANNA, J.
1. The appellant, Delhi Development Authority by the present Letters
Patent Appeal has impugned the order dated 19th November, 2009 passed
in W.P.(C) No.3631/2008, Hans Raj Bhateja Vs. Delhi Development
Authority and Another. By the impugned order, the learned single
Judge has quashed the demand for misuse charges and interest as well
as the show cause notice dated 15th June, 2001. It has been further
directed that on the respondent herein paying Rs. 6,37,123.73/- (Rupees
Six Lakh Thirty Seven Thousand One Hundred Twenty Three and Seventy
Three paise only) towards misuse charges to the appellant, the
respondent’s application for conversion of the property No.9, Saini
Enclave, Delhi-110092 (the property, for short) from lease hold to free
hold shall be considered.
2. The property was originally allotted to one Mr. Tara Singh. By
application dated 16th June, 1994, the respondent applied for conversion
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145 146Delhi Development Authority v. Hans Raj Batheja (Sanjiv Khanna, J.)
of the property from lease hold to free hold and had submitted papers
including power of attorney executed by Mr. Tara Singh. The respondent
on self-assessment basis had deposited conversion charges of Rs.43,337/
- (Rupees Forty Three Thousand Three Hundred Thirty Seven only) and
another amount of Rs.10,561/- (Rupees Ten Thousand Five Hundred and
Sixty One only) towards composition fee was deposited on 30th December,
1994 pursuant to the letter dated 20th December, 1994 written by the
appellant. By communication dated 7th March, 1995, the respondent
received unstamped and unexecuted conveyance deed with the direction
to get it stamped from the Collector of Stamps. It is admitted that the
respondent was required to submit the stamped conveyance deed with
the appellant after adjudication by the Collector of Stamps for execution
of the sale/conveyance deed. The respondent waited for about six years
and got the conveyance deed stamped on payment of ˇRs.5,655/- (Rupees
Five Thousand Six Hundred and Fifty Five only) and submitted the said
document vide receipt dated 30th October, 2001.
3. During this period, the appellant issued show cause notice dated
15th June, 2001, wherein it was alleged that contrary to the terms and
conditions of the sub-lease deed, the property was being used for the sale
of bath fittings, tiles etc. i.e., as a showroom or a shop. The respondent,
by letter dated 18th July, 2001 protested and stated that the allegations
were false and baseless and the respondent and his family members were
residing in the premises and no such activity, as stated in the notice was
being carried out and there was no nuisance and disturbance to the
neighbours. It may be noticed here that in one of the columns of the
form for conversion of the property from lease hold to free hold, the
respondent-applicant was required to state whether the property was
being used for residential purpose i.e. the specified purpose mentioned in
the lease deed. The respondent had stated that the property was being
used for residential purpose.
4. As per the case of the appellant, Deputy Director (Enforcement)
vide his letter dated 26th September, 1996 had informed that the property
was being used for other purposes, than the permissible residential purpose.
Junior Engineer (CS) vide his report dated 18th May, 2001 informed that
the premises was being misused for commercial purposes under the
name and style of “Bath Jewellery”, “NITCO Tiles”, “Hans Bath Fittings”
and “Orient Tiles” and it was in these circumstances, the show cause
notice dated 15th June, 2001 was issued for misuse of the property.
5. There is merit in the contention of the appellant that the respondent
had deliberately delayed submission of papers i.e. the stamped conveyance
deed, which was sent by the appellant to the respondent for the purpose
of valuation and stamping by their letter dated 7th May, 1995. The
conveyance deed was submitted after six years on 30th October, 2001.
There is no plausible cause or explanation for this delay as only stamp
duty of Rs.5,655/- (Rupees Five Thousand Six Hundred and Fifty Five
only) was payable. The only plausible explanation for the same is that the
Deputy Director (Enforcement) by his letter dated 26th September, 1996
had informed that the property was being used for other purposes than
the residential purposes and, therefore, once the stamped conveyance
deed was presented, this aspect would be examined. The stamped
conveyance deed as is apparent was filed after six years on 30th October,
2001 i.e., after the show cause notice dated 15th June, 2001 was issued.
6. The appellant tried to inspect the property once again on 21st
December, 2001, but no inspection was allowed by the son of the
respondent. The property was revisited on 4th January, 2002, when the
respondent was present and at that time also it was found that a shop
“Bath Jewellery” was still continuing on the ground floor. The shop area
was measured as 157.4 sq. meters. Inspection of the basement was not
permitted as it was stated that keys were not available with the respondent.
The first floor was being used for residential purpose. It may be noted
that the respondent had informed the appellant by his letter dated 21st
January, 2002 that the field staff of the appellant DDA had visited the
premises in his absence. This letter obviously has to be taken with a
pinch of salt and does not deserve and merit acceptance. The allegation
of misuse should be accepted.
7. The fact that the property was being misused is also affirmed by
the fact that the prosecution was launched against the respondent under
Section 14 of the Delhi Development Authority Act, 1956 for violation
of the Zonal Plan/Master Plan. The respondent was convicted and a fine
of Rs.4,000/- was imposed and paid by the respondent on 6th May,
1998. The contention of the respondent is that he had stopped the misuse
after paying fine of Rs. 4,000/- (Rupees Four Thousand only) on 6th
May, 1998. We are not inclined to accept the said statement and contention.
No such contention is raised or stated in the letter, which was written
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to the DDA in July, 2001 after receipt of notice dated 15th June, 2001.
Thereafter, there is another inspection report of the Junior Engineer (CS)
dated 18th May, 2001 as well as the inspection report dated 4th January,
2002. The appellant was not allowed to inspect the property on 21st
December, 2001.
8. Liability to pay misuse charges in view of the aforesaid facts
cannot be countenanced. The question, which now arises for consideration,
is the period for which misuse charges are leviable and the quantum
thereof. The area under misuse has been calculated and computed as
157.46 sq. meters. This has been calculated on the basis of the site
inspection on 4th January, 2002. There is no ground or basis why this
calculation should be disregarded and should not be accepted. The date
of closure of misuse as taken by the DDA is 24th April, 2003 and on
this basis it is stated as per the policy, a demand of Rs. 34,57,522/-
(Rupees Thirty Four Lakh Fifty Seven Thousand Five Hundred and Twenty
Two only) was raised by the respondent vide letter dated 17th August,
2005, which was subsequently revised vide letter dated 20th February,
2008 to Rs.47,32,483/- (Rupees Forty Seven Lakh Thirty Two Thousand
Four Hundred and Eighty Three only). As noticed above, the learned
single Judge has reduced the said amount to Rs. 6,37,123.73/- (Rupees
Six Lakh Thirty Seven Thousand One Hundred Twenty Three and Seventy
Three paise only). This brings us to the core issue, i.e., which a particular
policy of the appellant is applicable and why should it be applied.
9. Policies/guidelines applicable/framed by the appellant have
undergone repeated and frequent changes. Experimentation and hit and
trial method are sometimes necessary and this may bring about change
of policy/guidelines. At the same time, consistency, certainty and
uniformity are recognized principles of good governance and are checks
on arbitrariness and discrimination.
10. The first policy is dated 28th June, 1999. Clause-6 of the policy
decision dated 28th June, 1999 reads as under:-
“(6) Misuse and Unauthorised Construction It has been decided
that unauthorised construction or misuse of the building
constructed on leased premises ought to be taken care of by
NDMC/MCD/DDA, etc. under their laws/regulations. Accordingly,
the lease administering authorities may permit conversion
of all leased properties irrespective of any building violations
or use violations that may exist. In view of the large scale
misuse of residential premises and unauthorized construction,
DDA and local bodies would take coordinated action to deal with
the situation effectively.
2. In view of the above, lease administering authorities are
requested to make all efforts to clear the pending cases within
the prescribed period of 3 months and take effective steps to
deal with the fresh applications that may be received in future.
Special drives may be launched to dispose of applications for
freehold conversion. The lease administering authorities are
requested to give due publicity to the scheme.
3. It is further clarified that these orders will have prospective
effect and the cases already decided will not be re-opened.”
11. Thus as per this policy nothing was payable but the appellant
was required to take effective steps to stop misuse. On 26th June, 2001,
another circular was issued by the appellant dealing with the misuse. The
said circular reads as under:-
“No.F.4(43)99.Coordn. Dated 26.6.2001
CIRCULAR
In partial modification of Circular No.F.4(43)99/Coordn./L.D.
dt. 3.2.2000 the clarification to the para No. 3 of the Circular
No. F.4(43)99/Coord./L.D. dated 15.7.99 is as follows:
1. All cases of conversion where the past misuse/unauthorized
construction was reported or the misuse is continuing are to be
processed for conversion.
2. The misuse charges would be payable for the period of misuse
from the date of direction of misuse till the date of vacation of
misuse or up to 28.6.1999 whichever is earlier.
3. All the applications for conversion which had been rejected on
account of misuse/unauthorized construction after 28.6.1999 shall
be reopened and processed for conversion after recovering misuse
charges as per para (2), if applicable.
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149 150Delhi Development Authority v. Hans Raj Batheja (Sanjiv Khanna, J.)
4. In cases where conversion applications were received and due
to continuing misuse/unauthorised construction leases were
determined, all such cases would be restored and conversion
allowed after recovering misuse charges as per para (2) if
applicable. No restoration charges would be recoverable.
5. Where the conversion has been allowed and misuse/
unauthorized construction still continuing the matter shall be
referred to the concerned Enforcement Agency for further
necessary action.
6. Cases wherein the conversion has already been allowed, misuse
charge already paid shall not be reopened.
This issues with the approval of Vice Chairman, DDA.”
12. Subsequently, another circular dated 11th August, 2003 was
issued, which for the sake of convenience is reproduced below:-
“CIRCULAR
The issue of levy of misuse charges was discussed during the
course of meeting held in the chamber of Vice Chairman DDA
on 17.7.2003 and following decisions were taken.
(a) Misuse charges shall henceforth be levied up to date or actual
date of closure, whichever is earlier. In such cases in which the
lessee GPA has applied for conversion of the property, the misuse
charges shall be levied up to the date of receipt of complete
application for conversion along with all annexure and documents.
It is further clarified that misuse charges will be levied up to the
date of receipt of last installment or up to the date of closure
whichever is earlier in those cases where it has been preferred
by the lessee/GPA to deposit conversion charges in installments.
(b) Generally the misuse charges are levied from the date of
detection as per the survey report/site report etc. However, in
such cases where any proof indicating the misuse of property
from an earlier date is available misuse charges will be charged
from ˇsuch earlier date, irrespective of actual date of detection.
(c) The demand notice for raising the demand of misuse charges
will specifically contain the condition that "if payment is not
received within 30 days of issue of said demand letter the
outstanding amount will attract interest @ 12.5% p.a.
(d) The decision as mentioned above will not be applicable to all
such cases where the payment on account of misuse charges
pursuant to application for conversion has been received by
17.7.03. All other cases where payment has not been received,
revised demand on account of misuse charges may be raised.”
13. Yet another circular dated 9th March, 2007, the circular dated
11th August, 2003 was modified and it was directed as under:-
“Dated: 9/3/07
CIRCULAR
In partial modification of earlier circular of even No.89 dt.
11.8.03, 152 dt. 18.12.03 and circular bearing No.PS/Dir.(RL)/
LD/04/248 dt. 4.6.04, the Lt. Governor, Delhi has been pleased
to approve as under:-
(i) For the conversion applications received upto 31.12.06,
complete in all respect, misuse charges shall be recovered
upto 31.12.06 or closure of misuse whichever is earlier.
(ii) For the conversion applications complete in all respect
received after 31.12.06, in cases of continued misuse, the
misuse charges shall be recovered up to the date of receipt
of conversion application.
2. The cases in which misuse charges as per circular dt.
11.8.03, 18.12.03 & 4.6.04 have already been approved
by the Competent Authority and demand raised shall not
be re-opened.
Other terms and conditions or earlier circulars dt.
11.8.03, 18.12.03 shall remain the same.”
14. As stated above the question, which arises for consideration, is
that which of the circular is applicable in the present case. Clause 6 of
the circulars dated 28th June, 1999 stipulated that the lease administering
authorities i.e., the DDA should convert all leased properties irrespective
of any building violations or use violations. However, this circular does
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the complete application for conversion was filed. The date on which the
respondent had made the payment or had received the copy of the
conveyance deed for stamping should be ignored and should not be taken
as the relevant point. The gap between the date on which the full payment
was made i.e. 20th December, 1994 and when the notice for conveyance
deed for stamping was sent on 7th March, 1995 and the date on which
the stamped conveyance deed was deposited i.e. 30th October, 2001 is
substantial.
17. When the respondent had submitted the stamped conveyance
deed, the circular dated 26th June, 2001 was in force and as per the said
circular, misuse charges could be calculated up to 26th August, 1999 or
up to the date of vacation of misuse, whichever was earlier. As per the
appellant, the misuse was continuing on the said date when conveyance
deed after stamping by Collector of Stamps was deposited. Nothing
prevented the appellant from computing the misuse charges in terms of
the circular dated 26th June, 2001. The aforesaid circular dated 26th
June, 2001 continued and ruled in the field, till the new circular dated
11th August, 2003 was issued. The time gap between submission of
papers i.e. the stamped conveyance deed on 30th October, 2001 and
11th August, 2003 or the date mentioned therein 17th July, 2003 is
substantially long and there is a gap of nearly 20 months. Nothing stopped
the appellant DDA from raising the demand in terms of the circular dated
26th June, 2001 during this period. Appellant has not explained this delay.
The last inspection was on 4th January, 2002. The circular dated 26th
June, 2001 even applied to the cases which had been closed and the
applications had been rejected. For the same reasons the 2007 circular
will not be applicable. We have applied principles of equity and fair play
to arrive at the aforesaid conclusion. Conduct of the both sides has been
balanced. While the respondent delayed submission and presentation of
the stamped conveyance deed, the appellant also took its own time to
compute and calculate the misuse charges. Till the misuse charges were
communicated, obviously the respondent would not have made payment.
This delay and default on the part of appellant should not prejudice and
cast a higher financial burden on the respondent.
18. In view of the aforesaid discussion, the appeal is partly allowed
and it is directed that the respondent will be liable to pay misuse charges
with effect from 26th September, 1996 till 28th June, 1999. This means,
not prescribe or mention about the misuse charges. In any case, we do
not think that the respondent is entitled to benefit of this circular as he
had submitted the stamped conveyance deed on 6th October, 2001 after
the circular dated 26th June, 2001 modifying the earlier policy dated 28th
June, 1999 was issued. As per this circular, the misuse charges were
payable till the vacation of misuse or up to 28th June, 1999, whichever
was earlier. This circular stipulated that all applications for conversion,
which had been rejected on account of misuse/unauthorized construction
after 28.6.1999 shall be reopened and processed for conversion after
recovering misuse charges as per clause 2, if applicable. Clause 5 of the
said circular further stipulated that where application for conversion has
been allowed and misuse/unauthorized construction still continues, the
matter shall be referred to the concerned Enforcement Agency for further
necessary action.
15. Clause (d) of the circular dated 17th July, 2003 clarifies that
the said circular would be applicable to all pending cases except those
ˇcases where payment on account of misuse charges pursuant to an
application for conversion was received by 17th July, 2003. In this
manner the circular dated 11th August, 2003 was made applicable to all
pending applications. Clause (a) states that the misuse charges would be
levied “up to date” or the actual date of closure, whichever was earlier.
The “words up to date’’ were explained in the second part of the clause
(a), as the date on which the application for conversion by the lessee or
the general power of attorney holder complete in all respects with complete
annexures and documents was received. It is further clarified in the said
circular that misuse charges would be levied up to the date of receipt of
last installment or up to the date of closure, whichever was earlier.
16. In the present case, the payment towards conversion charges
including the composition fee applicable as in cases of power of attorney
transactions was made on 20th December, 1994. Thereafter, notice along
with conveyance deed was sent to the respondent on 7th March, 1995
with a direction to get it stamped from the Collector of Stamps. The
aforesaid exercise was required to be completed within 45 days, but the
respondent had deposited the original papers after getting the conveyance
deed stamped only on 6th October, 2001. We are, in these circumstances,
inclined to hold that the date when the respondent had submitted the
conveyance deed after stamping should be treated as the date on which
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153 154M/s Indian Associates v. The State and Others (M.L. Mehta, J.)
the respondent will be liable to pay misuse charges of Rs.1,71,770.29/
- (Rupees One Lakh Seventy One Thousand Seven Hundred Seventy and
Twenty Nine paise only) for the period 26th September, 1996 to 31st
March, 1997, Rs.4,12,438.44/- (Rupees Four Lakh Twelve Thousand
Four Hundred Thirty Eight and forty four paise only) for the period 1st
April, 1997 to 31st March, 1998, Rs.5,36,398.19/- (Rupees Five Lakh
Thirty Six Thousand Three Hundred Ninety Eight and Nineteen paise
only) for the period 1st April, 1998 to 31st March, 1999 and Rs.
1,31,119.53 (Rupees One Lakh Thirty One Thousand One Hundred
Nineteen and Fifty Three paise only) for the period 1st April, 1999 to
28th June, 1999. The respondent is therefore liable to pay misuse charges
of Rs. 12,51,726.45/- (Rupees Twelve Lakh Fifty One Thousand Seven
Hundred Twenty Six and Forty five paise only). The respondent is given
liberty to make the said payment on or before 30th June, 2011 and on
such payment being made, the conveyance deed shall be executed. The
appeal is accordingly disposed of. There will be no order as to costs.
ILR (2011) VI DELHI 153
FAO(OS)
M/S INDIAN ASSOCIATES ....APPELLANT
VERSUS
THE STATE AND OTHERS ....RESPONDENTS
(A.K. SIKRI & M.L. MEHTA, JJ.)
FAO(OS) NO. : 641/2009 DATE OF DECISION: 30.03.2011
CM APPL. NO. 18506/2009
Indian Succession Act, 1925—Section 278, 307—Late
Rani Padmawati Devi died intestate on 12.04.1987
leaving behind her husband, Raja Birendra Bahadur
Singh; two sons, namely Shivendra Bahadur Singh
(SBS) and Ravindra Bahadur Singh (RBS) and two
daughters Usha Devi and Sharda Devi—SBS filed Case
No. 43/1987 seeking Letters of Administration under
Section 278 of the Indian Succession Act—The heirs
of Late Rani Padmawati Devi were respondent in the
said petition—Issue was framed on 18.3.1988—Letter
of Administration granted to (LOA) petitioners and
petitioner SBS appointed as administrator—RBS being
the heir of her pre-deceased mother and claiming to
have 1/5th share in the estate, filed application under
Order IX Rule 13 of the CPC being IA No.4065/1988 on
18th July, 1988 setting aside the order dated 10th May,
1988 granting LOA—Pending this application the
petitioner under the authority of LOA negotiated and
entered into a sale transaction with the appellant,
Indian Associates. The purpose of transaction as
claimed by the petitioner as administrator was
utilization of the sale consideration to meet the
liabilities relating to wealth tax and income tax of the
estate—According to appellant the agreement to sell
was entered into on 9th September, 1988 and a sale
deed was executed by the administrator on 11th
October, 1988, but the same was not registered by the
sub-Registrar—Miscellaneous petition filed before
Madhya Pradesh High Court—The said writ petition
came to be dismissed by the Madhya Pradesh High
Court—It is noted that a case regarding excess land
than the prescribed limited under the Urban Land
Ceiling Act was pending against Rani Padmawati Devi
since 1977 before the competent authority at Raipur
(M.P.)—Certain conditions/restriction on use and sale
of land had been imposed on Rani Padmawati Devi by
the concerned authority of Madhya Pradesh
Government—Later, the concerned authority granted
permission to sell the lands—This was challenged by
respondent in Madhya Pradesh High Court by way of
writ—This writ was allowed and order dated 20th
September, 1988 whereby permission was granted to
sell the land was quashed—The absolute power of
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disposal of property conferred on an executor or
administrator as envisaged under sub-section (1) is
subject to sub-section (2) of Section 307 of the Indian
Succession Act. It was madatory to seek permission of
the Court granting the probate or the LOA. as the case
may be, before entering into transaction of disposal of
immovable property as vested in them in their capacity
as executor or the administrator—As per Section 317
of the Act, the administrator was required to exhibit in
the Court the inventory containing full account of the
properties including the creditors and debtors—Mere
agreement to sell would not entitle the appellant to
have much say in the present proceeding—Of course,
the appellant may have the remedy somewhere else
in some other proceedings—Unregistered sale deed
is not a complete sale—No doubt, the sale deed in the
present case was executed and presented before the
Sub-Registrar, but as noted above, same was not
registered because of persistent stay and also because
of Urban Lan Ceiling Act—Section 54 of the Transfer of
Property Act, Stipulates that sale or transfer of
immovable property or other intangible thing is to be
only by way of registered sale deed/instrument—No
ground for inference—Appeal dismissed.
We have also noted that as per Section 317 of the Act, the
administrator was required to exhibit in the Court the inventory
containing full account of the properties including the creditors
and debtors. However, as noticed in the present case, the
administrator SBS presented the statement of account in the
Court after seven months from the grant of administration
and that too when clout had arisen in the transaction and
the application for revocation by respondent/RBS was
pending. We have also noticed that nothing came on record
that the money which was stated to have been received
from the appellant was utilized by administrator SBS towards
the benefit of the estate by clearing liabilities of taxation.
(Para 41)
In any case, what rested with the appellant was only an
Agreement to Sell and not the documents of transfer of title
of the property or possession thereof. Mere Agreement to
Sell would not entitle the appellant to have much say in the
present proceeding. Of course, the appellant may have the
remedy somewhere else in some other proceedings. As per
the judgment of the Supreme Court in S. Kaladevi v. V.R.
Somasundaram and others, 2010 (5) SCC 401,
unregistered sale deed is not a complete sale. No doubt, the
sale deed in the present case was executed and presented
before the Sub-Registrar, but as noted above, same was
not registered because of persistent stay and also because
of Urban Land Ceiling Act. Section 54 of the Transfer of
Property Act clearly stipulates that the sale or transfer of
immovable property or other intangible thing is to be only by
way of registered sale deed/instrument. (Para 42)
[Ch Sh]
APPEARANCES:
FOR THE APPELLANT : Mr. R. Mukherjee and Mr. Jayant
K. Mehta, Advocates.
FOR THE RESPONDENTS : Mr. Lalit Gupta, Advocate for
respondent No.3. Mr. Rahul Gupta,
Advocate for Respondent No. 2, 7,
8.
CASES REFERRED TO:
1. S. Kaladevi vs. V.R. Somasundaram and Others, 2010
(5) SCC 401.
2. Usha Sinha vs. Dina Ram and others, (2008) 7 SCC 144.
3. Crystal Developers vs. Asha Lata Ghosh, 2005 (9) SCC
375.
4. R.K. Mohammad Ubaidullah and others vs. Hajee C.
Abdul Wahab, (2000) 6 SCC 402.
5. Gotiram vs. Sona Bai AIR 1970 Bom 73.
6. Gotiram Nathu Mendre vs. Sonabai w/o Savleram Kahane
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157 158M/s Indian Associates v. The State and Others (M.L. Mehta, J.)
and others, AIR 1970 Bom 73.
7. Union of India vs. Nanak Singh, AIR 1968 SC 1370.
8. P.H. Alphonoso vs. Mrs. Irene Dias & others, 1967 (2)
Mysore LJ 465.
9. Gulabchand Chhotalal Parikh vs. State of Gujarat, AIR
1965 SC 1153.
10. Smt. Babuain Chandrakala Devi vs. Smt. Pokhraj Kuer
and others, AIR 1963 Patna 2.
11. Tincowri Pramanik vs. Narayan Chandra Mukherjee, AIR
1957 CAL 364.
12. G.F.F. Foulkes and others vs. A.S. Suppan Chettiar, AIR
(38) 1951 MAD 296.
13. Adeline Maude Ellanor Catchick Nee Roberison and
another vs. Sunderlal Daga and others, AIR (37) 1950
Calcutta 559.
14. Mathuradas Vassanji vs. Raimal, AIR 1935 Bombay 385.
15. V. Zollikofer and Co. vs. O.A.O.K.R.M. Chettyar Firm,
AIR 1931 Rangoon 277.
16. Namberumal Chetti vs. Veeraperumal Pillai, AIR 1930
MAD 956.
17. Mindnapur Zamindari Co vs. Ram Kanal Singh AIR 1926
Pat 130.
18. Sita Sundari Barmani and another vs. Barada Prosad
Roy Chowdhary and others, AIR 1924 CAL 636.
19. A.L.A.R firm vs. Maung Thwe, AIR 1923 Rangoon 69.
RESULT: Dismissed.
M.L. MEHTA, J.
1. This is an appeal against the order dated 9th October, 2009 of
the learned Single Judge whereby Test Case No.43/1987 and IAs
No.5054/1999, 6581-6582/2005 and 3097/2009 pending therein were
dismissed.
2. During the pendency of the Test Case No.43/1987, there has
been various round of litigation between the parties on different issues
relating to the estate of late Rani Padmawati Devi (hereinafter referred to
as “the estate”). It would be useful to recite relevant facts as referred to
by learned counsel for the parties during the course of arguments in the
present appeal.
3. Late Rani Padmawati Devi died intestate on 12.04.1987 leaving
behind her husband, Raja Birendra Bahadur Singh; two sons, namely,
Shivendra Bahadur Singh (SBS) and Ravindra Bahadur Singh (RBS) and
two daughters, namely, Usha Devi and Sharda Devi. SBS filed Test Case
No.43/1987 seeking Letters of Administration (hereinafter referred to as
“LOA”) under Section 278 of the Indian Succession Act (hereinafter
referred to as “the Act”). The other heirs of late Rani Padmawati Devi
were respondents in the said petition as Respondent No. 2 (Birender
Bahadur Singh), Respondent No. 3 (Usha Devi), Respondent No. 4 (Sharda
Devi) and Respondent No. 5 (RBS). On 18th March, 1988, the following
issue was framed in the aforesaid petition by the learned Single Judge:
“(i) Is the petitioner entitled to and should he be granted the
Letters of Administration exclusively or should the letters
of administration be granted in two or more names in
respect of the estate of the deceased Rani Padmawati
Devi?”
4. Vide order dated 10th May, 1988, the learned Single Judge
granted Letters of Administration appointing the petitioner/SBS as the
administrator of the estate. The said order reads as follows:-
“Pr. 42/97
This is a petition under section 278 of the Indian Succession Act
forgrant of Letters of Administration without will.
Rani Smt. Padmawati Devi, hereinafter referred to as the
deceased, died instestate at Bhopal on 12th April, 1987. She was
the mother of the petitioner and of respondents 3 to 5. It is
alleged that respondents 2 to 4 have executed a power of attorney
in favour of the petitioner in respect of all movable and immovable
properties left by the deceased. It is further alleged that
respondents 2 and 3 have relinquished their rights and
responsibilities in favour of the petitioner.
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Indian Law Reports (Delhi) ILR (2011) VI Delhi159 160M/s Indian Associates v. The State and Others (M.L. Mehta, J.)
The deceased had left behind properties, details of which have
been set out in Schedules B1 and B2. The total value of the
assets comes to approximately Rs.15,40,000/-. Schedule C gives
particulars about the liabilities of the deceased. The total liabilities
mentioned therein come to Rs.36,87,828/-, the liabilities being
only due to the demands raised by the Income-tax and wealth-
tax authorities.
Notice of the application was issued. In the application it is
prayed that as the petitioner is the owner of 3/5th property and
also holds a power of attorney of respondent No.4, letters of
administration should be granted in his favour. It is further
contended that respondent No.5 has weak eye sight and is not
physically or otherwise capable of administering the estate.
Reply has been filed by all the respondents. Respondents 2 to 4
do not oppose the grant of letters of administration in favour of
the petitioner. The opposition to the grant of letters of
administration is only from respondent No.5.
Parties were required to file affidavits by way of evidence. It is
only the petitioner who has filed the affidavit. No affidavit by
way of evidence has been filed by respondent No.5 nor is any
counsel present on his behalf.
The petitioner in this case, as would be evident from what has
been stated by respondents 2 to 4, appears to be the owner of
3/5th of the estate left behind by the deceased. Furthermore, out
of the 5 legal heirs, 4 of them have agreed, including the petitioner,
that the estate should be administered by the petitioner. It is
important to note that one of the legal heirs who has so agreed
is respondent No.2, who was the husband of the deceased and
father of the petitioner and respondent No.5. The petitioner is
also holding an important position in life being a Member of
Parliament and in the absence of any evidence being led by way
of affidavits or otherwise by respondent No.5, I see no reason
as to why the petitioner should not be granted the letters of
administration as prayed for.
I accordingly grant Letters of Administration without will attached
to the petitioner. The formal Letter will be issued in the form set
forth in Schedule 7 after the petitioner has furnished a bond to
the Registrar of this Court with one surety for a sum of Rs.5
lacs.’’
5. RBS (respondent No.5 in the said petition and respondent No. 2
herein) being the heir of her pre-deceased mother and claiming to have
1/5th share in the estate, filed application under Order IX Rule 13 of the
Code of Civil Procedure being IA No.4065/1988 on 18th July, 1988 for
setting aside the order dated 10th May, 1988 granting LOA. This application
came to be heard on 13th August, 1988 when the petitioner’s counsel
appeared and accepted the notice. It is noted that IA No. 4065/1988
under Order IX Rule 13 and IA No.3393/1989 under Section 5 of the
Limitation Act, 1963 of the respondent/RBS remained pending till the
passing of the impugned order. Pending this application, the petitioner
under the authority of LOA negotiated and entered into a sale transaction
with the appellant, Indian Associates. The purpose of transaction as
claimed by the petitioner as administrator was utilisation of the sale
consideration to meet the liabilities relating to wealth tax and income tax
of the estate.
6. According to Indian Associates (appellant herein), the agreement
to sell was entered into on 9th September, 1988 and a sale deed was
executed by the administrator on 11th October, 1988, but the same was
not registered by the sub-Registrar. Since the sub-Registrar, Raipur, did
not register the sale deed in favour of the appellant, the appellant filed a
petition being Miscellaneous Petition No.2173/1989 before the Madhya
Pradesh High Court. The said writ petition came to be dismissed by the
Madhya Pradesh High Court vide Order dated 12th October, 1992. The
relevant portion of the order of the Hon’ble High Court of Madhya
Pradesh is as under:
“7. It cannot also be overlooked that the respondent Sub
Registrar has not so far refused registration and has kept
the matter pending. This Court is of the opinion that, it
was wholly justified. If and when the registration is refused,
the petitioners will have alternative remedy of appeal and
suit provided under the Act. There is therefore no
justification for invoking extraordinary jurisdiction of this
Court under Article 226 of the Constitution.”
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161 162M/s Indian Associates v. The State and Others (M.L. Mehta, J.)
7. Before proceeding further, it is noted that a case regarding excess
land than the prescribed limited under the Urban Land Ceiling Act was
pending against Rani Padmawati Devi since 1977 before the competent
authority at Raipur (M.P.). Vide Order dated 18th May, 1983 certain
conditions/restrictions on use and sale of lands had been imposed on Rani
Padmawati Devi by the concerned authority of Madhya Pradesh
Government. Later, vide Order dated 20th September, 1988, the concerned
authority granted permission to sell the lands. This was challenged by
respondent/(RBS) in Madhya Pradesh High Court by way of writ (No.
3328/1988). This writ was allowed and the order dated 20th September,
1988 whereby permission was granted to sell the land was quashed. It
is noted that this order came to be passed on the submissions made by
the parties that on the death of Rani Padmawati Devi, the property ceased
to be within the prescribed limits of the provisions of Ceiling Act. The
Madhya Pradesh High court, however, did not see any illegality in the
order of 18th May, 1983 of the Government of Madhya Pradesh imposing
conditions/restrictions regarding use and sale of lands. It was held by the
Madhya Pradesh High court vide separate order dated 12th October,
1992 that the order dated 20th September, 1988 granting permission to
sell the land cannot be said to modify the conditions/restrictions imposed
vide order dated 18th May, 1983 on Rani Padmawati Devi. On this
reasoning, the Court held that the administrator/SBS (respondent No. 2
therein) did not have the authority to sell the lands covered by the order
of 18th May, 1983 and to that extent the sale in favour of investors
(Indian Associates) must be held to be illegal and inoperative. From the
decision of Madhya Pradesh High Court, as noted above, it is clear that
the conditions/restrictions regarding use and sale of lands on Rani
Padmawati existed since 18th May, 1983 and that though the permission
to sell was granted on 20th September, 1988, but the conditions/
restrictions regarding sale and use of the lands still continued.
8. On 12th October, 1988, in an application being IA No.8566/1988
filed by RBS, this Court had restrained the administrator/SBS from
transferring, alienating or parting with the possession of the properties,
which formed subject matter of the estate. On 21.12.1988, the
administrator/SBS filed a statement of account in the Court, reflecting the
receipt of Rs.35.00 lakhs by the estate on account of sale of Padma
Bhavan to the appellant by virtue of sale deed dated 11th October, 1988.
9. Against the orders of MP High Court dated 12th October, 1992,
the appellant/Indian Associates and also administrator/SBS filed SLPs
before the Hon’ble Supreme Court being SLP No.1152/1993 and 396-97/
1993. Both the SLPs came to be dismissed by the Hon’ble Supreme
Court vide order dated 10th May, 1993.
10. It appears that the case which was pending since 1977 before
the Court of competent authority of Urban Land Ceiling, Raipur against
Rani Padmawati Devi regarding the excess land than the prescribed limited,
both the administrator and respondent/RBS informed the competent
authority about the death of their mother on 12th April, 1987 and also
of their father Birendra Bahadur Singh. The competent authority accepted
their plea that in the given circumstances by partition of the property into
four shares, i.e., two daughters and two brothers, nobody would be
holding the land in excess to the prescribed limit. In this factual matrix,
the competent authority filed the case listed against Rani Padmawati vide
order dated 14th March, 1997.
11. Now RBS proceeded to sell a part of the property known as
Padma Bhawan (property in question) by a sale deed dated 29th July,
1997 to M/s.Jesper Construction Pvt. Limited (hereinafter referred to as
“Jesper”) for a consideration of Rs.21.00 lakhs. The administrator/SBS
filed application being IA No.10437/1997 wherein learned Single Judge of
this Court vide order dated 19th February, 1998 restrained RBS and other
respondents from alienating, disposing of and/or parting with the possession
of the property in question. The situation took a new turn with the death
of administrator/SBS on 31st December, 1998. The appellant/Indian
Associates filed an application (I.A. No.490/1999) seeking intervention/
impleadment in the pending Test Case and also filed another application
(I.A. No.5054/1999) for appointment of an administrator in place of
deceased administrator/SBS. It appears that the legal heirs of the
administrator/SBS also filed two applications (I.A. No.12147/1999 and
12148/1999) for their substitution in the proceedings and for condonation
of delay.
12. Thereafter the parties to the Test Case, i.e., heirs of Rani
Padmawati and heirs of administrator/SBS filed an application under Order
XXIII Rule 3 CPC (being I.A. No.14812/1999) seeking disposal of this
case on the basis of a Memorandum of Understanding (MOU) dated 26th
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August, 1999 executed amongst themselves.
13. The application of appellant-Indian Associates for intervention/
impleadment (IA No.490/1999) was disposed by the learned Single Judge
vide order dated 17th January, 2002. By the same order, the other
application (IA No.5054/1999) filed for appointment of administrator in
place of deceased administrator/SBS also came to be dismissed. The
appellant/Indian Associates preferred appeal against the order of dismissal
of its application for impleadment. Division Bench disposed of the same
as under:-
“(We)...allow the application (I.A. No. 490/99) to the extent that
the appellant shall be entitled to participate in the proceedings in
order to enable it in safeguarding its interests and that also to the
extent of that part of the estate of Rani Padmavati, which is the
subject matter of the sale deed dated 11.10.1988 as alleged to
have been executed by late Shivendra Bahadur Singh in favor of
the appellant, including the legal capacity of late Shivendra Bahadur
Singh, as an administrator pendent lite to enter into the sale deed
with the appellant, and also in relation to the legal effect of the
said transaction, making it clear that the appellant shall not be
entitled in any manner to intervene or interfere with, or participate
in the pending probate case qua the remaining estate.”
14. The learned counsel for the appellant/Indian Associates challenges
the impugned order on various grounds. He submits that in the aforesaid
facts a very peculiar situation has arisen. The appellant is a bonafide
purchaser for value from the administrator/SBS. The administrator executed
a sale deed in favour of the appellant, which was then presented and
accepted for registration. The administrator also filed detailed accounts
of the transaction in the Court. However, the sale deed of the appellant
was not registered by sub registrar initially on account of certain issues
of the Ceiling Act, which stood resolved by the order dated 14.03.1997
whereby it was ordered that the provisions of the Ceiling Act were not
applicable to the estate after the death of Rani Padmawati Devi in the year
1987. Thereafter, the administrator expired and the respondent/RBS played
a fraud in collusion with other respondents. However, the Ld. Single
Judge has disposed of the proceedings by the impugned Judgment and
Order dated 9.10.2009, without even considering, much less appreciating
the aforesaid circumstances. He submits that the appellant/Indian Associates
is the bonafide purchaser of the property from the administrator under
the authority of grant of LOA by the Court. He argues that at the time
of agreement to sell dated 9th September, 1988, there was no clout on
the authority of the administrator/SBS and so there was no reason for the
appellant/Indian Associate to doubt the authority of administrator more so
when the sale proceeds were to be applied by the administrator to liquidate
the liabilities of the estate. To substantiate his arguments, the learned
counsel relies on Mathuradas Vassanji v. Raimal, AIR 1935 Bombay
385, Tincowri Pramanik v. Narayan Chandra Mukherjee, AIR 1957
CAL 364, Adeline Maude Ellanor Catchick Nee Roberison and another
v. Sunderlal Daga and others, AIR (37) 1950 Calcutta 559.
15. Referring to Sections 211(1), 216, 220, 273 and 307 of the
Act, the learned counsel submits that the administrator is the sole
representative of the deceased and the estate vests in him. The administrator
is possessed with all the rights in relation to the assets of the estate of
the deceased as if he were the owner. The powers of the administrator
u/s 307 are wide and comprehensive and that the LOA granted shall be
conclusive to the representative title and further that the administrator has
absolute power to dispose of the property of the deceased in such
manner as he may deem fit. He submits that the administrator had complete
authority to deal with the property in any manner he deemed most
appropriate and that if for some reason the LOA is revoked, the revocation
has prospective effect, thus saving any intervening transactions. Reliance
is placed on the judgments of A.L.A.R firm v. Maung Thwe, AIR 1923
Rangoon 69, Smt. Babuain Chandrakala Devi v. Smt. Pokhraj Kuer
and others, AIR 1963 PATNA 2, Namberumal Chetti v. Veeraperumal
Pillai, AIR 1930 MAD 956, G.F.F. Foulkes and others v. A.S. Suppan
Chettiar, AIR (38) 1951 MAD 296 and P.H. Alphonoso v. Mrs. Irene
Dias & others, 1967 (2) Mysore LJ 465 and Crystal Developers v.
Asha Lata Ghosh, 2005 (9) SCC 375.
16. Further referring to Section 307 of the Act, learned counsel
submits that this Section authorises validly appointed administrator to
transfer and sell the property of a deceased. He submits that expression
‘‘may’’ in Section 307(2) signifies that there is no bar in the exercise of
such power and the court can be approached for permission. He urges
that the lack of prior permission from the court in a case of such transfer
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165 166M/s Indian Associates v. The State and Others (M.L. Mehta, J.)
does not vitiate the sale but merely renders it voidable, which in turn
means that the party aggrieved has to approach the court of law, to avoid
or challenge such a transaction. The learned counsel relies upon the
cases of Sita Sundari Barmani and another v. Barada Prosad Roy
Chowdhary and others, AIR 1924 CAL 636, Gotiram Nathu Mendre
v. Sonabai w/o Savleram Kahane and others, AIR 1970 Bom 73 and
V. Zollikofer and Co. v. O.A.O.K.R.M. Chettyar Firm, AIR 1931
Rangoon 277. Learned counsel also submits that the sale deed already
having been executed in favour of the appellant/Indian Associates by the
administrator/SBS for a valuable consideration, respondent/RBS was
neither authorised nor competent to sell a part of the property in question
to M/s.Jesper in 1997. The said sale is alleged to be illegal and not
binding on the estate of the deceased.
17. With regard to filing of application under Order IX Rule 13 of
the Code of Civil Procedure by respondent/RBS for recalling the grant of
LOA, learned counsel submits that the pendency of this application did
not amount to any impediment on the part of the administrator, who was
validly appointed by the Court. He argues that this application was neither
argued nor pressed all the while by respondent/RBS and so much so even
no evidence was led.
18. Based on the aforesaid submissions, the learned counsel argues
that in view of these facts and circumstances and developments, this
Court alone has jurisdiction to issue orders pertaining to administration of
estate of late Rani Padmawati Devi and that consequent upon the death
of the validly appointed administrator/SBS, an administrator was required
to be appointed by the court. He further argues that for the proper and
complete administration of the estate, the Court was required to protect
the rights of such third parties who had bonafidely dealt with the
administrator.
19. On the other hand learned counsel appearing for Respondent
Nos. 2 (RBS), 7 and 8 submits that the administrator had no authority
to transfer the property in question without the permission of the Court
in view of mandatory provision under sub-section (2) of Section 307 of
the Act. The learned counsel argues that the transfer made by the
administrator created suspicion, especially when there were other heirs
to the estate and no permission of the Court was obtained. Learned
counsel tries to demonstrate the duties and responsibilities of the
administrator while dealing with the property under the grant of LOA.
The administrator was only in possession as a trustee and is supposed
to deal with the estate in larger interest of the estate and the other heirs.
He submits that when the administrator was aware that the application
for setting aside the order granting him LOA was filed by the respondent/
RBS and notice had also been accepted by him on 13th August, how can
it be said that agreement to sell on 9th September 1988 (with the appellant)
was with bonafide intention. Not only that, no permission was obtained
as contemplated under Section 307(2) of the Act, the administrator even
did not inform the Court about the transaction. The learned counsel
submits that the entire factual matrix and the conduct of the administrator
would lead to a conclusion about his malafide intention adversely affecting
the estate to its interest. The learned counsel for respondents next submits
that the administrator was well aware of the fact that there existed
conditions/restrictions on sale and transfer of the estate of Rani Padmawati
Devi since May 1983. He submits that though by order dated 20th
September, 1988, permission was granted by the Competent Authority,
Madhya Pradesh to sell the land, but the conditions/restrictions as imposed
continued to exist. He emphasis that the administrator knew about the
pendency of Petition No.3328/1988 filed by respondent/RBS against the
order of grant of permission to sell and also about the Sub Registrar,
Raipur, having declined to register the sale deed. He further submits that
the appellant-Indian Associates also knew all this as it had become a
party in the aforesaid petition (No.3328/1988) pending before the Madhya
Pradesh High Court. In this regard he relies on Mindnapur Zamindari
Co v. Ram Kanal Singh AIR 1926 Pat 130, re-Estate of Indrani AIR
1931 All 212, Gotiram v. Sona Bai AIR 1970 Bom 73, R.K. Mohammad
Ubaidullah and others v. Hajee C. Abdul Wahab, (2000) 6 SCC 402
and Usha Sinha v. Dina Ram and others, (2008) 7 SCC 144.
20. The learned counsel next argues that contrary to the assertions,
not only during the lifetime of the administrator, but right upto 1997, the
appellant/Indian Associates did not make any attempt to apprise this
Court about the transaction much less seeking prior permission of the
transaction. He argues that the alleged transaction was void ab initio and
illegal, firstly, because of the fact that there existed restrictions on the
sale and transfer since May 1983; secondly, because of absence of
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dealt with by him with cogent reasons.
24. We may recall that undisputedly the Competent Authority of
Madhya Pradesh had imposed certain conditions/restrictions on the use
and sale of the lands of Rani Padmawati Devi way back in May 1983.
The proceedings under the Urban Land Ceiling Act regarding lands were
pending against Rani Padmawati Devi since 1977. As the conditions were
there at that time the lands in question apparently appeared to be within
the ambit of Ceiling Act, being more than the prescribed limit in the
hands of Rani Padmawati Devi. That is a different issue that after her
death the land devolved in the hands of four legal heirs and thereby came
out of the purview of the Ceiling Act. But, the fact remains that there
existed restrictions on the use and disposal of the lands since May 1983.
The petitioner i.e., administrator/SBS was well aware of those proceed
ngs and also the restrictions. He was appointed LOA in May 1988. Respon
ent/RBS filed an application under Order IX Rule 13 CPC (I.A. No.4065/
1988) on 18th July, 1988 for setting aside the order granting the LOA.
The administrator/SBS was well aware of this application since notice
had already been accepted by him. The said application was pending for
adjudication. In such circumstances, the bonafide of the administrator/
SBS in dealing with the estate becomes doubtful and suspicious since he
took hardly any time to enter into an agreement to sell on 9th September,
1988 with the appellant. In R.K. Mohammad Ubaidullah and others v.
Hajee C. Abdul Wahab, (2000) 6 SCC 402, the Supreme Court has held
that unless a purchaser has made appropriate inquiry, he cannot establish
his bona fides. If such an inquiry is not made, it would mean that the
purchaser willfully refrained from making the inquiry or grossly neglected
to do so. In another case of Usha Sinha v. Dina Ram and others,
(2008) 7 SCC 144, the Supreme Court has observed that a transferee
from judgment debtor is presumed to be aware of the proceedings before
the court of law. He should be careful before he purchases the property
which is the subject matter of litigation.
25. We do not see the relevance of the case of Mathuradas Vassanji
(supra) relied upon by the appellant in the present case. In the cases of
Tincowri Pramanik (supra) and Adeline Maude Ellanor Catchick Nee
Roberison and another (supra), the rights and obligations of alienee
from the executor of a Will came to be considered. It was held that the
alienee from an executor, who is acting as such has right to infer that
permission of the Court under Section 307(2) of the Act and; thirdly,
because of manifest lack of bonafide of the administrator to enter into
this transaction in view of the subsisting objections by respondent/RBS.
He vehemently submits that overall conduct in rushing through the process
of striking a deal on 9th September, 1988 when the notice of setting
aside the LOA was already served on him a few days back, would clearly
demonstrate that the administrator/SBS was not honest in dealing with
the estate.
21. He argues that the question of validity of the sale transaction
was directly involved in the proceedings before MP High Court which
were decided against the administrator/SBS and appellant-Indian Associates
on 12th October 1992 and that SLP filed against it was also dismissed
and thus those decisions are res-judicata against all including the appellant/
Indian Associates. He submits that the same issues are sought to be
reagitated by them in these proceedings. In this regard he relies upon the
case of Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965
SC 1153 and Union of India v. Nanak Singh, AIR 1968 SC 1370.
22. Learned counsel appearing for M/s. Jesper (Respondent No. 3
herein) argues that the Division Bench of this Court while dealing with
the applications of the appellant/Indian Associates (IAs No.490/1999 and
5054/1999) vide order dated 17th January, 2002 had allowed the appellant/
Indian Associates only to participate in the proceedings in order to enable
it to safeguard its interest to the extent of that part of the estate which
was the subject matter of the sale deed dated 11th October, 1988 executed
by the administrator/SBS in favour of appellant. In other words, the
submissions are that the requests of the appellants for its impleadment in
place of deceased administrator or for the appointment of some other
person as the administrator in place of deceased administrator were
rejected and they were only permitted to participate in the proceedings
to safeguard their interest. He submits that the said order has become
final and binding on the parties.
23. We have given our thoughtful consideration to the submissions
made by the learned counsel for the parties. For the reasons to be
recorded hereinafter we do not find any infirmity or illegality in the
impugned order of the learned Single Judge. Almost all the submissions,
which have been made before us, by the learned counsel for the parties,
were made before the learned Single Judge and are seen to have been
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the latter is acting fairly; that immunity is, however, lost when the alienee
has notice, actual or constructive, of the fact that the executor is acting
in breach of trust. The alienee is not bound to see to the application of
money. The burden rests upon the persons impeaching the validity of the
transaction to prove the alienee had notice of the facts. From all that we
have discussed above, we have seen that the bonafide of the administrator-
SBS in dealing with estate had become suspicious and the appellant also
knew all about the conditions and restrictions and clout on the authority
of the administrator.
26. The cases of Smt. Babuain Chandrakala Devi (supra),
Namberumal Chetti (supra), G.F.F. Foulkes and others (supra) and
P.H. Alphonoso (supra) relied upon by the appellant deal with the powers
of the executor or administrator and the immunity enjoyed by the bonafide
purchaser in the sense that the sale cannot be questioned so as to defeat
the alienee who had no notice of the fact or the powers of the administrator
or that property could fetch a higher price. There is no dispute with
regard to any of the propositions laid down in this regard as noted
hereinabove.
27. The other case relied upon by the appellant, namely Crystal
Developers (supra) was dealt with by the learned single Judge. This
case also related to a Will for which probate was granted. The third party
had purchased the property bonafide. It was in this context that the
Court had observed that the revocation of probate is prospective and
would not give effect to a third party bonafide and valid transaction. The
learned Single Judge rightly observed that with regard to this proposition
as noted hereinbefore, the facts of Crystal Developers (supra) are quite
different from the present case.
28. The cases of Sita Sundari Barmani and another (supra),
Gotiram Nathu Mendre (supra) and V. Zollikofer and Co. (supra)
were relied upon by the learned counsel for the appellant to substantiate
that the lack of prior permission from the court before entering into
transaction will not vitiate the sale but merely render it voidable. Though
the case of Gotiram Nathu Mendra (supra) relate to a Will, the word
‘restriction’ as used in Section 307(2) was interpreted to cover a total
prohibition of disposal of property. In this regard, it was held as under:
‘‘I am, therefore, of the view, and I also hold, that in Section
307(2) of the Indian Succession Act the word ‘‘restriction’’
includes and covers a total prohibition. The general power of
disposal of property conferred by sub-section (1) is, therefore,
subject to the prohibition on disposal imposed by the will, and a
sale in contravention of such prohibition is voidable at the instance
of a person interested as provided in clause (iii) of sub-section
(2) of Section 307.’’
29. The consequence of a transaction being voidable was to mean
that it could be challenged or objected to by the person interested in the
property. In the present case, RBS not only attempted to impeach the
transaction immediately by filing an application, but also applied for
injunction, which was granted. Since the genesis of the transaction itself
was doubtful and that had been challenged by the RBS and in view of
the fact that subsequently RBS and all other LRs entered into a MOU and
asked for disposal of the proceedings, there appeared to be no need for
filing a separate suit regarding the transaction to be voidable.
30. With regard to the binding effect of the orders of the Madhya
Pradesh High court, the learned Single Judge noted that the correctness
of the orders of the Madhya Pradesh was tested in the Supreme Court,
which dismissed the SLPs. We are in agreement with the learned Single
Judge that though the context of the proceedings and the decisions
before the Madhya Pradesh High Court was different being under the
Ceiling Act, nevertheless those proceedings ended in binding orders. The
finding of the Madhya Pradesh High Court that the administrator/SBS
having no authority to sell the land and to that extent the sale in favour
of investors, Indian Associates, must be held illegal and invalid, has
become final with the dismissal of SLP by the Supreme Court.
31. Though, it was in a different context but it may be noted that
the principal laid down by Hon.ble Supreme Court in the case of Usha
Sinha v. Dina Ram and Others (2008) 7 SCC 144 is that a transferee
should be careful before he purchases a property which is subject matter
of litigation. The doctrine of lis pendens recognized by Section 52 of
Transfer of Property Act prohibits dealing with the property which is the
subject matter of the suit. The lis pendens itself is stated as constructive
notice to the purchaser that he is bound by the outcome of pending
litigation.
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32. It appears that some efforts might have been made by the
administrator/SBS to get an order from the competent authority of Madhya
Pradesh on 20th September, 1988 for seeking permission of sale of the
property. However, in the process it appears he seemed to have forgotten
that there existed restrictions on sale and transfer since 13th May, 1983
and further that the agreement was dated 9th September, 1988 i.e. before
the grant of permission on 20th September, 1988. Another important fact
is that the appellant also knew about all this as having become party in
the writ petition filed by the respondent/RBS. In these circumstances, it
cannot be held that at the time of agreement dated 9th September, 1988,
there was no clout on the authority of the administrator.
33. We shall now proceed to discuss Section 307 of the Act which
reads as under:
‘‘307. Power of executor or administrator to dispose of property.-
(1) Subject to the provisions of sub- section (2), an executor or
administrator has power to dispose of the property of the
deceased, vested in him under section 211, either wholly or in
part, in such manner as he may think fit.
(2) If the deceased was Hindu, Muhammadan, Buddhist, Sikh or
Jaina or an exempted person, the general power conferred by
sub- section (1) shall be subject to the following restrictions and
conditions, namely:—
(i) The power of an executor to dispose of immoveable
property so vested in him is subject to any restriction
which may be imposed in this behalf by the will appointing
him, unless probate has been granted to him and the
Court which granted the probate permits him by an order
in writing, notwithstanding the restriction, to dispose of
any immoveable property specified in the order in a manner
permitted by the order.
(ii) An administrator may not, without the previous permission
of the Court by which the letters of administration were
granted,—
(a) mortgage, charge or transfer by sale, gift, exchange or
otherwise any immoveable property for the time being
vested in him under section 211, or
(b) lease any such property for a term exceeding five years.
(iii) A disposal of property by an executor or administrator in
contravention of clause (i) or clause (ii), as the case may
be, is voidable at the instance of any other person interested
in the property.
(3) Before any probate or letters of administration is or are
granted in such a case, there shall be endorsed thereon or annexed
thereto a copy of sub- section (1) and clauses (i) and (iii) of
sub- section (2) or of sub- section (1) and clauses (ii) and (iii)
of sub- section (2), as the case may be.
(4) A probate or letters of administration shall not be rendered
invalid by reason of the endorsement or annexure required by
sub- section (3) not having been made thereon or attached thereto,
not shall the absence of such an endorsement or annexure
authorise an executor or administrator to act otherwise than in
accordance with the provisions of this section.’’
34. The absolute power of disposal of property conferred on an
executor or administrator as envisaged under sub-section (1) is subject
to sub-section (2) of this Section. The question here for consideration
would be as to whether the administrator would have absolute power to
dispose of the property of the deceased as he may think fit or would he
be subjected to any conditions or restrictions.
35. Clause (i) of sub-section 2 deals with powers of executor to
dispose of immovable property and clause (ii) deals with power of
administrator. Here we are concerned with the power of administrator
and so it would be clause (ii) of sub-section (2) that would be applicable.
As per this clause, an administrator is prohibited to mortgage, charge or
transfer by sale, gift, etc. any immovable property that was vested in
him, for the time being, under Section 211 without the previous permission
of the Court granting Letters of Administration. That being the literal and
plain reading of the provisions, it comes out to be that for effecting any
charge on the property in any of the ways as stipulated in sub clause (a)
of clause (ii), the administrator/SBS was required to seek prior permission
of the court, which granted him LOA. Undisputedly, no such permission
was ever obtained by the administrator/SBS before entering into transaction
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on 9th September, 1988 with the appellant. Not only that, even no
information of this transaction was given by him till such time an application
of restrain was filed against him by the respondent/RBS. It was only then
that he came out to give statement of account of the administration of
estate in December 1988.
36. Further clause (iii) of sub-section (2) provides as to the status
of the transaction entered into by the executor or the administrator in
contravention of clauses (i) or (ii) as the case may be. It provides such
transaction to be voidable at the instance of any other person interested
in the property. It was mandatory to seek permission of the court granting
the probate or the LOA, as the case may be, before entering into transaction
of disposal of immovable property as vested in them in their capacity as
executor or the administrator. In the present case, admittedly the same
having not been done by the administrator, the transaction affecting
disposal of the estate of the deceased was apparently unauthorized.
37. The cases of Smt. Babuain Chandrakala Devi v. Smt.
Pokhraj Kuer and others, AIR 1963 Patna 2 and Namberumal Chetti
v. Veeraperumal Pillai, AIR 1930 MAD 956 relied upon by Appellant
Indian Associates related to will imposing certain restrictions on the
powers of executor to dispose the property of deceased. It was held that
the law does not impose any duty on the purchaser from an executor to
inquire into the necessity of the transfer and that the transfer of property
should be with the permission of the Court which granted the probate.
These cases are not applicable to the facts of the present case. However,
as noted above, even in the case of probate, the executor was required
to seek the permission of the Court to dispose of the property.
38. Similarly, the cases of Tincowri Pramanik v. Narayan Chandra
Mukherjee, AIR 1957 Calcutta 364 and Adeline Maude Ellanor
Catchick Nee Roberison and another v. Sunderlal Daga and others,
AIR (37) 1950 Calcutta 559, also related to probate and not the LOA. In
these cases also, the Will contained limitations on the powers of the
executor. In both these cases it was held that the alienee through executor,
who is acting as such has right to infer that the latter is acting fairly. It
was held that the maxim which applies here is ‘‘let the executors do their
duty and let the authority cease when injustice begins’’.
39. The case of V. Zollikofer and Co. v. O.A.O.K.R.M. Chettyar
Firm, AIR 1931 Rangoon 277 relied upon relates to mortgage by
administrator without the permission of the Court. The main question for
determination was as to whether unsecured creditors were entitled to
avoid the mortgage and whether they were entitled to do so without
making any restitution to the mortgagee to the extent to which mortgagee
had bona fidely advanced money at the instance of administrator/mortgagor
interested in the property. It was held that the right course for the court
to take is to hold that the appellant firm ought either to make restitution
to the respondent/mortgagee to the extent to which the respondent has b
na fide advanced the money for the benefit of the estate as a condition
precedent to avoiding the mortgage, or that the respondent should be
allowed to enforce his mortgage against the estate. In the present case,
in view of the changed circumstances, the parties (legal heirs of deceased
and legal heirs of SBS) entered into a MOU and none accepted the
transaction or chose to get it avoided. During the argument, the respondent
offered not only to restitute the appellants of the sums advanced, but also
offered reasonable compensation, which was outrightly rejected by the
appellants.
40. In any case, the principal of equity cannot be made applicable
in the present proceedings against the provisions of law as contained in
Section 307 of the Act and particularly when the appellants/Indian
Associates declined to be restituted and reasonably compensated. As we
have noted that the appellant having parted with Rs.35,00,000/- to the
administrator/SBS by way of transaction of the estate in the absence of
permission of the Court the appellant-Indian Associates may have its
remedy in some other appropriate proceedings as may be advised.
41. We have also noted that as per Section 317 of the Act, the
administrator was required to exhibit in the Court the inventory containing
full account of the properties including the creditors and debtors. However,
as noticed in the present case, the administrator SBS presented the
statement of account in the Court after seven months from the grant of
administration and that too when clout had arisen in the transaction and
the application for revocation by respondent/RBS was pending. We have
also noticed that nothing came on record that the money which was
stated to have been received from the appellant was utilized by administrator
SBS towards the benefit of the estate by clearing liabilities of taxation.
42. In any case, what rested with the appellant was only an Agreement
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to Sell and not the documents of transfer of title of the property or
possession thereof. Mere Agreement to Sell would not entitle the appellant
to have much say in the present proceeding. Of course, the appellant
may have the remedy somewhere else in some other proceedings. As per
the judgment of the Supreme Court in S. Kaladevi v. V.R.
Somasundaram and others, 2010 (5) SCC 401, unregistered sale deed
is not a complete sale. No doubt, the sale deed in the present case was
executed and presented before the Sub-Registrar, but as noted above,
same was not registered because of persistent stay and also because of
Urban Land Ceiling Act. Section 54 of the Transfer of Property Act
clearly stipulates that the sale or transfer of immovable property or other
intangible thing is to be only by way of registered sale deed/instrument.
43. For the foregoing discussion, we do not see any reason to
interfere in the findings recorded by the learned Single Judge. Hence,
appeal and the pending applications are dismissed with no order as to
costs.
ILR (2011) VI DELHI 175
FAO
YOGESH DUGGAL & ORS. ....APPELLANTS
VERSUS
STATE & ORS. ....RESPONDENTS
(MOOL CHAND GARG, J.)
FAO NO. : 380-82/2005 DATE OF DECISION: 31.03.2011
Indian Succession Act, 1925—Section 63 (c)—WILL—
Indian Registration Act, 1908—Registered Will—Grant
of Probate—Indian Evidence Act, 1872—Section 68—
Attesting witnesses—Limitation Act, 1963—Article 137—
Deceased executed Will dated 12.08.1971; expired on
20.02.1984—Husband pre-deceased her—Survived by
five sons and three daughters—Property in question
comprise of a house in Karol Bagh—Bequeathed the
ground floor in favour son O.P.- first floor in favour of
son V.P.—Not give any share to other children—Will
got registered during her life time on 21.02.1978—All
children of the testatrix except the legal heir of V.P.
had filed no objection to grant of probate—Grant of
probate sought on November 1994—Objections filed
inter-alia-alleging Will not executed by testatrix in
sound and disposing mind—She was completely deaf
in 1971-not possible for anybody to communicate with
her to make her understand the contents of the Will—
Also challenged the execution, validity, contents and
attestations of the Will on the ground testatrix did not
know English language—ADJ observed the testimony
of attesting witness does not inspire confidence—Full
of contradictions on material points—Cast serious
doubt on genuineness of Will—Not explained why Will
got registered after seven years of its execution and
delay of nine years in filing the probate petition—
Dismissed probate petition—Preferred appeal—Held—
While granting the probate, Court is obliged to see
that there was no legal impediment in the grant of
probate—The only attesting witness denied the
signature of testatrix firstly on the Will itself in his
examination-in-chief and only on the suggestion in
cross-examination after about two years he
remembered the testatrix signing the Will—Second
attesting witness not examined—The attestation of
Will by second witness not even whispered by attesting
witness—Attesting witness accepted testatrix did not
know English-9 years delay in filing probate petition
not explained—No reason to interfere with the
decision—Appeal Dismissed.
Though it is rightly been stated that an application is for the
court’s permission to perform a legal duty created by a Will
and is a continuous right which can be exercised any time
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after the death of the deceased but this right can be
exercised as long as it survives. It is also true that that the
application can be filed beyond the period of 3 years but
such delay must be clearly explained. In the instant case,
the appellants had filed the probate petition after 9 years
but had nowhere explained the reason behind such a huge
delay even though opportunity was granted to the appellants.
The relevant extract from Kunvarjeet Singh Khandpur
(Supra) case dealing with the application of Article 137 of
Limitation Act is quoted here under:-
‘‘Two questions need to be addressed in this appeal.
Firstly, about the applicability of Article 137 of the
Limitation Act and secondly, even if it is applicable
whether the petition was within time.
11. In Kerala SEB v. T.P. Kunhaliumma it was inter
alia observed as follows:
‘‘18. The alteration of the division as well as the
change in the collocation of words in Article 137 of the
Limitation Act, 1963 compared with Article 181 of the
1908 Limitation Act shows that applications
contemplated under Article 137 are not applications
confined to the Code of Civil Procedure. In the 1908
Limitation Act there was no division between
applications in specified cases and other applications
as in the 1963 Limitation Act. The words ‘any other
application’ under Article 137 cannot be said on the
principle of ejusdem generis to be applications under
the Civil Procedure Code other than those mentioned
in Part I of the third division. Any other application
under Article 137 would be petition or any application
under any Act. But it has to be an application to a
court for the reason that Sections 4 and 5 of the 1963
Limitation Act speak of expiry of prescribed period
when court is closed and extension of prescribed
period if the applicant or the appellant satisfies the
court that he had sufficient cause for not preferring
the appeal or making the application during such
period.
The conclusion we reach is that Article 137 of the
1963 Limitation Act will apply to any petition or
application filed under any Act to a civil court. With
respect we differ from the view taken by the two-
Judge Bench of this Court in Athani Municipal Council
case3 and hold that Article 137 of the 1963 Limitation
Act is not confined to applications contemplated by or
under the Code of Civil Procedure. The petition in the
present case was to the District Judge as a court. The
petition was one contemplated by the Telegraph Act
for judicial decision. The petition is an application
falling within the scope of Article 137 of the 1963
Limitation Act.’’
In terms of the aforesaid judgment any application to
civil court under the Act is covered by Article 137. The
application is made in terms of Section 264 of the Act
to the District Judge. Section 2(bb) of the Act defines
the District Judge to be the Judge of the Principal Civil
Court.
12. Further in S.S. Rathore v. State of M.P.:-
‘‘5. Appellant’s counsel placed before us the residuary
Article 113 and had referred to a few decisions of
some High Courts where in a situation as here reliance
was placed on that article. It is unnecessary to 467
refer to those decisions as on the authority of the
judgment of this Court in Pierce Leslie & Co. Ltd. v.
Violet Ouchterlony Wapshare5 it must be held that
Article 113 of the Act of 1963, corresponding to
Article 120 of the old Act, is a general one and would
apply to suits to which no other article in the Schedule
applies.’’
13. Article 137 of the Limitation Act reads as follows:
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‘‘Description of suit Period of limitation Time from
which period begins to run
137. Any other application for which no period of
limitation is provided elsewhere in this Division. Three
years When the right to apply accrues.’’
The crucial expression in the petition (sic Article) is
‘‘right to apply’’. In view of what has been stated by
this Court, Article 137 is clearly applicable to the
petition for grant of letters of administration. As rightly
observed by the High Court in such proceedings the
application merely seeks recognition from the court to
perform a duty and because of the nature of the
proceedings it is a continuing right. The Division
Bench of the Delhi High Court referred to several
decisions. One of them was S. Krishnaswami v. E.
Ramiah6. In para 17 of the said judgment it was
noted as follows:
17. In a proceeding, or in other words, in an application
filed for grant of probate or letters of administration,
no right is asserted or claimed by the applicant. The
applicant only seeks recognition of the court to perform
a duty. Probate or letters of administration issued by
a competent court is conclusive proof of the legal
character throughout the world. An assessment of the
relevant provisions of the Indian Succession Act,
1925 does not convey a meaning that by the
proceedings filed for grant of probate or letters of
administration, no rights of the applicant are settled or
secured in the legal sense. The author of the testament
has cast the duty with regard to the administration of
his estate, and the applicant for probate or letters of
administration only seeks the permission of the court
to perform that duty. There is only a seeking of
recognition from the court to perform the duty. That
duty is only moral and it is not legal. There is no law
which compels the applicant to file the proceedings
for probate or letters of administration. With a view to
discharge the moral duty, the applicant seeks
recognition from the court to perform the duty. It will
be legitimate to conclude that the proceedings filed
for grant of probate or letters of administration is not
an action in law. Hence, it is very difficult to and it will
not be in order to construe the proceedings for grant
of probate or letters of administration as applications
coming within the meaning of an ‘application’ under
Article 137 of the Limitation Act, 1963
Though the nature of the petition has been rightly
described by the High Court, it was not correct in
observing that the application for grant of probate or
letters of administration is not covered by Article 137
of the Limitation Act. Same is not correct in view of
what has been stated in Kerala SEB case2.
15. Similarly reference was made to a decision of the
Bombay High Court in Vasudev Daulatram
Sadarangani v. Sajni Prem Lalwani7. Para 16 reads
as follows: (AIR p. 270)
‘‘16. Rejecting Mr Dalpatrai’s contention, I summarise
my conclusions thus—
(a) under the Limitation Act no period is advisedly
prescribed within which an application for probate,
letters of administration or succession certificate must
be made;
(b) the assumption that under Article 137 the right to
apply necessarily accrues on the date of the death of
the deceased, is unwarranted;
(c) such an application is for the court’s permission to
perform a legal duty created by a will or for recognition
as a testamentary trustee and is a continuous right
which can be exercised any time after the death of the
deceased, as long as the right to do so survives and
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the object of the trust exists or any part of the trust,
if created, remains to be executed;
(d) the right to apply would accrue when it becomes
necessary to apply which may not necessarily be
within 3 years from the date of the deceased’s death;
(e) delay beyond 3 years after the deceased’s death
would arouse suspicion and greater the delay, greater
would be the suspicion;
(f) such delay must be explained, but cannot be
equated with the absolute bar of limitation; and
(g) once execution and attestation are proved,
suspicion of delay no longer operates.’’ Conclusion
(b) is not correct while Conclusion (c) is the correct
position of law.
16. In view of the factual scenario, the right to apply
actually arose on 9-8-1999 when the proceedings
were withdrawn by Smt Nirmal Jeet Kaur. Since the
petition was filed within three years, the same was
within time and therefore the appeal is without merit,
deserves dismissal, which we direct but in the
circumstances without any order as to costs.
(Para 23)
Important Issue Involved: (i) The person seeking probate
of a Will is required to explain the delay in preferring the
probate petition (ii) the period of limitation of three years
shall start running when it becomes necessary to apply
which may not necessarily be within three years from the
date of deceased death (iii) delay beyond three years after
the death of deceased would arouse suspicion; the greater
the delay the greater would be the suspicion.
[Gu Si]
APPEARANCES:
FOR THE APPELLANTS : Mr. K.R. Gupta, Advocate.
FOR THE RESPONDENTS : None.
CASES REFERRED TO:
1. Krishan Kumar Sharma vs. Rajesh Kumar Sharma 2009
(5) Scale 286.
2. Kunvarjeet Singh Khandpur vs. Kirandeep Kaur, (2008)
8 SCC 463.
3. S.S.Lal (Shri) vs. Shri Vishnu Mitter, 2004 V AD (Delhi)
509.
4. Kale vs. Deputy Director, AIR 1976 SC 807.
5. Prithwis Kumar Mitra vs. Bibhuti Bhushan Mitra, (1966)
ILR Calcutta 408(DB).
6. Shashi Kumar Banerjee vs. Subbodh Kumar Banerjee,
AIR 1964 SC 807.
7. Makhan Mal L. Ram Ditta Mal vs. Mst. Pritam Devi,
AIR 1961 Punjab 411 (DB).
8. Naresh Charan vs. Paresh Charan, AIR 1955 SC 363.
9. Sher Muhammad Khan & Ors vs. Depurt Comm. of
Bahraich, AIR 1920 Awadh 87 (DB).
RESULT: Appeal Dismissed.
MOOL CHAND GARG, J.
1. This appeal arises out of an order dated 28.05.2005 passed by
the learned Additional District Judge dismissing the probate petition filed
by the appellants on the ground that the appellants had miserably failed
to prove the due execution, attestation and registration of the Will in
question . Also, they had not explained why the Will was registered after
seven years of its alleged execution and further failed to explain the delay
of more than nine years in filing the probate petition after the death of
the testatrix . The appellants thus being aggrieved by the order has
impugned it before us by way of the present appeal.
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as such were not in need of the house in question and on this ground
her son Mr. Ved Prakash Duggal has been disinherited. However, according
to the respondents, the plot in Safdarjung Enclave did not stand in the
name of Ved Prakash Duggal rather its lease by the Government was in
the name of Mr. Krishan Prakash Duggal, hence the appellants had
deliberately misrepresented this fact to the testatrix.
6. The appellants filed their reply to the objections filed on behalf
of the legal heirs of the predeceased son of the testatrix, Mr. Ved Prakash
Duggal. The appellants have denied all the allegations contained in the
objections and in specific thereto they have reiterated, reasserted and
reaffirmed the averments contained in their petition to be correct.
7. From the pleadings of the parties, following issues were framed
on 12.03.1996
1. Whether Smt. Puran Devi executed a valid Will dated
12.08.1971 in respect of property bearing No 6A/46, WEA,
Karol; Bagh, New Delhi in favour of the petitioners, as
alleged?
2. Whether petition has not been filed in accordance with
law for the reasons particularly disclosed in paras 2,3 and
4 of the preliminary objections of written statement filed
on behalf of the objectors?
3. Whether Smt. PURAN devi was incompetent to execute
the Will in question as alleged in para 3 of reply on merits
of the objections?
4. Relief.
8. The Ld. ADJ also framed following additional issue on 20.12.2003
‘‘Whether the petition is barred by limitation?’’
9. In order to prove the Will in question, four witnesses had been
examined on behalf of the appellants. They were PW-1, Mr Krishan
Kumar Burman, one of the attesting witness of the Will in question, PW-
2 Mr R.C Sharma, a UDC from Record Room (Civil), Tis Hazari Courts,
PW-3 Mr Vijay Prakash Duggal appellant No 2 himself and PW-4 Mr
Surinder Kumar a LDC from the office of Sub Registrar-III, Asaf Ali
Road, New Delhi whose statement remained incomplete as he could not
2. Briefly stating the facts of the case are; the appellants filed a
petition under Section 276 of Indian Succession Act, 1925 in November,
1994 for grant of probate of a Will dated 12.08.1971 of their mother Late
Smt. Puran Devi who expired on 20.02.1984. Her husband predeceased
her. She was survived by five sons and three daughters. The property
bequeathed under the Will in question comprises of a house bearing No.
6-A/46, WEA, Karol Bagh, New Delhi. The said house is a 2½ storey
built house.
3. The testatrix vide her Will dated 12.08.1971 had bequeathed the
ground floor in favour of her son Mr. Om Prakash Duggal, appellant
No.1 who has died and is now being represented by his legal heirs while
the first floor including Barsati Floor had been bequeathed in favour of
her other son appellant No.2, Mr. Vijay Prakash Duggal. The testatrix
had not given any share to her other children. The Will in question was
got registered by the testatrix in the office of Sub-Registrar, Asaf Ali
Road New Delhi during her lifetime on 21.02.1978 vide document No.
269, Book No. 3, Volume No. III on pages 121-122. All the other
children of the deceased testatrix except the legal heirs of her predeceased
son Ved Prakash Duggal had filed their no objections to the grant of
probate in respect of Will dated 12.08.1971 in favour of the appellants.
4. In the objections filed by the legal heirs of Mr. Ved Prakash
Duggal, who are the respondents, it was alleged that the testatrix was not
competent to execute the Will in respect of the property bequeathed
under the said Will as it was a joint family property. It was further
alleged that the Will in question was not executed by the testatrix in a
sound and disposing mind as she was completely deaf in August 1971
and it was not possible for anybody to communicate with her as to make
her understand the Will and its contents.
5. Further, the respondents also challenged the execution, validity,
contents and due attestation of the alleged Will on the ground that the
testatrix did not know English Language and, therefore, could not have
understood the recitals contained in her said Will. Taking advantage of
this fact, the appellants had procured the Will from the testatrix through
misrepresentation as it was also evident from the recitals in the Will
where it was mentioned that Shri Ved Prakash Duggal and Sh. Krishan
Prakash Duggal had become owners of a plot in Safdarjung Enclave and
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produce the summoned record relating to the registration of the Will in
question.
10. On the other hand, the respondents did not produce any evidence
in support of their objections rather after they cross-examined the
appellant’s witnesses extensively, they stopped appearing in the matter
and were proceeded ex-parte. As such there is no evidence in rebuttal
and the only evidence is the cross-examination of the witnesses of the
appellants while no evidences were led by the respondents in support of
their objections.
11. On the basis of the evidence recorded by the appellants, the
learned ADJ gave his findings regarding different issues. As far as issue
No.2 is concerned, it is based upon the pleadings of the respondents/
objector in preliminary objections No. 2, 3 and 4. Considering the
amendment made in the petition with the permission of the Court and
also the factum of property being located in Delhi and testatrix also being
expired in Delhi, the said issue was decided against the objectors.
12. However, regarding limitation as the petition was filed by the
appellants after more than 9 years of the death of the testatrix, the Ld
ADJ had observed that:
‘‘The testatrix had expired on 20.02.1984. The present petition
for probate was filed by the petitioners on 31.03.1993 i.e after
more than 9 years of her death. Article 137 of the Limitation Act
which is residuary article prescribes a limitation of three years
for filing of an application which is to be reckoned from the date
the right to apply accrues to the person propounding the Will.
While framing the additional issue of limitation, my Ld Predecessor
Shri G.P Mittal , ADJ Delhi had observed that the limitation in
the present case is a mixed question of fact and law and therefore
gave an opportunity to the petitioners to lead evidence on this
point. The petitioners have not led any evidence worth the name
to show why they took more than 9 years after the death of the
testatrix in filing the present probate petition particularly when as
per testimony of PW-2 Mr. R.C. Sharma. There was a dispute
between the parties with regard to the Will in question much
prior to the death of the testatrix. This shows that the petitioners
were well aware that there was a dispute regarding the authenticity
of the Will of their deceased mother propounded by them in this
case immediately on the death of their mother on 20.02.1984.
This case on the point of limitation is covered by a judgment of
Hon’ble Delhi High Court in Pamela Man Mohan Singh Vs
State & Ors., 83 (2000) DLT 469. Under the circumstances,
I hold that the present petition is barred by limitation. This issue
is accordingly decided in favour of the objectors and against the
petitioners.
13. As per Issues No 1 & 3, since both were inter connected hence
were dealt together and the relevant observations made by the ld ADJ
were as follows:-
‘‘In the present case the petitioners have examined PW-1
Mr Krishan Kumar Burman, one of the attesting witnesses
of the Will in question. The statement of this witness was
recorded in two installments, firstly on 19.02.1997 and again
on 20.05.1998. There was a gap of about 15 months between
the two dates of recording of his statement. PW-1 Mr. Krishan
Kumar Burman is the son-in-law of the deceased testatrix.
In his statement recorded before the Court on the first date
i.e. 19.02.1997, he categorically deposed that the testatrix
had not signed anywhere on her will in question in his
presence. He had further deposed on that day that he had
not inquired from the testatrix whether she had signed on
the document purported to be her will or not. He also deposed
on 19.02.1997 that the testatrix was of sound disposing mind
at the time of registration of document before the Sub-
Registrar but her mental condition was not sound 7-8 years
prior to her death. He said that he was not in a position to
identify the signatures of the testatrix on her will dated
12.08.1971.
16. The ld. counsel for the petitioners cross examined PW-1 Mr.
Krishan Kumar Burman with the leave of the Court. PW-1 was
cross-examined by him after about 15 months on 12.05.1998.
The petitioners. ld. counsel put the entire case to this witness in
the form of suggestions which he obviously admitted. I am of
the view that the answers given by the witness namely PW-1 in
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reply to the leading suggestions are of no consequence and the
same do not prove the due execution, attestation and registration
of the will in question. I have gone through the contents of the
will Ex.PW1/1 and at page 2 of the said will, there is a handwritten
endorsement in portion between Learned counsel for the appellant
to A2 in the hand of PW-1. There is no date below the signatures
of PW-1 on the said endorsement. PW-1 has deposed before the
Court on 19.02.1997 that he had not drafted the said will Ex.PW1/
1 as mentioned in portion Learned counsel for the appellant to
A2. This statement of PW-1 runs contrary to the intrinsic evidence
provided by the will regarding its drafting contained in Ex.PW1/
1. Although the will Ex.PW1/1 is shown to had been executed
by the deceased testatrix in presence of two attesting witnesses
namely Smt. Kaushalya Devi and Mr. Krishan Kumar Burman
but PW-1 Mr. Krishan Kumar Burman has no where whispered
in the whole of his testimony recorded on 19.02.1997 and
20.05.1998 about the presence of Smt. Kaushilya Devi at the
time of execution of the said will or her signing the said will as
its attesting witness. This shows that PW-1 could not prove the
due attestation of the will as required by Section 63(c) of the
Indian Succession Act, 1925.
17. According to PW-1 Mr. Burman both the petitioners along
with their other two brothers Mr. V.P. Duggal and Mr. K.P.
Duggal were present at the time will in question was allegedly
executed by the testatrix and according to him the will was
prepared on suggestions given by him to the advocate through
whom the will was got prepared. He has deposed in his statement
recorded on 20.05.1998 that he did not remember the date when
the will was written and he also did not know as to who had
drafted the said will. He also could not tell as to who had typed
the will in question. PW-1 Mr. Burman has admitted that the
testatrix was hard of hearing and was undergoing treatment for
that ailment from a Doctor whose name he could not tell. He
also could not tell for how long prior to execution of the will in
question she was undergoing treatment for her deafness. In his
further cross-examination recorded on 20.05.1998, he has
deposed that the writing contained in portion from point Learned
counsel for the appellant to A2 on will Ex.PW1/1 was written by
him in the office of Sub-Registrar, Asaf Ali Road, New Delhi. It
is a matter of record that the will Ex.PW1/1, though it was
allegedly executed by the testatrix on 12.08.1971 but it was got
registered by her on 21.02.1978. The statement of PW-1 that he
had written the writing contained in portion from Learned counsel
for the appellant to A2 in will Ex.PW1/1 in the office of Sub-
Registrar, Asaf Ali Road, New Delhi shows that the said writing
was procured from him after about 7 years of the alleged
execution of the Will. This also creates a doubt on its authenticity.
PW-1 has admitted in his cross that the testatrix did not know
English language. The will Ex.PW1/1 is couched in English
language and there is absolutely no evidence on record to show
as to whether anybody had explained the contents of her will to
her before her signatures were obtained on the said will. This
creates a strong suspicion about the genuineness of the will
propounded by the petitioners particularly as the testatrix was
hard of hearing. It was put to PW-1 Mr. Burman in his cross
examination that the testatrix was not able to hear at all and
could only understand by signs and lip reading of her near and
dear ones. He was asked what he had to say on this point. PW-
1 Mr. Burman replied to this suggestion by stating that the testatrix
could hear but she used to take some time and necessity of
repetition also used to arise. PW-1 could not tell whether the
testatrix had suffered a hip fracture in March/April, 1969 and he
stated that this fact must be known to her family members. PW-
1 Mr. Burman is a son-in-law of the testatrix and it is strange
that he did not know that his mother-in-law had suffered a hip
fracture in March/April, 1969 as admitted by petitioner No.2
(PW-3) in his evidence before the Court.
A careful scanning of the entire evidence of PW-1 Mr. Burman
would show that his testimony hardly inspires confidence of the
Court as it is full of contradictions on material points discussed
hereinabove and the same casts a serious doubt on the genuineness
of the will propounded by the petitioners. It is further evident
from the testimony of Mr. Burman that the testatrix on account
of her deafness/hard of hearing was not capable of understanding
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189 190Yogesh Duggal & Ors. v. State & Ors. (Mool Chand Garg, J.)
the nature and extent of disposition made by her in her will in
question and therefore for that reason also the will propounded
by the petitioners cannot be said to be a genuine document. As
per testimony of petitioner No.2 (PW-3) both the petitioners had
played an active role in the alleged execution of will propounded
by them. The testimony of petitioner No.2 (PW-3) is hardly of
any consequence after we ignore the testimony of PW-1 Mr.
Burman, one of the attesting witnesses of the will in question.
18. In view of the above, I have no manner of doubt left in my
mind except to hold that the petitioners have miserably failed to
prove the due execution, attestation and registration of the will
in question. They have not explained why the will was got
registered after seven years of its alleged execution and they
have further failed to explain delay of more than nine years after
the death of the testatrix in filing of the present probate petition.
By no means the will Ex.pW1/1 can be said to be a last will and
testament of the testatrix late Smt. Puran Devi. Both these issues
are decided accordingly against the petitioners.
14. Thus, the learned ADJ dismissed the probate petition both on
the grounds of delay and lacuna in evidence regarding execution and
attestation of the Will in question as per requirement of law and the Will
being shrouded with suspicious circumstances. Hence the present appeal.
15. Before us, the appellants have submitted that the said Will dated
12.08.1971 was a genuine Will, as the father of the respondents and also
one of the sons of the testatrix Late Shri Ved Prakash Duggal had filed
a suit in February, 1974 against the other sons and the testatrix herself
for cancellation of the Will in question for partition of properties No 6A/
46, W.E.A Karol Bagh, New Delhi, and plot No B-4/67, Safdarjung
Extension Residential Area, New Delhi claiming that the said Will was
executed by way of family arrangement but it did not represent true state
of affairs and therefore should be cancelled. The suit was compromised
vide application dated 16.03.1974 under which Ved Prakash Duggal
received Rs 25,000/and he relinquished all his rights, interests and share
in the said two properties.
16. The appellants also submit that the Will was registered during
the life time of testatrix. The attesting witnesses also appeared before the
Sub-Registrar and none of the children objected except the legal heirs of
Late Shri Ved Prakash Duggal who after the closure of the appellant’s
evidence were proceeded ex-parte. Hence in such facts and circumstances
where the Will in question was in knowledge of all the heirs of the
testatrix in her life time itself which was by way of family arrangement
it could not be said that it was suspicious or not a genuine document.
17. As regards to the second attesting witness who was the son-
in-law of the testatrix, Shri K.K.Burman PW-1, it is submitted by the
appellants that his statement was recorded on 19.02.1997 and 20.05.1998/
10.03.1999 and though he was a close relation of all the legal heirs of
the late testatrix but he had neither any interest in the property nor was
he interested in the appellants. Further whenever any family arrangement
takes place, it was not uncommon that the relatives assemble and give
suggestions about settlement, hence any suggestion given by the witness
for drafting the Will which was adopted for settlement of disputes amongst
the heirs of the testatrix would not be considered unnatural. Hence
according to the appellants the witness PW-1 was natural and unbiased
witness.
18. The appellants further submit that in his statement recorded on
the second occasion, PW-1 K.K.Burman stated that the testatrix had
signed on the Will at points X,X-1 andX-2 in his presence after
understanding the contents of the same. On the first occasion, although
he had identified signatures of the testatrix on the said points but had
stated that she had not signed in his presence. Later he explained this
contradiction by stating that the Will was written twenty five years back
approximately and no lawyer had shown him the copy of the Will, The
appellants also submit that PW-1 in his statement on the first occasion
had stated that the testatrix was of sound disposing mind at the time of
the registration of the document before the Sub-Registrar but her mental
condition was not sound 7/8 years prior to her death. There was no
evidence in rebuttal.
19. As regards to the requirement of the attesting witness signing
the Will in the presence of the testatrix, the appellants submit that the
witness PW-1 in his cross-examination stated that his signature at point
A of the petition are his and that he signed it after going through its
contents. The witness’s signature is under head’’ verification by attesting
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witness’’ of the probate petition, reading: ‘‘I, KRISHAN Kumar Burman,
one of the witnesses to the Will and testimonies of the testator, the late
Smt. PURAN Devi mentioned in the above noted petition, declare that I
was present and saw the testator affix her signature thereto and the
witnesses also put signatures in her presence’’, there was no further
cross-examination on this aspect. The contents of this verification, thus
form part of statement of the witness. Moreso, in his entire cross-
examination no question or suggestion was put to PW-1 that Smt. Kaushalya
Devi, the other attesting witness, was not present at the time of execution
of the Will. However, the appellant Vijay Prakash Duggal as PW-2 in his
statement deposed that Smt. Kaushalya Devi had signed on the Will at
point B and she had died in the year 1993. Thus appellants submit that
the requirements of Section 63 of the Indian Succession Act 1925, were
duly satisfied.
20. Further on the issue of limitation, the appellants submit that the
testatrix died on 20.02.1984 and the probate petition was filed on
01.09.1993. The cause of action to apply for probate for the first time
arose on 20.02.1984, the date of death of the testatrix and was a recurring
one. Hence according to the appellants it arose on each day entitling the
appellants to file probate petition during the ensuing three years
continuously. Therefore the petition was filed within time.
21. The appellants have also relied upon following judgments :-
1. Kunvarjeet Singh Khandpur Vs Kirandeep Kaur, (2008)
8 SCC 463
2. Krishan Kumar Sharma Vs Rajesh Kumar Sharma
2009 (5) Scale 286
3. S.S.Lal (Shri) Vs Shri Vishnu Mitter, 2004 V AD
(Delhi) 509
4. Kale Vs Deputy Director, AIR 1976 SC 807
5. Shashi Kumar Banerjee Vs Subbodh Kumar Banerjee,
AIR 1964 SC 807
6. Naresh Charan Vs Paresh Charan, AIR 1955 SC 363
7. Prithwis Kumar Mitra Vs Bibhuti Bhushan Mitra,
(1966) ILR Calcutta 408(DB)
8. Sher Muhammad Khan & Ors Vs Depurt Comm. Of
Bahraich, AIR 1920 Awadh 87 (DB)
9. Makhan Mal L. Ram Ditta Mal Vs Mst. Pritam Devi,
AIR 1961 Punjab 411 (DB)
22. I have heard the learned counsel for the appellant and have gone
through the written submissions filed by them besides perusing the record
of the trial Court. I have also gone through the judgments cited at the
bar. At the very outset I would like to discuss the Kunvarjeet Singh
Khandpur (Supra ) case which has also been cited by the appellants.
The appellants relying upon a part of the judgment have submitted that
right to file the probate petition is a continuing right which can be
exercised at any time after death of the testator/ testatrix. They have also
submitted that the application merely seeks recognition from court to
perform a duty. However, according to me the appellants have
misconstrued the judgment inasmuch as the facts of the above mentioned
judgment were different from the facts of the case in hand. In the
Kunvarjeet Singh Khandpur (Supra) case, the Testator had expired on
5.10.1995 and the petition under Section 278 of the Succession Act 1925
for grant of letters of administration was filed on 7.08.2002. It was
claimed that the probate petition was barred by limitation. However both
the Learned Additional District Judge as well as the High Court held
which was later upheld by the Supreme Court that the cause of action
arose when an earlier probate petition filed in respect of the Will dated
09.09.1991 was withdrawn on 09.08.1999. The probate petition filed on
07.08.2002 was within three years and therefore was within time. Thus
Article 137 of the Limitation Act had clear application.
23. Though it is rightly been stated that an application is for the
court’s permission to perform a legal duty created by a Will and is a
continuous right which can be exercised any time after the death of the
deceased but this right can be exercised as long as it survives. It is also
true that that the application can be filed beyond the period of 3 years
but such delay must be clearly explained. In the instant case, the appellants
had filed the probate petition after 9 years but had nowhere explained the
reason behind such a huge delay even though opportunity was granted
to the appellants. The relevant extract from Kunvarjeet Singh Khandpur
(Supra) case dealing with the application of Article 137 of Limitation Act
is quoted here under:-
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‘‘Two questions need to be addressed in this appeal. Firstly,
about the applicability of Article 137 of the Limitation Act and
secondly, even if it is applicable whether the petition was within
time.
11. In Kerala SEB v. T.P. Kunhaliumma it was inter alia
observed as follows:
‘‘18. The alteration of the division as well as the change in the
collocation of words in Article 137 of the Limitation Act, 1963
compared with Article 181 of the 1908 Limitation Act shows
that applications contemplated under Article 137 are not
applications confined to the Code of Civil Procedure. In the 1908
Limitation Act there was no division between applications in
specified cases and other applications as in the 1963 Limitation
Act. The words ‘any other application’ under Article 137 cannot
be said on the principle of ejusdem generis to be applications
under the Civil Procedure Code other than those mentioned in
Part I of the third division. Any other application under Article
137 would be petition or any application under any Act. But it
has to be an application to a court for the reason that Sections
4 and 5 of the 1963 Limitation Act speak of expiry of prescribed
period when court is closed and extension of prescribed period
if the applicant or the appellant satisfies the court that he had
sufficient cause for not preferring the appeal or making the
application during such period.
The conclusion we reach is that Article 137 of the 1963 Limitation
Act will apply to any petition or application filed under any Act
to a civil court. With respect we differ from the view taken by
the two-Judge Bench of this Court in Athani Municipal Council
case3 and hold that Article 137 of the 1963 Limitation Act is not
confined to applications contemplated by or under the Code of
Civil Procedure. The petition in the present case was to the
District Judge as a court. The petition was one contemplated by
the Telegraph Act for judicial decision. The petition is an application
falling within the scope of Article 137 of the 1963 Limitation
Act.’’
In terms of the aforesaid judgment any application to civil court
under the Act is covered by Article 137. The application is made
in terms of Section 264 of the Act to the District Judge. Section
2(bb) of the Act defines the District Judge to be the Judge of
the Principal Civil Court.
12. Further in S.S. Rathore v. State of M.P.:-
‘‘5. Appellant’s counsel placed before us the residuary Article
113 and had referred to a few decisions of some High Courts
where in a situation as here reliance was placed on that article.
It is unnecessary to 467 refer to those decisions as on the authority
of the judgment of this Court in Pierce Leslie & Co. Ltd. v.
Violet Ouchterlony Wapshare5 it must be held that Article 113
of the Act of 1963, corresponding to Article 120 of the old Act,
is a general one and would apply to suits to which no other
article in the Schedule applies.’’
13. Article 137 of the Limitation Act reads as follows:
‘‘Description of suit Period of limitation Time from which period
begins to run
137. Any other application for which no period of limitation is
provided elsewhere in this Division. Three years When the right
to apply accrues.’’
The crucial expression in the petition (sic Article) is ‘‘right to
apply’’. In view of what has been stated by this Court, Article
137 is clearly applicable to the petition for grant of letters of
administration. As rightly observed by the High Court in such
proceedings the application merely seeks recognition from the
court to perform a duty and because of the nature of the
proceedings it is a continuing right. The Division Bench of the
Delhi High Court referred to several decisions. One of them was
S. Krishnaswami v. E. Ramiah6. In para 17 of the said judgment
it was noted as follows:
17. In a proceeding, or in other words, in an application filed for
grant of probate or letters of administration, no right is asserted
or claimed by the applicant. The applicant only seeks recognition
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Indian Law Reports (Delhi) ILR (2011) VI DelhiYogesh Duggal & Ors. v. State & Ors. (Mool Chand Garg, J.) 195 196
of the court to perform a duty. Probate or letters of administration
issued by a competent court is conclusive proof of the legal
character throughout the world. An assessment of the relevant
provisions of the Indian Succession Act, 1925 does not convey
a meaning that by the proceedings filed for grant of probate or
letters of administration, no rights of the applicant are settled or
secured in the legal sense. The author of the testament has cast
the duty with regard to the administration of his estate, and the
applicant for probate or letters of administration only seeks the
permission of the court to perform that duty. There is only a
seeking of recognition from the court to perform the duty. That
duty is only moral and it is not legal. There is no law which
compels the applicant to file the proceedings for probate or
letters of administration. With a view to discharge the moral
duty, the applicant seeks recognition from the court to perform
the duty. It will be legitimate to conclude that the proceedings
filed for grant of probate or letters of administration is not an
action in law. Hence, it is very difficult to and it will not be in
order to construe the proceedings for grant of probate or letters
of administration as applications coming within the meaning of
an ‘application’ under Article 137 of the Limitation Act, 1963
Though the nature of the petition has been rightly described by
the High Court, it was not correct in observing that the application
for grant of probate or letters of administration is not covered
by Article 137 of the Limitation Act. Same is not correct in view
of what has been stated in Kerala SEB case2.
15. Similarly reference was made to a decision of the Bombay
High Court in Vasudev Daulatram Sadarangani v. Sajni Prem
Lalwani7. Para 16 reads as follows: (AIR p. 270)
‘‘16. Rejecting Mr Dalpatrai’s contention, I summarise my
conclusions thus—
(a) under the Limitation Act no period is advisedly prescribed
within which an application for probate, letters of administration
or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply
necessarily accrues on the date of the death of the deceased, is
unwarranted;
(c) such an application is for the court’s permission to perform
a legal duty created by a will or for recognition as a testamentary
trustee and is a continuous right which can be exercised any
time after the death of the deceased, as long as the right to do
so survives and the object of the trust exists or any part of the
trust, if created, remains to be executed;
(d) the right to apply would accrue when it becomes necessary
to apply which may not necessarily be within 3 years from the
date of the deceased’s death;
(e) delay beyond 3 years after the deceased’s death would arouse
suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the
absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay
no longer operates.’’ Conclusion (b) is not correct while
Conclusion (c) is the correct position of law.
16. In view of the factual scenario, the right to apply actually
arose on 9-8-1999 when the proceedings were withdrawn by
Smt Nirmal Jeet Kaur. Since the petition was filed within three
years, the same was within time and therefore the appeal is
without merit, deserves dismissal, which we direct but in the
circumstances without any order as to costs.
24. In view of the aforesaid, the appellants were required to explain
the delay of 9 years which they have filed today. Further the reproduction
of the statement of the witnesses examined by the appellants to prove the
attestation and execution of the Will goes to show that:
(i) The only attesting witness, namely, Sh. K.K. Burman firstly
denied the signatures of the testatrix on the Will itself
when his examination-in-chief was recorded and it is only
on the suggestion given by the appellant during his cross-
examination after about 2 years that he remembered the
testatrix signing the Will in question.
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197 198Yogesh Duggal & Ors. v. State & Ors. (Mool Chand Garg, J.)
(ii) The second attesting witness has not been examined by
the appellant, the attestation of the Will by the second
witness has not been even whispered by Sh. K.K. Burman
in his examination- in-chief or in cross-examination which
is an essential requirement to prove attestation in terms of
Section 63(c) of the Indian Succession Act.
(iii) The Will is in English. Admittedly, the testatrix was a deaf
person and there is nothing on record to show as to
whether she knew English language or not. Rather, Sh.
K.K. Burman accepted that the deceased testatrix did not
know English. In these circumstances, it was necessary
for the appellant to prove that the deceased testatrix knew
the contents of the Will and had signed the same after
understanding the contents thereof.
(iv) There is some endorsement on the Will (portion A1 to
A2) which admittedly has been done at the time of the
registration of the Will i.e. 7 years after its execution.
This also was required to be proved in the same manner
as the Will is required to be proved. This again has not
been done.
25. In these circumstances, even though the respondent/objector
had not come in the witness box to support their objections though have
cross-examined the witnesses of the appellant, the Court while granting
the probate is obliged to see that there are no legal impediments in the
grant of the probate. In this case, the delay in filing the probate petition
as well as non-compliance of Section 63(c) of the Indian Succession Act
are good reasons for refusal of the grant of probate petition and, thus,
I do not find any reason to interfere with the decision taken by the
learned ADJ. The appeal is accordingly dismissed with no orders as to
costs.
26. TCR be sent back along with a copy of this order.
ILR (2011) VI DELHI 198
FAO
BHARAT VATS ....APPELLANT
VERSUS
GARIMA VATS ....RESPONDENT
(VALMIKI J. MEHTA, J.)
FAO NO. : 177/2011 & DATE OF DECISION: 05.04.2011
CM NO. : 6981/2011
(A) Guardian and Wards Act, 1890—Jurisdiction—Minor
child born on 14.11.2008 in USA—Parents came to
Delhi, resided in house of father—Mother forced to
leave matrimonial home along with minor child due to
ill-treatment—Living in Noida since 04.06.2009—
Appellant filed petition under Section 25 of Guardians
and Wards Act, 1890 for custody of minor—Petition
dismissed for want of territorial jurisdiction—Hence
present appeal—Petition to be filed where minor
ordinarily resides—Minor staying in Noida since
04.06.2009—Petition filed after period of more than
one year from date when wife left matrimonial home
along with minor—Ordinary place of residence to be
Noida—No illegality in impugned order.
I completely agree with the observations of the Trial Court
because this is not the case where the child has been
stealthily removed or kidnapped by the respondent to oust
the jurisdiction of the Court. The entire object of Section 9
of the Guardians and Wards Act, 1890 is to see that welfare
and convenience of the minor child is the most important
aspect and therefore it is at the place where the minor
ordinarily resides that a guardian petition has to be filed. I
therefore do not find any illegality or perversity in the
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Indian Law Reports (Delhi) ILR (2011) VI Delhi199 200Bharat Vats v. Garima Vats (Valmiki J. Mehta, J.)
impugned order which calls for interference by this Court in
this appeal on the ground that the Courts at Delhi had no
territorial jurisdiction. (Para 4)
(B) Guardian and Wards Act, 1890—Section 9—
Jurisdiction—Appellant states that application filed on
similar grounds—Same withdrawn—Hence could not
file similar application—Parties cannot confer
jurisdiction where Court has none—Only convenience
of minor to be seen—No application of res judicata or
issue estoppels with respect to interim applications—
Appeal only filed to harass Respondent and minor
child—Appeal dismissed.
Learned counsel for the appellant then argues that earlier
an application filed on similar grounds was withdrawn and
therefore the respondent could not file the similar application.
At the first blush this argument may appear attractive,
however, parties cannot confer jurisdiction on the Court,
when the Court has none. This is all the more so in the
Guardianship cases where the welfare of the minor is of
prime importance and a specific statutory mandate is
contained in Section 9 that a petition can only be filed where
the minor ordinarily resides. The convenience to be seen is
neither of the mother nor of the father but of the minor child,
in view of the Section 9. In any case, there is no concept of
application of res judicata or issue estoppel with respect to
interim applications, more so on the issue of territorial
jurisdiction. (Para 5)
I find that the present appeal obviously is malafide because
it seeks to harass the respondent and the minor by dragging
them to Delhi although their ordinary residence is at Noida.
Disputes between the ˇparents should not result in the
welfare of the minor child being affected, and which is
probably attempted to be done by means of the subject
petition and the present appeal. (Para 6)
Important Issue Involved: Guardians and Wards Act,
1890—Section 9 object is to see welfare and convenience
of minor child which is most important aspect.
[Sa Gh]
APPEARANCES:
FOR THE APPELLANT : Mr. R.K. Saini with Ms. Aradhna
Mittal, Advocates.
FOR THE RESPONDENT : None.
RESULT: Appeal dismissed.
VALMIKI J. MEHTA, J (ORAL)
CM No.6981/2011(exemption)
Allowed, subject to all just exceptions.
Application stands disposed of.
FAO No.177/2011
1. The challenge by means of this appeal is to the impugned order
dated 19.2.2011 which has dismissed the petition of the petitioner for
want of territorial jurisdiction in view of the Section 9 of the Guardian
and Wards Act, 1890 as per which the petition ought to have been filed
where the minor ordinarily resides, and, the minor was ordinarily found
to be residing with the respondent/mother at Noida in UP.
2. Minor child was born on 14.11.2008 in USA. After the parties
came to India, they resided originally at the house of the petitioner in
Delhi, however subsequently, the mother on account of ill treatment was
forced to leave the matrimonial home along with the minor child and has
thereafter been living in Noida since 4.6.2009.
3. The learned counsel for the appellant contends that the mother
has illegally taken away the child from the matrimonial home at Delhi and
therefore the Court at Delhi has jurisdiction. This aspect has been dealt
with by the Trial Court in the following portion of the impugned judgment:
“The respondent has been staying at her mother’s residence at
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201 202Bharat Vats v. Garima Vats (Valmiki J. Mehta, J.)
Noida continuously since 4.6.2009 along with the minor child
Master Kapil. The child is reported to be aged about 2 ½ years
and studying in Mother’s Pride Play School at Noida. The
respondent has stayed at her matrimonial home for less than one
month due to their constrained relations. The child has been
living in the company of respondent at Noida after the parties
came from U.S.A. The petitioner filed the present petition under
Section 25 of The Guardians and Wards Act for custody of
minor child Kapil Vats on 15.9.2010. The petitioner has given
respondent’s address at Noida in his petition. The petition has
been filed by the petitioner for seeking custody of the minor
child after a period of more than one year from the date when
the respondent finally left her matrimonial home along with the
minor child. It is an admitted case of the parties that the respondent
has been residing at her parental home since February, 2009.
Thus, the ordinary place of residence of minor is Noida and not
Delhi.
This is not the case of the petitioner that the child was stealthily
removed or kidnapped by the respondent in order to oust the
jurisdiction of the court. The respondent has been forced to live
at her parental home due to the constrained relationship with the
petitioner. The respondent is also reported to be working in
Noida. The child has been in the care and custody of the
respondent continuously since 4.6.2009 when the respondent
finally left matrimonial home. On analysis of the pleadings of the
parties and the material brought on record shows that the ordinary
place of residence of the minor child is Noida and not Delhi.”
4. I completely agree with the observations of the Trial Court
because this is not the case where the child has been stealthily removed
or kidnapped by the respondent to oust the jurisdiction of the Court. The
entire object of Section 9 of the Guardians and Wards Act, 1890 is to
see that welfare and convenience of the minor child is the most important
aspect and therefore it is at the place where the minor ordinarily resides
that a guardian petition has to be filed. I therefore do not find any
illegality or perversity in the impugned order which calls for interference
by this Court in this appeal on the ground that the Courts at Delhi had
no territorial jurisdiction.
5. Learned counsel for the appellant then argues that earlier an
application filed on similar grounds was withdrawn and therefore the
respondent could not file the similar application. At the first blush this
argument may appear attractive, however, parties cannot confer jurisdiction
on the Court, when the Court has none. This is all the more so in the
Guardianship cases where the welfare of the minor is of prime importance
and a specific statutory mandate is contained in Section 9 that a petition
can only be filed where the minor ordinarily resides. The convenience to
be seen is neither of the mother nor of the father but of the minor child,
in view of the Section 9. In any case, there is no concept of application
of res judicata or issue estoppel with respect to interim applications,
more so on the issue of territorial jurisdiction.
6. I find that the present appeal obviously is malafide because it
seeks to harass the respondent and the minor by dragging them to Delhi
although their ordinary residence is at Noida. Disputes between the ˇparents
should not result in the welfare of the minor child being affected, and
which is probably attempted to be done by means of the subject petition
and the present appeal.
7. Appeal therefore being without merits is accordingly dismissed.
8. In my opinion, the Trial Court instead of dismissing the petition
ought to have returned the petition for presentation to the appropriate
Court and therefore when I put it to the counsel for the appellant that
I propose to modify the order by directing return of the petition instead
of rejection of the petition, however, counsel for the appellant states that
he is not making any prayer in this regard for modification of the order
which has dismissed the petition. In view of the appeal being devoid of
merits is therefore dismissed, leaving the parties to bear their own costs.
CM No.6980/2011 (for direction)
Since the main appeal has been disposed of, this CM is also disposed
of having become infructuous.
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Indian Law Reports (Delhi) ILR (2011) VI Delhi203 204Comm. of Income Tax v. Mediworld Publications Pvt. Ltd. (A.K. Sikri, J.)
ILR (2011) VI DELHI 203
ITA
COMMISSIONER OF INCOME TAX ....APPELLANT
VERSUS
M/S. MEDIWORLD PUBLICATIONS PVT. LTD. ....RESPONDENT
(A.K. SIKRI & M.L. MEHTA, JJ.)
ITA NO. : 549/2011 DATE OF DECISION: 05.04.2011
Income Tax Act, 1961—Section 28 (va), Section 55(2)
(o)—Capital gain and income from business—
Assessee, engaged in business of health care, print
media and electronic media communications, entered
into specified assets transfer agreement with another
company for sale of all its rights. Titles and interest in
specified assets including the business intellectual
property rights alongwith goodwill and all rights etc.
for consideration of Rs. 3,80,02,500/-—Assessing Officer
held that the amount of Rs. 3,80,02,500/- is income and
as such taxable under the head business and
professions instead of being the capital gain as claimed
by the assessee—In appeal, CIT(A) accepted the
contention of the assessee and held that the said
amount was not business income but long term capital
gain on transfer of assets—In further appeal of the
revenue, the ITAT upheld the decision of CITA—Hence,
appeal to the High Court under Section 260(A)(1) Income
Tax Act—High Court held, trademarks/brands, copyright
and goodwill will constitute assets of the business
and are profit earning apparatus and as such, sale
thereof would lead to capital gain.
The CIT (A) as well as ITAT have rightly held that in this
backdrop provisions of Section 28(va) would not apply to
the instant case. In this behalf, it is to be borne in mind that
the clinical trial business which the assessee continues to
carry on was distinct and separate from the business of
Healthcare Journals and Communication. As far as Healthcare
Journal and Communication business is concerned, it had
been given up in entirety in favour of the transferee.
Therefore, the Assessing Officer was wrong in holding that
the assessee had given up only one of the activities in
relation to its business. In such circumstances, the proviso
to Section 28(va) becomes applicable which stipulates that
Section 28 (va) was not applied to any sum received on
account of transfer of right to carry on any business which
is chargeable under the head ‘‘capital gains’’. Section 55 (2)
(a) of the Act has to be read in conjunction with this proviso.
We are in agreement with the following analysis of the CIT
(A) in this behalf:-
‘‘5.2 It is also quite clear that giving up the right to
carry on the Healthcare Journals & Communications
Business was only one part of the agreements. The
main part of the agreements was transfer of all
intangible assets being trademarks, brands, copyrights
and the associated goodwill of its Healthcare Journals
& Communications business. It follows that the
consideration of Rs. 3,80,02,500/- was not received;
only for giving up the right to carry on the Healthcare
Journals & communications business but was mainly
for the transfer of all intangible assets being
trademarks, brands, copyright and the associated
goodwill of the Healthcare Journals & communications
business. As per the law, the consideration for the
transfer of intangible assets being trademarks, brands,
copyrights and the associated good will of Healthcare
Journals & Communications business is also taxable
as long term capital gain by virtue of section 55 (2)
(a) read with clause (i) of the proviso to Section 28
(va). The AR has also relied on the provisions of
section 45 (1) read with 2 (14), 2 (11) 9b), 48 and
Section 55 (2) (ii) of the Act. The combined reading
of the above provisions and of section 28 (va) leaves
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205 206Comm. of Income Tax v. Mediworld Publications Pvt. Ltd. (A.K. Sikri, J.)
no ambiguity that law makers specifically excluded the
income from the purview of main section 28 (va).’’
(Para 11)
It would also be worthwhile to mention that the parties had
entered into agreement dated 10th March, 2006 which was
captioned as ‘‘Specified Asset Transfer Agreement’’. This
agreement defines ‘‘Business’’ to mean the business of
publishing, distributing and selling the periodical and products
as carried on by the seller (assessee). It also termed all
these publications as ‘‘Business Intellectual Property Rights’’
which were treated as ‘Specified assets’. As per clause (2)
of the agreement, all these specified assets were transferred
in the following manner:-
“2. TRANSFER OF SPECIFIED ASSETS
2.1 The Seller shall sell or procure the sale with full
right, title, interest and guarantee and CMP Medica
shall purchase the following assets and with a view to
CMP Medica carrying on the business pertaining to
the Specified Assets as going concern from the seller
with effect from the closing date:
(a) the Periodicals;
(b) the Products;
(c) the Business Intellectual Property Rights alongwith
the Goodwill and all interests and benefits attached
and appurtenant to the Business Intellectual Property
Rights;
(d) the Customer Database;
(e) The Records;
(f) the Editorial Materials; and
(g) the Contracts.
2.2 The Seller as the beneficial owner, agrees to
assign, transfer and convey to CMP Medica all is
rights, title, and interests to the Specified Assets
including other intangible benefits and, or, rights related
to the Specified Assets to the end and intent the CMP
Medica shall be the sole, full and undisputed owner of
the Specified Assets effective as at the close of the
business hours on the Closing Date and entitled as
such effective as at the close of the business hours
on the Closing Date and entitled as such to deal with
the Specified Assets in the manner deemed fit by
CMP Medica without any hindrance, interference or
disturbance or objections from the seller and, or any
person claiming on behalf of or in trust for the Seller
in any manner whatsoever subject to CMP Medica
fulfilling its obligations under Clause 3 hereunder’’.
(Para 12)
Important Issue Involved: Trademarks/brands, copyright
and goodwill will constitute assets of the business and are
profit earning apparatus and as such, sale thereof would
lead to capital gain and not income from business.
[Gi Ka]
APPEARANCES:
FOR THE APPELLANT : Mr. N.P. Sahni, Sr. Standing
Counsel.
FOR THE RESPONDENT : Mr. C.S. Aggarwal, Advocate with
Mr. Prakash Kumar, Advocate.
RESULT: Appeal dismissed.
A.K. SIKRI, J. (ORAL)
1. Present appeal is filed under Section 260 (A) (1) of the Income
Tax Act, 1961 (hereinafter referred to as ‘the Act’), against the impugned
order dated 2nd July, 2010 passed by the ITAT. The following substantial
questions of law are being raised for our consideration:-
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Indian Law Reports (Delhi) ILR (2011) VI Delhi207 208Comm. of Income Tax v. Mediworld Publications Pvt. Ltd. (A.K. Sikri, J.)
‘‘(a) Whether ITAT was correct in law and on facts in deleting
the additions/disallowance made by the AO amounting to Rs.
3,80, 02, 500/- in respect of the amount received by the assessee
company in pursuance of the Asset Transfer Agreement thereby
treating the same to be assessed as ‘‘Business Income’’?
(b) Whether income arising from Asset Transfer Agreement shall
be taxable under the heads ‘Capital Gains’?’’
2. To recite the genesis of the instant appeal, following facts are
concisely recapitulated herein under:-
The respondent/assessee is a private limited company incorporated
in the year 1995 vide certificate of incorporation issued by ROC, Delhi
& Haryana and is engaged in the business of Healthcare, print media &
electronic media communications. It would be pertinent to mention here,
in order to portray the assessee’s work that the business of print media
communications comprises of publication of regular journals and
customized publications for the industries & professional groups;.
electronic media communication also includes production of customized
audio video healthcare communications. On 10th March 2006, the assessee
company entered into a ‘Specified Assets Transfer Agreement’ with one
M/S CMP MEDICA INDIA PRIVATE LIMITED, Bangalore, for the sale
of all its rights, titles and interest in specified assets of its Healthcare
Journals & Communications business. These assets, as narrated in the
agreement, were (a) the periodicals (b) the products (c) the business
intellectual property rights along with the goodwill and all rights (d) the
customer database (e) the records (f) the editorial materials & (g) the
contracts. Pursuant to aforesaid agreement, wo separate deeds namely
‘Deed of Assignment of Copyrights’ & ‘Deed of Assignment of
Trademarks’ were executed on the same date’. Furthermore, the
respondent company had also assigned the copyrights and trademarks
pertaining to its Healthcare Journals & Communication business, which
they had been running for ten years.
The assessee by the aforementioned ‘Specified Asset Transfer
Agreement also relinquished for six years the right to carry on any
business involving or relating to or competing with the transferred specified
assets. While the entire assets were transferred as above, the assessee
retained a limited & non exclusive right to use the pharmaceuticals
companies solely for the purpose of its clinical trials business and for no
other purpose. In consideration of the above said transfer, the assessee
had received Rs. 3,80,02,500/- from CMP Medical India(P) Ltd.
The assessee filed the return of income for the assessment year
2006-07 on 19.11.2006 declaring its income of ‘ 11,69,453. During the
course of assessment proceedings, it was noticed by Assessing Officer
that the assessee had shown the income from Long Term Capital Gains
@ Rs. 3,80,02,500/-. Moreover, AO observed that this income should be
made taxable under the head ‘Business and Professions’ vis-a-vis ‘Capital
Gain’ as taken by the assessee. Thereafter, AO had taxed the same u/
s 28 (va) of the Income Tax Act, 1961 treating the same as business
income and recomputed the taxable income of the assessee company.
3. We may record that before taking the aforesaid view the AO
asked the assessee company as to why sale shown as long term capital
gain be not treated as business income for the year in question In the
reply submitted by it, the assessee explained that it was publishing the
journals since 1995 onwards, but in all the journals published, the period
of starting the journals was more than three years from the date of
transfer of these assets. Further, all the journals were initiated by the
company itself and were not in existence earlier. These journals are
registered with the Registrar of Newspapers of India (RNI), before
registration, the brand name/titles of journals are approved by the RNI.
Thus, the assessee was the owner of brand name of these journals which
were also registered/indexed with Indian National Scientific Documentation
Centre, Govt. of India (hereinafter referred to as the INSDOC). Thus,
the assessee was exclusively holder of the copyrights in all the journals
and was also the exclusive holder of Trade Marks of all the journals.
These were, therefore, intangible assets within the meaning of Section 55
(2) (a) of the Act. The cost of acquisition of these assets was ‘Nil’ and
the consideration received on the sale of these intangible assets therefore,
should be treated as long term capital gain. The AO, however, did not
accept the aforesaid contention of the assessee. He examined the features
of the agreement entered into between the assessee and the transferee of
the aforesaid assets on the basis of which he noticed as under:-
‘‘a) The assessee has not sold of whole of his business but only
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209 210Comm. of Income Tax v. Mediworld Publications Pvt. Ltd. (A.K. Sikri, J.)
surrendered his right regarding publication of the journals.
b) As seen from the clause (5) of above, in return CMP Medica
has granted the assessee a royalty free, non-exclusive license to
use the data comprised of the advertisers and pharmaceutical
companies which the assessee shall use in respect of its clinical
trials business.’’
4. On that basis, the AO formed an opinion that the amount received
was business income within the meaning of Section 28 (va) of the Act
which had been notified w.e.f. assessment year 2003-04 and as per
which any sum, received or receivable in cash or kind, under an agreement
for not carrying out any activity in relation to any business or not sharing
any know-how, patent etc. would be treated as business income since
the assessee had received the amount for carrying out any activity in
relation to the business of the assessee as publication of the journal was
only a part of the business of the assessee. The assessee had also
secured a royalty free, non-exclusive license from the transferee to use
the data comprised of the advatizers and pharmaceutical companies its
clinical trial business. The agreement also contained ‘non compete’ clause.
From all these, he concluded that the income received would be treated
as business income as per the provisions of Section 28 (va) of the Act
and passed the assessment order accordingly. The assessee preferred
appeal against this action on the part of the Assessing Officer. The CIT
(A) accepted the contention of the assessee and held that the receipt in
question was not business income but long term capital gain on transfer
of the assets. This decision of the CIT (A) has been upheld by the ITAT
also dismissing the appeal of the Revenue vide impugned order dated
19th December, 2009. The ITAT downrightly observed that assessee
seems to be the elite owner of the Trademark & Copyright of these
publications. Also publications i.e. journals were undeniably capital assets
of the assesee’s business duly registered with the Trademark Authorities.
It was also established by the ITAT that assessee has sold all its intangible
assets like trademarks, brands, copyrights & goodwill. By doing this
exercise, the assessee company has deprived itself of any earnings in the
subsequent years. It was also revealed by ITAT the assessee company
has wholly given up its right to carry on Healthcare Journals and
Communications business for a specified period. The ITAT was of the
clear view that there is no connection between the two businesses i.e.
Business of Healthcare Journals & Communications was clearly a distinct
and separate business as before sale of intangible like trademarks, brands,
copyrights and goodwill. The ITAT further concluded that assessee has
lost the source of income and section 28(va) does not apply.
5. It is under these circumstances, the Revenue has preferred the
present appeal under Section 260-A of the Act.
6. After hearing the counsel for the parties and going through the
orders of the authorities below, we are of the opinion that the view taken
by the CIT (A) as well as ITAT is without any blemish and in the facts
of this case, it is rightly held by these two authorities that a sum of about
Rs. 3.80 crores received as sale of the aforesaid intangible assets amounted
to long term capital gain. It is to be borne in mind that vide agreement
entered into by the assessee in favour of M/s CMP Medica Pvt. Ltd, the
assessee had sold/transferred the rights of trade mark, brands, copyrights
etc. in the journals and publications which the assessee had. All the
journals were registered with RNI. These publications were indexed by
the INSDC and were also published as property of the assessee. The
assessee also had copyrights therein.
7. It cannot be disputed that trademarks/brands, copyright and
good will constitute assets of the business and are profit earning apparatus.
Section 2 (14) of the Act defines ‘‘Capital Asset’’ and Section 2 (11) (b)
of the Act defines ‘‘intangible asset’’. These provisions read as under:-
‘‘Section 2 (14): ‘‘capital asset’’ means property of any kind
held by an assessee, whether or not connected with his business
or profession, but does not include-
(i) Any stock-in-trade, consumable stores or raw materials held
for the purposes of his business or profession;
(ii) Personal effects, that is to say, movable property (including
wearing apparel and furniture) held for personal use by the
assessee or any member of his family dependent on him, but
excludes
(a) Jewellery;
(b) Archeological collections;
(c) Drawings;
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Indian Law Reports (Delhi) ILR (2011) VI Delhi211 212Comm. of Income Tax v. Mediworld Publications Pvt. Ltd. (A.K. Sikri, J.)
(d) Paintings;
(e) Sculptures; or
(f) Any work of art.
Explanation : For the purposes of this sub-clause, “Jewellery”
includes -
(a) Ornaments made of gold, silver, platinum or any other precious
metal or any alloy containing one or more of such precious
metals, whether or not containing any precious or semi-precious
stone, and whether or not worked or sewn into any wearing appa
el;ı(b) Precious or semi-precious stones, whether or not set in
any furniture, utensil or other article or worked or sewn into a
y wearing apparel;ı(iii) Agricultural land in India, not being
land situate -ı(a) In any area which is comprised within the ju
isdiction of a municipality (whether known as a municipality,
municipal corporation, notified area committee, town area
committee, town committee, or by any other name) or a
cantonment board and which has a population of not less than
ten thousand according to the last preceding census of which
the relevant figures have been published before the 1st day of the
previous year; or
(b) In any area within such distance, not being more than eight
kilometres from the local limits of any municipality or cantonment
board referred to in item (a), as the Central Government may,
having regard to the extent of, and scope for, urbanisation of
that area and other relevant considerations, specify 20 in this
behalf by notification in the Official Gazette;
(iv) 6 1/2 per cent Gold Bonds, 1977, issued by the Central
Government;
(v) Special Bearer Bonds, 1991, issued by the Central Government;
(vi) Gold Deposit Bonds issued under the Gold Deposit Scheme,
1999 notified by the Central Government.”
Section 2 (11): ‘‘block of assets’’ means a group of assets
falling within a class of assets comprising-
(a) ....
(b) Intangible assets, being know-how, patents, copyrights, trade-
marks, licences, franchises or any other business or commercial
rights of similar nature, in respect of which the same percentage
of depreciation is prescribed’’.
8. It can also be said that the ‘right to carry on any business’ has
been recognized by the legislature as capital asset for the purposes of
assessing and computing the capital gains as is clear from the reading of
Section 55 (2) (a) of the Act, which is in the following terms:-
(2) For the purposes of sections 48 and 49, “cost of acquisition”,
-
(a) In relation to a capital asset, being goodwill of a business, or
a right to manufacture, produce or process any article or thing,
tenancy rights, stage carriage permits or loom hours, -
(i) In the case of acquisition of such asset by the assessee by
purchase from a previous owner, means the amount of the
purchase price; and
(ii) In any other case [not being a case falling under sub-clauses
(i) to (iv) of sub-section (1) of section 49], shall be taken to be
nil’’
9. This provision clearly provides determining the cost of any relation
to a capital asset being the right to manufacture, produce or process any
article or thing or right to carry on any business.
10. Once we accept the fact that the brand names, trademark,
copyright and good will in the aforesaid journals sold/transfered by the
assessee to the transferee, it would clearly be a case of sale of capital
asset and the gain therefrom would be computed as capital gain. In the
present case, following facts are not in dispute which will clearly establish
that it was a case of sale of capital assets resulting into capital gain:-
(a) That the assessee has sold and transferred permanently
and forever all its existing assets and contracts of the
Healthcare journals and Communication business in terms
of an agreements dated 10th March, 2006.
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213 214Comm. of Income Tax v. Mediworld Publications Pvt. Ltd. (A.K. Sikri, J.)
(b) That the main part of the agreements was the transfer of
all intangible assets being trademarks, brands, copyrights
and the associated goodwill of its Healthcare Journals &
Communication business.
(c) That the consideration of Rs. 3,80,02,500/- was not
received only for giving up the right to carry on the
Healthcare Journals & Communications business but was
mainly for the transfer of all intangible assets being
trademarks, brands, copyrights and the associated goodwill
of the Healthcare journals & communications business.
(d) That the consideration for the transfer of intangible assets
being trademarks, brands, copyrights and the associated
goodwill of Healthcare journals& communications business
was taxable as long term capital gain. (e) That for the
purposes of journals etc. published by the appellant
company it had to go through the following procedures
which proves the authenticity of the appellant’s claim of
the assets being in the nature of intangible capital assets
of business:-
(i) Statutory Title Clearance for all publications was obtained
prior to the commencement of publication from the office
of the Registrar of Newspapers for India
(ii) All these publications were registered with the RNI.
(iii) The appellant had also filed ‘‘from B” declaration
before the DCP (Licensing), Delhi. (iv) All publications
were indexed by INSDOC. (v) Publications have been
published as property of the appellant company in Trade
Mark Journal No. 1328 Suppl. 4 (vi) All publications have
a copyright declaration.
11. The CIT (A) as well as ITAT have rightly held that in this
backdrop provisions of Section 28(va) would not apply to the instant
case. In this behalf, it is to be borne in mind that the clinical trial business
which the assessee continues to carry on was distinct and separate from
the business of Healthcare Journals and Communication. As far as
Healthcare Journal and Communication business is concerned, it had
been given up in entirety in favour of the transferee. Therefore, the
Assessing Officer was wrong in holding that the assessee had given up
only one of the activities in relation to its business. In such circumstances,
the proviso to Section 28(va) becomes applicable which stipulates that
Section 28 (va) was not applied to any sum received on account of
transfer of right to carry on any business which is chargeable under the
head ‘‘capital gains’’. Section 55 (2) (a) of the Act has to be read in
conjunction with this proviso. We are in agreement with the following
analysis of the CIT (A) in this behalf:-
‘‘5.2 It is also quite clear that giving up the right to carry on the
Healthcare Journals & Communications Business was only one
part of the agreements. The main part of the agreements was
transfer of all intangible assets being trademarks, brands,
copyrights and the associated goodwill of its Healthcare Journals
& Communications business. It follows that the consideration of
Rs. 3,80,02,500/- was not received; only for giving up the right
to carry on the Healthcare Journals & communications business
but was mainly for the transfer of all intangible assets being
trademarks, brands, copyright and the associated goodwill of the
Healthcare Journals & communications business. As per the law,
the consideration for the transfer of intangible assets being
trademarks, brands, copyrights and the associated good will of
Healthcare Journals & Communications business is also taxable
as long term capital gain by virtue of section 55 (2) (a) read with
clause (i) of the proviso to Section 28 (va). The AR has also
relied on the provisions of section 45 (1) read with 2 (14), 2
(11) 9b), 48 and Section 55 (2) (ii) of the Act. The combined
reading of the above provisions and of section 28 (va) leaves no
ambiguity that law makers specifically excluded the income from
the purview of main section 28 (va).’’
12. It would also be worthwhile to mention that the parties had
entered into agreement dated 10th March, 2006 which was captioned as
‘‘Specified Asset Transfer Agreement’’. This agreement defines
‘‘Business’’ to mean the business of publishing, distributing and selling
the periodical and products as carried on by the seller (assessee). It also
termed all these publications as ‘‘Business Intellectual Property Rights’’
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Indian Law Reports (Delhi) ILR (2011) VI Delhi215 216Comm. of Income Tax v. Mediworld Publications Pvt. Ltd. (A.K. Sikri, J.)
which were treated as ‘Specified assets’. As per clause (2) of the
agreement, all these specified assets were transferred in the following
manner:-
“2.TRANSFER OF SPECIFIED ASSETS
2.1 The Seller shall sell or procure the sale with full right, title,
interest and guarantee and CMP Medica shall purchase the
following assets and with a view to CMP Medica carrying on the
business pertaining to the Specified Assets as going concern
from the seller with effect from the closing date:
(a) the Periodicals;
(b) the Products;
(c) the Business Intellectual Property Rights alongwith the
Goodwill and all interests and benefits attached and appurtenant
to the Business Intellectual Property Rights;
(d) the Customer Database;
(e) The Records;
(f) the Editorial Materials; and
(g) the Contracts.
2.2 The Seller as the beneficial owner, agrees to assign, transfer
and convey to CMP Medica all is rights, title, and interests to the
Specified Assets including other intangible benefits and, or, rights
related to the Specified Assets to the end and intent the CMP
Medica shall be the sole, full and undisputed owner of the Specified
Assets effective as at the close of the business hours on the
Closing Date and entitled as such effective as at the close of the
business hours on the Closing Date and entitled as such to deal
with the Specified Assets in the manner deemed fit by CMP
Medica without any hindrance, interference or disturbance or
objections from the seller and, or any person claiming on behalf
of or in trust for the Seller in any manner whatsoever subject to
CMP Medica fulfilling its obligations under Clause 3 hereunder’’.
13. So much so, the ‘‘Customer Data Base’’ held by the assessee
was also shared with the transferee. Thus, there was a clear transfer of
the exclusive assets and on transfer it is the transferee who had become
the sole and undisputed owner of these assets which were the business
assets of the assessee.
14. We, thus, find no merit in this appeal and dismiss the same as
no substantial question of law arises.
ILR (2011) VI DELHI 216
MAT. APP.
FAHEEM AHMED ....APPELLANT
VERSUS
MAVIYA @ LUXMI ....RESPONDENT
(KAILASH GAMBHIR, J.)
MAT. APP. NO. : 13/2009 DATE OF DECISION: 08.04.2011
Special Marriage Act, 1954—Section 7, 8, 13(2), 15(a),
16, 24(2), 25 (iii) (a & b), 39, 40 (c)—Indian Evidence
Act, 1872—Section 4 and 36—Constitution of India,
1950—Article 25 and 26— Respondent filed a petition
for declaring registration of her marriage with appellant
to be of no effect—As per respondent, for membership
of library in Jama Masjid, appellant persuaded
respondent to convert to Islam for this purpose—
Respondent singed certain documents which appellant
claimed to be registration of marriage and conversion
certificate and that by virtue of those respondent
became his wife—Petition allowed by Trial Court—
Order challenged in appeal—Plea taken, trial Court
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Faheem Ahmed v. Maviya @ Luxmi (Kailash Gambhir, J.) 217 218
committed jurisdiction error in entertaining suit of
respondent—Documentary evidence to prove
conversion of respondent from Hindu religion to
Muslim religion ignored by trial Court—Respondent
did not file any objection to registration of marriage—
Per contra, plea taken respondent had never changed
her religion and there is no marriage which can be
said to have taken place between appellant and
respondent—Held—In certain situations one party to
marriage belonging to one religion can take a decision
to embrace religion of other party but such a
conversion should not be undertaken merely to
achieve purpose of marriage—It should be done to
embrace new religion with a will and desire to
completely follow tenets of new religion while
simultaneously forsaking tenets of religion being
professed by a person prior thereto—Respondent got
prepared her conversion certificate to marry
appellant—She feigned to have adopted another
religion for purpose of wordly gain of marriage—Trial
Court rightly held there was no conversion of
respondent from Hinduism to Islam—Except nikahnama
nothing proved on record to establish fact that
essential requirement of offer and acceptance was
made by parties in presence and hearing of
witnesses—Registration of marriage was obtained in
violation of mandatory conditions required for purpose
of registration as parties had never lived together
since their marriage—Marriage certificate is conclusive
evidence to prove its issuance by a proper and
competent marriage officer after following due
procedure prescribed under Act and Rules framed
thereunder—Said conclusive evidence cannot come
in way of parties challenging such a marriage
certificate or marriage itself—No merit in present
appeal.
Thus the legal position which crystallizes from the above
discussion is that it is the right of every individual to choose
or embrace any religion and every person has the complete
liberty to forsake his previous religion and to convert himself
to another religion. There can be various reasons which can
prompt a person to change his/her religion but when one
changes his religion, then such a change should come from
one’s heart based on his change of faith and his
determination to embrace the new religion with complete
faith, belief and consciousness. Conversion from one religion
to another religion in any case is a solemn, pious and noble
act with far reaching consequences and it cannot be seen
as an exercise undertaken by someone as a mere pretence
to achieve some limited objective or purpose. Nobody can
be seen to change his/ her religion just to seek a membership
of a library. There cannot be any divergence of opinion that
in certain situations one of the parties to the marriage
belonging to one religion can take a decision to embrace
the religion of the other party but however such a conversion
should not be undertaken merely to achieve the purpose of
marriage, it should be done to embrace the new religion with
a will and desire to completely follow the tenets of the new
religion while simultaneously forsaking the tenets of the
religion being professed by a person prior thereto.
(Para 17)
First legal essential of a valid Muslim marriage under the
civil contract is a proposal made by or on behalf of the one
of the parties to the marriage and the acceptance of such
proposal by or on behalf of the other party. The other
essential requirement is that such a marriage takes place in
the presence and hearing of two males or one female or
one male or two female witnesses who not only should be
adults but sane as well.
(Para 24)
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Indian Law Reports (Delhi) ILR (2011) VI Delhi219 220Faheem Ahmed v. Maviya @ Luxmi (Kailash Gambhir, J.)
Important Issue Involved: (A) Conversion from one
religion to another religion is a solemn, pious and noble act
with far reaching consequences and it cannot be seen as an
exercise undertaken by someone as a mere pretence to
achieve some limited objective or purpose. It should be
done to embrace the new religion with a will and desire to
completely follow the tenets of the new religion while
simultaneously forsaking the tenets of the religion being
professed by a person prior thereto.
(B) The marriage certificate is conclusive evidence so far it
proves its issuance by a proper and competent marriage
officer after following the due procedure prescribed under
the Act and the Rules framed thereunder. The said conclusive
evidence, however, cannot come in the way of the parties
challenging such a marriage certificate or the marriage itself.
[Ar Bh]
APPEARANCES:
FOR THE APPELLANT : Mr. S.C. Sagar, Advocate.
FOR THE RESPONDENT : Mr. Dharmendra Kumar Vashishta,
Advocate.
CASES REFERRED TO:
1. M. Chandra vs. M. Thangamuthu & Anr.(2010) 9 SCC
712.
2. Lily Thomas vs. Union of India (2000) 6 SCC 224.
3. Kailash Sonkar vs. Smt. Maya Devi AIR 1984 SC 600.
4. S.P. Mittal vs. Union of India AIR 1983 SC 1.
5. Dr. Abdur Rahim Undre vs. Smt. Padma Abdur Rahim
Undre AIR 1982 Bombay 341.
6. Perumal Nadar (dead) by Legal Representative vs.
Ponnuswami Nadar (minor) AIR 1971 SC 2352.
7. Punjabrao vs. D. P. Meshram, : [1965] 1 SCR 849.
8. Narayan Waktu vs. Punjabrao, : AIR 1958 Bom 296.
9. Rakheya Bibi vs. Anil Kumar ILR 1948 Calcutta 119.
RESULT: Dismissed.
KAILASH GAMBHIR, J.
1. By this appeal filed under Section 39 of the Special Marriage Act,
1954, the appellant seeks to challenge the judgment and decree dated
18.11.2008 passed by the learned trial court, whereby the petition filed
by the respondent under Section 24(2) of the Special Marriage Act was
allowed.
2. Brief facts of the case as set out in the petition relevant for
deciding the present appeal are that the parties were friends since college
days and were also subsequently classmates, pursuing a course together
at the Gems Craft Jewellery Institute, Lajpat Nagar, New Delhi. As per
the case of the respondent, she wanted to get the membership of the
library in Jama Masjid and on the assurance of the appellant in helping
her get the same, he persuaded her to convert to Islam for this purpose.
That for this purpose, the respondent signed and executed certain
documents which the appellant claimed to be the registration of marriage
and conversion certificate and that by virtue of those the respondent
became his wife. The respondent hence preferred a petition under section
24(2) of the Special Marriage Act, 1954 for having the registration of the
marriage declared to be of no effect which vide judgment and decree
dated 18.11.08 was decreed in favour of the respondent. Feeling aggrieved
with the same, the appellant has preferred the present appeal.
3. Assailing the impugned judgment and decree, Mr.S.C.Sagar,
learned counsel appearing for the appellant submitted that the learned trial
court committed a jurisdictional error in entertaining the suit of the
respondent under Section 24(2) of the Special Marriage Act. The contention
of counsel for the appellant was that the said suit at best could have been
treated by the learned trial court under Section 25 (iii) (a & b) of the
Special Marriage Act, for which the prescribed period of limitation is one
year from the date of the alleged discovery of fraud by the respondent
and reckoning the said period of one year from the date of the registration
of the marriage i.e. 28.11.2005, the said suit filed by the respondent on
08.05.2007 was clearly barred by time. Counsel for the appellant further
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221 222Faheem Ahmed v. Maviya @ Luxmi (Kailash Gambhir, J.)
submitted that the learned trial court ignored the documentary evidence
which was proved on record by the appellant to prove the conversion of
the respondent from Hindu religion to Muslim religion and also
solemnization of the marriage between the parties according to Muslim
religion. The contention of counsel for the appellant was that the conversion
affidavit dated 22.11.2005 was duly proved on record by the appellant
vide Ex.PW-1/R-9, Nikahnama as Ex.PW-1/R-11 and public notice about
the change of name of the respondent from Luxmi to Maviya vide Ex.PW-
1/R-21. Counsel for the appellant further submitted that even a complaint
in writing dated 09.02.2007 Ex.PW-1/R-12 was addressed by the
respondent to the SHO, P.S. Gandhi Nagar wherein she had disclosed the
fact of her marriage with the appellant and sought her safety from her
parents. Counsel thus contended that these vital documents could not
have been ignored by the learned trial court which clearly establishes the
factum of conversion as well as the marriage between the parties. Counsel
for the appellant further argued that the respondent is a well-educated
lady and she fell in love with the appellant and voluntarily came forward
to agree for the conversion as well as for the said marriage according
to Muslim customs. Counsel further submitted that all the said facts were
well within the knowledge of the parents of the respondent and the same
were duly established during the cross-examination of the witnesses
produced by the respondent. Counsel for the appellant further submitted
that no suggestion was given by the respondent in the cross-examination
of the appellant who examined himself as RW-1 to suggest that he forced
the respondent for the said conversion from Hindu to Muslim religion or
even any fraud was played by him upon the respondent to seek registration
of the marriage. Counsel for the appellant also submitted that the said
marriage was duly proved on record by the appellant through the evidence
of RW-2 Mr.Sadakat Ali, who witnessed the said marriage between the
parties. Counsel also submitted that the registration of the marriage was
also proved by the respondent herself through the evidence of PW-4 Ajit
Kumar, Steno, Additional District Magistrate Office, Saket. Counsel for
the appellant further submitted that no evidence was adduced by the
respondent to prove the alleged fraud on the part of the appellant or on
the part of the staff of the Registrar of Marriages which could establish
any kind of fraud being played by them upon the respondent. Counsel
also submitted that the suit filed by the respondent was not maintainable
on account of non-impleadment of the Registrar of Marriages as a party.
Counsel also submitted that the respondent did not file any objection
under Section 8 read with Section 16 of the Special Marriage Act and
in the absence of the same, the registration of the marriage could not
have been challenged by the respondent.
4. Based on the above submissions, counsel for the appellant
submitted that the appellant successfully proved on record the conversion
of the respondent from Hindu religion to Muslim religion and also the
registration of the marriage in accordance with Section 15 of the Special
Marriage Act and in the face of the documentary and oral evidence led
by the parties there was no room for the learned trial court to have
disbelieved the defence of the appellant and thus there is a clear illegality
and perversity in the findings given by the learned trial court and hence
the impugned judgment deserves to be set aside.
5. Counsel for the respondent, on the other hand, supported the
findings of the learned trial court but, however, took an exception to the
finding arrived at by the learned trial court holding that the respondent
wanted to convert her religion from Hinduism to Islam. The contention
of counsel for the respondent was that the learned trial court inadvertently
overlooked the facts proved on record by the respondent to establish the
fact that as to how the appellant had taken undue advantage of his
proximity with a gullible girl from whom the appellant got signed various
papers. Counsel for the respondent further submitted that the respondent-
petitioner had correctly filed the petition under Section 24(2) of the
Special Marriage Act and not under Section 25(iii) (b) of the Act, as the
case set up by the respondent was that she had never married the
respondent and the marriage registration certificate was obtained by the
appellant in violation of the conditions specified in Section 15(a) of the
Special Marriage Act. Counsel for the respondent also submitted that
since the respondent had filed the petition under Section 24(2) of the
Special Marriage Act, therefore, the bar of limitation of one year would
not arise in the present case. Counsel for the respondent further submitted
that there was no legal requirement to implead the Registrar of Marriages
as a party to the suit under the High Court Rules and, therefore, the
objection raised by the appellant in this regard is not tenable.
6. On merits, counsel for the respondent re-asserted that the
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respondent had never changed her religion from Hinduism to Islam as
she neither had any faith in Islam nor had she given her free consent to
undergo the said change of religion. Counsel thus submitted that once the
respondent had not changed her religion, therefore, there is no marriage
which can be said to have taken place between the appellant and the
respondent under the Special Marriage Act.
7. I have heard the learned counsel for the parties at considerable
length and gone through the records.
8. Based on the pleadings of the parties, the learned trial court
framed the following issues:
(1) Whether there was no valid conversion of the petitioner
from Hinduism to Islam? OPP
(2) Whether there was no proper solemnization of marriage
between the parties? OPP
(3) Whether the parties after the alleged marriage and before
its registration did not live together as husband and wife?
OPP
(4) Whether the registration of the marriage of the parties
was in contravention of the condition specified in Section
15(a) of the Special Marriage Act, 1954. If so its effect?
OPP
(5) Whether the registration of the marriage has been obtained
by fraud? OPP (6) Relief.
9. In support of her case, the respondent-petitioner examined herself
as PW-1 and she had also examined PW-2 Mr.R.K.Singh, Nodal Officer,
Bharti Airtel Ltd., who proved on record the call records of the mobile
phone of the respondent as Ex.PW-2/1 and of the appellant as Ex.PW-
2/2. PW-2 also proved on record the Site ID chart (Tower location) of
the appellant’s mobile phone as Ex.PW-2/3. The respondent also examined
her father Mr.Pitamber Dutt Bhadri as PW-3, Mr.Ajit Kumar, Stenographer
from the Office of the Additional District Magistrate Office, Saket, New
Delhi as PW-4. The respondent also examined her brother Mr.Binod
Bhadri as PW-5 and her friend Ms.Arti Mishra as PW-6. The appellant
on the other hand examined himself as RW-1 and his friend Mr. Sadakat
Ali as RW-2.
10. On issue No.1, the learned trial court did not believe the story
set up by the respondent that to get the membership of the library in
Jama Masjid, she had agreed to convert herself to Islam. The learned trial
court in para-25 of the impugned judgment has observed that it is too
incredible to believe that a city bred and educated girl of 21 years would
fall for the alleged bait of a library membership to convert her religion.
The learned counsel for the respondent raised a dispute about the said
finding of the learned trial court on the ground that the learned trial court
totally failed to appreciate the evidence produced by the respondent to
prove the fact that she was entrapped by the appellant to sign and
execute some documents without coming to know about the sinister
plans of the appellant.
11. Without going into some of the discrepancies pointed out by the
learned counsel for the respondent in the findings of the learned trial
court on issue No.1, I do not find any perversity in the reasoning given
by the learned trial court to disbelieve the story put forth by the respondent
that for taking some membership in a library in Jama Masjid she agreed
to convert herself from Hinduism to Islam. The learned trial court rightly
observed that the claim of the respondent to convert herself to Islam just
for the sake of a library membership has to be tested in the light of the
background, education and also the relationship which she shared with
the appellant. The respondent had also not disclosed the name of the
library in Jama Masjid where she wanted to seek the membership. She
also admitted the fact that she had neither seen that library nor she had
signed the library membership form to seek membership for that library.
The court also found that even post conversion, no attempt was made
by the respondent to seek membership of any such library. The conversion
from one religion to another has to be very well thought and serious
decision in one’s life and it is hard to believe that one would change her
religion just for the sake of seeking a library membership. The said
version of the respondent also gets demolished from the admitted fact
that there was a serious love affair between the respondent and the
appellant and it appears that the respondent with a view to find an escape
route, not only from the said relationship but also from her immature
decision to get herself converted from Hinduism to Islam, devised the
said theory of seeking membership in some library of Jama Masjid. I,
therefore, do not find any infirmity in the said finding of the learned trial
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court holding that the claim of the respondent that she was fraudulently
made to undergo conversion ceremony for the sake of library membership
cannot be believed.
12. So far the question of conversion of the respondent from
Hinduism to Islam is concerned, the learned trial court has returned a
finding against the appellant. As per the defence raised by the appellant
before the learned trial court, the respondent converted herself to Islam
by executing an affidavit dated 22nd November, 2005 which was duly
attested by the SDM and the Notary. The appellant has further taken a
stand that after the said attestation, the respondent had appeared before
the Qazi for the issuance of the conversion certificate and on the conversion
certificate, the respondent herself in her own handwriting stated the fact
that she had converted her religion by her own sweet will and without
any sort of pressure upon her in signing the same. For better appreciation
of the controversy, the said declaration made by the respondent on the
conversion certificate Ex.PW-1/R-10 dated 28.11.05 is reproduced as
under:
‘‘I Luxmi D/o Mr. Pitamber Dutt r/o GB-51 Pul Pehlad Pur New
Delhi-44 am giving my statement on oath that I am a major and
my date of birth is 01.01.1984. I can understand what is good
and bad for me. The law and society allows me to adopt any
religion of my choice. I have seen a lot of goodness and qualities
in Islam and being impressed with the same with the help of
Allah and of my own will without any force or coercion or greed
have become a Muslim and I have kept my islami name Maviya.
In future I should be called by the said name. I have written
these words so that the same may be remembered and used at
the time of need, so also because my mother, father and relatives
do not initiate any legal proceedings against me’’.
13. In the affidavit which was proved on record as Ex.PW1/R9, the
respondent has deposed that as she was impressed with Islam religion,
she had adopted the same of her own sweet will, consent and without
any pressure and also changed her name from Luxmi to Maviya. The
relevant para 3 of the said affidavit is also reproduced as under:
‘‘3. That I have embressed in Islam and I have adopted Islamic
religion with my own sweet, will, consent and without any
pressure, threat or coercion from any corner and also changed
my name from Laxmi to MAVIYA, henceforth I shall be known
as Maviya in future in all respects.’’
A bare perusal of the aforesaid declaration given by the respondent on
the conversion certificate and on the affidavit filed by her before the
Qazi, manifestly shows that the respondent never had the true, honest
and genuine intention of converting herself from Hinduism to Islam religion.
Nowhere the respondent has stated that she was converting herself from
Hinduism to Islam religion because she professed faith in Islam religion
or she had started following the tenets of Islam religion in her day-to-
day life. She has also nowhere stated that she took a conscious and well-
thought out decision to renounce Hindu religion. It also cannot be lost
sight of the fact that the appellant failed to produce the Qazi who could
have been the best witness to prove the fact of conversion undergone by
the respondent and withholding of such a material witness by the appellant
further strengthens the case of the respondent that such a conversion
was a mere farce. In the background of the aforesaid facts, this Court
does not find any infirmity in the finding of the learned trial court taking
a view that the respondent converted herself to Islam religion just with
a view to get married to the appellant, the marriage which was not
acceptable to the family of the respondent.
14. India is a secular country and under Article 25 of the Constitution
of India, right has been given to every citizen to profess, practice or
propagate any religion. The cherished ideal of secularism which is the
hallmark of our Constitution has been expressly recognized under the
said Article 25 of the Constitution of India. The Constitution does not put
any kind of embargo on the right of any person to freely choose any
religion he or she so likes or the religion which one is to adopt and
practice in his or her life. It is well-settled that freedom of conscience
and right to profess a religion implies freedom to change his or her
religion as well. The Constitution of India does not define the word
‘religion. and rightly so, as the framers of the Constitution could not have
perceived to give any exhaustive definition of ‘religion’. The meaning of
word ‘religion., however, has been discussed in number of judgments of
the Supreme Court and it would be appropriate to refer the judgment of
the Constitution Bench in the case of S.P. Mittal v. Union of India AIR
1983 SC 1 where the Apex Court had an occasion to discuss the concept
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of religion at great length. The relevant paras of the same are reproduced
as under:
‘‘In order to appreciate the contentions of the parties, it is
necessary to know the implication of the words ‘‘religion’’ and
‘‘religious denomination”. The word ‘‘religion’’ has not been
defined in the Constitution and indeed it is a term which is hardly
susceptible of any rigid definition.
77. The expression ‘‘Religion’’ has, however, been sought to be
defined in the Words and Phrases, Permanent Edn., 36-A, p. 461
onwards, as given below:
‘‘Religion is morality, with a sanction drawn from a future state
of rewards and punishments.
The term ‘‘religion’’ and ‘‘religious’’ in ordinary usage are not
rigid concepts.
‘Religion’ has reference to one’s views of his relations to his
Creator and to the obligations they impose of reverence for his
being and character, and of obedience to his will.
The word ‘religion’ in its primary sense (from ‘religare’, to
rebind, bind back), imports, as applied to moral questions, only
a recognition of a conscious duty to obey restraining principles
of conduct. In such sense we suppose there is no one who will
admit that he is without religion.
‘Religion’ is bond uniting man to God, and virtue whose purpose
is to render God worship due him as source of all being and
principle of all government of things.
‘Religion’ has reference to man’s relation to divinity; to the
moral obligation of reverence and worship, obedience, and
submission. It is the recognition of God as an object of worship,
love and obedience; right feeling toward God, as highly
apprehended.
‘Religion’ means the service and adoration of God or a God as
expressed in forms of worship; an apprehension, awareness, or
conviction of the existence of a Supreme Being; any system of
faith, doctrine and worship, as the Christian religion, the religions
of the Orient; a particular system of faith or worship.
The term ‘religion’ as used in tax exemption law, simply includes:
(1) a belief, not necessarily referring to supernatural powers; (2)
a cult, involving a gregarious association openly expressing the
belief; (3) a system of moral practice directly resulting from an
adherence to the belief; and (4) an organization within the cult
designed to observe the tenets or belief, the content of such
belief being of no moment.
While ‘religion’ in its broadest sense includes all forms of belief
in the existence of superior beings capable of exercising power
over the human race, as commonly accepted it means the formal
recognition of God, as members of societies and associations,
and the term, ‘a religious purpose’, as used in the constitutional
provision exempting from taxation property used for religious
purposes, means the use of property by a religious society or
body of persons as a place for public worship.
‘Religion’ is squaring human life with superhuman life. Belief in
a superhuman power and such an adjustment of human activities
to the requirements of that power as may enable the individual
believer to exist more happily is common to all ‘religions’. The
term ‘religion’ has reference to one’s views on his relations to
his Creator, and to the obligations they impose of reverence for
His being and character and obedience to his will.
The term ‘religion’ has reference to one’s views of his relations
to his Creator, and to the obligations they impose of reverence
for his being and character, and of obedience to his will. With
man’s relations to his Maker and the obligations he may think
they impose, and the manner in which an expression shall be
made by him of his belief on those subjects, no interference can
be permitted, provided always the laws of society, designed to
secure its peace and prosperity, and the morals of its people, are
not interfered with.’’
78. These terms have also been judicially considered in
Commissioner, Hindu Religious Endowments, Madras v.
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Lakshmindra Thirtha Swamiar of Sri Shirur Mutt1 where in the
following proposition of law have been laid down: ‘‘(1) Religion
means .‘ system of beliefs or doctrines which are regarded by
those who profess that religion as conducive to their spiritual
well-being..
(2) A religion is not merely an opinion, doctrine or belief. It has
its outward expression in acts as well.
(3) Religion need not be theistic.
.............”
Hence, the word ‘religion’ used in Articles 25 and 26 of the Constitution
of India must be construed in its strict and etymological sense. It is a
matter of personal faith and belief of personal relations of an individual
with what he regards as his Maker, Creator or Cosmos and which he
believes, regulates the existence of insentient beings and the forces of the
Universe.
15. The issue of religious conversion has come before the Apex
Court and various High Courts time and again and the courts have tried
to evolve judicial principles for discerning the genuine conversions from
the feigned ones. It would be useful to refer to some of the landmark
decisions in this regard here, one of the earliest being the judgment of
the Bombay High Court in Dr. Abdur Rahim Undre vs. Smt. Padma
Abdur Rahim Undre AIR 1982 Bombay 341, which was also referred
to by the learned trial court wherein it was held that:
‘‘27. It is a well known principle of civil law that a person born
into or following one religion continues to belong to such religion
subject to conversion to another religion. Conversion to another
religion basically requires change of faith. To say the least it is
a matter of conviction. According to Mulla’s Principle of
Mohammedan Law any person who professes Mohammedan
religion that is, he acknowledges that there is but one God and
that Mohammad is his prophet is a Mohammedan. Such a person
may be a Mohammedan by birth or he may be a Mohammedan
by conversion. It is not necessary that he should observe any
particular rites or ceremony to be an orthodox believer in the
religion, no Court can test or gauge sincerity of religious belief.
It is sufficient if he professes Mohammedan religion in the sense
that he accepts prophetic grant of Mohammedan (section 19,
Chapter 2, page 19 of Mulla’s Principles of Mohammedan Law).
Thus the real test is of professing Mohammedan religion. As to
when is the true import of the term profess fell for consideration
of the Supreme Court in Punjabrao V. D. P. Meshram, : [1965]
1 SCR 849 of the said decision the Supreme Court has observed
as under:
“13. What cl. (3) of the Constitution (Scheduled Castes)
Order, 1950 contemplates is that for a person to be treated
as one belonging to a Scheduled Caste within the meaning
of that Order he must be one who professes either Hindu
or Sikh religion. The High Court, following its earlier
decision in Narayan Waktu v. Punjabrao, : AIR 1958
Bom 296 has said that the meaning of the phrase “professes
a religion” in the aforementioned provision is “to enter
publicly in to a religious state” and that for this purpose
a mere declaration by a person that he has ceased to
belong to a particular religion and embraced another religion
would not be sufficient. The meanings of the word
“profess” have been given thus in Webster’s New World
Dictionary: “ to avow publicly, to make an open declaration
of ....... to declare one’s belief in : as to profess Christ.
To accept into a religious order” The meanings given in
the Shorter Oxford Dictionary are more or less the same.
It seems to us that the meaning ‘to declare one’s belief
in : as to profess Christ’ is one which we have to bear
in mind while construing the aforesaid order because it is
this which bears upon religious belief and consequently
also upon a change in religious belief. It would thus follow
that a declaration of one’s belief must necessarily mean a
declaration in such a way that it would be known to those
whom it may interest. Therefore if a public declaration is
made by a person that he has ceased to belong to his old
religion and has accepted another religion he will be taken
as professing the other religion. In the face of such an
open declaration it would be idle to enquire further as to
whether the conversion to another religion was efficacious.
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The word ‘profess’ in the Presidential Order appears to
have been used in the sense an open declaration or practice
by a person of the Hindu for the Sikh religion. Where,
therefore, a person says, on the contrary that he has
ceased to be Hindu he cannot derive any benefit from the
order.”
Thus it appears that for a conversion there should be a declaration
of one’s belief and the said declaration should be in such a way
that is should be known to those whom it may interest. If a
public declaration is made by a person that he has ceased to
belong to one religion and is accepting another religion, he will
be taken as professing the other religion.’’
The learned trial court also relied on the judgment of the Supreme Court
in Lily Thomas vs. Union of India (2000) 6 SCC 224 wherein while
dealing with the issue of feigned conversion by a Hindu to Islam religion,
the court observed that:
‘‘39. Religion is a matter of faith stemming from the depth of
the heart and mind. Religion is a belief which binds the spiritual
nature of man to a super-natural being; it is an object of
conscientious devotion, faith and pietism. Devotion in its fullest
sense is a consecration and denotes an act of worship. Faith in
the strict sense constitutes firm reliance on the truth of religious
doctrines in every system of religion. Religion, faith or devotion
are not easily interchangeable. If the person feigns to have adopted
another religion just for some worldly gain or benefit, it would
be religious bigotry. Looked at from this angle, a person who
mockingly adopts another religion where plurality of marriage is
permitted so as to renounce the previous marriage and desert the
wife, he cannot be permitted to take advantage of his exploitation
as religion is not a commodity to be exploited. The institution of
marriage under every personal law is a sacred institution. Under
Hindu Law, Marriage is a sacrament. Both have to be preserved.’’
In Perumal Nadar (dead) by Legal Representative vs. Ponnuswami
Nadar (minor) AIR 1971 SC 2352 it was by the Apex Court as under:
‘‘A person may be a Hindu by birth or by conversion. A mere
theoretical allegiance to the Hindu faith by a person born in
another faith does not convert him into a Hindu, nor is a bare
declaration that he is a Hindu sufficient to convert him to
Hinduism. But a bona fide intention to be converted to the Hindu
faith, accompanied by conduct unequivocally expressing that
intention may be sufficient evidence of conversion. No formal
ceremony of purification or expiation is necessary to effectuate
conversion.’’
In Kailash Sonkar v. Smt. Maya Devi AIR 1984 SC 600 reiterating the
same approach even for re-conversion, the Apex Court observed that:
‘‘In our opinion, the main test should be a genuine intention of
the reconvert to abjure his new religion and completely dissociate
himself from it. We must hasten to add here that this does not
mean that the reconversion should be only a ruse or a pretext or
a cover to gain mundane worldly benefits so that the reconversion
becomes merely a show for achieving a particular purpose
whereas the real intention may be shrouded in mystery. The
reconvert must exhibit a clear and genuine intention to go back
to his old fold and adopt the customs and practices of the said
fold without any protest from members of his erstwhile caste.
In order to judge this factor, it is not necessary that there should
be a direct or conclusive proof of the expression of the views
of the community of the erstwhile caste and it would be sufficient
compliance of this condition if no exception or protest is lodged
by the community members, in which case the caste would
revive on the reconversion of the person to his old religion.’’
16. In Rakheya Bibi v. Anil Kumar ILR 1948 Calcutta 119, the
Calcutta High Court held that it is open for the Court to go into the
question whether the conversion was a bonafide one or a mere pretence.
In a recent case of M. Chandra v. M. Thangamuthu & Anr.(2010) 9
SCC 712, the Supreme Court laid down the following test to prove
conversion:
‘‘It is a settled principle of law that to prove a conversion from
one religion to another, two elements need to be satisfied. First,
there has to be a conversion and second, acceptance into the
community to which the person converted. It is obvious that the
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need of a conversion cannot be altogether done away with.’’
17. Thus the legal position which crystallizes from the above
discussion is that it is the right of every individual to choose or embrace
any religion and every person has the complete liberty to forsake his
previous religion and to convert himself to another religion. There can be
various reasons which can prompt a person to change his/her religion but
when one changes his religion, then such a change should come from
one’s heart based on his change of faith and his determination to embrace
the new religion with complete faith, belief and consciousness. Conversion
from one religion to another religion in any case is a solemn, pious and
noble act with far reaching consequences and it cannot be seen as an
exercise undertaken by someone as a mere pretence to achieve some
limited objective or purpose. Nobody can be seen to change his/ her
religion just to seek a membership of a library. There cannot be any
divergence of opinion that in certain situations one of the parties to the
marriage belonging to one religion can take a decision to embrace the
religion of the other party but however such a conversion should not be
undertaken merely to achieve the purpose of marriage, it should be done
to embrace the new religion with a will and desire to completely follow
the tenets of the new religion while simultaneously forsaking the tenets
of the religion being professed by a person prior thereto.
18. I had also the occasion to deal with a somewhat similar situation
as has arisen in the case at hand , where a Muslim lady married a Hindu
based on her conversion from Muslim religion to Hindu religion and
invoked the provisions of the Hindu Marriage Act, and it was held:
‘‘Conversion to another religion basically requires change of faith;
it is essentially a matter of conviction. A mere theoretical allegiance
to the Hindu faith by a person born in another faith does not
convert him into a Hindu, nor is a bare declaration that he is a
Hindu sufficient to convert him to Hinduism. The conversion
from one religion to another religion is a very major decision in
one’s life and for proving such a conversion, it is incumbent
upon the appellant to place on record complete facts and
documentary material, if any, to satisfy the court that based on
such facts and supporting material, the appellant had undergone
change of religion. Change of religion cannot be believed merely
on vague oral allegations unsupported by any documentary or
uncorroborated oral evidence.
..........
21. India is a melting pot of the religions of the world maintaining
a delicate balance between its myriad religious communities and
religious tolerance. By virtue of Article 25 of the Constitution of
India everyone is free to practice one’s own religion making
India the most secular country in the world. However, at this
strange point of time, religious conversions have gathered many
eyeballs as it is being increasingly used for anything but the
primary reason for conversion; spiritual advancement. The basic
focus to convert from one religion to another is to seek God
from another platform but unfortunately today proselytization is
increasingly done for reaping benefits and in cases like the present
one, an afterthought to maneuver the law. In number of cases
the Supreme Court has held that religion was not merely a matter
of faith and belief, but also included rituals, ceremonies and
religious practices according to the religious tenets of a religion.
But apostasy produces far reaching results in the relations of
husband and wife, where it is also a ground for divorce under
the Hindu Marriage Act and raises controversies like the present
one demanding a mechanism in place to stop people from fishing
in troubled waters.’’
19. Now analyzing the facts of the case at hand in the backdrop
of the aforesaid legal position, in my considered view the learned trial
court has rightly observed that the respondent got prepared her conversion
certificate because she wanted to marry the appellant and to achieve this
purpose, she did feign to have adopted another religion which was for
the only purpose of worldly gain of marriage. It would be appropriate to
reproduce para 35 of the impugned judgment as under:
‘‘The petitioner got herself the conversion certificate because
she wanted to marry the respondent. In this manner she did
feign to have adopted another religion which was only for the
purpose of the worldly gain of a marriage. Her act had nothing
to do with her faith in Islam. This is confirmed by the respondent
himself in his testimony wherein he has deposed that she
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converted by executing an affidavit expressing her intent to
convert and the Qazi issuing a conversion certificate after seeking
her affidavit expressing her intent to convert. There is no mention
of the Qazi confirming her change in faith or making her utter
the Kalma.’’
20. The learned trial court further found that in the affidavit filed
by the respondent in evidence, she testified that she never had professed
Islam and was a worshipper of Lord Shiva and such a deposition of the
respondent remained unrebutted in the absence of any cross-examination
by the appellant. The learned trial court also found that no suggestion
was given by the appellant to the respondent that she practiced Islam or
read the namaz or kept rozas. The learned trial court further found that
even the families of both the parties were not aware of either the said
conversion or of the marriage. The learned trial court also found that
even the publication of name Maviya by the respondent nowhere proved
the fact that she intended to change her religion from Hinduism to Islam.
21. In view of the above discussion, this Court does not find any
infirmity in the findings of the learned trial court on the Issue No.1 and
it has been rightly held that there was no conversion of the respondent
from Hinduism to Islam.
22. This now brings me to the finding of the learned trial court on
Issue No.2, which concerns the question as to whether there was proper
solemnization of marriage between the parties or not. The appellant has
claimed marriage with the respondent firstly under the Muslim Law
before the Qazi and secondly under Section 15 of the Special Marriage
Act. With the findings of the learned trial court on Issue No.1 having
gone against the appellant, however, still the learned trial court examined
the question as to whether proper marriage according to Muslim customs
took place or not, even assuming the fact that there was a valid conversion
of the respondent from Hindu to Muslim religion.
23. Referring to the essentials of a Muslim marriage, the learned
trial court pointed out that the appellant being a Sunni what was required
was that there should be a proposal of marriage made by or on behalf
of one of the parties to the marriage and an acceptance of the proposal
by or on behalf of the other in the presence and hearing of two males
or one male and two female witnesses, who must be sane and adult
Muslims. It would be appropriate to again reproduce paras 41,43,44 and
45 of the impugned judgment as under:
‘‘41. A Muslim marriage is a civil contract the object of which
is firstly legalization of sexual intercourse and secondly procreation
of children. Although solemnized with recitation of verses from
the Koran it is not a sacrament but purely a civil contract. Also
no ceremonies or rituals are essential for the solemnization of a
Muslim marriage. The essentials of a Muslim marriage are that
there should be a proposal made by or on behalf of one of the
parties to the marriage and an acceptance of the proposal by or
on behalf of the other in the presence and hearing of two males
or one male and two female witnesses, who must be sane and
adult Muslim. While in a Sunni marriage the absence of witnesses
makes the marriage irregular and not void, in a Shia marriage the
witnesses are not necessary. The proposal and acceptance must
both be expressed at one meeting.
43. The respondent is a sunni. There is no mention in the pleadings
or testimony of any of the parties or their witnesses about any
proposal of marriage being made and its acceptance before the
Qazi. The petitioner nowhere admits to the proper sequence of
the essentials of a nikah being followed before the Qazi or the
ceremony of nikah per se being performed, which fact has gone
unchallenged as the respondent had failed to examine the Qazi
who was competent to depose about the sequence of events
proving all necessary ingredients of a valid nikah. The counsel
for the respondent has placed great reliance upon the nikahnama
(Ex. PW1/11) admitted to bearing the signatures of the petitioner,
to stress that there was proper solemnization of the marriage.
Although the petitioner admits her signatures and thumb impression
on the nikahnama (Ex PW1/R11), significantly this document is
printed in Arabic, a language which she does not understand.
Also the nikahnama which is a certificate of marriage amount
and by itself does not prove the essentials of a nikah having been
performed.
44. The respondent has examined himself and one of the two
witnesses to the nikah, Mr. Sadaqat Ali (RW-2) who is his friend
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as his witnesses. The respondent in his examination-inchief has
testified that on 28.11.2005 both parties gave the Qazi their
affidavits expressing their intent to marry in addition the petitioner
gave her affidavit expressing her intent to convert. The marriage
of the parties was solemnized in Jama Masjid and thereafter the
Qazi issued the conversion and marriage certificate. There is no
mention in his pleadings or evidence about the essential
ceremonies of the nikah being performed.
45. Mr. Sadaqat Ali (RW-2) when questioned about what
transpired on the said day before the Qazi only testifies to the
effect that ‘‘the Kazi enquired something from the petitioner and
the respondent and thereafter took my signatures on the nikahnama
and one register’’. Neither the respondent nor his witness (RW-
2) have testified to the proposal for marriage being made by the
respondent or on his behalf and the acceptance of the same by
or on behalf of the petitioner in the presence and hearing of two
males or one male and two female witnesses. This vague statement
of the witness about what transpired itself casts doubt on the
solemnization being proper.’’
It would be thus clear from above that neither the appellant nor his friend
Mr. Sadakat Ali (RW-2) could prove on record that essential ceremonies
of the nikah were performed between the parties.
24. Marriage amongst the Muslims is not a sacrament but purely a
civil contract. There are no rituals or ceremonies which are essential for
solemnization of Muslim marriage. The twin objectives which the Muslim
marriage seeks to achieve are; (i) legalization of sexual intercourse (ii)
procreation of children. The essence of Muslim marriage is mutual consent.
The proposal and acceptance need not be in any particular form. The
essentials of marriage under the Mohammedan law as described under
Section 252 by Mulla at page 256, 7th Edition are as under:
‘‘252. Essentials of a marriage-It is essential to the validity of a
marriage there should be a proposal made by or on behalf of one
of the parties to the marriage, and an acceptance of the proposal
by or on behalf of the other, in the presence and hearing of two
male or one male and two female witnesses, who must be sane
and adult Mohammedans. The proposal and acceptance must
both be expressed at one meeting; a proposal made at one meeting
and an acceptance made at another meeting do not constitute a
valid marriage. Neither writing nor any religious ceremony is
essential.’’
It would be thus manifest that the first legal essential of a valid Muslim
marriage under the civil contract is a proposal made by or on behalf of
the one of the parties to the marriage and the acceptance of such proposal
by or on behalf of the other party. The other essential requirement is that
such a marriage takes place in the presence and hearing of two males or
one female or one male or two female witnesses who not only should
be adults but sane as well.
25. In the present case, although the nikahnama was proved on
record as Ex.PW-1/11 but except the said nikahnama nothing was proved
on record to establish the fact that the essential requirement of offer and
acceptance was made by the parties in the presence and hearing of the
witnesses. The learned trial court in para 44 (reproduced above) has
clearly observed that there was no mention either in the pleadings or in
the evidence about the essential ceremonies of the nikah being performed
between the parties. The learned trial court has also taken note of the two
affidavits filed by the parties before the Marriage Officer which were
executed by them on 9.12.2005 i.e. after a gap of 10 days from the date
of the alleged marriage but the same carried a declaration that ‘‘marriage
would be solemnized in a Masjid at Delhi’’ meaning thereby that the
marriage was yet to be performed between the parties. This court,
therefore, does not find any infirmity in the finding of the learned trial
court on Issue No.2 as well.
26. Now the other argument canvassed by the counsel for the
appellant was that the suit filed by the respondent under Section 24(2)
of the Special Marriage Act was not maintainable due to a jurisdictional
error, as the said suit should have been entertained by the learned trial
court as the one being filed under Section 25 (iii) (a) &(b) of the said
Act. As a sequel to this argument, counsel further submitted that had the
said suit been treated under Section 25(iii) (a) & (b) of the Special
Marriage Act, then the same would have been time barred due to non-
filing of the same within the prescribed period of one year from the date
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of alleged discovery of fraud. Counsel for the respondent, on the other
hand took a stand that Section 25(iii) (a) & (b) of the Special Marriage
Act would be totally inapplicable, as the case set up by the respondent
in the said petition was that she in fact was never married to the appellant
and the registration of the marriage was in clear violation of the conditions
specified under Section 15(a) of the Act. The learned trial court dealt
with the said argument of the appellant under Issue No.4 and in para 61
of the impugned judgment, it observed that since there was no conversion
of the respondent from Hinduism to Islam and therefore there could not
have been any valid marriage between the parties. The learned trial court
further observed that the appellant and the respondent never lived together
as husband and wife after their alleged marriage and prior to the registration
and therefore such a marriage was clearly in contravention of Section 15
(a) of the Special Marriage Act, 1954.
27. Section 24 of the Special Marriage Act, 1954 deals with those
marriages which are null and void while Section 25 deals with voidable
marriages and the present petition was filed by the respondent under
Section 24 (2) of the Special Marriage Act not under Section 25 of the
said Act. Under which provision of law the case of the petitioner would
fall and what relief the petitioner can claim in the facts of the case is for
the petitioner to decide and not for the respondent. In the said suit filed
by the respondent (petitioner before the trial court) the allegations raised
by the respondent were that the conversion of religion gone into by her
was not a valid conversion in the eyes of law as she had no faith in
Muslim religion and she had not professed the tenets of Muslim religion.
The respondent further alleged that the registration of marriage was
obtained in violation of the mandatory conditions required for the purpose
of registration as the parties had never lived together since their marriage.
The respondent also took a stand in the said suit that no valid marriage
was performed between her and the appellant. In the face of these
allegations raised by the respondent, her case was squarely covered
under Section 24 (2) of the Special Marriage Act, 1954, whereunder the
marriage solemnized under the Act shall be null and void if it is in
violation of any of the conditions specified in clauses (a) to (e) of Section
15 of the said Act. The argument raised by the counsel for the appellant
has thus no force and the same is rejected.
28. The other argument raised by the counsel for the appellant that
the marriage certificate became a conclusive evidence under Section
13(2) r/w Section 40(c) of the Act and also r/w Section 4/36 of Indian
Evidence Act is also equally devoid of any merit. The marriage certificate
is conclusive evidence so far it proves its issuance by a proper and
competent Marriage Officer after following the due procedure prescribed
under the Act and the Rules famed thereunder. The said conclusive
evidence, however, cannot come in the way of the parties challenging
such a marriage certificate or the marriage itself.
29. The other argument raised by the counsel for the appellant that
the suit was not maintainable on account of non-impleadment of Registrar
of Marriage and non filing of objection by the respondent under Section
8 r/w Section 16 of the Special Marriage Act also lacks force. Section
8 of the Special Marriage Act would be attracted in a case where objection
is made by any of the parties under Section 7 of the said Act complaining
violation of any one or more conditions specified under Section 4 of the
Act. No such case was set up by the respondent in the said suit. Counsel
for the appellant has not proved that there was any provision requiring
impleadment of Registrar of Marriage in a suit filed under Section 24(2)
of the Special Marriage Act.
30. All other contentions raised by the counsel for the appellant are
also devoid of any merit as this court does not find any illegality or
perversity in the reasoning given by the learned trial court in accepting
the case of the respondent that she had never adopted Islam religion and
there was no proper solemnization of marriage between the parties.
31. At omega, it would be befitting to mention that the Hon.ble
Division Bench of the Kerala High Court in the case of Re: Betsy and
Sadanandan 2009(4) KLT 631 decided on 16th October, 2009, while
dealing with a joint application moved by the parties for dissolution of
marriage under section 13B of the Hindu Marriage Act, 1955, examined
the issue as to how, in the absence of any specific procedure prescribed
under the Hindu law, custom and statute, the Court may hold whether
there has been conversion or re-conversion to Hinduism. The Hon’ble
High Court invited the attention of the Law Commission in order to
address the need for legislation on the issue. This court also when faced
with a similar catch 22 situation in the case of GA Arife@Arti Sharma
(supra) decided on 13.8.2010 seconded the suggestion of the Kerala High
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241 242Faheem Ahmed v. Maviya @ Luxmi (Kailash Gambhir, J.)
Court that the need for legislative intervention is imperative to curb the
court battles and controversies arising out of the converts religious status
in matrimonial proceedings. The Law Commission of India thus acting
on the suggestion in its 235th Report published in December, 2010 has
made the following recommendations:
“Recommendations
16. The Law Commission, therefore, proposes to formulate the following
recommendations:
1. Within a month after the date of conversion, the converted
person, if she/he chooses, can send a declaration to the officer
in charge of registration of marriages in the concerned area.
2. The registering official shall exhibit a copy of the declaration
on the Notice Board of the office till the date of confirmation.
3. The said declaration shall contain the requisite details viz., the
particulars of the convert such as date of birth, permanent address,
and the present place of residence, father’s/husband’s name, the
religion to which the convert originally belonged and the religion
to which he or she converted, the date and place of conversion
and nature of the process gone through for conversion.
4. Within 21 days from the date of sending/filing the declaration,
the converted individual can appear before the registering officer,
establish her/his identity and confirm the contents of the
declaration.
5. The Registering officer shall record the factum of declaration
and confirmation in a register maintained for this purpose. If any
objections are notified, he may simply record them i.e., the name
and particulars of objector and the nature of objection.
6. Certified copies of declaration, confirmation and the extracts
from the register shall be furnished to the party who gave the
declaration or the authorized legal representative, on request.
17. Now, the question arises as to how the above recommendations
could be implemented. It is clarified that in whichever State,
there is a law governing conversion such as Freedom of Religion
Act, the above recommendations do not apply. The question then
is whether for implementation of the said recommendations in
other States, the enactment of law by Parliament is necessary.
The Commission is inclined to think that a separate enactment or
amendments to the respective personal laws is not required to
give effect to this simple recommendation having regard to the
fact that it does not go contrary to the existing provisions of law
nor does in any way impinge on the religious freedom or faith
of any person. Matters relating to conversion/reconversion are
governed by the personal laws in respect of which Parliament
has power to make laws. The Central Government can exercise
its executive power under Article 73 to issue appropriate
instructions to the Union Territories. Similar communications
may be addressed by the Central Government to the States (where
there are no laws governing the conversion) to give effect to the
recommendations set out supra. The Governments concerned in
their turn will have to issue necessary orders to the Registration
officers. That can be done by the Governments of UT and State
Governments administratively.
Hence, as it would be manifest from the above, the Law Commission has
recommended that this issue can be tackled by way of executive
instructions. Now the onus is on the Government to steadfastly act on
the same as this is a recurring controversy before the courts adding to
the judicial backlog.
32. In the light of the above discussions, I do not find any merit
in the present appeal and the same is hereby dismissed.
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Indian Law Reports (Delhi) ILR (2011) VI Delhi243 244 Commissioner of Income Tax v. SAS Pharmaceuticals (A.K. Sikri, J.)
ILR (2011) VI DELHI 243
ITA
COMMISSIONER OF INCOME TAX ....APPELLANT
VERSUS
M/S. SAS PHARMACEUTICALS ....RESPONDENT
(A.K. SIKRI & M.L. MEHTA, JJ.)
ITA NO. : 1058/2009 DATE OF DECISION: 08.04.2011
Income Tax Act, 1961—Section 271 (1) (c)—This appeal
arises out of the order of the Income Tax Appellate
Tribunal—A survey was carried out at the business
premises and godown of the respondent-assessee on
06.01.2003—In that survey, discrepancies in cash, stock
and renovation were found—The assessee accepted
this difference and surrendered the amount—No
attempt was made by the assessee even after this
surrender to retract therefrom or to explain that there
were no such discrepancies—Assessment also
reflected the surrendered amount in his income tax
returns—Assessing officer initiated separate penalty
proceedings which culiminated in imposition of
penalty—CIT (A) deleted the penalty by holding that
there was no concealment—Tribunal dismissed appeal
filed by Revenue—Instant appeal filed—It is to be kept
in mind that Section 271(1)(c) of the Act is a penal
provision and such a provision has to be strictly
construed. Unless the case falls within the four-corners
of the said provision, penalty cannot be imposed—
The penalty can be imposed only if concealment is
found in the income tax returns—Since the assessee,
may be after being exposed in survey, had made
complete disclosure of his income in his income tax
return and they was no concealment or non-disclosure
of income, no penalty could have been imposed—
Appeal dismissed.
It necessarily follows that concealment of particulars of
income or furnishing of inaccurate particular of income by
the assessee has to be in the income tax return filed by it.
There is sufficient indication of this in the judgment of this
Court in the case of Commissioner of Income Tax, Delhi-
I Vs. Mohan Das Hassa Nand 141 ITR 203 and in
Reliance Petroproducts Pvt. Ltd. (supra), the Supreme
Court has clinched this aspect, viz., the assessee can
furnish the particulars of income in his return and everything
would depend upon the income tax return filed by the
assessee. This view gets supported by Explanation 4 as well
as 5 and 5A of Section 271 of the Act as contended by the
learned counsel for the Respondent. (Para 15)
No doubt, the discrepancies were found during the survey.
This has yielded income from the assessee in the form of
amount surrendered by the assessee. Presently, we are not
concerned with the assessment of income, but the moot
question is to whether this would attract penalty upon the
assessee under the provisions of Section 271(1) (c) of the
Act. Obviously, no penalty can be imposed unless the
conditions stipulated in the said provisions are duly and
unambiguously satisfied. Since the assessee was exposed
during survey, may be, it would have not disclosed the
income but for the said survey. However, there cannot be
any penalty only on surmises, conjectures and possibilities.
Section 271 (1) (c) of the Act has to be construed strictly.
Unless it is found that there is actually a concealment or
non-disclosure of the particulars of income, penalty cannot
be imposed. There is no such concealment or non-disclosure
as the assessee had made a complete disclosure in the
income tax return and offered the surrendered amount for
the purposes of tax. (Para 16)
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245 246 Commissioner of Income Tax v. SAS Pharmaceuticals (A.K. Sikri, J.)
Important Issue Involved: Concealment of particulars of
income or furnishing of inaccurate particular of income by
the assessee has to be in the income tax return filed by it.
Section 271(1)(c) of the Act has to be construed strictly.
Unless it is found that there is actually a concealment or
non-disclosure of the particulars of income, penalty cannot
be imposed.
[Ch Sh]
APPEARANCES:
FOR THE APPELLANT : Mr. Prem Lata Bansal, Sr. Advocate
with Mr. Deepak Anand, Jr. Standing
Counsel.
FOR THE RESPONDENT : Mr. Amar Dave with Mr. Nitin
Mishra, Advocates.
CASES REFERRED TO:
1. Commissioner of Income Tax, Ahmedabad vs. Reliance
Petroproducts Pvt. Ltd. (2010) 3 SCR 510.
2. Commissioner of Income Tax, Delhi-I vs. Mohan Das
Hassa Nand 141 ITR 203.
RESULT: Appeal dismissed.
A.K. SIKRI, J.
1. This appeal arises out of the order of the Income Tax Appellate
Tribunal (‘the Tribunal’ for brevity) vide which it has affirmed the order
of the CIT (A) deleting the penalty of Rs. 32,39,393/- imposed by the
Assessing Officer under the provisions of Section 271(1)(c) of the Income
Tax Act (hereinafter referred to as ‘the Act’). It so happened that a
survey was carried out at the business premises and godown of the
respondent-assessee on 06.01.2003. In that survey, discrepancies in cash,
stock and renovation were found. When the assessee was confronted
with the same, it surrendered the amount of Rs. 88,14,676/- during the
survey. Since the survey was conducted on 06.01.2003, i.e., in the
Financial Year 2002-03 corresponding to the Assessment Year 2003-04,
for that assessment year, the assessee had not filed the income tax return
and naturally the occasion to file the income tax return had not matured.
When the income tax return was ultimately filed by the assessee on
02.12.2003, the assessee declared its income @ Rs. 87,71,580/- including
the amount surrendered by the assessee itself. The assessment was
framed including the surrendered amount. While passing the assessment
order, the AO also decided to initiate penalty proceedings separately on
the ground that the assessee had concealed the income. Show cause
notice was given to which the assessee submitted the reply stating that
the assessee had itself voluntarily surrendered the amount to avoid litigation
and to buy peace of mind and had not concealed any income. This
explanation was not digested by the AO, who had the view that the
surrender was made only when discrepancies were brought to the notice
of the assessee, which were found in cash, stock as well as renovation
of the premises done by the assessee. He, thus, was of the opinion that
had there been no survey, the assessee would have succeeded in concealing
the income and evading tax. On this premise, penalty of Rs. 32,39,393/
- was imposed.
2. The CIT (A) deleted the penalty on the ground that there was
no concealment of income as in the return filed by the assessee, the said
income was duly reflected.
3. The Tribunal has upheld the order of the CIT (A) and dismissed
the appeal of the Revenue. It is in this factual context that the instant
appeal is preferred by the Revenue, which was admitted on the following
substantial questions of law:
‘‘(i) Whether ITAT was correct in law in deleting the penalty
imposed by the Assessing Officer under Section 271(1)(c) of the
Income Tax Act? (ii) Whether ITAT was correct in law in
holding that no concealment was made by the assessee though
the assessee had surrendered the amount of ‘88,14,676/- during
survey on account of discrepancies found in cash, stock and
difference in renovation?’’
4. The facts demonstrated bring forth the position that when the
survey was conducted a couple of months before the close of Financial
Year, i.e., 06.01.2006, definitely discrepancies were found inasmuch as
there was difference in cash, stock as well as renovation expenses are
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as follows:
“Difference in cash Rs. 22,80,876
Difference in stock Rs. 5,00,200
Renovation difference Rs. 60,33,580
Rs. 88,14,676”
5. The assessee accepted this difference and surrendered the amount.
No attempt was made by the assessee even after this surrender to retract
therefrom or to explain that there were no such discrepancies. In fact,
the position was carried by including this amount even in the income tax
return filed by the assessee. Thus, no doubt, the assessee has surrendered
certain income during the course of survey and discrepancies noticed by
the survey team would suggest that the assessee was not maintaining
proper accounts in respect to cash, stock and renovation expenses, etc.
Therefore, there could be a possibility that but for this survey, the
discrepancies brought to the notice of the assessee and physical verification
of the stock and other accounts would have gone unnoticed and the
assessee might have suppressed in the income tax return as well However,
fact remains that it has disclosed this in the return filed by it.
6. In this context, the question would be as to whether the assessee
can be imposed penalty under Section 271(1)(c) of the Act when the
assessee has shown this income in the income tax return filed by it and
contends that it has voluntarily declared the same in the ‘regular return
filed for the relevant year’.
7. To seek an answer, it would be necessary to look into the
language of Section 271(1)(c) of the Act. This provision reads as under:
“271. Failure to furnish returns, comply with notices,
concealment of income, etc.
(1) If the Assessing Officer or the Commissioner (Appeals) or
the Commissioner in the course of any proceedings under this
Act, is satisfied that any person-
(a)......................
(b) .....................
(c) has concealed the particulars of his income or furnished
inaccurate particulars of such income,”
8. As pointed out above, the contention of the Department is that
the intention of the assessee in maintaining false records relating to cash,
stock and renovation, etc., was manifest, viz., to conceal the particulars
of income and furnished inaccurate particulars of such income. It was
contended that but for the said survey in which the assessee was exposed,
he would have filed the income tax return concealing the said income and
therefore, provisions of Section 271(1)(c) of the act are clearly attracted.
9. The learned counsel for the assessee, on the other hand, contends
that Clause (c) of Section 271(1) of the Act makes it crystal clear that
the act of ‘concealment’ or ‘furnishing inaccurate particulars’ is relatable
only in respect of a return being filed. Therefore, in a case where the
stage of filing return itself had not been reached, there is no question of
invocation of the penal provision of Section 271 of the Act, as is the
position in the present case. In the present case, the return was filed well
within the prescribed time, i.e., on 02.12.2003 and in the said return the
entire amount had been duly shown as income. Therefore, invoking a
penal provision merely on the basis of assumption that the assessee
‘would not have included’ the said amount while filing his return is
completely erroneous and unsustainable. It is a settled position of law as
enunciated in various judicial pronouncements that ‘penalty cannot be
based on presumptions and surmises’. It was also argued that the legislative
intent in connection with Section 271 of the Act is further fortified from
the various Explanations provided in the said provision. In this regard,
Explanation 4 is relevant wherein it is specifically provided as to what
would be included in the expression ‘the amount of tax sought to the
evaded’, which is the basis for imposition of penalty contemplated under
Section 271 (1) (c) of the Act. The perusal of the said Explanation also
clearly establishes the direct nexus between the concealment/inaccurate
particular being furnished with the return filed.
10. To bolster this submission, the learned counsel for the assessee
took refuge of Explanation 5 and Explanation 5A of Section 271 of the
Act and submitted that these Explanations provide that in cases of search
by way of deeming fiction, the liability towards penalty has been prescribed
even in cases where the return of income for such year has not been
furnished before the said date of search. Therefore, wherever the legislature
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intended to impose a penal liability covering a case where return was yet
to be filed, a deeming fiction has been consciously provided. In the
absence of any such deeming fiction imposing penalty in a case of
survey where return is yet to be filed, the penal provision of Section 271
of the Act cannot be invoked as the mandatory ingredients thereof are
not met at all.
11. He also sought to draw sustenance from the judgment of Supreme
Court in the case of Commissioner of Income Tax, Ahmedabad Vs.
Reliance Petroproducts Pvt. Ltd. (2010) 3 SCR 510 wherein inter alia
it has been held that unless the conditions under Section 271 (1)(c) of
the Act exist in a particular case, penalty cannot be imposed and it was
further held that 271 of the Act being a penal provision is required to be
construed strictly. The following observations made in the said judgment
were specifically referred to:
‘‘8. Therefore, it is obvious that it must be shown that the
conditions under Section 271 (1)(c) must exist before the penalty
is imposed. There can be no dispute that everything would depend
upon the return filed because that is the only document, where
the assessee can furnish the particulars of his income. When
such particulars are found to be inaccurate, the liability would
arise.’’
12. After considering the respective submissions of the learned
counsel for the parties, we are of the view that the argument of the
learned counsel for the assessee has to prevail as it carried substantial
weight. It is to be kept in mind that Section 271(1)(c) of the Act is a
penal provision and such a provision has to be strictly construed. Unless
the case falls within the four-corners of the said provision, penalty cannot
be imposed. Sub-section (1) of Section 271 stipulates certain contingencies
on the happening whereof the AO or the Commissioner (Appeals) may
direct payment of penalty by the assessee. We are concerned herewith
the fundamentality provided in Clause (c) of Section 271 (1) of the Act,
which authorizes imposition of penalty when the AO is satisfied that the
assessee has either;
(a) Concealed the particulars of his income; or
(b) Furnished inaccurate particulars of such income.
13. It is not the case of furnishing inaccurate particular of income,
as in the income tax return, particulars of income have been duly furnished
and the surrendered amount of income was duly reflected in the income
tax return. The question is whether the particulars of income were
concealed by the assessee or not. It would depend upon the issue as to
whether this concealment has reference to the income tax return filed by
the assessee, viz., whether concealment is to be found in the income tax
return.
14. We may, first of all, reject the contention of the learned counsel
for the Revenue relying upon the expression ‘in the course of any
proceedings under this Act’ occurring in Sub-section (1) of Section 271
of the Act and contending that even during survey when it was found
that the assessee had concealed the particular of his income, it would
amount concealment in the course of ‘any proceedings’. The words ‘in
the course of any proceedings under this Act’ are prefaced by the
satisfaction of the AO or the Commissioner of Income Tax (Appeals).
When the survey is conducted by a survey team, the question of satisfaction
of AO or the Commissioner (Appeals) or the Commissioner does not
arise. We have to keep in mind that it is the AO who initiated the penalty
proceedings and directed the payment of penalty. He had not recorded
any satisfaction during the course of survey. Decision to initiate penalty
proceedings was taken while making assessment order. It is, thus, obvious
that the expression ‘in the course of any proceedings under this Act’
cannot have the reference to survey proceedings, in this case.
15. It necessarily follows that concealment of particulars of income
or furnishing of inaccurate particular of income by the assessee has to
be in the income tax return filed by it. There is sufficient indication of
this in the judgment of this Court in the case of Commissioner of
Income Tax, Delhi-I Vs. Mohan Das Hassa Nand 141 ITR 203 and
in Reliance Petroproducts Pvt. Ltd. (supra), the Supreme Court has
clinched this aspect, viz., the assessee can furnish the particulars of
income in his return and everything would depend upon the income tax
return filed by the assessee. This view gets supported by Explanation 4
as well as 5 and 5A of Section 271 of the Act as contended by the
learned counsel for the Respondent.
16. No doubt, the discrepancies were found during the survey. This
has yielded income from the assessee in the form of amount surrendered
Commissioner of Income Tax v. SAS Pharmaceuticals (A.K. Sikri, J.) 249 250
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by the assessee. Presently, we are not concerned with the assessment of
income, but the moot question is to whether this would attract penalty
upon the assessee under the provisions of Section 271(1) (c) of the Act.
Obviously, no penalty can be imposed unless the conditions stipulated in
the said provisions are duly and unambiguously satisfied. Since the assessee
was exposed during survey, may be, it would have not disclosed the
income but for the said survey. However, there cannot be any penalty
only on surmises, conjectures and possibilities. Section 271 (1) (c) of the
Act has to be construed strictly. Unless it is found that there is actually
a concealment or non-disclosure of the particulars of income, penalty
cannot be imposed. There is no such concealment or non-disclosure as
the assessee had made a complete disclosure in the income tax return and
offered the surrendered amount for the purposes of tax.
17. We, thus, answer the questions as formulated above, in favour
of the assessee and against the Revenue finding no fault with the decisions
of the CIT (A) as well as the Tribunal. As a result, this appeal is
dismissed.
ILR (2011) VI DELHI 251
W.P. (C)
ANAND PRAKASH ....PETITIONER
VERSUS
THE DELHI STATE CO-OPERATIVE ....RESPONDENTS
BANK LTD. & ANR.
(RAJIV SAHAI ENDLAW, J.)
W.P. (C) NO. : 105/2010 DATE OF DECISION: 20.04.2011
(A) Constitution of India, 1950—Article 226—Petition
challenging the enquiry and the proceedings being
violative of service rules applicable to the staff of
respondent—Seeking quashing of order of retirement
and reinstatement into service—Petitioner was
employed with the respondent in 1993 as clerk-cum-
typist—Lastly worked as Manager—Charged with
misconduct of making payments against false credit
entries—Misuse of powers and ignoring the prescribed
Banking rules—Not taking care of interest of the bank
and having tampered with the record of the Bank—
Inquiry conducted—Petitioner found guilty—
Respondent imposed a penalty of compulsory
retirement on the petitioner—Appeal preferred—
Rejected by Board of Directors—Petition—Challenged
on the ground of maintainability—Petitioner alleges
that employees of respondent are governed by Central
Civil Services (Conduct) Rules, 1964 and Central Civil
Services (Classification, Control and Appeal) Rules
1965, which shows that it is State and hence writ
petition is maintainable—Held—Merely, because a
Society adopts the rules applicable to Government
servants to its own employees would not convert the
said Co-opertative Society into Government—Similarly,
merely because the respondent is performing banking
function would also not make the writ petition
maintainable—It is not shown that the function so
performed by the respondent is monopolistic—
According to the document handed over by the
petitioner himself there are as many as 32 Co-opertaive
Societies in Delhi performing the banking functions—
This is besides the other banks operating in Delhi—
Thus the said ground for maintainability of the writ
petition is also rejected—In view of the aforesaid
dicta of the Supreme Court, the reasons given in
rejoinder do not justify the maintainability of the writ
petition not maintainable.
I may notice that the writ petition as filed does not contain
any pleadings whatsoever as to the nature, character or
constitution of the respondent or as to the maintainability of
Anand Prakash v. The Delhi State Co-Operative Bank Ltd. (Rajiv Sahai Endlaw, J.)
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253 254
the writ petition against the respondent and presumes the
writ petition to be maintainable. Upon objection being taken
in the counter affidavit, in rejoinder also, the maintainability
of the writ petition is justified only for the reason of the
control exercised by the Registrar Co-operative Societies
under the Co-operative Societies Act qua the respondent
and the Chairman of the Board of Directors of the Society
being an MLA and the service Rules of the respondent
providing for the applicability of CCS/CCA Rules to employees
of the Society. In view of the aforesaid dicta of the Supreme
Court, the reasons given in rejoinder do not justify the
maintainability of the writ petition. (Para 6)
I have put to the counsel for the petitioner whether, if a
private company instead of framing its own rules adopts the
rules aforesaid applicable to the government servants to its
employees, a writ petition would lie against the private
company also. The counsel for the petitioner has fairly
stated that it would not be. Similarly, merely because a
Society adopts the rules applicable to Government servants
to its own employees would not convert the said Co-
operative Society into Government. The said contention of
the petitioner is thus rejected. (Para 10)
Similarly, merely because the respondent is performing
banking function would also not make the writ petition
maintainable. It is not shown that the function so performed
by the respondent is monopolistic. According to the document
handed over by the petitioner himself there are as many as
32 Co-operative Societies in Delhi performing the banking
functions. This is besides the other banks operating in
Delhi. Thus the said ground for maintainability of the writ
petition is also rejected. (Para 11)
Important Issue Involved: Merely because a co-operative
society adopts the CCS/CCA rules for its own employees
would not convert the society in to Government.
[Vi Ba]
APPEARANCES:
FOR THE PETITIONER : Mr. Ram Narayan Singh, Advocate.
FOR THE RESPONDENTS : Mr Anand Yadav, Advocate.
CASES REFERRED TO:
1. S.S. Rana vs. Registrar, Co-operative Societies (2006) 11
SCC 634.
2. Supriyo Basu vs. West Bengal Housing Board (2005) 6
SCC 289.
3. Pradeep Kumar Biswas vs. Indian Institute of Chemical
Biology MANU/SC/0330/2002.
4. U.P. State Co-operative Land Development Bank Ltd.
vs. Chandra Bhan Dubey (1999) 1 SCC 741.
5. Jagjit Singh Sangwan vs. Union of India 1996 (36) DRJ
(DB).
6. W.B. State Co-operative Bank Ltd. vs. Paritosh Bagchi
(1995) 6 SCC 562.
7. Mohinder Singh vs. D.P. Khatri 51 (1993) DLT 592.
8. The Shamrao Vithal Co-operative Bank Ltd. vs. Padubidri
Pattabhiram Bhat AIR 1993 Bombay 91.
9. Sri Konaseema Co-operative Central Bank Ltd. vs. N.
Seetharama Raju AIR 1990 AP 171.
10. Banabihari Tripathy vs. Registrar of Co-operative Societies
AIR 1989 Orissa 31.
11. P. Bhaskaran vs. Additional Secretary, Agricultural (Co-
operation) Department, Trivendrum AIR 1988 Kerala 75.
12. Babaji Kondaji Garad vs. Nasik Merchants C-operative
Bank Ltd. AIR 1984 SC 192.
13. Ajmer Singh vs. The Registrar, Co-operative Societies,
Punjab AIR 1981 Punjab & Haryana 107.
14. The Nayagarh Co-operative Central Bank Ltd. vs. Narayan
Rath AIR 1977 SC 112.
15. Kulchhinder Singh vs. Hardayal Singh Biar AIR 1976 SC
2216.
Anand Prakash v. The Delhi State Co-Operative Bank Ltd. (Rajiv Sahai Endlaw, J.)
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16. The Bihar State Co-operative Bank Ltd. vs. The Registrar,
Co-operative Societies, Bihar AIR 1975 Patna 187.
17. Deokinandan Prashar vs. The Agra District Co-operative
Bank AIR 1972 SC 2497.
18. Co-operative Central Bank Ltd. vs. Additional Industrial
Tribunal, Andhra Pradesh, Hyderabad AIR 1970 SC 245.
RESULT: Appeal is dismissed.
RAJIV SAHAI ENDLAW, J.
1. The question of maintainability of this writ petition against the
respondent is for consideration.
2. The petitioner claims to have been employed with the respondent,
initially in the year 1993 as a Clerk-cum-Typist and was last working as
a Manager. He was charged with misconduct by way of making payments
against false credit entries, of misuse of his power by way of cash
payment of huge amount, of ignoring of the prescribed banking rules and
having acted in excess of his powers and having not taken care of the
interest of the Bank and having tampered with the record of the Bank.
The inquiry conducted found the petitioner guilty and the competent
authority of the respondent imposed a penalty of compulsory retirement
on the petitioner. The appeal preferred by the petitioner was rejected by
the Board of Directors of the respondent. Aggrieved from the said action
of the respondent, the present writ petition has been filed averring the
inquiry and the proceedings to be violative of the service rules applicable
to the staff of the respondent and seeking quashing of the order of his
compulsory retirement and mandamus against the respondent to reinstate
the petitioner into service.
3. Notice of the petition was issued. The respondent has filed a
counter affidavit inter alia disputing the maintainability of the writ petition.
It is pleaded that the respondent is a Co-operative Society registered
under the Delhi Co-operative Societies Act, 2003, is not an instrumentality
of the State and is not an authority within the meaning of Article 12 of
the Constitution of India; that the service rules governing the conditions
of service of employees of the respondent are framed by the Board of
Directors i.e. the Managing Committee of the Society in exercise of
powers under the bye-laws of the Society and the said service rules /
bye-laws are not statutory and therefore cannot be held to be law or have
the force of law and cannot be enforced through a petition under Article
226. It is further pleaded that the conditions of service between the
respondent and the petitioner are a matter of contract; that the affairs of
the respondent are administered by the Management in accordance with
the democratically expressed will of the members and under Section 30
of the Co-operative Societies Act also, the final authority of a Co-operative
Society vests in the General Body of the members. Rejoinder to the
counter affidavit has been filed by the petitioner stating that since the
Registrar of the Co-operative Societies has the control of the respondent
and who in turn is under the Control of the respondent No.2 Government
of National Capital Territory of Delhi, the writ petition is maintainable. It
is further pleaded that under the service rules aforesaid, the punishment
of compulsory retirement could not have been meeted out to the petitioner
without the approval of the Registrar of Co-operative Societies and which
had not been taken. Yet another reason given for maintainability of the
writ petition is the list of judgments adjudicating writ petitions preferred
against the Co-operative Societies. It is further contended that the service
rules and bye-laws of the respondent are statutory in character. Yet
another reason given for maintainability of the writ petition is that since
the Central Civil Services (Conduct) Rules, 1964 and Central Civil Services
(Classification, Control and Appeal) Rules, 1965 have, under the service
rules, been applied to the petitioner, the writ petition would be maintainable.
Yet further it is pleaded that since the Chairman of the Board of Directors
of the respondent is a MLA, an elected member of the Legislative Assembly
of the respondent No.2 Government of NCT of Delhi, the writ would lie.
It is also suggested that the respondent having been registered under the
Co-operative Societies Act, writ would lie thereagainst. The counsels for
the parties have been heard on the aspect of maintainability of the writ
petition.
4. I may in this regard at the outset notice that the Apex Court in
Supriyo Basu Vs. West Bengal Housing Board (2005) 6 SCC 289 held
that a Co-operative Society is constituted on agreement between members
thereof who had agreed to abide by the provisions of the Co-operative
Societies Act and the Rules framed thereunder or the bye-laws framed
by the Society; that where the society is not a department of the State
and is also not a creature of a statute but merely governed by a statute,
255 256 Anand Prakash v. The Delhi State Co-Operative Bank Ltd. (Rajiv Sahai Endlaw, J.)
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only if it is established that the mandatory provision of a statute has been
violated, would a writ petition be maintainable thereagainst. Referring to
U.P. State Co-operative Land Development Bank Ltd. Vs. Chandra
Bhan Dubey (1999) 1 SCC 741, it was held that the question to be
considered in determining whether a writ petition would lie against a Co-
operative Society is, what is the nature of the statutory duty placed on
it and the Court is to enforce such statutory public duty.
5. Reference may also be made to S.S. Rana Vs. Registrar, Co-
operative Societies (2006) 11 SCC 634 which was also a case of
termination by Kangra Central Co-operative Bank Ltd. constituted under
the Himachal Pradesh Co-operative Societies Act, 1968 of the services
of its Branch Manager. The contention of the Branch Manager in that
case was that the activities of the Co-operative Society being to lend
money to the agriculturists, the same would come within the purview of
Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology
MANU/SC/0330/2002 and the writ petition alleging the termination to be
contrary to rules, bye-laws and principles of natural justice would be
maintainable. The Supreme Court held that where a Society has not been
constituted under an Act and functions like any other Co-operative Society
and is merely regulated by the Co-operative Societies Act and where the
State has no say in the functions of the Society, and where the membership,
acquisition of shares and all other matters are governed by the bye-laws
framed under the Act and the State is not the majority shareholder of the
Society and does not exercise any direct or indirect control over the
affairs of the Society for deep and pervasive control and the State has
only to nominate one Director, it could not be said that the State exercises
any functional control over the affairs of the Society. It was further held
that several other relevant questions required to be considered in deciding
whether writ would lie against the Society are, (i) How the Society was
created; (ii) Whether it enjoys any monopoly character; (iii) Do the
functions of the Society partake to statutory functions or public functions;
and (iv) Can it be characterized as public Authority. The Kangra Central
Co-operative Bank Ltd. was held to be not answering any of the aforesaid
tests. It was held that general regulations like the Companies Act or the
Co-operative Societies Act would not render the activities of a Company
or a Society as subject to control of the State and the purpose of the
provisions of the Companies Act or the Co-operative Societies Act is
257 258 Anand Prakash v. The Delhi State Co-Operative Bank Ltd. (Rajiv Sahai Endlaw, J.)
only to ensure proper functioning of the Society and the State or the
statutory authorities as the Registrar Co-operative Societies would have
nothing to do with the day-to-day functioning of the Society.
6. I may notice that the writ petition as filed does not contain any
pleadings whatsoever as to the nature, character or constitution of the
respondent or as to the maintainability of the writ petition against the
respondent and presumes the writ petition to be maintainable. Upon
objection being taken in the counter affidavit, in rejoinder also, the
maintainability of the writ petition is justified only for the reason of the
control exercised by the Registrar Co-operative Societies under the Co-
operative Societies Act qua the respondent and the Chairman of the
Board of Directors of the Society being an MLA and the service Rules
of the respondent providing for the applicability of CCS/CCA Rules to
employees of the Society. In view of the aforesaid dicta of the Supreme
Court, the reasons given in rejoinder do not justify the maintainability of
the writ petition.
7. The counsel for the petitioner during the hearing has referred to:
(i) W.B. State Co-operative Bank Ltd. Vs. Paritosh Bagchi
(1995) 6 SCC 562.
(ii) Deokinandan Prashar Vs. The Agra District Co-
operative Bank AIR 1972 SC 2497.
to contend that in those cases writ petitions against the Co-
operative Banks were maintained. However, neither of the two
judgments is found to contain any discussion on the maintainability
of the writ petition. The Supreme Court in the judgment cited by
me above has not ruled out the possibility of maintainability of
a writ petition against a Co-operative Society but has laid down
the tests therefor. It may be that the Co-operative Banks in the
judgments cited by the counsel for the petitioner satisfied the
said tests and thus the issue of maintainability of the writ petition
was not raised. However, merely because writ petitions against
another Co-operative Bank were entertained, would still not justify
the maintainability of the present writ petition without the petitioner
establishing before this Court that the tests are satisfied qua the
respondent and which has not been done by the petitioner inspite
of opportunity.
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8. The counsel for the petitioner has also handed over another list
which appears to have been prepared by the Office of the Registrar of
Co-operative Societies, New Delhi of the 32 Societies found in the Bank
Zone. He has also handed over the Account Opening Form of the
respondent Bank. I fail to see as to how the same can justify the
maintainability of the writ petition. Similarly the counsel has handed over
copy of order dated 29th October, 2010 issuing notice of W.P.(C) No.296/
2010 preferred by one Shikha Verma against the respondent. However
merely because notice has been issued in another writ petition preferred
against the respondent would still not make the present petition maintainable.
The counsel for the respondent clarifies that the objection to maintainability
is also taken in other writ petitions preferred against the respondent. He
further states that the West Bengal State Co-operative Bank Ltd. and The
Agra District Co-operative Bank subject matter of the judgments cited by
the petitioner must be controlled by the respective State Governments
and which is not the case over here. He has rather argued and which has
not been controverted by the counsel for the petitioner that the respondent
Bank was not created by the Government.
9. As far as the argument of the petitioner of the applicability of
CCS /CCA Rules to the employees of the respondent is concerned, Rule
3.1(a) under Chapter III titled ‘‘Conduct, Discipline, Punishment and
Appeals’’ of the Service Rules aforesaid of the respondent provides that
the Central Civil Services (Conduct) Rules, 1964 and Central Civil Services
(Classification, Control and Appeal) Rules, 1965 shall mutatis mutandis
be applicable to the respondent.
10. I have put to the counsel for the petitioner whether, if a private
company instead of framing its own rules adopts the rules aforesaid
applicable to the government servants to its employees, a writ petition
would lie against the private company also. The counsel for the petitioner
has fairly stated that it would not be. Similarly, merely because a Society
adopts the rules applicable to Government servants to its own employees
would not convert the said Co-operative Society into Government. The
said contention of the petitioner is thus rejected.
11. Similarly, merely because the respondent is performing banking
function would also not make the writ petition maintainable. It is not
shown that the function so performed by the respondent is monopolistic.
According to the document handed over by the petitioner himself there
are as many as 32 Co-operative Societies in Delhi performing the banking
functions. This is besides the other banks operating in Delhi. Thus the
said ground for maintainability of the writ petition is also rejected.
12. It is fair to refer to the judgments cited by the counsel for the
respondent also in this regard. He has relied on:
(i) Co-operative Central Bank Ltd. Vs. Additional
Industrial Tribunal, Andhra Pradesh, Hyderabad AIR
1970 SC 245 laying down that bye-laws of Co-operative
Societies framed in pursuance to provisions of the Co-
operative Societies Act cannot be said to have force of
law.
(ii) Sri Konaseema Co-operative Central Bank Ltd. Vs.
N. Seetharama Raju AIR 1990 AP 171 laying down the
obligations of a Co-operative Society qua its employees
are contractual and which cannot be enforced by way of
writ petition; that mandamus, certiorari and prohibition
are public law remedies and not available to enforce private
law rights.
(iii) Jagjit Singh Sangwan Vs. Union of India 1996 (36)
DRJ (DB) where a Division Bench of this Court also held
that the bye-laws of a Co-operative Society do not have
force of law and are meant for internal management of
the Society and merely because the bye-laws have the
approval of Central Government would not make any
difference and breach of the bye-laws cannot be enforced
in exercise of writ jurisdiction by the High Court.
(iv) The Bihar State Co-operative Bank Ltd. Vs. The
Registrar, Co-operative Societies, Bihar AIR 1975 Patna
187 also laying down that the bye-laws of a Co-operative
Society have no force of law or statute.
(v) Kulchhinder Singh Vs. Hardayal Singh Biar AIR 1976
SC 2216 laying down that the remedy of Article 226 is
not available to enforce a contract.
(vi) The Nayagarh Co-operative Central Bank Ltd. Vs.
Narayan Rath AIR 1977 SC 112 though observing a writ
petition to be not maintainable against Co-operative Society,
259 260 Anand Prakash v. The Delhi State Co-Operative Bank Ltd. (Rajiv Sahai Endlaw, J.)
Indian Law Reports (Delhi) ILR (2011) VI Delhi
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but left the question open.
(vi) P. Bhaskaran Vs. Additional Secretary, Agricultural
(Co-operation) Department, Trivendrum AIR 1988
Kerala 75 where a Full Bench of that High Court also held
that Co-operative Societies are not created by the Co-
operative Societies Act and are not statutory bodies and
where Government has no shares in the Co-operative
Society or deep and pervasive control over its management
and affairs, no writ will lie against such society.
(vii) The Shamrao Vithal Co-operative Bank Ltd. Vs.
Padubidri Pattabhiram Bhat AIR 1993 Bombay 91 where
a Full Bench of that High Court also held the Multi-state
Co-operative Bank registered under the Maharashtra Co-
operative Societies Act, 1960 to be not a State within the
meaning of Article 12 even though governed by the Banking
Regulation Act, 1949 and performing public function and
held writ against it to be not maintainable.
(viii) Mohinder Singh Vs. D.P. Khatri 51 (1993) DLT 592
holding the Co-operative Society to be a private body and
a writ to be not maintainable against it even though
governed by the provisions of the statue.
(ix) Ajmer Singh Vs. The Registrar, Co-operative Societies,
Punjab AIR 1981 Punjab & Haryana 107 where the Full
Bench of that High Court also held a Co-operative Society
to be not amenable to writ jurisdiction.
(x) Banabihari Tripathy Vs. Registrar of Co-operative
Societies AIR 1989 Orissa 31 where the Full Bench of
that High Court also took the same view.
(xi) Babaji Kondaji Garad Vs. Nasik Merchants C-operative
Bank Ltd. AIR 1984 SC 192 laying down that bye-laws
of a Co-operative Society can at best have the status of
Articles of Association of a company governed by the
Companies Act, 1956 and cannot be held to be law or
have the force of law.
13. In view of the aforesaid exhaustive exposition of law and in the
face of lack of any pleadings on behalf of the petitioner to constitute the
respondent as a State, need is not felt to observe anything further. The
writ petition is dismissed as not maintainable. I refrain from imposing
costs on the petitioner.
ILR (2011) VI DELHI 262
LPA
S.K. MITRA ....APPELLANT
VERSUS
ASST. GENERAL MANAGER ....RESPONDENT
STATE BANK OF INDIA
(DIPAK MISRA, CJ. & SANJIV KHANNA, J.)
LPA NO. : 378/2011 DATE OF DECISION: 25.04.2011
Constitution of India, 1950—Article 226—Industrial
Disputes Act, 1947—Section 17-B—Application under
Section 17-B of the Act by workman claiming that, he
was not gainfully not employed since 1994—Single
Judge observed that the application was filed in 2006
after 12 years—Workman directed to file his statements
of bank accounts from 1994 till date, Telephone bills,
whether he resided in his own premises or rented
premises and also an affidavit in corporating these
facts—Aggrieved, appellant filed Letter Patent Appeal—
The affidavit in terms of Section 17-B clearing stating
that respondent workman was not gainfully employed
already filed—Such inquiry is not permissible under
Section 17-B—Held—It is the duty of the Court to
arrive at a conclusion with regard to the entitlement
of the benefit under Section 17-B of the Act keeping
in view the decisions in Dena Bank (supra), Viveka
Nand Sethi (supra) K.B. Singh & Ors. (supra), Vinod
261 262 Anand Prakash v. The Delhi State Co-Operative Bank Ltd. (Rajiv Sahai Endlaw, J.)
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Kumar (supra) and Bhagawan Giri (supra)—The writ
court has to see whether the workman received
adequate remunertaion during such period and
whether the respondent-management has produced
ample material to show that the workman had been
really gainfully employed—Mere survival would not be
enough—It will depend upon the factum of adequacy
of amount received—In the case at hand, the learned
Single Judge has erroneously observed that the
workman had filed an application after 12 years as the
same is not factually correct—It is clear that the
appellant filed the application in quite promptitute—
The information that have been directed by the learned
Single Judge to be given by the workman are in the
realm of roving enquiry putting the entire burden on
the workman—Such a roving enquiry, is unwarranted
and, accordingly, the order impugned set aside.
In view of the allegations and counter allegations made, it is
the duty of the Court to arrive at a conclusion with regard
to the entitlement of the benefit under Section 17-B of the
Act keeping in view the decisions in Dena Bank (supra),
Viveka Nand Sethi (supra), K.B. Singh &Ors. (supra),
Vinod Kumar (supra) and Bhagawan Giri (supra). The writ
court has to see whether the workman received adequate
remuneration during such period and whether the
respondent-management has produced ample material to
show that the workman has been really gainfully employed.
Mere survival would not be enough. It will depend upon the
factum of adequacy of amount received. In the case at
hand, as we perceive, the learned Single Judge has
erroneously observed that the workman had filed an
application after 12 years as the same is not factually
correct. It is clear that the appellant filed the application in
quite promptitude. The informations that have been directed
by the learned Single Judge to be given by the workman are
in the realm of roving enquiry putting the entire burden on
the workman. Such a roving enquiry, in our considered
opinion, is unwarranted and, accordingly, the order impugned
has to be set aside. (Para 10)
Important Issue Involved: Under Section 17-B roving
enquiry can not be put to the workman.
[Vi Ba]
APPEARANCES:
FOR THE APPELLANT : Mr. Piyush Sharma, Advocate.
FOR THE RESPONDENT : Mr. Vipin Pillai, Advocate.
CASES REFERRED TO:
1. Union of India vs. Bhagawan Giri and another, 2008-I-
LLJ-925 (Raj.).
2. Administrator, Kamala Nehru Memorial Hospital vs. Vinod
Kumar, AIR 2006 SC 584.
3. Uttaranchal Forest Development Corpn. and another vs.
K.B. Singh and others, (2005) 11 SCC 449.
4. Viveka Nand Sethi vs. Chairman, J & K Bank Ltd. and
others, (2005) 5 SCC 337.
5. Dena Bank vs. Ghanshyam, (2001) 5 SCC 169.
RESULT: Appeal allowed.
DIPAK MISRA, CJ.
1. The present appeal is directed against the order dated 11.1.2011
passed in CM No.6449/2006 in W.P.(C) No.11776/2005 whereby the
learned Single Judge had passed the following order:
‘‘This is an application under Section 17-B of the Industrial
Disputes Act, 1947 by the workman/ respondent no.1. The
workman is said to be not gainfully employed since 1994 but the
application has been filed in the year 2006 i.e. after 12 years.
The respondent no.1/workman is therefore directed to file his
statements of bank accounts from 1994 till date or in any case,
263 264 S.K. Mitra v. Asst. General Manager State Bank of India (Dipak Misra, CJ.)
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as soon as reasonably possible after 1994 till date to show whether
he was having other sources of income during this period from
1994 till 2006. The workman must also file his Election Identity
Card/Ration Card, telephone numbers, both landline and mobile,
if any, and the payments which have been made with respect to
the telephones during this period of 12 years. The respondent/
workman must also state that the period during where he resided
from 1994 to 2006 i.e. in his own premises or he was living on
rent. If the premises belonged to the workman, the workman
must also state that what is the extent of premises and whether
any part of the premises were in any manner let out/licenced out
for earning any income therefrom. An affidavit incorporating the
aforesaid terms and documents be filed within a period of six
weeks from today.
List this CM for further consideration on 21st April, 2011. ’’
2. It is submitted by Mr.Piyush Sharma, learned counsel for the
appellant, that the writ petition was filed in the year 2005 and thereafter
he immediately filed the application under Section 17-B of the Industrial
Disputes Act, 1947 (for short ‘the Act’) and, therefore, the learned
Single has fallen into grave error by opining that the application has been
filed after 12 years. Learned counsel for the petitioner submitted that in
the scheme of things of Section17-B of the Act such inquiry is not
necessary. It is also contended by him that the affidavit as required in
terms of Section 17-B of the Act was filed clearly stating that the
respondent-workman was not gainfully employed and when there was
only a bald denial, the directions which have been issued by the learned
Single Judge would come in the compartment of making a roving enquiry
which is not permissible in law.
3. Resisting the aforesaid submissions, it is contended by Mr.Rajiv
Kapur that the respondent has been gainfully employed as is understood
within the parameters of Section 17-B of the Act and, therefore, he is
not entitled to the benefit of the said section and by finding out the
veracity of the assertions, the learned Single Judge has appositely issued
the directions in the order impugned.
4. To appreciate the submissions raised at the Bar, we think it
appropriate to refer to certain citations in the field. In Dena Bank v.
Ghanshyam, (2001) 5 SCC 169 while dealing with the basic concept
involved under Section 17-B of the Act their Lordships have opined thus:
‘‘8. Section 17-B provides that where the employer prefers any
proceedings against an award directing reinstatement of any
workman, the employer shall be liable to pay such workman,
during the period of pendency of such proceeding in the High
Court or the Supreme Court, full wages last drawn by him
inclusive of any maintenance allowance admissible to him under
any rule if the workman had not been employed in any
establishment during such period and an affidavit by such
workman had been filed to that effect in such Court. The proviso
says that if the High Court or the Supreme Court is satisfied that
the workman had been employed and had been receiving adequate
remuneration during such period or part thereof, the Court shall
order that no wages shall be payable under that section for such
period or part, as the case may be.
9. The Statement of Objects and Reasons for inserting the said
provision indicates that when Labour Court pass awards of
reinstatement, they are often contested by employers in the
Supreme Court and High Courts. To mitigate the hardship that
would be caused due to delay in implementation of the award,
it was proposed to provide for payment of wages last drawn by
the workman concerned from the date of the award till the
dispute between the parties is finally decided in the High Courts
or the Supreme Court. It follows that in the event of an employer
not reinstating the workman and not seeking any interim relief in
respect of the award directing reinstatement of the workman or
in a case where the Court is not inclined to stay such award in
toto the workman has two options, either to initiate proceeding
to enforce the award or be content with receiving the full wages
last drawn by him without prejudice to the result of the
proceedings preferred by the employer against the award till he
is reinstated or proceedings are terminated in his favour, whichever
is earlier. In Dena Bank’s case (1999) 2 SCC 106 this Court
elucidated the expression “full wages last drawn” as follows:
(SCC p.115, para 21)
265 266 S.K. Mitra v. Asst. General Manager State Bank of India (Dipak Misra, CJ.)
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‘‘Parliament thought it proper to limit it to the extent of
the wages which were drawn by the workman when he
was in service and when his services were terminated and
therefore used the words ‘full wages last drawn’.’’
10. It may be noticed that Section 17-B o the Act does not
preclude the High Courts or this Court under Articles 226 and
136 of the Constitution respectively from passing appropriate
interlocutory orders, having regard to the facts and circumstances
of the case, in the interests of justice (Dena Bank case). The
High Court or this Court may, while entertaining the employer’s
challenge to the award, in its discretion, in appropriate cases,
stay the operation of the award in its entirety or in regard to
back wages only or in regard to reinstatement without interfering
with payment of back wages or on payment of wages in future
irrespective of the result of the proceedings before it etc. and/
or impose such conditions as to the payment of the salary as on
the date of the order or a part of the back wages and its withdrawal
by the workman as it may deem fit in the interests of justice.
The Court may, depending on the facts of a case, direct payment
of full wages last drawn under Section 17-B of the Act only by
the employer to the workman. The question whether a workman
is entitled to the full wages last drawn or full salary which he
would be entitled to in the event of reinstatement while the
award is under challenge in the High Courts or this Court depends
upon the terms of the order passed by the court, which has to
be determined on interpretation of the order granting relief.’’
5. In Viveka Nand Sethi v. Chairman, J & K Bank Ltd. and
others, (2005) 5 SCC 337 a two-Judge Bench of the Apex Court has
held that filing of an affidavit in support of the contentions as required
under Section 17-B is imperative.
6. In Uttaranchal Forest Development Corpn. and another v.
K.B. Singh and others, (2005) 11 SCC 449, it has been opined that only
such workmen in whose favour there are awards of reinstatement and
who have filed affidavits of their not being in gainful employment, shall
be entitled to be granted reinstatement or in lieu thereof paid wages last
drawn by them on respective dates on their terminations from services
and their entitlement for such wages would be from the respective dates
by filing affidavits by each of them in this Court in compliance with
Section 17-B of the Act.
7. In Administrator, Kamala Nehru Memorial Hospital v. Vinod
Kumar, AIR 2006 SC 584, the Apex Court has held that:
‘‘8. The High Court’s conclusions about entitlement of respondent
under Section 17-B of the Act is relatable to non-employment
and non-receipt of adequate remuneration of the workman. The
appellant had adduced ample material to show that the respondent
was enrolled as an Advocate in 1983 and was a busy practitioner
with decent professional income. It had even given a list of large
number of cases in which the respondent had appeared. Without
any material to support its conclusions, the High Court observed
that “because of the compulsions of unemployment he has no
option but to continue for a short period as a practising Advocate”
(underlined for emphasis). The conclusions are clearly contrary
to material on record. The respondent was not entitled to any
entitlement under Section 17-B of the Act. However if any amount
has already been paid in the peculiar facts of the case, the
respondent shall not be liable to refund the same.’’
8. In this context, we think it appropriate to refer to a passage from
a Division Bench decision of the High Court of Rajasthan in Union of
India v. Bhagawan Giri and another, 2008-I-LLJ-925 (Raj.) wherein
it has been stated thus:
‘‘3. On a plain reading it is manifest that the scope of inquiry,
if any, under Section 17-B is limited to the question as to whether
the employee has been gainfully employed during the period of
pendency of proceeding in the High Court or the Supreme Court
or not. It is enough, so far as the workman is concerned, that
he files an affidavit that he is not gainfully employed elsewhere.
On such affidavit being filed the onus shifts on the employer to
prove that he is gainfully employed. No person can be asked to
prove the non-existence of a fact. The employee cannot be called
upon to prove that he is not gainfully employed. That is whey
filing of affidavit to that effect is treated as sufficient. No such
stand has been taken on behalf of the appellant that the employee
is gainfully employed elsewhere. The only objection is that he is
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out of employment for about two decades and if he could make
his both ends meet during this period, there is jurisdiction to pass
any order for payment of wages. The submission, as observed
above is in teeth of the specific mandate of Section 17-B which
lays down in clear terms that in the event of the award of
Labour Court etc. directing reinstatement being challenged in the
High Court or the Supreme Court, the employer ‘shall’ be liable
to pay full wages last drawn by him. The fact that the employee
has survived for two decades does not mean that he is disentitled
to seek direction for payment of last wages, for such argument
proceeds on the assumption that if a person has been able to
survive, he is not in need of money in the shape of wages which
he is entitled to. Surely, if he dies in the mean time there may
be no occasion to pass any such order in his favour.’’
9. We have referred to the aforesaid authorities for the purpose of
the legislative intendment inhered under Section 17-B of the Act; the
nature of affidavit to be filed by the workman; the meaning of gainful
employment; adequate remuneration and obligation on the part of the
employer to show that there is adequate remuneration being received by
the workman; the concept of onus and such other aspects. As is manifest,
in the case at hand, the workman has filed the affidavit stating, inter alia,
that he was not gainfully employed since the date of his discharge from
the bank. The bank relied on the report of the investigating agency hired
by it that the respondent was working in the shop of iron and steel as
a computer operator-cum-accountant officer and is earning Rs.6500/-
per month and that he owns a Maruti Car, a scooter and a house. The
appellant has disputed the above finding of the bank.
10. In view of the allegations and counter allegations made, it is the
duty of the Court to arrive at a conclusion with regard to the entitlement
of the benefit under Section 17-B of the Act keeping in view the decisions
in Dena Bank (supra), Viveka Nand Sethi (supra), K.B. Singh &Ors.
(supra), Vinod Kumar (supra) and Bhagawan Giri (supra). The writ
court has to see whether the workman received adequate remuneration
during such period and whether the respondent-management has produced
ample material to show that the workman has been really gainfully
employed. Mere survival would not be enough. It will depend upon the
factum of adequacy of amount received. In the case at hand, as we
perceive, the learned Single Judge has erroneously observed that the
workman had filed an application after 12 years as the same is not
factually correct. It is clear that the appellant filed the application in quite
promptitude. The informations that have been directed by the learned
Single Judge to be given by the workman are in the realm of roving
enquiry putting the entire burden on the workman. Such a roving enquiry,
in our considered opinion, is unwarranted and, accordingly, the order
impugned has to be set aside.
11. Consequently, the appeal is allowed and the order passed by the
learned Single Judge is set aside. The learned Single Judge is requested
to dispose of the application preferred under Section 17-B of the Act on
the basis of observations made hereinabove. There shall be no order as
to costs.
ILR (2011) VI DELHI 270
R.S.A.
BABU LAL & ORS. ....APPELLANT
VERSUS
MAHAVIR SINGH @ MAHVIR ....RESPONDENT
PRASHAD & ORS.
(INDERMEET KAUR, J.)
R.S.A. NO. : 164/2007 DATE OF DECISION: 29.04.2011
Code of Civil Procedure, 1908—Suit for declaration &
Permanent Injunction—This appeal has impugned the
judgment and decree dated 05.3.2007 which had
endorsed the finding of the trial judge dated 20.7.2005
whereby the suit filed by the plaintiff seeking a
declaration and permanent injunction to the effect
that the plaintiff is the owner of the property and the
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defendant be restrained from interfering in the
peaceful possession of the plaintiff, had been
dismissed—The plaintiff was in possession of the suit
property—She is a plaintiff had married Nek Ram—Nek
Ram’s whereabouts were not known for last 16 years—
Defendant No.1 came in contact with the plaintiff about
15 years ago—The Plaintiff and the defendant No.1
thereafter got married—Defendant no.1 did not
disclose that he was already married to one Satyawati
and had children from the said marriage—The fact
came to the knowledge of the plaintiff only in the year
1981—Defendant No.1 had played a fraud upon her
with an ulterior motive to grab her property—By way
of present suit plaintiff had sought decree of
declaration that the plaintiff is the owner of the suit
property; permanent injunction had also been sought
restraining the defendant from interfering in her
peaceful possession—Defendant had denied the
version of the plaintiff—It was stated that the plaintiff
was tenant of the defendant no.1—The Court had
disbelieved the version set up by the plaintiff; suit
was dismissed—This was endorsed in the first appeal—
Second appeal filed no perversity has been pointed
out—Except two statements no evidence adduced by
appellant to show that property was purchased benami
from her money by defendant No.1 in the name of
defendant No.2—Appeal dismissed.
The case of the plaintiff is that she was married to defendant
no.1; her contention was that two children namely Suresh
and Meena were born from her wedlock from defendant
no.1; however, in the cross-examination she admitted that
the name of the father of Suresh and Meena as per school
record is Nek Ram (her first husband); she further admitted
that even in the voter list the name of her husband was
mentioned as Nek Ram; even in the complaint filed by her
before the Magistrate she had given her husband’s name as
Nek Ram. The suit property was admittedly allotted in the
name of defendant no.2 whereafter it was transferred to
defendant no.3. Before the first appellate court the purported
installments of Rs. 157.51 that were being paid by the
plaintiff and receipt of the same had been produced which
again evidenced that these payments had been made on
behalf of defendant no.2; admittedly the house tax was also
assessed in the name of the defendant no.3. Testimony of
DW-6 and DW-7 was adverted to who had both deposed to
the fact that the plaintiff was a tenant in the suit premises.
The court had noted that the recitals of the plaintiff in her
pleadings as also the testimony on oath were vague; she
did not have any idea about the total cost of the suit
property; how many installments were paid and in what
manner installments were paid; she was totally ignorant of
all dates; she had failed to prove her submission that it was
out of her funds that defendant no.1 had purchased this
property in the name of defendant no.2. Apart from a bald
statement on which no credence was given there was no
other evidence with the plaintiff. The court had also noted
that a complaint had been made by the plaintiff against
Mahavir Singh which had led to the registration of an FIR
under the provisions of Section 323/342 IPC; in this complaint
also although the plaintiff/complainant had averred that she
had paid a sum of Rs.5000/- to Mahavir Singh (defendant
no.1) yet it was not mentioned that this sum of Rs.5000/-
had been paid for the purchase or allotment of the suit
property. All this was duly considered by the first appeal
court to arrive at the finding that the plaintiff having been
failed to prove her case; it was rightly dismissed by the trial
Judge. The claim of benami nowhere stood proved by the
plaintiff. In no manner can it be said that this finding in the
impugned judgment is perverse. Concurrent findings of fact
can be interfered in a second appeal only if there is a
perversity. No such perversity has been pointed out.
Substantial question of law is answered accordingly in favour
of the respondent and against the appellant. Appeal has no
merit. Dismissed. (Para 9)
271 272Babu Lal v. Mahavir Singh @ Mahvir Prashad (Indermeet Kaur, J.)
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Important Issue Involved: Concurrent findings of fact
can be interfered in a second appeal only if there is a
perversity.
[Ch Sh]
APPEARANCES:
FOR THE APPELLANT : Mr. Rohit Kumar, Advocate.
FOR THE RESPONDENT : Mr. O.P. Malviya & Ms. Gitanjali
Malviya, Advocates.
RESULT: Dismissed.
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
05.3.2007 which had endorsed the finding of the trial judge dated 20.7.2005
whereby the suit filed by the plaintiff Babu Lal seeking a declaration and
permanent injunction to the effect that the plaintiff is the owner of the
property i.e. DDA Flat No.109, Sunlight Colony (hereinafter referred to
as ‘the suit property’) and the defendant be restrained from interfering
in the peaceful possession of the plaintiff had been dismissed.
2. The case of the plaintiff as is evident is that she is in possession
of the aforenoted suit property; she is an illiterate lady; she was a labour
contractor at Tuglakabad Railway Station. Plaintiff had married Nek Ram;
out of the said wedlock seven children had been born. Nek Ram’s
whereabouts were not known for the last 16 years i.e. since 1967.
Defendant no.1 in contact with the plaintiff about 15 years ago i.e. the
year 1968; he being a railway employee influenced the plaintiff and the
parties thereafter got married. At that time defendant no.1 did not disclose
that he was already a married man; he had been married to one Satyawati
and had children from the said marriage. This fact came to the knowledge
of the plaintiff only in the year 1981. Defendant no.1 had played a fraud
upon her with an ulterior motive to grab her property. Plaintiff had given
her cash and ornaments worth Rs. 15000/- to the defendant no.1. Plaintiff
had paid Rs. 5000/- to defendant no.1 in the year 1971-72 for the
purchase of this property and thereafter and Rs. 9000/- at the time when
possession was given i.e. in the year 1974; she has since then been
residing in that property and paying monthly installments of Rs. 157.55.
Defendant no.1 had played a fraud upon the plaintiff and purchased the
aforenoted plot in the name of Hem Lata i.e. her sister-in-law and later
on it was transferred in the name of Kaliash Chand, his brother-in-law;
defendant no.1 even refused to pay back the sum of Rs.15,000/- to the
plaintiff as also her ornaments. He has also refused to look after the
children which had been born out of their marriage. On 11.7.1983 defendant
called the plaintiff for an amicable settlement; on reaching there she was
beaten by the defendant and his first wife. Under threat and coercion the
defendant no.1 obtained the thumb impression of the plaintiff; pursuant
to which a complaint was lodged with the police. By way of the present
suit plaintiff had sought decree of declaration that the plaintiff is the
owner of the suit property; permanent injunction had also been sought
restraining the defendant from interfering in her peaceful possession.
3. Defendants had denied this version of the plaintiff. It was stated
that the plaintiff was a tenant of defendant no.1; she had paid Rs. 5000/
- towards rent as she was a tenant since 06.3.1967 and the sum had been
paid as rent @ Rs. 300/- per month. Defendant no.1 was collecting rent
on behalf of the defendant no.2; plaintiff was a tenant of the defendant
no.2. Since 1980 she had stopped paying rent. On repeated demands this
false and frivolous suit had been filed against the defendant. It is pointed
out that in all records including the ration card of the plaintiff the name
of Nek Ram has been shown as her husband.
4. From the pleadings of the parties, the following six issues were
framed:
‘‘1. Whether the suit is bad for non joinder and mis joinder of
necessary parties.
2. Whether the plaintiff is tenant in suit property as alleged? If
so whether she is barred from claiming declaration as claimed in
Pre.Objection no.3? OPD
3. Whether plaintiff is owner in possession of suit property since
1974? OPP
4. Whether plaintiff invested money in the property? OPP
5. Whether plaintiff is entitled for relief of declaration and
273 274Babu Lal v. Mahavir Singh @ Mahvir Prashad (Indermeet Kaur, J.)
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permanent injunction? OPP
6. Relief.’’
5. Oral and documentary evidence was led between the parties
which included the statement of the plaintiff who had examined herself
as PW-1; seven witnesses were examined on behalf of the defendant.
The court had disbelieved the version set up by the plaintiff; no details
has been given. She was held not entitled for any relief; suit was dismissed.
This was endorsed in first appeal.
6. This is a second appeal. It has been admitted and on 01.12.2010
the following substantial question of law was formulated:
‘‘Whether the findings in the impugned judgment dated 05.03.2007
are perverse? If so, its effect?’’
7. On behalf of the appellant it has been urged that the impugned
judgment suffers from a perversity as the appellant had clearly set up a
case of a benami transaction; the court had failed to take into account
that the plaintiff had made specific averments to the effect that she had
made a payment of Rs.5000/- in the year 1971-72 to defendant no.1
which he had paid as earnest money for the suit property; another sum
of Rs.9000/- was paid by her to defendant no.1 in 1974 at the time of
allotment of the disputed property. These facts have not been considered
in the correct perspective. It is pointed out that the defendants had failed
to adduce evidence to show as to who had made the payment for
allotment of the suit property; the plot although allotted in the name of
defendant no.2 yet it was out of cash proceeds made by the plaintiff to
defendant no.1. The impugned judgment suffers from a perversity. It is
liable to be set aside.
8. Arguments have been rebutted. It is pointed out that on no
account does the judgment calls for any interference. The impugned
judgment had re-appreciated the oral and documentary evidence and had
endorsed the finding of the trial judge.
9. The case of the plaintiff is that she was married to defendant
no.1; her contention was that two children namely Suresh and Meena
were born from her wedlock from defendant no.1; however, in the
cross-examination she admitted that the name of the father of Suresh and
Meena as per school record is Nek Ram (her first husband); she further
admitted that even in the voter list the name of her husband was mentioned
as Nek Ram; even in the complaint filed by her before the Magistrate she
had given her husband’s name as Nek Ram. The suit property was
admittedly allotted in the name of defendant no.2 whereafter it was
transferred to defendant no.3. Before the first appellate court the purported
installments of Rs. 157.51 that were being paid by the plaintiff and
receipt of the same had been produced which again evidenced that these
payments had been made on behalf of defendant no.2; admittedly the
house tax was also assessed in the name of the defendant no.3. Testimony
of DW-6 and DW-7 was adverted to who had both deposed to the fact
that the plaintiff was a tenant in the suit premises. The court had noted
that the recitals of the plaintiff in her pleadings as also the testimony on
oath were vague; she did not have any idea about the total cost of the
suit property; how many installments were paid and in what manner
installments were paid; she was totally ignorant of all dates; she had
failed to prove her submission that it was out of her funds that defendant
no.1 had purchased this property in the name of defendant no.2. Apart
from a bald statement on which no credence was given there was no
other evidence with the plaintiff. The court had also noted that a complaint
had been made by the plaintiff against Mahavir Singh which had led to
the registration of an FIR under the provisions of Section 323/342 IPC;
in this complaint also although the plaintiff/complainant had averred that
she had paid a sum of Rs.5000/- to Mahavir Singh (defendant no.1) yet
it was not mentioned that this sum of Rs.5000/- had been paid for the
purchase or allotment of the suit property. All this was duly considered
by the first appeal court to arrive at the finding that the plaintiff having
been failed to prove her case; it was rightly dismissed by the trial Judge.
The claim of benami nowhere stood proved by the plaintiff. In no manner
can it be said that this finding in the impugned judgment is perverse.
Concurrent findings of fact can be interfered in a second appeal only if
there is a perversity. No such perversity has been pointed out. Substantial
question of law is answered accordingly in favour of the respondent and
against the appellant. Appeal has no merit. Dismissed.
275 276Babu Lal v. Mahavir Singh @ Mahvir Prashad (Indermeet Kaur, J.)
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ILR (2011) VI DELHI 277
LETTERS PATENT APPEAL
R.D. GUPTA & ORS. ....APPELLANTS
VERSUS
D.T.C. & ANR. ....RESPONDENTS
(DIPAK MISRA, CJ. & SANJIV KHANNA, J.)
LETTERS PATENT DATE OF DECISION: 09.05.2011
APPEAL NO. : 708/2002
Voluntary Retirement Scheme (VRS)—Entitlement to
benefit of pension scheme—Respondent introduced
VRS before the pension scheme became operational—
Appellants contended that they opted for pension
scheme and therefore be paid pension fact that scheme
became operational later-no effect. Held—In LPA
No.1262/2007 dated 5th October, 2007, Delhi Transport
Corporation vs. Kishan Lal Sehgal and Ors. Held-
entitled to pension-in W.P.(C) No. 14027/2009 [DTC Vs.
Madhu Bhushan Anand, 2010 (172) DLT 668] right to
pension was denied as higher ex-gratia was paid-ratio
cannot be reconciled matter referred to larger bench.
In Madhu Bhushan Anand (supra), the Division Bench did
not examine the effect and ratio of LPA No.1262/2007,
Kishan Lal Sehgal (supra). We feel that there is conflict in
the ratio expressed in Kishan Lal Sehgal (supra) and
Madhu Bhushan Anand (supra). The ratio of the two
decisions cannot be reconciled for difference in facts or on
any other ground. In these circumstances, we feel that
matter should be referred to a larger Bench. The following
question is accordingly referred to a larger Bench:-
‘‘What is the effect of receipt of payment including
higher ex-gratia amount and employer’s share of
provident fund to employees who had applied and
opted for voluntary retirement under the VRS 1993,
though the said employees were entitled to pension
as per officer order No.16 dated 27th November,
1992?’’ (Para 13)
Important Issue Involved: The issue whether employees
opted for VRS and pension scheme were entitled to benefits
under pension scheme cannot be reconciled in view of
conflicting ratio in Delhi Transport Corporation vs. Kishan
Lal Sehgal and Ors and DTC Vs. Madhu Bhushan Anand
and therefore referred to larger bench.
[Sa Gh]
APPEARANCES:
FOR THE APPELLANTS : Mr. Shankar Divate, Advocate.
FOR THE RESPONDENTS : Mrs. Avnish Ahlawat with Mr. Nitesh
Kr. Singh, Advocates.
CASES REFERRED TO:
1. DTC vs. Madhu Bhushan Anand, reported in 2010 (172)
DLT 668
2. Delhi Transport Corporation vs. Kishan Lal Sehgal and
Ors., LPA No.1262/2007.
3. DTC Retired Employees’ Assn. vs. Delhi Transport Corpn.,
(2001) 6 SCC 61.
4. DTC vs. Baijnath Bhargava and others - LPA No. 33/
1998.
RESULT: Referred to larger bench.
SANJIV KHANNA, J.:
1. The present Letters Patent Appeal raises a repugnancy in view
of several decisions of this court in which it appears conflicting views
have been expressed. Fortunately for us the blur and indistinctness has
been cleared by a detailed judgment dated 10th August, 2010 in W.P.(C)
277 278R.D. Gupta & Ors. v. D.T.C. & Anr. (Sanjiv Khanna, J.)
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No. 14027/2009 in DTC Vs. Madhu Bhushan Anand, reported in 2010
(172) DLT 668, wherein several judgments on the subject have been
examined and dealt with but there are some aspects on which we find
that repugnancy still exists. Before we advert to facts of this particular
appeal, background relating to filing of present appeal may be noticed.
2. Delhi Transport Corporation (DTC) employees were governed
by Contributory Provident Fund scheme. The employees had filed a writ
petition before the Supreme Court seeking direction against DTC for
introduction of pension scheme. Pursuant to assurance given by the DTC
before the Supreme Court an Office Order No.16 dated 27th November,
1992 was issued. The said office order reads as under :
‘‘DELHI TRANSPORT CORPORATION
(A Government of India Undertaking)
I.P.Estate, New Delhi
No.Adm-I-S(4)/92 Dated 27.11.92
OFFICE ORDER NO.16
Sub : Introduction of Pension Scheme for the employees of
the DTC as applicable to the Central Govt. Employees.
The introduction of Pension Scheme for the employees of the
DTC has been sanctioned by the Central Government and
conveyed by the M.O.S.T. vide letter No.RT-12019/21/88-TAG
dated 23.11.92 as on the same pattern as for the Central
Government employees subject to the following conditions:
1. The pension scheme would be operated by the LIC on
behalf of DTC.
2. The date of effect of pension scheme would be 3.8.81.
3. All the existing employees including those retired w.e.f.
3.8.81 onwards would have the option to opt for the Pension
Scheme or the Employees Contributory Provident Fund as at
present, within 30 days from the date of issue of this O.O. for
the implementation of the Pension Scheme as approved by the
Government of India.
4. The Pension Scheme would be compulsory for all the new
employees joining DTC w.e.f. 23.11.92 the date of sanction of
the scheme.
5. The Pension Scheme would be operated by the LIC on
behalf of DTC. The employees share in the EPF A/C of the DTC
employees, who opt for pension scheme would be transferred to
the LIC, for operating.
6. The employees who have retired on or after 3rd August,
1981 and the existing employees, who have drawn the employer’s
share, under the E.P.F. Act, partly or wholly shall have to refund
the same with interest in the event of their opting for the Pension
Scheme. The total amount to be refunded by the retired
employees/existing employees would be the amount that would
have accrued, had they not withdrawn the employer’s share.
7. Excess amount of gratuity, if already paid to ex-employees
and which is not admissible under the Pension Scheme, will have
to refunded by them before any benefit under the Scheme, is
granted to them.
8. A due and drawn statement would be prepared in respect
of retired employees opting for Pension Scheme and the amount
to the paid/refunded, would be worked out by the concerned
unit, wherefrom the employee had retired from service.
9. If any of the employee of DTC, who does not exercise any
option within the prescribed period of 30 days or quit service or
dies without exercising an option or whose option is incomplete
or conditional or ambiguous. He shall be deemed to have opted
the Pension Scheme Benefits.
Application forms for exercising option would be available
with the unit officers and all employees including retired employees
wishing to exercise option, should do so with the unit of their
present working/where from they retired, within a period of 30
days from the date of issue of this office order.
The unit officers, after receiving the option from the ex-
employees, will take further necessary action for getting the
279 280R.D. Gupta & Ors. v. D.T.C. & Anr. (Sanjiv Khanna, J.)
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necessary forms completed, which will be supplied to them by
the LIC for pension etc. they will also ensure the recovery of
E.P.F. and the Gratuity from the Ex-employees before forwarding
their applications as mentioned above. The cases of all officers
will be dealt with at Headquarters.
The option received from the existing employees for not opting
Pension may be kept in their personal file and entry made in their
Service Book.
Sd/-
(L.C.Goyal)
DY. CHIEF GENERAL MANAGER (P).”
3. The pension scheme was to be operated by the Life Insurance
Corporation on behalf of DTC. The pension scheme however, could not
be implemented for various reasons with which we are not concerned.
Ultimately, the pension scheme became operational only in 1995.
4. While the issue with regard to pension was pending and was
somewhat inchoate, DTC introduced Voluntary Retirement Scheme (VRS,
for short) on 3rd March, 1993. The relevant covenants of the said
scheme read as under :]
“Sub: Voluntary Retirement of Employees of Delhi Transport
Corporation.
The matter pertaining to the introduction of voluntary Retirement
Scheme for the employees has been under the consideration of
Delhi Transport Corporation. Salient Features of the proposed
voluntary Retirement Scheme are as under:
1. Applicability:
The scheme will be applicable to all regular employees of the
corporation i.e. workers and executives who are appointed against
regular vacancies in the corporation.
2. Eligibility:
An employee must have completed ten years of service in this
corporation or completed 40 years of age to qualify for
consideration under the Scheme. For this purpose, period of
deputation/retention of lien in the parent office in lieu of deputation
prior to absorption in the regular service of the Corporation will
be excluded.
3. Conditions covering voluntary retirement.
(a) Voluntary retirement will be normally allowed only in cases
of incumbents of the posts which have been declared surplus or
redundant. However, voluntary retirement Scheme could also be
allowed in other cases depending on the merits of each case and
in the interest of the corporation.
(b) Voluntary retirement cannot be claimed by any employee
as a matter of right. The corporation will have the right not to
grant Voluntary Retirement for reasons to be recorded in writing.
Under no reasons will the relief under this scheme be allowed
from a date earlier than the date of passing the orders.
(c) An employee in whose case any disciplinary case is pending
will not be considered under this scheme until the disposal of the
same.
4. An employee who had taken voluntary retirement will be
eligible to the following refunds/payments:
(a) Balance in his PF Account as per rules of provident fund
applicable to him.
(b) Encashment of refused leave and accumulated earned leave
as per rules of the corporation applicable to him as if he retires
under the normal rules of retirement.
(c) Gratuity as per payment of gratuity act and gratuity Rules
of the corporation applicable to him.
(d) Three month notice pay as is applicable in the individual
case as per the terms of him/her employment.
(e) An Ex-Gratia payment equivalent to 1-1/2 month’s basic
pay plus DA for such completed year of service limited to one
month pay multiplied by the number of whose month of service
left before normal date of retirement.
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(f) Expenses for travelling for the entitled class for the employee
and his/her family comprising his/her spouse and dependent
members from the place of his/her posting to the place where
he/she intends to settle down in India.
(g) Pensionary benefits as per office order No. 16 dt.27.11.92.
All amounts due to the Corporation will be adjusted against the
payments under (d) & (e) above and the employee concerned
should clear any outstanding dues/advances taken before the
date of effect of voluntary retirement.
Employees working on the post of Conductor in the
Corporation are proposed to be covered under the Voluntary
Retirement Scheme in the first instance. Such Conductors who
are desirous of seeking voluntary retirement in the proposed
Scheme may give their option in the prescribed Performa through
proper channel within 15 days to be concerned Unit Officer who
will forward the same to the Secretary, DTC Board. This issue
with the approval of competent authority.’’
5. Thereafter, DTC introduced two more VRSs in the year 1994
and 1995. In the VRS 1994 it was expressly stipulated as under:
‘‘It is also notified for information of all such employees who
opt for VRS that they would not be entitled to join Pension
Scheme if they are allowed retirement under VRS. Other salient
features of the proposed VRS will remain the same as announced
earlier vide this officer circular dated 03.03.1993.’’
6. The VRS 1995 had a similar clause.
7. It is clear that there is a difference between the VRS 1993 and
those introduced and implemented in 1994 and 1995. In the VRS floated
in the year 1994 and 1995 it was expressly stipulated that the employees
who opt for voluntary retirement would not be entitled to join the pension
scheme. The Supreme Court in DTC Retired Employees’ Assn. Vs.
Delhi Transport Corpn., (2001) 6 SCC 61 in view of express stipulation
in the VRS 1994 and 1995 has held that the employees opting for the
voluntary retirement under the said scheme would not be entitled to
benefit of pension scheme. The ratio of said decision is based and edified
on the specific stipulation in the two schemes.
8. In the present case we are concerned with VRS 1993 and not
VRSs 1994 and 1995. Clause 4(g) of VRS 1993 had stipulated that the
pensionary benefit as per the office order No.16 dated 27th November,
1992 would apply. One of the aspects which arises for consideration is
the effect of the said clause. Literally it means that employees who had
opted for VRS under 1993 Scheme would be entitled to pension benefits.
On the other hand, as noticed above, the pension scheme became
operational only in 1995. However, the appellants herein were offered
retirement with effect from 31st May, 1993, but these did not include
pension benefit as the pension scheme became operational in 1995. They
were paid retirement benefit under the Contributory Provident Fund
Scheme. The retirement benefits included higher amount to gratuity,
payment made ex-gratia and employer’s share of provident fund. Even
after 1995 the appellants were not paid pension.
9. The contention of the appellants is that they have opted for
pension scheme therefore, should be paid pension. This, it is submitted,
is in accord with clause 9 of the order dated 27th November, 1992 and
Clause 4(g) of the VRS 1993. Mere fact that the appellants were paid
retirement benefits as the pension scheme was made operational from
1995 makes no difference. In this connection, the appellants have relied
upon decision of Division Bench in LPA No.1262/2007 dated 5th October,
2007, Delhi Transport Corporation vs. Kishan Lal Sehgal and Ors.,
in which it has been held as under:-
‘‘4. On 3rd March, 1993 the appellant notified a voluntary
retirement scheme and the respondents No. 1 to 3 applied for
under the said scheme. They were relieved from their duties on
31st May, 1993, 30th ..(sic) had already opted for pension scheme,
they were entitled to pension on retirement and not covered by
the Provident Fund Scheme. However as they were not paid
pension, in April, 2005 the respondents filed the aforesaid writ
petitions praying for grant of pension on which the aforesaid
order was passed by the learned single judge.
5. The pension scheme was announced on 27th November,
1992, prior to the retirement of the respondents and they had
opted for it. Though the respondents availed the voluntary
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retirement scheme in 1993 and received the employee’s share of
the provident fund in 1996, but later they approached the appellant
for making pension scheme operational in their favour as they
had opted for the said scheme and they were ready to return the
money received by them along with interest. In the legal notice
dated 15th February, 2005 issued by the respondents to the
Chairman-cum-Managing Director of the appellant it was stated
that the respondents had the apprehension that the appellant may
not have implemented the pension scheme and therefore they had
accepted the money.
6. On going through the records we find that the facts of this
case are identical with the case DTC v. Vir Bhan decided by
this Bench on 24th May, 2007. In the said clause also the employee
had availed of the voluntary retirement scheme and was allowed
to retire on 31st May, 2993. He had also taken the ....(sic). In
the said case we have held that though the employee had no
opted for the pension scheme within the prescribed period of
thirty days, but Clause-9 of the office Order dated 27th November,
1992 was applicable to the employee and the subsequent option
exercised by the employee for getting provident fund and gratuity
instead of pension scheme should not have been accepted by the
DTC. We upheld the order of the learned Single judge in that
case holding that the employee was entitled to pension.
7. we may also refer to the judgment of a Division Bench of
this Court in DTC v. Baijnath Bhargava and others - LPA No.
33/1998 decided on 16th March, 200 wherein on the question of
entitlement to ex gratia amount, the Court recorded the statement
of the counsel for the DTC that DTC had decided to not to
contest the said issue as it had already started paying pension to
all eligible employees having 20 years of service even when they
had not refunded the ex gratia amount taken at the time of the
voluntary retirement scheme. The learned Single judge has also
referred to the same in the impugned judgment in the present
case.
8. In view of the delay by the respondents No. 1 to 3 in
approaching the Court, learned Single judge has directed that
pension sha;; be payable to them w.e.f. 1st April, 2005 only and
the respondents have been directed to also refund the employer’s
share/contribution to CPF received with interest at the rates as
applicable’’
10. The respondent, on the other hand, has relied upon Madhu
Bhushan Anand (supra). In this case it was noticed that some of
employees who had opted for voluntary retirement under VRS 1993 had
written letters that they opt out of the pension scheme and be retained
as members under Contributory Provident Fund Scheme. Referring to
these cases, in Madhu Bhushan Anand (supra) has been held as under:-
‘‘35. The claim of the respondents in category 1 and category
2 may be taken up together for the reason whether they exercised
a positive option to be brought under the pension scheme or
having exercised no option whatsoever and hence as deemed
optees being brought under the pension scheme, their status
would be the same as entitled to be brought under the pension
scheme under the notification dated 27.11.1992. Since all these
respondents applied for being voluntarily retired when the scheme
notified on 3.3.1993 was extended from time to time in the year
1993, they certainly would be entitled to pension for the reason
clause 4(g) of the scheme notified on 3.3.1993 clearly stated that
such persons would be entitled to pensionary benefits. But, there
are certain further facts which need to be noted qua them. The
case of the Corporation is that having opted under the pension
scheme or deemed to have opted under the pension scheme, the
said respondents specifically opted out from the pension scheme
and by the time they retired under the Voluntary Retirement
Scheme, the pension scheme had not been formally brought into
effect (as noted above it was formally brought into effect for the
retirees who retired post 1.11.1995), they filed applications
specifically stating that they intend to opt out of the pension
scheme and be retained as members under the Contributory
Provident Fund Scheme and thus on accepting their offers to be
voluntarily retired the Corporation paid over to them not only
their share in the Contributory Provident Fund Account but even
the management’s share, which they accepted without demur
and hence could not rake up the issue after 12 to 15 years i.e.
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when they filed either writ petitions in this Court which were
transferred to the Central Administrative Tribunal or filed Original
Applications before the Central Administrative Tribunal.
36. Qua these respondents, it may be noted that the respondent
of W.P.(C) No.14027/2009 submitted a letter dated 2.3.1995
specifically stating that he does not want to opt for the pension
scheme and desires his dues to be paid as per his CPF Account.
The respondent of W.P.(C) No.565/2010 likewise submitted a
letter on 12.7.1995. The respondent of W.P.(C) No.598/2010
likewise submitted a letter in the year 1994 and reaffirmed the
said fact in the letter dated 5.11.1998. The respondent of W.P.(C)
No.754/2010 likewise submitted a letter on 20.4.1995. The
respondent of W.P.(C) No.1902/2010 likewise submitted a letter
on 14.7.1995. The 3 respondents of W.P.(C) No.2274/2010
likewise submitted letters on 11.3.1994, 15.3.1994 and 9.6.1995
respectively. The respondent of W.P.(C) No.3919/2010 likewise
submitted a letter on 22.7.1996. The respondent of W.P.(C)
No.423/2010 likewise submitted a letter on 5.10.1994. The
respondent of W.P.(C) No.756/2010 likewise submitted a letter
on 15.3.1994 as claimed by the DTC but denied by said
respondent. We note that DTC has produced said letter and
additionally has relied upon a list prepared on 12.4.1994 where
the name of said respondent is at serial No.113 and notes his
opting out for pension. The respondent of W.P.(C) No.832/2010
likewise submitted a letter on 5.9.1995. The respondent of W.P.(C)
No.752/2010 likewise submitted a letter on 7.12.1993. The
respondent of W.P.(C) No.401/2010 also opted out of the pension
scheme, though the date when he did so is not on record.’’
11. In Madhu Bhushan Anand (supra), the Division Bench also
considered cases of employees who were granted voluntary retirement
under 1993 VRS but were not paid pension benefits and were covered
by clause 9 of the office order No.16 dated 27th November, 1992 or had
opted for pension scheme. However, these persons have not been paid
pensionary benefits but were paid higher ex-gratia and employers share
of provident fund. Right to pension in these cases was denied by the
Division Bench for the following reasons:-
‘‘30. Pertaining to the remaining 18 writ petitions, we may
divide the same into 3 further categories which emerge from the
facts noted by us in para 6 and 8 above. The said 18 writ
petitions are divided: Category 1- Respondents of W.P.(C)
Nos.14027/2009, 401/2010, 565/2010, 598/2010, 754/2010, 1902/
2010, 2274/2010 and 3919/2010 who specifically opted for the
pension schemes when they submitted their offer for being
voluntarily retired as per the terms and conditions notified in the
VRS Scheme notified on 3.3.1993 which was made applicable
by reference to the subsequent schemes notified in the year
1993. Category 2- Respondents of W.P.(C) Nos.423/2010, 756/
2010, 832/2010, 752/2010, 793/2010, 1384/2010, 1386/2010 and
2051/2010 who having not submitted any options have to be
treated as deemed optees for the pension scheme when they
submitted their offer for being voluntarily retired as per the terms
and conditions notified in the VRS Scheme notified on 3.3.1993
which was made applicable by reference to the subsequent
schemes notified in the year 1993. Category 3- Respondents of
W.P.(C) No.4906/2010 and the writ petitioner of W.P.(C)
No.4689/2010 who specifically opted to be retained in the
Contributory Provident Fund Scheme.
31. We take category 3 first. Surprisingly, one claimant being
the respondent of W.P.(C) No.4906/2010 has succeeded before
the Tribunal and the other i.e. the petitioner of W.P.(C) No.4689/
2010 has lost, notwithstanding their cases being identical.’’
12. One of the contentions raised by the employees, who had opted
under VRS 1993, was compulsion and coercion as it was uncertain when
the pension scheme would come into effect. The said contention was
also rejected by the Division Bench in following paragraphs:-
‘‘43. The compulsion alleged by them is the uncertainty of
pension being released. As noted hereinabove the pension scheme
notified on 27.11.1992 could not take off because LIC did not
fund the scheme as envisaged and later on the Central Government
agreed to fund the scheme on 31.10.1995 and indisputably those
who retired after 1.11.1995 were paid pension. Thus, the
compulsion resulting as the consequence of the uncertainty of
pension being released, which may have been uncertain when the
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said respondents opted out to receive pension and reverted to
receive benefit under CPF, came to an end on 1.11.1995. The
silence of these respondents for periods ranging from 12 to 15
years when they took recourse to legal action is clearly indicative
of there being no compulsion. The silence of these respondents
speaks for itself. It is apparent that with the passage of time
these respondents became clever by a dozen and thought why
not take the benefit of a few who likewise went to Court and
obtained relief, by pulling wool over the eyes of the Court by
pleading that their act of subsequently opting out of the pension
scheme was meaningless because the contract stood concluded,
a submission which was accepted by the Courts without
considering the further issue of contract being novated.
44. In our opinion these respondents have no claim whatsoever
to receive pension. They novated the contract by volition when
they subsequently opted out of the pension scheme and DTC
accepted the same and paid to them even the management’s
share in the CPF account. Their claims are hit by delay, laches
and limitation. They are not entitled to plead that right to receive
pension is a continuous cause of action, for the reason, in law
either pension can be received or benefit under the CPF account.
If the management forces down the gullet of an employee payment
under the CPF Scheme and the employee desires pension he has
to approach the Court or the Tribunal within a maximum period
of 3 years being the limitation prescribed to file a suit.
45. That apart, if it was the case of the respondents that they
were compelled to opt out of pension scheme on account of the
uncertainty in the implementation of the pension scheme, they
ought to have sought a declaration that their act of opting out of
the pension scheme be declared null and void, being out of
compulsion and for said prayer they ought to have made the
requisite pleadings entitling them for such a declaration. Needless
to state an act out of compulsion is a voidable act and not a void
act. The respondents have admittedly not done so. It is only in
the rejoinder filed by them to the reply to their respective OA
that a bald plea has been set forth that they acted out of compulsion
when they opted out of the pension scheme.’’
13. In Madhu Bhushan Anand (supra), the Division Bench did not
examine the effect and ratio of LPA No.1262/2007, Kishan Lal Sehgal
(supra). We feel that there is conflict in the ratio expressed in Kishan L
l Sehgal (supra) and Madhu Bhushan Anand (supra). The ratio of the two decision
cannot be reconciled for difference in facts or on any other ground.
In these circumstances, we feel that matter should be referred to a la
ger Bench. The following question is accordingly referred to a larger
Bench:-
‘‘What is the effect of receipt of payment including higher ex-
gratia amount and employer’s share of provident fund to
employees who had applied and opted for voluntary retirement
under the VRS 1993, though the said employees were entitled to
pension as per officer order No.16 dated 27th November, 1992?’’
14. The matter be placed before the Hon’ble the Chief Justice on
the administrative side for directions and constitution of a larger Bench.
ILR (2011) VI DELHI 290
W.P. (C)
DEVENDRA KUMAR ....PETITIONER
VERSUS
GOVT. OF NCT OF DELHI AND ORS. ....RESPONDENTS
(DIPAK MISRA, CJ. & SANJIV KHANNA, J.)
W.P. (C) NO. : 5198/2010 DATE OF DECISION: 09.05.2011
W.P. (C) NO. : 1985/2011
Bar Council of Delhi Election Rules, 1968 (Rules)—
Rule 31(A)(ii)—Consitutional Validity—Petitioner
secured maximum number of first preference votes
amongst the unsuccessful candidates in the election
to Bar Council of Delhi—A casual vacancy occurred—
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Petitioner’s representation for co-opting him as
member was rejected—Present writ petition was filed
on grounds that Rule 31(A)(ii) was unconstitutional—
No intelligible differentia between two vacancies,
caused when election is set aside and arising out of
death or resignation- co-option procedure to be
followed to fill both kind of vacancy by candidate who
has secured maximum first preference votes amongst
unsuccessful candidate—Respondents contended that
nature of vacancies are different—Method of co-option
is to aviod re-election—Inclusion of next man in
different circumstances does not invite wrath of
equality clause. Held—Rule 31(A)(ii) is constitutionally
valid—Co-option is a permissible method for filling
casual vacancy the Rule confers power on electoral
college and not all voters to co-opt a member—
Conferment of such power is not arbitrary—
Involvement of larger body for co-option is
unacceptable—Only qualification for being co-opted-
enumerated under Rule 7 and 7A of Rules.
In Chambers 21st Century Dictionary, the word has been
defined to mean happening by chance. Thus understood,
there is a rationale which is in the compartment of intelligible
differentia. Thus, it is possible to treat the two vacancies
separately and prescribe different modes for filling of the
vacancies. The first one, as we have stated, arises because
of disqualification of an elected candidate and the second
one, due to resignation, death or retirement of an elected
member but before the term is over. The purpose in both
the Rules 31(A)(i) and (ii) is to avoid a fresh election. In the
first one, a right is conferred on a candidate on the basis of
reasonable criterion which is based on the obtaining of
maximum first preference votes. In the second-one, the right
has been conferred on the elected members of the Council
to fill up the vacancy by co-option. Thus, the distinction is
discernible on the prism of reason and hence, it does not
invite the frown of discrimination as enshrined under the
291 292Devendra Kumar v. Govt. of NCT of Delhi (Dipak Misra, CJ.)
equality clause of Article 14 of the Constitution. (Para 29)
The next plank of submission fundamentally pertains to the
conferment of unfettered and unbridled power on the
members of the Bar Council, the electoral body, to co-opt a
member ignoring the will of the lawyers community at large.
We may state here with profit that though we have
enumerated the submissions in detail, yet the rest of the
submissions will fall under this compartment. It is settled in
law that the right to vote or contest in an election is not a
fundamental right but a statutory right which has to conform
to the organic law and the fountain of all laws, the Constitution
of India. The said rights can be restricted on the constitutional
parameters. (Para 30)
In the case at hand, the Rule provides for co-option. It does
not provide for a fresh election. The core issue would be
whether every member of the lawyer community should be
allowed to vote or the voting should be restricted and
constricted to the elected members. Appositely appreciated,
the Rule has a sacrosanct purpose. As has been indicated
earlier, it avoids need to hold a fresh election as there
should not be another election to fill up casual vacancies,
when the term of the Council has not expired. It is expected
of the said body to co-opt a person through a democratic
process. The Rule instead of full electorate voting again,
confers the power on the electoral college to co-opt a
member. When there is a statutory body and such power is
conferred, it is difficult to hold that unfettered, unbridled and
uncanalized power is conferred on them. The Bar Council is
a body corporate. It functions in a democratic manner. In a
contingency of this nature when the elected body has been
given the power, such conferment of power cannot be said
to be arbitrary. Merely saying that the same may or should
have been conferred on all the voters does not stand to
reason. Hence, we are disposed to think that the submission
in this regard is unacceptable and accordingly, we repel the
same. (Para 31)
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(f) he is in full-time service or is in such part-time
business or other vocation not permitted in the case
of practising advocates by the rules either of the
State Council concerned or of the Council;
(g) he has intimated voluntary suspension of practice
and has not given intimation of resumption of practice.’’
(Para 37)
When co-option takes place, only a person who is eligible
and not disqualified to be a candidate in an election can be
considered for co-option. It is not necessary or stipulated
that he / she should have been an unsuccessful candidate
in the last election. If he is ineligible under Rules 7 and 7A
of the Rules, he cannot be co-opted. The submission of Mr.
Mittal that the next person who has faced the election has
to be considered for co-option, we are disposed to think, is
not in the scheme of things and, hence, we are unable to
accept the same. The other submission that there should
have been wide publicity is only to be noted to be rejected
for the simon pure reason that the concept of co-option, as
understood in law does not require or prescribe any such
requirement. It is the obligation of the electoral college or
the Council to see that they co-opt a member who is eligible
in law to be elected otherwise. Who should be co-opted as
long as he meets the eligibility norm is for the voters to
decide. It is the voters. wisdom that prevails and is accepted.
In the scheme of co-option, there is no question of any kind
of propagation. The law only mandates that the body or
electoral college should either unanimously co-opt a member
or do it by majority of votes that being the warrant of law.
Thus, the submission raised by the learned counsel for the
petitioner is misconceived. (Para 39)
Ex consequenti, we conclude and hold as follows:
(a) Rule 31(A)(ii) is constitutionally valid and neither
hit by Article 14 of the Constitution of India nor does
it run counter to or contravene any of the provisions
293 294Devendra Kumar v. Govt. of NCT of Delhi (Dipak Misra, CJ.)
In view of our aforesaid analysis, we conclude and hold that
the Rule 31(A)(ii) is constitutionally valid and not hit by any
of the limbs of Article 14 of the Constitution of India.
(Para 32)
In view of the meaning conferred on the word, in the case
of election, by the members of a body corporate, of a
person to fill up a vacancy, the choice is given to the
electoral body to co-opt a member. Rule 7 of the Rules
provides about the candidate who cannot seek election
unless his name is in the electoral roll. It is appropriate to
reproduce Rules 7 and 7A for the sake of completeness:
7. Candidates: No person shall be entitled to seek
election unless his name is in the election roll.
7(A) No advocate shall be entered on the Electoral
Roll if an information obtained by the Bar Council.
(a) he has at any time been removed or suspended
from practice; provided that this disqualification shall
operate only for a period of five years from the date
of removal or the expiry of the period of suspension.
(b) he has been suspended from practice, provided
that this disqualification shall operate only for a period
of five years from the date of the period of suspension;
(c) He is an undischarged insolvent;
(d) he has been found guilty of an election offence in
regard to an election to the State Council by an
Election Tribunal, provided however, that such
disqualification shall not operate beyond the election
next following after such finding has been made;
(e) he is convicted by a competent court for an
offence involving moral turpitude, provided that this
disqualification shall cease to have effect after a
period of two years has elapsed since his release;
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of the Advocates Act, 1961.
(b) The method of co-option is a permissible mode for
filling up the casual vacancy.
(c) The submission that even for the purpose of co-
option there has to be involvement of the larger body
is unacceptable.
(d) The only qualification for a member to be co-opted
is that he should satisfy the criteria enumerated under
Rules 7 and 7A of the Bar Council of Delhi Election
Rules, 1968.
(e) As the respondent no.4, Sh. Aman Sareen, has
secured the majority of votes of the members voting,
there is no illegality in his co-option as that is the
method of co-option which is permissible in law.
(Para 43)
Important Issue Involved: Rule 31(A)(ii) of the Bar Council
of Delhi Election Rules, 1968 (Rules) is constitutionally valid
and neither hit by Article 14 of the Constitution of India nor
does it run counter to or contravene any of the provisions
of the Advocates Act, 1961. The only qualification for a
member to be co-opted is that he should satisfy the criteria
enumerated under Rules 7 and 7A of the Bar Council of
Delhi Election Rules, 1968.
[Sa Gh]
APPEARANCES:
FOR THE PETITIONER : Mr. Sunil Mittal, Advocate.
FOR THE RESPONDENT : Mr. Nazmi Waziri, Advocate for
Respondent No.1 Mr. Sanjeev
Sachdeva with Mr. Sanjeet Ranjan
and Mr. P. Mehta, Advocates for
Respondent No. 2 Mr. Rakesh Tiku,
Sr. Advocate with Mr. Mrityunjay
Kumar, Advocate for Respondent
No.3 Mr. Aman Lekhi, Sr. Advocate
with Mr. Mohit Gupta, Mr. Rupinder
Pal Singh and Mr. M.A. Hashmi,
Advocates for Respondent No.4 with
Respondent No.4 in person Mr. S.P.
Kalra, Sr. Advocate with Mr.
Mahavir Singh, Advocate for
applicant in CM No. 4239/2011.
CASES REFERRED TO:
1. Transport and Dock Workers Union and Others vs. Mumbai
Port Trust and Another, 2011 AIR SCW 220.
2. National Council for Teacher Education and Others vs.
Shri Shyam Shiksha Prashikshan Sansthan and Others,
2011 (2) SCALE 59.
3. Devender Kumar vs. State (NCT) of Delhi W.P.(C)
No.5198/2010.
4. Smt. Sunita Bugga vs. Director of Education and others
WP(C) No.8663/2008.
5. Virendra Singh Choudhary vs. Union of India & ors.,
AIR 2007 Madhya Pradesh 26.
6. State of Haryana vs. State of Punjab & another, (2004)
12 SCC 673.
7. Union of India vs. E.I.D. Parry (India) Ltd., AIR 2000
SC 831.
8. Additional District Magistrate (Rev.), Delhi Administration
vs. Shri Ram, AIR 2000 SC 2143.
9. Priyambada Debi vs. State of Orissa and Another, AIR
1993 ORISSA 99.
10. General Officer Commanding-in-Chief vs. Dr. Subhash
Chandra Yadav, AIR 1988 SC 876.
11. Shankar Birmiwal vs. Union of India, AIR 1982 Raj 187
(FB).
12. Madhya Pradesh Ration Vikreta Sangh Society and Others
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vs. State of Madhya Pradesh and Another, (1981) 4 SCC
535.
13. Revenue Divisional Officer vs. Pushpam & Ors., AIR
1976 Madras 252.
14. State of Gujarat vs. Ambica Mills, AIR 1974 SC 1300.
15. State of Uttar Pradesh vs. Kartaar Singh, AIR 1964 SC
1135.
16. Gopi Chand vs. Delhi Administration, AIR 1959 SC 609.
17. Ram Krishna Dalmia and Ors. vs. Shri Justice S.R.
Tendolkar and Ors., AIR 1958 SC 538.
RESULT: Writ Petition dismissed.
DIPAK MISRA, CJ.
1. In these two writ petitions, the controversy involved being
common although the nature of challenge is from different spectrums,
namely, one involving the interpretation of Rule 31(A) of the Bar Council
of Delhi Election Rules, 1968 (for short ‘the Rules), while the other
challenging the constitutional validity of Rule 31(A)(ii) of the said Rules,
they were heard together and are being disposed of by a singular order.
For the sake of convenience, we shall first advert to the facts in W.P.(C)
No.1985/2011 where the assail is to the constitutional validity of the
Rules and state the facts as they are common to both the cases and
thereafter proceed to dwell upon the challenge to the action on the
foundation of the interpretation placed upon by the learned counsel for
the parties.
2. Presently to the commonality of the factual score and the grounds
of attack in the backdrop of the constitutional validity of the Rule in
question. The petitioner is a practising Advocate enrolled with the Bar
Council of Delhi and had secured maximum number of first preference
votes amongst the unsuccessful candidates in the election that was held
on 1st and 2nd December, 2009 for electing the members of the Bar
Council of Delhi. His name featured at serial no.27 of the final list just
second to the 25th candidate who was declared elected to the Bar Council
of Delhi by the Election Committee.
3. As a casual vacancy occurred, the petitioner submitted a
representation on 11th August, 2010 to the Bar Council of Delhi for co-
opting him as a member. As there was no response, the petitioner knocked
at the doors of this Court. The writ court in W.P.(C) No.5198/2010
[Devender Kumar vs. State (NCT) of Delhi] only directed that the Bar
Council of Delhi should also consider the representation submitted by the
petitioner at the time of co-option.
4. As set forth, the Bar Council of Delhi in its meeting held on
21.1.2011 resolved to co-opt Mr. Aman Sareen, the respondent no.4
herein, as a member of the Delhi Bar Council and the representation of
the petitioner was rejected.
5. It is apt to note here that the petitioner while praying for declaring
the Rule in question to be violative of Article 14 of the Constitution of
India has also prayed for issue of a writ of mandamus commanding the
respondents to co-opt him as a member of the Bar Council of Delhi as
his name featured at serial no.20 in the list of first preference votes and
at serial no.27 in the final list.
6. We have heard Mr. S.P. Kalra, learned senior counsel and Mr.Sunil
Mittal, learned counsel on behalf of the petitioners, Mr. Nazmi Waziri,
learned counsel for the respondent No.1, Mr. Sanjeev Sachdeva, learned
counsel for the respondent no.2, Mr. Rakesh Tiku, learned senior counsel
for the respondent no.3 and Mr. Aman Lekhi, learned senior counsel for
the respondent no.4.
7. Mr. Kalra, learned senior counsel for the petitioner, has raised
the following contentions:
(a) Rule 31(A)(ii) of the Rules runs counter to the provisions
of the Advocates Act, 1961 (for brevity ‘the Act’) and is
in transgression of the spirit of the Act as there is provision
for co-option in the parent statute and hence, it deserves
to be declared as unconstitutional.
(b) The Rule creates an artificial and irrational distinction
between the two categories of vacancies, namely, a
vacancy caused when an election is set aside by the
competent tribunal and a vacancy arising out of the death
or resignation of a member. There is no intelligible
differentia for treating the two classes of vacancies in a
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separate manner and there is no objective to be achieved
by such distinction. Thus, the Rule invites the frown of
Article 14 of the Constitution.
(c) There is no rationale to fill up the vacancy in case there
is a verdict against a candidate who was elected, by a
candidate who has secured the maximum first preference
votes amongst the unsuccessful candidates and not to
follow the same procedure in case of death or retirement
and to fill it up by co-option.
(d) The concept of co-option is contrary to the will of the
electorate inasmuch as a person who falls short of being
elected by few votes is not chosen when the vacancy
arises because of death or resignation but someone is
imposed upon the lawyers. community at large by the
existing members of the Bar Council. The will of the
electorate is the conceptual essentiality in a democratic set
up but when co-option takes place, the said basic facet
gets atrophied which is absolutely illegal.
(e) The objectives sought to be achieved by the Bar Council
of States and Union Territories under the Act are in the
realm of regulation, control and discipline and, therefore,
it is necessary and obligatory to choose an advocate who
has faced the election and not elected because of small
margin so that there would be proper representation but
the said purpose is nullified by taking recourse to co-
option by a group of elected members.
(f) By introducing the concept of co-option, unfettered and
unbridled power has been given to the rest of the members
which not only violates the spirit of the Act but also
contravenes the basic spirit of Article 14 of the Constitution
which shuns any kind of unfettered discretion.
8. The learned counsel appearing for the respondents, combatting
the aforesaid contentions, have canvassed the following proponements:
(a) There is no specific pleading how the Rule violates any of
the provisions enshrined under the Act and in the absence
of pleadings, the said ground does not deserve to be
adverted to and in any case, the Rule in question does not
contravene any of the provisions of the Act.
(b) The contention relating to the artificial classification without
any rationale or intelligible differentia is devoid of any
substance as the nature of vacancies are absolutely
different.
(c) The basic purpose of the Rule is to avoid a re-election
and, therefore, the Rules have been made for co-option
under certain circumstances and inclusion of the next
man in certain other circumstances and, therefore, it does
not invite the wrath of equality clause.
(d) The principle of co-option is an accepted method prevalent
in associations and statutory bodies and when there is a
set of Rules which is in consonance with the Act governing
the field, the contention that the Rule introduces
unreasonableness or arbitrariness does not merit
consideration.
9. Before we proceed to deal with the respective contentions, we
think it apposite to refer to certain authorities with regard to the nature
of pleadings which are necessitous for the purpose of assailing a statutory
provision as constitutionally invalid.
10. A Division Bench of this Court in WP(C) No.8663/2008 [Smt.
Sunita Bugga v. Director of Education and others] decided on
30.7.2010 has held thus:
‘‘10. It is well settled in law that a person who assails the
constitutional validity of an Act or a notification must specifically
set forth the grounds for such challenge. In this context, we
may refer with profit to certain decisions in the field.
11. In State of Uttar Pradesh v. Kartaar Singh, AIR 1964 SC
1135, while dealing with the constitutional validity of Rule 5 of
the Food Adulteration Rules, 1955, their Lordships opined as
follows:-
‘‘(15)....if the rule has to be struck down as imposing
unreasonable or discriminatory standards, it could not be
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done merely on any a priori reasoning but only as a result
of materials placed before the Court by way of scientific
analysis. It is obvious that this can be done only when the
party invoking the protection of Art. 14 makes averments
with details to sustain such a plea and leads evidence to
establish his allegations. That where a party seeks to
impeach the validity of a rule made by a competent authority
on the ground that the rules offend Art. 14 the burden is
on him to plead and prove the infirmity is too well
established to need elaboration.’’
12. In State of Andhra Pradesh and another v. K. Jayaraman
and others, AIR 1975 SC 633, it has been stated thus:-
‘‘3. It is clear that, if there had been an averment, on
behalf of the petitioners, that the rule was invalid for
violating Articles 14 and 16 of the Constitution, relevant
facts showing how it was discriminatory ought to have
been set out.’’
13. In Union of India v. E.I.D. Parry (India) Ltd., AIR 2000
SC 831, a two Judge Bench of the Apex Court has expressed
thus:-
‘‘There was no pleading that the Rule upon which the
reliance was placed by the respondent was ultra vires the
Railways Act, 1890. In the absence of the pleading to that
effect, the trial Court did not frame any issue on that
question. The High Court of its own proceeded to consider
the validity of the Rule and ultimately held that it was not
in consonance with the relevant provisions of the Railways
Act, 1890 and consequently held that it was ultra vires.
This view is contrary to the settled law...’’
14. In State of Haryana v. State of Punjab & another, (2004)
12 SCC 673, a two Judge Bench of the Apex Court has expressed
thus:-
‘‘82.... It is well established that constitutional invalidity
(presumably that is what Punjab means when it uses the
word ‘‘unsustainable’’) of a statutory provision can be
made either on the basis of legislative incompetence or
because the statute is otherwise violative of the provisions
of the Constitution. Neither the reason for the particular
enactment nor the fact that the reason for the legislation
has become redundant, would justify the striking down of
the legislation or for holding that a statute or statutory
provision is ultra vires. Yet these are the grounds pleaded
in sub-paragraphs (i), (iv), (v), (vi) and (vii) to declare
Section 14 invalid. Furthermore, merely saying that a
particular provision is legislatively incompetent [ground
(ii)] or discriminatory [ground (iii)] will not do. At least
prima facie acceptable grounds in support have to be
pleaded to sustain the challenge. In the absence of any
such pleading the challenge to the constitutional validity of
a statute or statutory provision is liable to be rejected in
limine.’’
11. In Virendra Singh Choudhary v. Union of India & ors., AIR
2007 Madhya Pradesh 26, it has been observed that:
‘‘The next spectrum of assail relates to violation of Articles 14,
16, 19 and 21 of the Constitution of India. As far as Articles 16,
19 and 21 are concerned, we are afraid, we may state here that
there is no assertion how the provisions offend those provisions
of the Constitution. It is well settled in law that a person who
assails a provision to be ultra vires must plead the same in proper
perspective.’’
12. We have referred to the said authorities as we find that in this
petition, there is really no pleading as to how the Rule violates the
provisions of the Act or violates Article 14 of the Constitution. In spite
of the absence of pleading, we still intend to advert to the provisions of
the Act and the nature of the Rule in question.
13. The Act was enacted to amend and consolidate the law relating
to legal practitioners and to provide for the constitution of the Bar Councils
in States and an apex body the Bar Council of India. Section 2(d) defines
‘‘Bar Council’’ to mean a Bar Council constituted under the Act. Section
2(e) defines ‘‘Bar Council of India’’ to mean the Bar Council constituted
under Section 4 for the territories to which the Act extends. Section
2(m) defines the ‘‘State Bar Council’’ to mean a Bar Council constituted
under Section 3. Section 3(2) provides who shall constitute the members.
Section 3(2)(b) which deals with election reads as under:
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‘‘2(b) in the case of a State Bar Council with an electorate not
exceeding five thousand, fifteen members, in the case of a State
Bar Council with an electorate exceeding five thousand but not
exceeding ten thousand, twenty members, and in the case of a
State Bar Council with an electorate exceeding ten thousand,
twenty-five members, elected in accordance with the system of
proportional representation by means of the single transferable
vote from amongst advocates on the electoral roll of the State
Bar Council.
Provided that as nearly as possible one-half of such elected
members shall, subject to any rules that may be made by the Bar
Council of India be persons who have for at least ten years been
advocates on a State roll, and in computing the said period of ten
years in relation to such person, there shall be included any
period during which the person has been an advocate enrolled
under the Indian Bar Councils Act, 1926.’’
14. Section 15 of the Act confers on a Bar Council the power to
frame rules to carry out the purposes of Chapter II which deals with Bar
Council. Sections 15(2)(a) and (2)(f) read as follows:
‘‘(2)(a) the election of members of the Bar Council by secret
ballot including the conditions subject to which persons can
exercise the right to vote by postal ballot, the preparation and
revision of electoral rolls and the manner in which the results of
election shall be published;
X X X X
(2)(f) the filling of casual vacancies in the Bar Council’’
15. In this context, we may also reproduce with profit Rule (2)(d)
which is as follows:
‘‘(2)(d) the manner in which and the authority by which doubts
and disputes as to the validity of an election to the Bar Council
or to the office of the Chairman or Vice-Chairman shall be finally
decided.’’
16. On a perusal of the aforesaid provisions, it is quite vivid that
the Bar Councils have been conferred with the power to stipulate /
provide the manner and the authority which will decide the disputes as
to the validity of election to the Bar Council or to the office of the
Chairman or Vice-Chairman and further how to fill up any casual vacancy
in the Bar Council.
17. Presently, we shall proceed to reproduce the Rules that have
been framed by the Bar Council of Delhi. In this regard, Rule 31(A) is
reproduced below:
‘‘31.(A) Filling of last Vacancies.
(i) In case of the verdict of the Tribunal being that a candidate
was not validly elected, the vacancy thus caused shall be filled
in by the candidate who secured the maximum First Preference
Votes amongst the unsuccessful candidates.
(ii) Any vacancy caused in the Council because of the resignation,
death or retirement, in any manner, of a member before his term
of office has come to an end, shall be treated as casual vacancy
and shall be filled in by co-option.
(iii) A member co-opted to fill a casual vacancy shall serve for
the remainder of his predecessor’s term of office.’’
18. If we understand the Rules on the anvil of the conferment of
power by the Act, we do not perceive that there is any kind of
transgression of the Act or attempt to travel beyond the scope of the Act.
It needs no special emphasis to state that if a Rule goes beyond the rule
making power conferred by the statute, the same has to be declared ultra
vires. If a Rule supplants any provision for which power has not been
conferred, it becomes ultra vires. The basic test is to determine and
consider the source of power which is relatable to the rule. Similarly, a
Rule must be in accord with the parent statute, as it cannot travel beyond
it. In this context, we may refer with profit to the decision in General
Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav, AIR
1988 SC 876 wherein it has been held as follows:-
‘‘....Before a rule can have the effect of a statutory provision,
two conditions must be fulfilled, namely (1) it must conform to
the provisions of the statute under which it is framed; and (2)
it must also come within the scope and purview of the rule
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making power of the authority framing the rule. If either of these
two conditions is not fulfilled, the rule so framed would be
void.’’
19. In Additional District Magistrate (Rev.), Delhi Administration
v. Shri Ram, AIR 2000 SC 2143, it has been ruled that it is a well
recognized principle that conferment of rule making power by an Act
does not enable the rule making authority to make a rule which travels
eyond the scope of the enabling Act or which is inconsistent therew
th or repugnant thereto.
20. In the present case, as we find that the Act confers the power,
it can be stated with certitude that there is no transgression or supplanting
and, hence, the submission raised on that score deserves to be repelled
and we do so.
21. The second limb of submission is that the Rule invites the vice
of discrimination as there is irrational distinction between the two categories
of vacancies and, therefore, it invites the frown of Article 14. It is urged
that there is no intelligible differentia for such classification.
22. It is well settled in law that Article 14 is not averse to classification
but there must be intelligible differentia to show that the classification is
valid. The doctrine of classification is fundamentally based on a
classification with reason and circumstances dealing with one set of
facts and the situation or circumstances relating to different set of facts.
In this context, we may refer to certain authorities how the facet of
classification has been understood by the Apex Court. In Madhya Pradesh
Ration Vikreta Sangh Society and Others versus State of Madhya
Pradesh and Another, (1981) 4 SCC 535, the issue raised before the
Apex Court was whether preference given to cooperative societies under
the Madhya Pradesh Foodstuffs (Civil Supplies Public Distribution) Scheme
1981 replacing the earlier scheme of running such fair price shop was
violative of Article 14 of the Constitution of India. While dealing with the
concept of equality before law, the Apex Court opined thus:
‘‘8. The wider concept of equality before the law and the equal
protection of laws is that there shall be equality among equals.
Even among equals there can be unequal treatment based on an
intelligible differentia having a rational relation to the objects
sought to be achieved. Consumers’ cooperative societies form a
distinct class by themselves. Benefits and concessions granted to
them ultimately benefit persons of small means and promote
social justice in accordance with the directive principles. There
is an intelligible differentia between the retail dealers who are
nothing but traders and consumers’ cooperative societies....”
23. In National Council for Teacher Education and Others versus
Shri Shyam Shiksha Prashikshan Sansthan and Others, 2011 (2)
SCALE 59, the Apex Court has opined thus:
‘‘16. Article 14 forbids class legislation but permits reasonable
classification provided that it is founded on an intelligible differentia
which distinguishes persons or things that are grouped together
from those that are left out of the group and the differentia has
a rational nexus to the object sought to be achieved by the
legislation in question. In re the Special Courts Bill, 1978 (1979)
1 SCC 380, Chandrachud, C.J., speaking for majority of the
Court adverted to large number of judicial precedents involving
interpretation of Article 14 and culled out several propositions
including the following:
‘‘(2) The State, in the exercise of its governmental power,
has of necessity to make laws operating differently on
different groups or classes of persons within its territory
to attain particular ends in giving effect to its policies, and
it must possess for that purpose large powers of
distinguishing and classifying persons or things to be
subjected to such laws.
(3) The constitutional command to the State to afford
equal protection of its laws sets a goal not attainable by
the invention and application of a precise formula.
Therefore, classification need not be constituted by an
exact or scientific exclusion or inclusion of persons or
things. The courts should not insist on delusive exactness
or apply doctrinaire tests for determining the validity of
classification in any given case. Classification is justified
if it is not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is
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not that the same rules of law should be applicable to all
persons within the Indian territory or that the same
remedies should be made available to them irrespective of
differences of circumstances. It only means that all persons
similarly circumstanced shall be treated alike both in
privileges conferred and liabilities imposed. Equal laws
would have to be applied to all in the same situation, and
there should be no discrimination between one person and
another if as regards the subject-matter of the legislation
their position is substantially the same.
(5) By the process of classification, the State has the
power of determining who should be regarded as a class
for purposes of legislation and in relation to a law enacted
on a particular subject. This power, no doubt, in some
degree is likely to produce some inequality; but if a law
deals with the liberties of a number of well defined classes,
it is not open to the charge of denial of equal protection
on the ground that it has no application to other persons.
Classification thus means segregation in classes which
have a systematic relation, usually found in common
properties and characteristics. It postulates a rational basis
and does not mean herding together of certain persons
and classes arbitrarily.
(6) The law can make and set apart the classes according
to the needs and exigencies of the society and as suggested
by experience. It can recognize even degree of evil, but
the classification should never be arbitrary, artificial or
evasive.
(7) The classification must not be arbitrary but must be
rational, that is to say, it must not only be based on some
qualities or characteristics which are to be found in all the
persons grouped together and not in others who are left
out but those qualities or characteristics must have a
reasonable relation to the object of the legislation. In order
to pass the test, two conditions must be fulfilled, namely,
(1) that the classification must be founded on an intelligible
differentia which distinguishes those that are grouped
together from others and (2) that that differentia must
have a rational relation to the object sought to be achieved
by the Act.’’
24. In Transport and Dock Workers Union and Others versus
Mumbai Port Trust and Another, 2011 AIR SCW 220, it has been
stated thus:
‘‘21. It has been repeatedly held by this Court that Article 14
does not prohibit reasonable classification for the purpose of
legislation or for the purposes of adoption of a policy of the
legislature or the executive, provided the policy takes care to
reasonably classify persons for achieving the purpose of the
policy and it deals equally with all persons belonging to a well
defined class. It is not open to the charge of denial of equal
protection on the ground that the new policy does not apply to
other persons. In order, however, to pass the test of permissible
classification, as has been laid down by the Supreme Court in
the catena of its decisions, two conditions must be fulfilled; (1)
that the classification must be founded on an intelligible differentia
which distinguishes persons or things that are grouped together
from others left out of the group and (2) that the differentia
must have a rational relation to the object ought to be achieved
by the statute in question, vide Gopi Chand v. Delhi
Administration, AIR 1959 SC 609 (see also Basu’s ‘Shorter
Constitution of India, fourteenth edition 2009 page 81).
22. Thus the classification would not violate the equality provision
contained in Article 14 of the Constitution if it has a rational or
reasonable basis.’’
25. In this context, we may also profitably produce a passage from
Priyambada Debi versus State of Orissa and Another, AIR 1993
ORISSA 99:
‘‘5. ....a classification made by a statute which is under-inclusive,
in the sense that while giving benefit some persons who are
similarly situated are left out, would be tolerated more by the
Courts than one which is over-inclusive (i.e., including not only
those who are similarly situated but others who are not so situated),
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as a legislative authority acting within its field is not bound to
extend its regulation to all cases which it might possibly reach;
and a legislature is free to recognize the degrees of necessities
and it may confine the provision to those classes of cases where
the need seems to be clearest. (See paragraphs 54 and 60 of
State of Gujarat v. Ambica Mills, AIR 1974 SC 1300, and
paragraph 12 of Shankar Birmiwal v. Union of India, AIR
1982 Raj 187 (FB).’’
26. In Ram Krishna Dalmia and Ors. v. Shri Justice S.R.
Tendolkar and Ors., AIR 1958 SC 538, the Apex Court laid down many
a principle pertaining to class legislation and also the presumption of
constitutionality. Looking at the role of a court while dealing with the
presumption of constitutionality, the two principles which are relevant
for the present purpose are reproduced below:
‘‘(e) that in order to sustain the presumption of constitutionality
the Court may take into consideration matters of common
knowledge, matters of common report, the history of times and
may assume every state of facts which can be conceived existing
at the time of legislation; and
(f) that while good faith and knowledge of the existing conditions
on the part of a Legislature are to be resumed, if there is nothing
on the face of the law or the surrounding circumstances brought
to the notice of the Court on which the classification may
reasonably be regarded as based, the presumption of
constitutionality cannot be carried to the extent of always holding
that there must be some undisclosed and unknown reasons for
subjecting certain individuals or corporations to hostile or
discriminating legislation.’’
27. In the case at hand, the submission of the learned counsel for
the petitioner is that though vacancy for a member occurs, yet two
different modes have been provided for filling up the same without any
fathomable and acceptable reason and hence, it is discriminatory. It is
further submitted that the Rule creates a classification in respect of the
vacancies putting them in two compartments though the genus is
‘vacancy’ and there is no justification for such classification. On a first
blush, the aforesaid submission may look quite attractive but on a keener
scrutiny, the same has to pale into insignificance. As far as the first
category of vacancy is concerned, there is a challenge to the election of
an elected candidate before the tribunal and when the tribunal gives a
verdict that the candidate was not validly elected, the said vacancy is to
be filled up by the candidate who secures the maximum first preference
votes amongst the unsuccessful candidates. Thus, the vacancy is caused
only after the election of the elected candidate is declared invalid. The
election of the elected candidate is the subject matter of dispute and his
election is declared as bad / void / illegal. The right to contest an election
in any field is basically a statutory right and is controlled by the statute.
The reason for providing such a provision is that the candidate who has
been declared elected faces a verdict that he was not validly elected and
the vacancy thus caused is of a different nature. True it is, it is a
vacancy, nonetheless, the vacancy has a different character. The elected
candidate is eliminated from the list of elected candidates. Once there is
elimination, the person who secured the maximum first preference votes
amongst the unsuccessful candidates is declared elected. Causation of
such a vacancy is different from the other category of vacancy which
is a casual vacancy occurring because of death, resignation or retirement
of a member.
28. The term ‘casual’ has its own connotation. In Black’s Law
Dictionary, ‘casual’ has been defined thus:
‘‘Occurring without regularity; occasional; impermanent, as
employment for irregular periods.
Happening or coming to pass without design and without being
foreseen or expected; unforeseen; uncertain; unpremeditated.’’
29. In Chambers 21st Century Dictionary, the word has been defined
to mean happening by chance. Thus understood, there is a rationale
which is in the compartment of intelligible differentia. Thus, it is possible
to treat the two vacancies separately and prescribe different modes for
filling of the vacancies. The first one, as we have stated, arises because
of disqualification of an elected candidate and the second one, due to
resignation, death or retirement of an elected member but before the term
is over. The purpose in both the Rules 31(A)(i) and (ii) is to avoid a fresh
election. In the first one, a right is conferred on a candidate on the basis
of reasonable criterion which is based on the obtaining of maximum first
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preference votes. In the second-one, the right has been conferred on the
elected members of the Council to fill up the vacancy by co-option.
Thus, the distinction is discernible on the prism of reason and hence, it
does not invite the frown of discrimination as enshrined under the equality
clause of Article 14 of the Constitution.
30. The next plank of submission fundamentally pertains to the
conferment of unfettered and unbridled power on the members of the
Bar Council, the electoral body, to co-opt a member ignoring the will of
the lawyers community at large. We may state here with profit that
though we have enumerated the submissions in detail, yet the rest of the
submissions will fall under this compartment. It is settled in law that the
right to vote or contest in an election is not a fundamental right but a
statutory right which has to conform to the organic law and the fountain
of all laws, the Constitution of India. The said rights can be restricted
on the constitutional parameters.
31. In the case at hand, the Rule provides for co-option. It does not
provide for a fresh election. The core issue would be whether every
member of the lawyer community should be allowed to vote or the
voting should be restricted and constricted to the elected members.
Appositely appreciated, the Rule has a sacrosanct purpose. As has been
indicated earlier, it avoids need to hold a fresh election as there should
not be another election to fill up casual vacancies, when the term of the
Council has not expired. It is expected of the said body to co-opt a
person through a democratic process. The Rule instead of full electorate
voting again, confers the power on the electoral college to co-opt a
member. When there is a statutory body and such power is conferred,
it is difficult to hold that unfettered, unbridled and uncanalized power is
conferred on them. The Bar Council is a body corporate. It functions in
a democratic manner. In a contingency of this nature when the elected
body has been given the power, such conferment of power cannot be
said to be arbitrary. Merely saying that the same may or should have
been conferred on all the voters does not stand to reason. Hence, we are
disposed to think that the submission in this regard is unacceptable and
accordingly, we repel the same.
32. In view of our aforesaid analysis, we conclude and hold that
the Rule 31(A)(ii) is constitutionally valid and not hit by any of the limbs
of Article 14 of the Constitution of India.
33. Presently, we shall proceed to deal with whether the method
adopted by the members of the Bar Council while exercising the power
of co-option is unjustified and vulnerable. Mr. Mittal, leaned counsel for
the petitioner in W.P.(C) NO.5198/2010, has submitted that even in the
matter of co-option, adequate publicity has to be given so that the members
can submit their applications for co-option. It is his further submission
that the Bar Council did not keep in view the direction given in paragraph
15 of W.P. No.5198/2010 decided on 4.8.2010. The said paragraph
reads as under:
‘‘This court would like the BCD itself, in the first instance, to
consider what should be the norms or rules that are required to
be followed / framed for considering who should be eligible for
being co-opted as a member to fill up a casual vacancy in the
BCD.’’
34. It is also urged by him that only the names of the persons who
had contested the election and faced the electorate at large can be
considered for co-option.
35. In this context, we may first appreciate the term ‘co-opt’
which means to elect an additional member by the votes of the existing
members. Black’s Law Dictionary defines the term ‘co-optation’ as follows:
“a concurring choice; the election, by the members of a close
corporation, of a person to fill a vacancy”
36. In Revenue Divisional Officer v. Pushpam & Ors., AIR
1976 Madras 252, the learned Chief Justice, while considering the co-
option of a woman member to a Panchayat under the provisions of the
Tamil Nadu Panchayats Act (XXXV of 1958), construed the word ‘co-
option’ in the following manner:
‘‘When it speaks of panchayat’s entitlement to co-opt, to our
mind, it at once implies the consensus of the members in their
entirety, or of the majority of those members, which is ascertained
by a process of vote taking. That is what precisely the word
“co-option” means ordinarily. For instance the Concise Oxford
Dictionary says that co-opt means elect in to a body by votes of
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existing members. The word is derived from opt which means
choose and the choice necessarily involves ascertaining the wishes
of each of the members of the panchayat already elected into the
body politic.’’
37. In view of the meaning conferred on the word, in the case of
election, by the members of a body corporate, of a person to fill up a
vacancy, the choice is given to the electoral body to co-opt a member.
Rule 7 of the Rules provides about the candidate who cannot seek
election unless his name is in the electoral roll. It is appropriate to
reproduce Rules 7 and 7A for the sake of completeness:
7. Candidates: No person shall be entitled to seek election unless
his name is in the election roll.
7(A) No advocate shall be entered on the Electoral Roll if an
information obtained by the Bar Council.
(a) he has at any time been removed or suspended from practice;
provided that this disqualification shall operate only for a period
of five years from the date of removal or the expiry of the period
of suspension.
(b) he has been suspended from practice, provided that this
disqualification shall operate only for a period of five years from
the date of the period of suspension;
(c) He is an undischarged insolvent;
(d) he has been found guilty of an election offence in regard to
an election to the State Council by an Election Tribunal, provided
however, that such disqualification shall not operate beyond the
election next following after such finding has been made;
(e) he is convicted by a competent court for an offence involving
moral turpitude, provided that this disqualification shall cease to
have effect after a period of two years has elapsed since his
release;
(f) he is in full-time service or is in such part-time business or
other vocation not permitted in the case of practising advocates
by the rules either of the State Council concerned or of the
Council;
(g) he has intimated voluntary suspension of practice and has
not given intimation of resumption of practice.’’
38. In this context, it may be stated that co-option and nomination
of a member in a democratic set up is not a new phenomenon. Article
171 of the Constitution provides for nomination of members having
special knowledge or practical experience in certain fields such as
literature, science, cooperative movement and social science. Thus, in
the said Article, there is a specific criterion stipulated for nomination. In
the case at hand, as we perceive, the only qualification for nomination
has to be that the person is entitled to be elected as per Rules. No special
or other qualification is necessary.
39. When co-option takes place, only a person who is eligible and
not disqualified to be a candidate in an election can be considered for co-
option. It is not necessary or stipulated that he / she should have been
an unsuccessful candidate in the last election. If he is ineligible under
Rules 7 and 7A of the Rules, he cannot be co-opted. The submission of
Mr. Mittal that the next person who has faced the election has to be
considered for co-option, we are disposed to think, is not in the scheme
of things and, hence, we are unable to accept the same. The other
submission that there should have been wide publicity is only to be noted
to be rejected for the simon pure reason that the concept of co-option,
as understood in law does not require or prescribe any such requirement.
It is the obligation of the electoral college or the Council to see that they
co-opt a member who is eligible in law to be elected otherwise. Who
should be co-opted as long as he meets the eligibility norm is for the
voters to decide. It is the voters. wisdom that prevails and is accepted.
In the scheme of co-option, there is no question of any kind of propagation.
The law only mandates that the body or electoral college should either
unanimously co-opt a member or do it by majority of votes that being
the warrant of law. Thus, the submission raised by the learned counsel
for the petitioner is misconceived.
40. At this juncture, we may note that in the earlier writ petition,
the learned Single Judge had directed the Bar Council of Delhi to consider
the norms or rules that are required to be followed / framed for considering
the eligibility of a person for being co-opted as a member to fill up a
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casual vacancy in the Council. Certain correspondences have been brought
on record to show that suggestions were given by certain members that
the next to the last elected person should be co-opted due to the demise
of late K.K. Sareen, the elected member. A notice was circulated for the
following purposes:
‘‘(i) To consider the procedure to be followed/adopted by Delhi
Bar Council in the matter of co-option to fill up any casual
vacancy;
(ii) To discuss and determine the eligibility criterion for choosing
a person for co-option to fill up any casual vacancy;
(iii) To discuss and consider the representation dated 19.07.2010
of Sh. Devendra Kumar Sharma (Copy enclosed) regarding his
co-option to fill up the casual vacancy occurred due to the said
demise of Sh. K.K. Sareen; and
(iv) To fill the casual vacancy occurred due to the said demise
of Sh.K.K. Sareen.’’
41. The proceeding that took place has been brought on record
which we think apt to reproduce in toto:
‘‘Minutes of the meeting of Bar Council of Delhi held in the
office of the Council at 1-F, Lawyers. Chamber, Delhi High
Court, New Delhi on 21.01.2011.
The present meeting was called to consider the representation
made by Sh.Vijender Singh Mann regarding his request for co-
option, and also for making compliance of the order dated
04.08.2010 and 04.10.2011 of Hon’ble High Court of Delhi, as
passed in the Writ Petition titled Devendra Kumar Vs. the
State, being Writ Petition No.5198/2010.
The aforesaid orders were circulated amongst the Hon’ble
members and they were requested to give their views on the
same. The matter was discussed and debated thoroughly in the
Council’s meeting, and as a result of the said discussion, three
options had emerged.
The first option was to follow the past precedents as regards the
procedure of co-option of a member to fill up the casual vacancy.
It is on record that in the immediate past, the co-option of a
members to the Council was done the basis of the majority
decision of the Council, and as such any advocate who was
otherwise eligible to be elected as a member of Bar Council of
Delhi in terms of the relevant rules, could be co-opted as a
members, provided the majority of the members of the Council
were to vote in his/her favour. This norm was followed in the
past in the case of Sh. Sunil Mittal, Advocate, Sh.Rakesh
Sherawat, Advocate and Sh.R.K. Kochar, Advocate all of whom
were co-opted in the past by adopting the aforesaid norm. Thus,
there are precedents of following the said norm regarding the
co-option of a member to fill up the casual vacancy.
The second option which emerged was having a specific rules
to be made and incorporated in this existing rule providing for a
co-option of the candidate who contested the election and who
was next to the person last elected as a member of the Bar
Council. Earlier a representation was also made in this regard by
Sh. D.K. Sharma, Advocate who was also heard earlier by the
Council.
The third option was to have a specific rule whereby the candidate
who had secured maximum number of first preference voters
next to the least person so elected as a member of the council
in the last election could be co-opted.
The majority of the members consisting of Chairman Rakehs
Tiku, Sh. Nitin Hlawat, Hony. Secretary, Sh. O.P. Faizi, Ms.
Sarla Kaushik, Sh. Ramesh Gupta, Sh. Ved Prakash Sharma, Sh.
Rakesh Kochar, Sh. Vijay Kumar Sondhi, Sh. Puneet Mittal, Sh.
Amit Sharma, Sh. Abhay Kumar Verma and Sh. Rajesh Mishra,
supported the first option i.e. to follow the past precedents and
co-opt an advocate as a member by adopting the norm of co-
option on the basis of recommendations of the majority of the
members of the Council. Thus, majority of the members voted
for the above option. The said course of action would fall within
the scope and ambit of clause 15 of the aforesaid judgment dt.
04.08.2010, wherein the Hon’ble Court had itself directed that
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‘‘BCD itself in the first instance, to consider what should be the
norms or rules that are required to be followed / framed for
considering who should be eligible for being co-opted as a member
to fill up a casual vacancy in the BCD.’’
According, the aforesaid majority of members of the Council
have recommended that the Council should follow the norm of
recommending the name of an eligible advocate to be co-opted
as a member. In this view of the said decision / recommendation
of the majority of the members, the latter who options were not
accepted by the majority of the members of the Council.
Accordingly, the representation of Sh. D.K. Sharma and Sh.
Vijender Mann were turned down.
Besides the aforesaid members, the other members of the Council
who also supported the said option included S/Sh. Surya Prakash
Khatri, K.K. Manan, R.S. Goswami, Rakesh Sherawat, Murari
Tiwari. However, the other members namely Jaibir Singh Nagar,
Vice Chairman, Sh. R.S. Chauhan, Ms. Rana Parween Siddiqui,
Sh. Rajiv Khosla and Sh. Jagdev, were not in agreement with the
following of the aforesaid option.
According the name of Sh.Aman Sareen, Advocate was proposed
by Sh. Puneet Mittal and seconded by Sh. Rajesh Mishra, and
the majority of the members present and voting, approved of the
same.
Considering the recommendation of the majority of the members
as mentioned above, the following resolution was passed:
‘‘Resolved that Mr.Aman Sareen, S/o Late Sh.K.K. Sareen,
Advocate, be and is hereby co-opted as a member of the
Bar Council of Delhi to fill up the casual vacancy which
had arisen on account of untimely demise of the former
Chairman Late Sh. K.K. Sareen, and consequently, his
name be forwarded to the Govt. of NCT of Delhi for
issuing appropriate notification in that regard at the earliest,
and the Hony. Secretary of the Council is requested to
sign and forward necessary documents, letters etc. in that
regard for the concerned authorities.’’
A copy of these minutes may also be filed before the Hon.ble
High Court in the aforesaid pending Writ Petition.
No other agenda was discussed and the meeting ended with a
vote of thanks to the Chair.’’
[Underlining is ours]
42. From the aforesaid factual depiction, it is clear as crystal that
the respondent no.4, Sh. Aman Sareen, was co-opted on the basis of the
majority of votes cast by the members present. Hence, we perceive no
illegality in the method of co-option.
43. Ex consequenti, we conclude and hold as follows:
(a) Rule 31(A)(ii) is constitutionally valid and neither hit by
Article 14 of the Constitution of India nor does it run
counter to or contravene any of the provisions of the
Advocates Act, 1961.
(b) The method of co-option is a permissible mode for filling
up the casual vacancy.
(c) The submission that even for the purpose of co-option
there has to be involvement of the larger body is
unacceptable.
(d) The only qualification for a member to be co-opted is that
he should satisfy the criteria enumerated under Rules 7
and 7A of the Bar Council of Delhi Election Rules, 1968.
(e) As the respondent no.4, Sh. Aman Sareen, has secured
the majority of votes of the members voting, there is no
illegality in his co-option as that is the method of co-
option which is permissible in law.
44. In the result, both the writ petitions, being sans substratum,
stand dismissed without any order as to costs.
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ILR (2011) VI DELHI 319
CS (OS)
ARTI JETHANI ....PLAINTIFF
VERSUS
DAEHSAN TRADING (INDIA) ....DEFENDANTS
PVT LTD. & ORS.
(V.K. JAIN, J.)
CS(OS) NO. : 1296/2010 DATE OF DECISION: 16.05.2011
Arbitration and Conciliation Act, 1996—Section 8—
Petition filed by defendant for referring disputes raised
by plaintiff for arbitration after four weeks of filing
Written Statement—Plea taken, defendant had already
pleaded in written statement that there is arbitration
agreement between parties and this Court has no
jurisdiction to adjudicate instant suit—Applicants did
not submit to jurisdiction of Civil Court and application
is maintainable even after filing of written statement—
Held—Defendants have already filed their Written
Statement and have disclosed their entire defence in
main proceedings and not in supplemental
proceedings—Application for referring disputes for
Arbitration would be maintainable if applicant had not
filed his first statement on substance of dispute—But
when Written Statement is filed, it can hardly be
disputed that applicant has submitted not only first
but whole of his statement on dispute between parties.
Mere disclosure of arbitration agreement in Written
Statement and claiming civil Court has no jurisdiction
to try suit would be of no consequence unless Written
Statement itself contains a prayer for referring dispute
for arbitration—Jurisdiction of Civil Court is not ousted
on account of arbitration agreement between parties—
It is ousted because of application filed under Section
8 of Act, provided it otherwise confirms to requirements
laid down in Section.
In my view, if the Court accepts the contention that an
application under Section 8 of the Act can be filed even
after the first statement on substance of the dispute between
the parties has already been filed, this would not only be
contrary to the express provisions of law but, would also
defeat the very purpose behind stipulating that such an
application needs to be filed not later than submitting the
first statement on the substance of the dispute. If such an
application is entertained after filing of the first statement, it
would be possible for a party to the suit to first allow the trial
to proceed by not filing the application by the stage stipulated
in the Act and then come to the Court at a much later stage
when the trial is substantially complete and seek reference
of the dispute to arbitration. It is true that in the case before
this Court the trial has not commenced as yet, but if the
interpretation sought to be given by the learned Counsel for
the applicants/defendants is accepted, it would be open to
a party to the suit to file such an application even after the
trial has commenced. (Para 7)
Important Issue Involved: (A) Mere disclosure of
arbitration agreement in the written statement and claiming
that Civil Court has no jurisdiction to try the suit would be
of no consequence unless the Written Statement itself
contains a prayer for referring the dispute for arbitration.
(B) The jurisdiction of the Civil Court is not ousted on
account of an arbitration agreement between the parties. It
is ousted because of an application filed under Section 8 of
the Act provided it otherwise confirms to the requirements
laid down in the Section.
[Ar Bh]
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APPEARANCES:
FOR THE PLAINTIFF : Mr. Sharad Chandra, Advocate.
FOR THE DEFENDANTS : Mr. Sanjay Kr. Ghosh and Ms. Rupali
S. Ghosh, Advocates.
CASES REFERRED TO:
1. Agri Gold Exims Ltd. vs. Sri Lakshmi Knits & Wovens &
Ors. (2007) 3 SCC 686.
2. Rashtriya Ispat Nigam Ltd. & Anr. vs. Verma Transport
Co. (2006) 7 SCC 275.
3. K.Jayakumaran Nai vs. Vertex Securities Ltd. AIR 2005
Ker. 294.
4. Bengal State Electricity Board and Ors. vs. Shanti
Conductors Private Ltd. AIR 2004 Gau 70.
5. Sukanya Holdings Pvt. Ltd. vs. Jayesh H. Pandya and
Anr. AIR 2003 SC 2252.
6. Hindustan Petroleum Corporation Ltd. vs. Pinkcity Midway
Petroleums (2003) 6 SCC 503.
7. M/s Everest Electric Works vs. M/s Himachal Futuristics
Communications Ltd. IA No. 4438/2003 in CS(OS) No.
2400/2001.
8. Food Corporation of India vs. Yadav Engineer &
Contractor (1982) 2 SC 499.
RESULT: Dismissed.
V.K. JAIN, J.
IA No.4272/2011 (u/S. 8 of Arbitration and Conciliation Act)
1. This is a petition under Section 8 of Arbitration and Conciliation
Act, 1996 (hereinafter referred to as the Act) for referring the disputes
raised by the plaintiff for arbitration, in terms of the arbitration agreement
between the parties.
2. A perusal of the record would show that on suit summons being
served on them, the defendants appeared through counsel on 04th January,
2011 and it was directed that the written statement be filed within the
prescribed period. The matter was adjourned to 02nd May, 2011. The
written statement was filed on 25th January, 2011. Replication to the
written statement was filed on 14th February, 2011. In replication, the
plaintiff relying upon the decision of Supreme Court in Sukanya Holdings
Pvt. Ltd. vs. Jayesh H. Pandya and Anr. AIR 2003 SC 2252, stated
that the defendants having already filed Written Statement and no application
under Section 8 of the Act having been filed, the matter was not required
to be referred to the arbitral tribunal. The application under consideration
came to be filed on 22nd February, 2011.
3. A careful analysis of Section 8 of Arbitration and Conciliation
Act, 1996 would show that the following conditions are required to be
fulfilled before the Court can refer the matter to arbitration;
(a) the dispute between the parties should be subject matter
of an arbitration agreement;
(b) one of the parties to the suit should apply for referring the
parties to arbitration;
(c) the application should be filed on or before submitting
first statement on the substance of the dispute and;
(d) the application should be accompanied by the original
arbitration agreement or its certified copy.
4. In the case before this Court, the application under consideration
having not been filed on or before filing of written statement, but having
been filed about four weeks after the written statement had been filed and
after 8 days of filing of replication, one of the pre-requisite conditions for
referring the parties to arbitration under Section 8 of Arbitration and
Conciliation Act does not stand fulfilled in this case.
5. In Sukanya Holdings (supra), Supreme Court, while interpreting
Section 8 of the Act, inter alia, observed as under:
‘‘Further, the matter is not required to be referred to the arbitral
Tribunal, if-(1) the parties to the arbitration agreement have no
filed any such application for referring the dispute to the arbitrator;
(2) in a pending suit, such application is not filed before submitting
first statement on the substance of the dispute; or (3) such
application is not accompanied by the original arbitration agreement
or duly certified copy thereof.’’
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It is true that in the above-referred case, the application under
Section 8 of Arbitration and Conciliation Act appears to have been filed
before the written statement was filed and, therefore, the question as to
whether such an application can be filed after the written statement has
already been filed, did not directly come up for consideration in this case,
but, the above-referred observations made by the Court do support the
view that such an application cannot be filed after the first statement on
the substance of the dispute has been filed by the applicant.
6. The contention of the learned counsel for the applicant is that
since the defendant had already pleaded in the written statement that
there is an arbitration agreement between the parties and, therefore, this
Court has no jurisdiction to adjudicate the instant suit, it is evident that
the applicants did not submit to the jurisdiction of the Civil Court and,
therefore, the application is maintainable even after filing of the written
statement.
7. In my view, if the Court accepts the contention that an application
under Section 8 of the Act can be filed even after the first statement on
substance of the dispute between the parties has already been filed, this
would not only be contrary to the express provisions of law but, would
also defeat the very purpose behind stipulating that such an application
needs to be filed not later than submitting the first statement on the
substance of the dispute. If such an application is entertained after filing
of the first statement, it would be possible for a party to the suit to first
allow the trial to proceed by not filing the application by the stage
stipulated in the Act and then come to the Court at a much later stage
when the trial is substantially complete and seek reference of the dispute
to arbitration. It is true that in the case before this Court the trial has not
commenced as yet, but if the interpretation sought to be given by the
learned Counsel for the applicants/defendants is accepted, it would be
open to a party to the suit to file such an application even after the trial
has commenced.
8. The question as to whether a defendant who pleads arbitration
agreement in the Written Statement, but does not file an application under
Section 8 of the Act, on or before filing of the Written Statement has
come up before other High Courts in some cases. In K.Jayakumaran
Nai vs. Vertex Securities Ltd. AIR 2005 Ker. 294, the defendant filed
Written Statement raising a contention that there was an arbitration
agreement between the parties. After framing of issues he filed an
application seeking reference of the dispute for arbitration. The High
Court noted that Section 8 of the Act clearly provides that the application
had to be made not later than submitting the first statement whereas the
application before it had been filed after the issues were framed. The
Court expressly rejected the contention that since the matter had been
raised in the Written Statement that was enough. While doing so the
Court noted that the Written Statement contained no prayer for referring
the matter for arbitration.
In West Bengal State Electricity Board and Ors. Vs. Shanti
Conductors Private Ltd. AIR 2004 Gau 70, the defendants filed Written
Statement indicating that the dispute which had arisen between the parties
and led to institution of the suit, was covered by arbitration clause. After
submitting the Written Statement on 22.9.2000 the defendants filed an
application under Section 8 of the Act on 7.11.2000 seeking reference of
the dispute to the arbitration. The trial Court having rejected the application
the matter was agitated by the defendant before the High Court and it
was contended that in the plaint itself the plaintiff had admitted the
existence of the arbitration clause and the Written Statement also indicated
about its existence and therefore the Court below had taken a misconceived
view of law as to its jurisdiction. Rejecting the contention, the High Court
interalia held as under:
In the case at hand, the application under Section 8 was made
by the defendants after the written statement stood submitted.
Hence, this application was not maintainable. The fact that the
existence of the arbitration clause was admitted in the plaint or
asserted in the written statement is immaterial inasmuch as the
Court, under Section 8, can refer for arbitration a dispute pending
in a civil suit only when the party or parties concerned make
application for getting the dispute referred to arbitration. If despite
existence of arbitration clause, the parties choose to contest the
suit, the powers under Section 8 cannot be invoked.
9. The learned Counsel for the defendants has relied upon the
decision of the Supreme Court in Rashtriya Ispat Nigam Ltd. & Anr.
vs. Verma Transport Co. (2006) 7 SCC 275. In the case before Supreme
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Court, a suit seeking permanent injunction against blacklisting the defendant
or terminating the contract was filed. The trial Court directed the parties
to maintain status quo. The appellants/defendants sought time to file
Written Statement. They also filed a rejoinder to the counter affidavit of
the application for injunction, wherein they took a specific plea that the
subject matter of the suit being covered by arbitration agreement, it was
not maintainable. On 7.6.2002 they filed an application under Section 8
of the Act which was rejected by the trial Court on the ground that the
process of the suit had already begun and the defendants had already
entered into a defence of the suit and had thereby subjected themselves
to the jurisdiction of this Court. A revision application filed by the
defendants having been rejected by the High Court, the matter was taken
to Supreme Court. The Supreme Court noted that under Section 8 of the
Act, the power to refer the dispute for arbitration has to be exercised,
if a party so applies not later than when submitting his first statement on
the substance of the dispute. The Court referred to its decision in Food
Corporation of India v. Yadav Engineer & Contractor (1982) 2 SC
499 where it had opined that interlocutory proceedings are only incidental
proceedings to the main proceedings and therefore any step taken in
interlocutory proceedings does not come within the purview of the main
proceedings. The Court then interalia observed as under:
36. The expression ‘‘first statement on the substance of the
dispute’’ contained in Section 8(1) of the 1996 Act must be
contra distinguished with the expression ‘‘written statement’’. It
employs submission of the party to the jurisdiction of the judicial
authority. What is therefore needed is a finding on the part of the
judicial authority that the party has waived its right to invoke the
arbitration clause. If an application is filed before actually filing
the first statement on the substance of the dispute, in our opinion,
the party cannot be said to have waived its right or acquiesced
itself to the jurisdiction of the court. What is, therefore, material
is as to whether the petitioner has filed his first statement on the
substance of the dispute or not, if not, his application under
Section 8 of the 1996 Act, may not be held wholly unmaintainable.
In paras 38 & 39 of the judgment, the Supreme Court
interalia observed as under:
38. x x x
In view of the changes brought about by the 1996 Act,
we are of the opinion that what is necessary is disclosure
of the entire substance in the main proceeding itself and
not taking part in the supplemental proceeding.
39. By opposing the prayer for interim injunction, the
restriction contained in sub-section (1) of Section 8 was
not attracted. Disclosure of a defence for the purpose of
opposing a prayer for injunction would not necessarily
mean that substance of the dispute has already been
disclosed in the main proceeding. Supplemental and
incidental proceedings are not part of the main proceeding.
They are dealt with separately in the Code of Civil
Procedure itself. Section 94 of the Code of Civil Procedure
deals with supplemental proceedings. Incidental proceedings
are those which arose out of the main proceedings. In
view of the decision of this Court in Food Corporation of
India, the distinction between the main proceeding and
supplemental proceeding must be borne in mind.
In para 42 of the judgment, the Court interalia observed
as under:
42. Waiver of right on the part of a defendant to the lis
must be gathered from the fact situation obtaining in each
case. In the instant case, the court had already passed an
ad interim ex parte injunction. The appellants were bound
to respond to the notice issued by the Court. While doing
so, they raised a specific plea of bar of the suit in view
of the existence of an arbitration agreement. Having regard
to the provisions of the Act, they had thus, shown their
unequivocal intention to question the maintainability of the
suit on the aforementioned ground.
The facts of this case however, are altogether different. In this
case, the defendants have already filed their Written Statement and have
thereby disclosed their entire defence and that has been done in the main
proceedings itself, not in the supplemental proceedings. Of course, the
application under Section 8 of the Act would be maintainable if the
applicant has not filed his first statement on the substance of the dispute,
but when the Written Statement is filed, it can hardly be disputed that the
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applicant has submitted not only the first but whole of his statement on
the dispute between the parties. To hold such an application to be
maintainable, even after filing of the Written Statement would be contrary
to the provisions contained in Section 8 of the Act. Mere disclosure of
arbitration agreement in the Written Statement and claiming that Civil
Court has no jurisdiction to try the suit would be of no consequences
unless the Written Statement itself contains a prayer for referring the
dispute for arbitration. In the case before this Court, though the defendants
claimed that there is arbitration agreement between the parties and Civil
Court has no jurisdiction in the matter, no prayer was made in the
Written Statement to refer the disputes between the parties for arbitration.
10. The learned Counsel for the applicants/defendants has also
referred to Hindustan Petroleum Corporation Ltd. vs. Pinkcity Midway
Petroleums (2003) 6 SCC 503. It appears from para 8 of the judgment
that in this case, the application under Section 8 of the Act along with
a copy of the arbitration agreement, was filed by the appellant/defendant
in reply to the suit summons. There is nothing in the judgment to indicate
that Written Statement had been filed before filing the application under
Section 8 of the Act. Therefore, this judgment is of no help to the
defendants before this Court.
11. No one can dispute that a Civil Court has no jurisdiction to
entertain the suit after application under Section 8 of the Act is filed but
this would be subject to the application otherwise being in conformity
with the requirements of the said Section. The jurisdiction of the Civil
Court is not ousted on account of an arbitration agreement between the
parties. It is ousted because of an application filed under Section 8 of the
Act provided it otherwise confirms to the requirements laid down in the
Section.
12. The learned Counsel for the defendants/applicants also relied
upon Agri Gold Exims Ltd. vs. Sri Lakshmi Knits & Wovens & Ors.
(2007) 3 SCC 686 and decision of this Court in M/s Everest Electric
Works v. M/s Himachal Futuristics Communications Ltd. IA No.
4438/2003 in CS(OS) No. 2400/2001 decided on 11.8.2004. Neither of
these judgments applies to the facts of the case before this Court. In
neither of the cases, the Court was called upon to deal with a situation
where application under Section 8 of the Act is filed after filing of the
Written Statement.
For the reasons given in the preceding paragraphs the application
is hereby dismissed.
CS(OS) No. 1296/2010
The matter be listed before the Joint Registrar on 30th May, 2011
for admission/denial of the documents and before this Court on 16th
November, 2011 for framing of issues.
ILR (2011) VI DELHI 328
CRL. A.
AKBARI BEGUM & ORS. ...APPELLANTS
VERSUS
STATE ....RESPONDENT
(BADAR DURREZ AHMED & VEENA BIRBAL, JJ.)
CRL. A. NO. : 371/1997 DATE OF DECISION: 18.05.2011
Indian Penal Code, 1860—Section 302 and 34—
Aggrieved appellants challenged their conviction
under Section 302/34—They urged, prosecution
witnesses i.e. brothers, mother and husband of
deceased turned hostile—Also, dying declaration of
deceased can not be sole basis of conviction as no
fitness certificate given by Doctor either on the dying
declaration or just prior to making dying declaration—
Per contra, prosecution contended appellants being
mother in law, Jethani (wife of husband’s elder
brother), Devrani (wife of husband’s younger brother)
and Nanad (husband’s sister) held guilty for having
burnt deceased alive who received 90% burn injuries—
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Dying declaration of stellar quality and wholly reliable;
therefore it could be made sole basis of conviction
even though some prosecution witnesses turned
hostile—Held:- Endorsement on the dying declaration
“taken in my presence” cannot substitute for a clear
cut certificate of fitness—Moreover, endorsement on
MLC “fit for statement” should bear signatures of the
doctor—Contents of dying declaration do not inspire
much confidence and language in which it was
recorded, was clearly not of deceased but that of a
police officer, so case against appellants not free
from doubt—Appellants acquitted.
Having heard learned counsel for the parties and having
examined the evidence in court in detail, we are clearly of
the view that the case against the appellants is not free from
doubt. The sole basis of conviction by the trial court, in the
present case, is the dying declaration (Ex. PW-8/C). There
are many infirmities which surround this so-called dying
declaration. The first infirmity is that the time of recording of
the dying declaration is not indicated. Secondly, although Dr
R.A. Gautam (PW-7) has made an endorsement on the said
Ex. PW-8/C to the effect - ‘‘taken in my presence’’ —, he has
nowhere stated that the injured Shahjahan was fit for making
a statement. We have already noted the decisions relied
upon by the learned counsel for the appellants that such an
endorsement cannot be a substitute for a clear cut certificate
of fitness. Thirdly, the MLC (Ex. PW-7A) carries a statement
to the effectû‘‘fit for statement’’—but there is no signature
beneath that endorsement nor is there any time or date
given therein. So even if it is taken that some doctor had
written the said words—‘‘fit for statement’’—we cannot
assume as to when the patient Shahjahan was fit for making
a statement. Was it on 31.03.1994 or some other day or
time till her death on 05.04.1994 ? Fourthly, we also find
that both PW-7 Dr R.A. Gautam and PW-8 ASI Jagbir Singh
had stated in court that the condition of the patient Shahjahan
was serious. However, it has not been indicated as to how
serious her condition was. Was it so serious that she could
not have even given her statement? This possibility cannot
be ruled out. We may also point out that from the death
summary, Ex. PW-7D/A, it appears that Shahjahan Begum’s
condition deteriorated in the night intervening 4/5.4.1994.
(Para 12)
There are also contradictions between the testimony of PW-
7 Dr. R.A. Gautam and the facts which emerge from the
other circumstances. For instance, PW-7 Dr R.A. Gautam
stated in his testimony before court that the MLC had been
written in his handwriting, whereas this contradicts his
statement under Section 161 Cr.P.C. where he had stated
that the MLC had been written under his direction by his
junior doctor. The junior doctor has not been produced
before Court by the prosecution. Interestingly, Dr R.A.
Gautam (PW-7) had also testified that no statement of his
was recorded by any police official. However, he was
confronted with the alleged statement under Section 161
Cr.P.C. which had been recorded by PW-8 ASI Jagbir Singh.
Apart from this, Dr R.A. Gutam, who was in the casualty
ward, is stated to have been present when the purported
dying declaration was recorded. But, it is clear from the
death summary (Ex. PW-7/DA) that Shahjahan Begum was
shifted from the Casualty Ward to Ward No.20, which is the
Burns Ward, at 7.53 p.m. and PW-8 ASI Jagbir Singh, in his
testimony before Court, stated that the statement of
Shahjahan was recorded after 8 p.m, may be around 8.05
p.m. or 8.10 p.m. This also casts doubt on the dying
declaration in as much as it is alleged to have been
recorded at a time when Shahjahan Begum had already
been shifted to Ward No.20 and was no longer available in
the Casualty Ward, where Dr R.A. Gautam was stationed!
(Para 13)
Important Issue Involved: Endorsement on the dying
declaration “taken in my presence” cannot substitute for a
clear cut certificate of fitness—Moreover, endorsement on
MLC “fit for statement” should bear signatures of the doctor.
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[Sh Ka]
APPEARANCES:
FOR THE APPELLANTS : Ms. Ritu Gauba.
FOR THE RESPONDENT : Ms. Richa Kapoor.
CASES REFERRED TO:
1. Shaikh Rafiq & Anr. vs. State of Maharashtra: AIR 2008
SC 1362.
2. Meera vs. State of Rajasthan: AIR 2004 Supreme Court
1879.
3. Muneer Khan & Ors. vs. State of M.P.: JT 2002 SC 399.
4. State of Karnataka vs. Aslam @ Aslam Pasha: 2000 Crl.
L.J. 1167.
5. Gulam Hussain and another vs. State of Delhi: AIR 2000
SC 2480.
6. Keshav Ganga Ram Navge and another vs. The State of
Maharashtra: AIR 1971 SC 953.
7. State of Rajasthan vs. Prithvi Raj: 1995 Supp (3) SCC
410.
8. Khurshaid Hussain Salihon Shah and Others vs. Emperor:
AIR 1941 Lahore 368 (DB).
RESULT: Appeal allowed.
BADAR DURREZ AHMED (ORAL)
1. This appeal is directed against the judgment and / or order dated
06.09.1997 passed by the learned Additional Sessions Judge, Shahdara,
Delhi, in Sessions Case No. 59/96 arising out of FIR No.162/94, registered
under section 302/34 IPC, P.S. Seelampur whereby the appellants have
been held to be guilty of the offence punishable under Section 302/34
IPC. The appellants are also aggrieved by the order on point of sentence
dated 9.9.1997 whereby each of the appellants have been sentenced to
life imprisonment and also to pay a fine of Rs. 5000/- each and, in default
whereof, to undergo RI for a further period of three months each in
respect of the said offence punishable under section 302/34 IPC.
2. The Charge against the appellants, namely, Akbari Begum, Salma
Begum, Shahida Begum and Rabia @ Indra was that on 31.3.94 at 6.30
pm at H. No. 905, G. No. 30/6 Indira Chowk, Jafrabad within the
jurisdiction of P.S. Seelampur, in furtherance of their common intention,
they committed the murder of Shahjahan, w/o Sabu and thus caused her
death and thereby committed an offence punishable u/s 302/34 IPC. The
appellants pleaded not guilty. Consequently, the trial took place which
culminated into the impugned judgment and order on sentence.
3. Akbari Begum is the mother-in-law of the deceased Shahjahan,
w/o Sabu. Salma Begum is the jethani (wife of the husband’s elder
brother) whereas Shahida Begum is the devrani (wife of the husband’s
younger brother) and Rabia @ Indra is the nanad (husband’s sister). It
may be pointed out that Rabia @ Indira was already married at the time
of the incident and was living separately and was in the family way.
4. At the time of the alleged incident i.e. on 31.3.1994, the deceased
Shahjahan had been married for over 15 years with Sabu @ Shahabuddin
and was residing peacefully in her matrimonial house with her husband
and in-laws. Shahjahan was taken to the G.T.B. hospital, Shahdara by the
appellant Akbari Begum (her mother-in-law) at about 7.30 p.m. on
31.3.1994 after she had received severe burn injuries. As per the MLC,
Ex. PW-7A, she had received about 90% burns. Though, initially the
MLC indicated 99% but, the same was subsequently over-written to read
as 90% burns. The burns were stated to be all over her body except her
head. She was stated to be conscious and oriented. The MLC also
indicated that there was an alleged history of burns by in-laws.
5. The prosecution case is that the appellants are responsible for
having burnt Shahjahan by pouring kerosene oil over her and then lighting
her by a burning match stick. The prosecution case essentially rests upon
an alleged dying declaration, Ex. PW-8C which was allegedly recorded
by ASI Jagbir Singh (PW-8) in the hospital in the presence of Dr R.A.
Gautam (PW-7), who was the Chief Medical Officer. The prosecution
sought to place reliance upon PW-3, Chamman (Shahjahan’s brother);
PW-4 Mohd. Iqbal (another brother of Shahjahan); PW-5 Noorjahan
(mother of Shahjahan); PW-6 Sabu (Shahjahan’s husband); PW-7 Dr.
R.A. Gautam; PW-8 ASI Jagbir Singh, who was the investigating officer
till the death of Shahjahan; PW-11 Constable Ravinder Singh, who was
the photographer; PW-12 Dr. A.K. Tyagi, who conducted the postmortem
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examination; and PW-14 Constable Narender who accompanied PW-8
ASI Jagbir Singh to the hospital. Reliance was also placed by the
prosecution on the PW-2, Constable Om Prakash, who accompanied
PW-8 ASI Jagbir Singh, to the scene of the crime on receipt of DD No.9
(Ex. PW-8A) at P.S. Jafarabad at 5.45 pm, to the effect that one woman
had put herself on fire (ek aurat ne aag laga lee hai). The return entry
was DD-10, Ex. PW-8/B, which was recorded by Constable Vijender
Singh wherein it was noted that the injured had been admitted in hospital
by the mother-in-law of the injured.
The English translation of the alleged dying declaration, Ex. PW-
8C, reads as under:-
‘‘Smt. Shahjahan, w/o Sabu, aged 30 years resident of House
No. 905, Gali No. 30/6, Indira Chowk, Jaffarabad, Delhi made
the following statement:-
I reside at the aforesaid address along with my family. Today
in the evening at about 6.30 p.m., I was cleaning rice while
sitting in my house when the son of my sister in-law (nand)
pushed my son Javed into a drain regarding which I complained
to my mother in-law Smt. Akbari that Phaddi, the son of my
sister in-law (nand) pushed my son Javed into a drain whereupon
my mother in-law instead, scolded me and on that the quarrel
escalated. Thereupon my mother in-law Akbari, Jethani Salma,
dewrani Shahida, sister in-law (nand) Rabia alias Indira jointly
poured kerosene oil on me from behind and my mother in-law
Akbari lit me with a match-stick as a result my entire body
sustained burns. Appropriate action may please be taken against
them.
I have heard the statement and the same is correct.
Thumb
Impression
L.T.I. Shahjahan
Attested
Sd/- Jagbir Singh
(In English)
Assistant Sub-Inspector
31/3/94
Taken in my presence.
Sd/- 31.3.1994
(Doctor R.K. GAUTAM)”
The alleged dying declaration had been recorded in Hindi. Therefore, it
would be instructive to examine its transliteration, which reads as under:-
“Byan Ajaane Shahjahan, w/o Shabu, r/o Gali No. 30/6, House
No. 905, Indira Chowk , Jaffarbad, Delhi Ba Umar 30 saal
Byan Kiya ki mein pata uprokt par seh parivar ke rehti hoon. Aaj
waqt qarib 6/30 baje sham ko apne ghar mei baithe chawal been
rahi thi toh mera ladka javed ko meri nanad ke ladke ne naley mei
dal diya tha jo mainey apne saas akbari se kaha ki mere ladke
javed ko nanad ke ladke faddi ne nalhey main dhakel diya hai jo
mere saas ne mujhe hee ulta dhamka diya aur isi baat par baat
bar gayi toh pechay se meri saas akbari jethani salma devrani
sahahida nanad rabia urf indira ne milkar mere upar mitti ka tail
dal diya aur mere saas akbari ne mujhe machis ki tilli se aag laya
di jis se mera sara shareer jal gaya inkey kilaf uchit karyawahee
ki jayey. Byan sun lia theek hai”
6. The learned counsel for the appellants submitted that in so far
as PWs 3, 4, 5, 6, who are the brothers, mother and husband respectively
of the deceased Shahjahan, are concerned, they have not at all supported
the case of the prosecution. On the contrary, the prosecution has treated
them as hostile and they were cross-examined by the learned Additional
Public Prosecutor. She further submitted that in view of this fact, the
entire case rests upon the so called dying declaration and the testimony
of PW-7 Dr. R.A. Gautam and PW-8 ASI Jagbir Singh. She submitted
that the dying declaration cannot be made the sole basis of the conviction
in as much as there is no fitness certificate given by the Doctor either
on the dying declaration or just prior to the dying declaration. She also
submitted that the language of the dying declaration itself indicates that
they were not the exact words spoken by the deceased Shahjahan but
closely resembled the language of a police officer. It was, therefore, her
case that the dying declaration was not of a stellar quality and cannot be
made the sole basis of the conviction. She contended that courts have
always doubted purported dying declarations recorded by police officers
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and, that too, by an investigating officer, who is interested in seeing that
his case results in a conviction. For this purpose, she has placed reliance
on Gulam Hussain and another v. State of Delhi: AIR 2000 SC 2480.
She also submitted that the fact that the deceased Shahjahan was taken
to hospital by the appellant Akbari Begum (mother-in-law of Shahjahan)
is also a circumstance which is consistent with her innocence. For this
proposition, she placed reliance on the following decisions:-
1. Meera v. State of Rajasthan: AIR 2004 Supreme Court
1879
2. State of Rajasthan v. Prithvi Raj: 1995 Supp (3) SCC
410
7. In support of the plea that the absence of a certificate of fitness
rendered the so-called dying declaration unsafe to base a conviction
upon, the learned counsel for the appellant placed reliance on Shaikh
Rafiq & Anr v. State of Maharashtra: AIR 2008 SC 1362, where,
though there was a certificate, as no time was mentioned the court took
the view that the dying declaration could not be relied upon, particularly
also, because the Executive Magistrate had not been called. She further
submitted that in the present case, the injured Shahjahan Begum had
arrived at hospital at 7.30 p.m. on 31.3.1994 and had remained alive in
the hospital till 12.30 a.m on 5.4.1994. Therefore according to her there
was ample time and opportunity for the police to have informed the
Magistrate and to have taken him to the hospital to record the statement
of the injured. The fact that no such attempt was made is also indicative
of the doubtful nature of the dying declaration. She also submitted with
reference to Khurshaid Hussain Salihon Shah and Others v. Emperor:
AIR 1941 Lahore 368 (DB) and Muneer Khan & Ors. v. State of
M.P.: JT 2002 SC 399, that roping in of the all family members in the
dying declaration also causes a dent into the veracity of the contents of
the alleged dying declaration.
8. Coming back to the present case, the learned counsel for the
appellant submitted that although PW-7 Dr. R.A. Gautam had written on
the alleged dying declaration that the same was - ‘‘taken in my presence’’,
this cannot be regarded as a substitute for a certificate of fitness which
is essential to lend credence to the dying declaration. For this purpose
she placed reliance on the decision in State of Karnataka v. Aslam @
Aslam Pasha: 2000 Crl. L.J. 1167. The learned counsel for the appellant
also submitted that the alleged dying declaration cannot be relied upon
because of another reason that although the injured remained alive for
five days after she was brought to the hospital, the services of the
Magistrate were not requisitioned by the police for recording the statement
of the injured. For this purpose she relied upon Keshav Ganga Ram
Navge and another v. The State of Maharashtra: AIR 1971 SC 953.
9. The learned counsel for the appellants also drew our attention to
the postmortem report is Ex. PW-12/A, where the opinion has been given
by the Doctor that the burns were ante mortem and were caused by
‘‘flame’’. She, therefore, submitted that the opinion of the postmortem
doctor is consistent with the theory of an accident which has been
propounded by the defence
10. Ms Richa Kapoor, the learned counsel for the State, on the
other hand submitted that the dying declaration which has been recorded
by the police officer in the presence of the Doctor can certainly be made
the sole basis of the conviction. She also submitted that Section 32 of
the Indian Evidence Act 1872 does not state that a dying declaration must
be recorded by a Magistrate and the fact that the Magistrate was not
called for recording the statement of the injured, would not enable us to
throw away a dying declaration which is otherwise trustworthy and
reliable. She also submitted that as per the Forensic Science Laboratory
Report, the presence of kerosene oil was detected on the clothes which
would indicate that Shahjahan Begum’s clothes were doused in kerosene
oil. This would be consistent with the dying declaration and would be
totally contrary to the theory of accident propounded by the defence. She
also submitted that as per the photographs Ex. PW -11/5,11/6,11/7, the
stove shown therein does not reveal any darkening and this clearly
demonstrates that it is not the stove which caught fire and that the burns
were not accidental, but that the deceased Shahjahan Begum suffered the
burn injuries as indicated in the dying declaration. The learned counsel
for the State also submitted that as the defence has not even suggested
it to be a case of suicide, therefore since, according to her, it was not
a case of accidental fire, the only other possibility was homicide. She
also submitted that the PW-8 ASI Jagbir Singh has clarified why the
Magistrate was not called by indicating in his testimony before court that
the condition of the injured Shahjahan was very serious and therefore
there was great urgency in recording her statement.
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11. For all these reasons, the learned counsel for the State submitted
that the dying declaration (Ex.PW-8/C) was of a stellar quality and was
wholly reliable and, therefore, could be made the sole basis of the
conviction de hors the fact that PWs 3, 4, 5 and 6 had turned hostile
before court.
12. Having heard learned counsel for the parties and having examined
the evidence in court in detail, we are clearly of the view that the case
against the appellants is not free from doubt. The sole basis of conviction
by the trial court, in the present case, is the dying declaration (Ex. PW-
8/C). There are many infirmities which surround this so-called dying
declaration. The first infirmity is that the time of recording of the dying
declaration is not indicated. Secondly, although Dr R.A. Gautam (PW-7)
has made an endorsement on the said Ex. PW-8/C to the effect - ‘‘taken
in my presence’’ — he has nowhere stated that the injured Shahjahan
was fit for making a statement. We have already noted the decisions
relied upon by the learned counsel for the appellants that such an
endorsement cannot be a substitute for a clear cut certificate of fitness.
Thirdly, the MLC (Ex. PW-7A) carries a statement to the effectû‘‘fit for
statement’’—but there is no signature beneath that endorsement nor is
there any time or date given therein. So even if it is taken that some
doctor had written the said words - ‘‘fit for statement’’—we cannot
assume as to when the patient Shahjahan was fit for making a statement.
Was it on 31.03.1994 or some other day or time till her death on 05.04.1994
? Fourthly, we also find that both PW-7 Dr R.A. Gautam and PW-8 ASI
Jagbir Singh had stated in court that the condition of the patient Shahjahan
was serious. However, it has not been indicated as to how serious her
condition was. Was it so serious that she could not have even given her
statement? This possibility cannot be ruled out. We may also point out
that from the death summary, Ex. PW-7D/A, it appears that Shahjahan
Begum’s condition deteriorated in the night intervening 4/5.4.1994.
13. There are also contradictions between the testimony of PW-7
Dr. R.A. Gautam and the facts which emerge from the other
circumstances. For instance, PW-7 Dr R.A. Gautam stated in his testimony
before court that the MLC had been written in his handwriting, whereas
this contradicts his statement under Section 161 Cr.P.C. where he had
stated that the MLC had been written under his direction by his junior
doctor. The junior doctor has not been produced before Court by the
prosecution. Interestingly, Dr R.A. Gautam (PW-7) had also testified that
no statement of his was recorded by any police official. However, he
was confronted with the alleged statement under Section 161 Cr.P.C.
which had been recorded by PW-8 ASI Jagbir Singh. Apart from this,
Dr R.A. Gutam, who was in the casualty ward, is stated to have been
present when the purported dying declaration was recorded. But, it is
clear from the death summary (Ex. PW-7/DA) that Shahjahan Begum
was shifted from the Casualty Ward to Ward No.20, which is the Burns
Ward, at 7.53 p.m. and PW-8 ASI Jagbir Singh, in his testimony before
Court, stated that the statement of Shahjahan was recorded after 8 p.m,
may be around 8.05 p.m. or 8.10 p.m. This also casts doubt on the dying
declaration in as much as it is alleged to have been recorded at a time
when Shahjahan Begum had already been shifted to Ward No.20 and was
no longer available in the Casualty Ward, where Dr R.A. Gautam was
stationed!
14. We may also point out that PW-8 ASI Jagbir Singh, in his
testimony has stated that the left thumb impression of Shahjanah was
taken on the dying declaration, Ex. PW-8/C, in as much as her right
thumb had been burnt but, PW-7 Dr R.A. Gautam, has stated that it was
the right thumb impression of the Shahjahan which was taken on Ex.
PW- 8/C. We also note that, PW-8 ASI Jagbir Singh, however,
contradicted himself by stating, in his cross examination, which had been
conducted after a break of some time, that the right thumb of the
deceased had not been burnt.
15. There are other contradictions and inconsistencies in the testimony
of PW-8 AIS Jagbir Singh, in as much as he has stated that there was
no stove present in the room where the deceased Shahjahan is stated to
have got the burn injuries whereas the evidence of the photographer and
photos themselves clearly show that the stove was lying in the room.
PW-2 Constable Om Prakash, also gave the description of the scene in
which he has included the presence of the stove. PW-8 ASI Jagbir Singh
also stated that there was no crowd outside and inside the place of
occurrence. PW-14 Constable Narender, stated to the contrary. In fact,
PW-14 Constable Narender has clearly stated that about 100 to 150
persons were present.
16. Apart from the fact that the dying declaration, Ex- PW-8/C,
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does not inspire much confidence, there is also the important circumstance
that none of the family members of the deceased Shahjahan has supported
the case of the prosecution. PW-3 Chamman, who is the brother of the
deceased stated that he had not seen his sister alive after she had received
the burn injuries. PW-4 Mohd. Iqbal (another brother of the deceased),
stated that he had asked his sister as to what happened. She had simply
said it happened all of a sudden. PW-5 Noorjahan, who is the mother of
the deceased, stated that her daughter did not tell her anything regarding
the involvement of the appellants present in the court. She stated that her
daughter had become unconscious. On the other hand, PW-6 Sabu, who
is the husband of the deceased Shahjahan, stated that she had told him
that she caught fire on account of the stove while she was preparing
some food items.
17. Even the contents of dying declaration do not inspire much
confidence in as much as according to the said Ex. PW-8/C the incident
took place because Shahjahan’s son had been pushed by her sister-in-law
Rabia’s son and that she had accordingly complained to the mother-in-
law Akbari Begum who instead of controlling the situation scolded her
and therefore a quarrel ensued. Thereafter, all the appellants poured
kerosene oil upon her from behind. Akbari Begum lit the match stick.
The incident of one small child being pushed by another small child
escalating into such a serious event also does not seem to be probable.
In the same light, we may also notice the fact that Ex. PW-8/C ropes
in all the female members of the house, which are the four appellants
before us. We may also point out that the language in which dying
declaration is recorded is clearly not that of Shahjahan but is that of a
police officer.
18. For all these reasons, we cannot place reliance on Ex. PW-8/
C which is the main piece of evidence sought to be relied upon by the
prosecution. The conviction of the appellants in the absence of the PW-
8/C cannot be sustained. Consequently, the impugned judgment and order
on sentence are set aside. The appellants are on bail, therefore, their bail
bonds are cancelled and the sureties stand discharged.
The appeal is allowed.
ILR (2011) VI DELHI 340
CRL. A.
STATE GNCT OF DELHI ....APPELLANT
VERSUS
MUKESH ....RESPONDENT
(S. RAVINDRA BHAT & G.P. MITTAL, JJ.)
CRL. A. NO. : 21/2011 DATE OF DECISION: 20.05.2011
Indian Penal Code, 1860—Section 363, 376, 511, Criminal
Procedure Code, 1973—Sections 235, 245, 325, 360,
361, 377—Aggrieved by judgment and order on
sentence, State preferred appeal on ground, sentence
of two and a half years imprisonment for conviction
under Section 376/511 IPC inadequate and calls for
enhancement—Also, Trial Court fell into error in not
awarding minimum sentence of five years for attempting
rape—Per contra, amicus curiae on behalf of
Respondent urged that in appeal, by State on ground
of inadequacy of sentence, Accused/Respondent at
same time has liberty to plead for his acquittal or for
reduction of sentence—Thus, case to be considered
on merits—Held:- A proper sentence is amalgam of
many factors such as the nature of the offence,
circumstances extenuating or aggravating offence,
prior criminal record, if any, of offender, age of offender
as to employment, background of offender with
reference to education, home life, sobriety and social
adjustment, emotional and mental conditions of
offender, prospects for rehabilitation of offender,
possibility of return of offender to normal life in
community, possibility of treatment of training of
offender, possibility that sentence may serve as a
deterrent to crime by offender or by others and current
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community need, if any, for such a deterrent in respect
to particular type of offence—No reason found to
disturb conviction of Respondent, however, Court
would exercise and interfere with sentencing discretion
of trial Court “where inadequacy of sentence is gross
or glaring or shocks courts conscious”—In given facts
and conspectus of circumstances, does not warrant
interference in order on sentence.
Penology and sentencing in our country has remained an
underdeveloped concept. In several jurisdictions across the
world, sentencing choices are guided not only by the
subjective ‘‘facts of the case’’ but a whole variety of factors,
such as social investigation of the offender, his family
background, his social environment, behaviour, tendencies,
etc. These are apart from the more ‘‘traditional’’ factors such
as the history of previous offences or convictions, subjective
facts pertaining to the offender, such as age, gender,
gravity of the offence, circumstances leading to the offence,
etc. More often than not, these are factored into a set of
codified rules or regulations, which in some cases, prescribe
great details, and even mandate separate hearings, where
the judge is obliged to consider evidence presented in that
regard. Sadly, courts in this country do not have the benefit
of such specialized assistance. As a result, courts have to
fall back on judicially evolved standards and ad-hoc notions
of penology and theories while exercising discretion in
relation to offences where sentencing choices span a wide
spectrum of penalties and prison terms. Here, the courts
have to strike a balance between the need to impose an
‘‘adequate’’ sentence even while keeping in mind that the
choice has to ultimately sub serve a larger public purpose,
and not be one merely given for the ritualistic satisfaction of
notions like public justice. An offender found to have
committed a crime has to suffer conviction, and also a
punishment. However, if sentencing choices are dominated
by notions like popular justice or popularity demanded
sentences or punishments, it is ultimately the cause of
justice, and rule of law which suffers. A French philosopher
and mystic (Simone Weil (1909-43), in her “Draft for a
Statement of Human Obligations) said that:
‘‘Whenever a human being, through the commission
of a crime, has become exiled from good, he needs to
be reintegrated with it through suffering. The suffering
should be inflicted with the aim of bringing the soul to
recognize freely some day that its infliction was just.’’
(Para 12)
Important Issue Involved: A proper sentence is amalgam
of many factors such as the nature of the offence,
circumstances—Extenuating or aggravating—Of offence,
prior criminal record, if any, of offender, age of offender
as to employment, background of offender with reference
to education, home life, sobriety and social adjustment,
emotional and mental conditions of offender, prospects for
rehabilitation of offender, possibility of return of offender
to normal life in community, possibility of treatment of
training of offender, possibility that sentence may serve as
a deterrent to crime by offender or by others and current
community need, if any for such a deterrent in respect to
particular type of offence.
[Sh Ka]
APPEARANCES:
FOR THE APPELLANT : Mr. Sanjeev Bhandari, ASC for the
State.
FOR THE RESPONDENT : Mr. A.J. Bhambhani with Ms. Nisha
Bhambhani, Advocate. Mr. Victor
Ahanthem, Advocates.
CASES REFERRED TO:
1. State of M.P. vs. Bablu Natt,(2009) 2 SCC 272.
2. Mohd. Munna vs. Union of India 2005 (7) SCC 417.
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3. State of Karnataka vs. Krishnappa, (2000) 4 SCC 75.
4. Madan Lal vs. State of J&K, (1997) 7 SCC 677.
5. Mohd. Giasuddin vs. State of A.P., (1977) 3 SCC 287.
6. Santa Singh vs. State of Punjab, 1976 (4) SCC 190.
7. State of A.P. vs. Bodem Sundara Rao, (1995) 6 SCC
230.
RESULT: Appeal dismissed.
S. RAVINDRA BHAT, J.
1. The State had appealed against the judgment and order of the
learned Additional Sessions Judge in SC 80/2008. By the said judgment,
the respondent was convicted for the offences punishable under Sections
363 and 376/511 of IPC. The state contends that the sentence imposed
was inadequate, and calls for its enhancement.
2. The facts, as found by the Trial Court, were that on 17.03.2008,
the prosecutrix’s father handed over the respondent (accused before the
Trial Court), at about 3:45 PM. The police recorded the receipt of
complaint, and the minor prosecutrix’s statement, in her father’s presence.
She stated that when she was playing in the street, the respondent, a
neighbour took her to his room, saying that he would show a movie. He
then switched on a television, showing obscene pictures. When the
prosecutrix said that the movie was obscene, the respondent said that it
was good; he removed her underwear and laid her down. The prosecutrix
also stated that the respondent lowered his pants, and tried to insert his
‘‘urinating organ’’ (penis) into her ‘‘urinating place’’ which resulted in
her weeping, and raising a noise. He therefore, left the prosecutrix; she
went out to the street, weeping. Her father, who was entering the street,
inquired as to what was the matter, when she narrated all the events to
him. Her father called out the respondent and caught hold of him, and
later handed him over to the police.
3. The police, after recording the FIR and statements of some
witnesses, also got the prosecutrix medically examined. The doctor who
examined her did not depose during the trial. However, the Medico Legal
Certificate (MLC) Ex. PW-11/A was proved by PW-11 another doctor.
She said that the patient’s history, recorded in the document revealed
that:
‘‘There is no history of bleeding per vagina, pain perineum or
insertion of foreign body in vagina. On examination, general
physical examination was found to be normal. Pelvic examination,
the hymen was found to be intact. Vulval swab was prepared
and both the swab and underwear of the patient was sealed and
handed over to the Investigating Officer..’’
4. The respondent was arrested immediately after the incident, and
remained in custody throughout. He too was subjected to medical
examination. When charged with committing the offence, he denied guilt,
and claimed trial. By the impugned judgment, the Trial Court convicted
the respondent for the offence of attempt to commit rape under Section
376/511, as well as the offence punishable under Section 363. The Court
sentenced the respondent to one year imprisonment and fine, for the
latter offence; for the offence of attempted rape, the Court exercised its
powers under the proviso to Section 376 (1) and sentenced him to two
and a half years’ imprisonment. The respondent completed his sentence.
The State preferred its petition for leave to appeal, much later, after
expiry of the period of limitation, sometime in January, 2011. The court
granted leave on the issue of adequacy of sentence.
5. It was urged by the learned Additional Public Prosecutor (APP)
that the Trial Court fell into error in not awarding the minimum sentence,
for attempted rape. It was submitted that having regard to the provisions
of Sections 57 and 376(1) of the IPC, the sentencing choice was between
10 years and life imprisonment, for the offence of rape; as the court
convicted the respondent for attempt, the sentence was to be half.
Therefore, the minimum sentence which could have been awarded in the
case was 5 years. The judgment reported as Mohd. Munna v. Union of
India 2005 (7) SCC 417 was cited for saying that ‘‘life imprisonment’’
meant rigorous imprisonment for life, which for the purpose of reckoning
fractions, is to be 20 years. It was submitted that having regard to the
nature of the offence, the Trial Court did not take into consideration
relevant factors while awarding a lighter sentence. The learned APP
submitted that while the Court could have given a sentence which was
lighter than the minimum prescribed, the reasons for doing so should
have been adequate and sound. Attacking the Trial Court’s approach in
this context, it was submitted that the reasons given, i.e an ailing old
mother, the respondent being the sole earning member of his family, his
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youth, that he too had a young infant child to be cared for, could not
be called ‘‘special’’ for exercising discretion, which had to be on a
sounder footing. Emphasizing that discretion should be resorted to
judiciously, it was submitted that the crime and the offender had to be
justly dealt with, and the sentence awarded had to be proportionate to the
crime, having regard to the fact, which plainly was not the case in this
instance.
6. Mr. Bhambani, learned amicus curae submitted that by virtue of
Section 377 (2) while a State appeal on the ground of inadequacy of
sentence is permissible, and that the court cannot in such event enhance
sentence, without issuing notice to the accused, at the same time, Section
377 (3) enables the accused respondent, in case such an appeal against
sentence is preferred, to “plead for his acquittal or for the reduction of
the sentence.” Thus, the High Court has to consider the case on the
merits, when the accused respondent challenges the findings, in an appeal
confined only to the question of sentence inadequacy preferred by the
State.
7. It was urged that the prosecutrix was not clear about the precise
nature of the alleged act committed by the respondent; apart from stating
‘‘galat kaam’’ or wrong action, she did not say anything further, or
elaborate. Further, submitted the amicus, the evidence on the record was
to the effect that the accused had shown an obscene movie. However,
the prosecution did not establish how a small, minor girl could differentiate
between what was obscene and what was not. It was also urged that the
prosecutrix did not initially say anything about the alleged incident, and
did so only after the prosecution sought permission to put leading questions
and cross-examine her. It was next urged that there was a material
discrepancy between the witnesses’ account; whereas PW-2 deposed
that statements were recorded in the police station, immediately after the
matter was reported, PW-6 deposed that the police went to the
prosecutrix’s house, took her and the accused to the police station, and
later went to the hospital, after which the statements were recorded.
8. Learned counsel emphasized that since there was no evidence
either medical, or ocular, to corroborate the events narrated by the
prosecutrix, and the fact that she did so during cross examination by the
prosecution - after permission to do so was granted, and further that
nothing was found during medical examination of the accused, the finding
of guilt, recorded by the Trial Court, for attempted rape, was unsound,
and had to be set aside. It was submitted that though the law does not
require corroboration of a prosecutrix/ rape victim’s testimony, the other
materials on record should be credible to justify a conviction. In this
case, the court ought to have been even more circumspect, since the
prosecutrix was also a child witness.
9. Arguing next about sentence, it was submitted that assuming,
though not admitting that the prosecution had proved the accused’s guilt,
the court should not interfere with the sentencing choice exercised by the
Trial Court. The amicus relied on Mohd. Giasuddin v. State of A.P.,
(1977) 3 SCC 287, at page 293, where it was held as follows:
‘‘16. The new Criminal Procedure Code, 1973, incorporates
some of these ideas and gives an opportunity in Section 248(2)
to both parties to bring to the notice of the Court facts and
circumstances which will help personalise the sentence from a
reformative angle. This Court, in Santa Singh vs. State of
Punjab, 1976 (4) SCC 190, has emphasised how fundamental it
is to put such provision to dynamic judicial use, while dealing
with the analogous provisions in Section 235(2):
‘‘This new provision in Section 235(2) is in consonance with
the modern trends in penology and sentencing procedures. There
was no such provision in the old Code. It was realised that
sentencing is an important stage in the process of administration
of criminal justice - as important as the adjudication of guilt -
and it should not be consigned to a subsidiary position as if it
were a matter of not much consequence. It should be a matter
of some anxiety to the Court to impose an appropriate punishment
on the criminal and sentencing should, therefore, receive serious
attention of the Court.
Modern penology regards crime and criminal as equally material
when the right sentence has to be picked out. It turns the focus
not only on the crime, but also on the criminal and seeks to
personalise the punishment so that the reformist component is as
much operative as the deterrent element. It is necessary for this
purpose that facts of a social and personal nature, sometimes
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altogether irrelevant if not injurious, at the stage of fixing the
guilt, may have to be brought to the notice of the Court when
the actual sentence is determined.
A proper sentence is the amalgam of many factors such as the
nature of the offence, the circumstances - extenuating or
aggravating - of the offence, the prior criminal record, if any, of
the offender, the age of the offender, the record of the offender
as to employment, the background of the offender with reference
to education, home life, sobriety and social adjustment, the
emotional and mental conditions of the offender, the prospects
for the rehabilitation of the offender, the possibility of return of
the offender to normal life in the community, the possibility of
treatment or training of the offender, the possibility that the
sentence may serve as a deterrent to crime by the offender or
by others and the current community need, if any, for such a
deterrent in respect to the particular type of offence. These
factors have to be taken into account by the Court in deciding
upon the appropriate sentence.
The hearing contemplated by Section 235(2) is not confined
merely to hearing oral submissions, but it is also intended to give
an opportunity to the prosecution and the accused to place before
the Court facts and material relating to various factors bearing
on the question of sentence and if they are contested by either
side, then to produce evidence for the purpose of establishing
the same. Of course, care would have to be taken by the Court
to see that this hearing on the question of sentence is not abused
and turned into an instrument for unduly protracting the
proceedings. The claim of due and proper hearing would have to
be harmonised with the requirement of expeditious disposal of
proceedings.’’
17. It will thus be seen that there is a great discretion vested in
the Judge, especially when pluralistic factors enter his calculations.
Even so, the Judge must exercise this discretionary power,
drawing his inspiration from the humanitarian spirit of the law,
and living down the traditional precedents which have winked at
the personality of the crime-doer and been swept away by the
features of the crime. What is dated has to be discarded. What
is current has to be incorporated. Therefore innovation, in all
conscience, is in the field of judicial discretion.
18. Unfortunately, the Indian Penal Code still lingers in the
somewhat compartmentalised system of punishment viz.
imprisonment, simple or rigorous, fine and, of course, capital
sentence. There is a wide range of choice and flexible treatment
which must be available with the Judge if he is to fulfil his tryst
with curing the criminal in a hospital setting. Maybe in an
appropriate case actual hospital treatment may have to be
prescribed as part of the sentence. In another case, liberal parole
may have to be suggested and, yet in a third category, engaging
in certain types of occupation or even going through meditational
drills or other courses may be part of the sentencing prescription.
The perspective having changed, the legal strategies and judicial
resources, in their variety, also have to change. Rule of thumb
sentences of rigorous imprisonment or other are too insensitive
to the highly delicate and subtle operation expected of a sentencing
Judge. Release on probation, conditional sentences, visits to healing
centres, are all on the cards. We do not wish to be exhaustive.
Indeed, we cannot be.
19. Sentencing justice is a facet of social justice, even as
redemption of a crime-doer is an aspect of restoration of a
whole personality. Till the new Code recognised statutorily that
punishment required considerations beyond the nature of the
crime and circumstances surrounding the crime and provided a
second stage for bringing in such additional materials, the Indian
Courts had, by and large, assigned an obsolescent backseat to
the sophisticated judgment on sentencing. Now this judicial skill
has to come of age.’’
10. It was submitted that having regard to all the conspectus of
facts, particularly the age of the respondent, his family circumstances,
the fact that he had no previous record of convictions, or involvement
in any other crime, and that he co-operated with the prosecution at all
stages, and never ran away or tried to escape, etc. It was argued that
if prison sentence is aimed at reformation, the enhancement of sentence,
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in this case may not achieve any purpose, and may, on the contrary
result in ruination of the respondent, who had served his sentence, after
the Trial Court delivered its judgment. It was also submitted that the
Court should exercise appellate jurisdiction having regard to all the
circumstances, and interfere with sentencing choice of Trial Courts only
if the impugned judgement shocks the court’s conscience, and not
otherwise.
11. The above discussion reveals that the scope of this appeal is
narrow; it extends to considering whether the sentence imposed by the
Trial Court is ‘‘inadequate’’. Before dealing with that, it would be essential
to consider the respondent’s argument, impeaching the finding of guilt,
recorded against him, in respect of the attempt to commit rape. The
respondent correctly argues that the medical evidence did not establish
rape, or the ingredients of the offence he was convicted of. The court
is also conscious of the fact that the conviction is based solely on the
testimony of a child witness, who could not describe the facts accurately;
she had to be prompted to do so, by the APP, who was permitted to
cross-examine her. Yet, those cannot be circumstances prompting the
court to acquit the respondent. The court is conscious that though the
prosecutrix is a child witness, she is the victim; she could not have (nor
was shown to have) any reason for lying. Furthermore, in attempt to
commit rape, a fairly place common argument appears to be that the
offender did not commit any act, amounting to attempt, but at best had
done something which was preparatory to the commission of the offence.
Any debate on this aspect, at least in respect of the offence of attempted
rape, has been foreclosed by the binding judgment of the Supreme Court
in Madan Lal v. State of J&K, (1997) 7 SCC 677, where it was held
that:
“12. The difference between preparation and an attempt to commit
an offence consists chiefly in the greater degree of determination
and what is necessary to prove for an offence of an attempt to
commit rape has been committed is that the accused has gone
beyond the stage of preparation. If an accused strips a girl naked
and then making her lie flat on the ground undresses himself and
then forcibly rubs his erected penis on the private parts of the
girl but fails to penetrate the same into the vagina and on such
rubbing ejaculates himself then it is difficult for us to hold that
it was a case of merely assault under Section 354 IPC and not
an attempt to commit rape under Section 376 read with Section
511 IPC. In the facts and circumstances of the present case the
offence of an attempt to commit rape by the accused has been
clearly established and the High Court rightly convicted him under
Section 376 read with Section 511 IPC.’’
In view of the above discussion, the facts as found, and the ruling of
the Supreme Court, the court does not find any reason to disturb the
conviction of the respondent.
12. Penology and sentencing in our country has remained an
underdeveloped concept. In several jurisdictions across the world,
sentencing choices are guided not only by the subjective ‘‘facts of the
case’’ but a whole variety of factors, such as social investigation of the
offender, his family background, his social environment, behaviour,
tendencies, etc. These are apart from the more ‘‘traditional’’ factors
such as the history of previous offences or convictions, subjective facts
pertaining to the offender, such as age, gender, gravity of the offence,
circumstances leading to the offence, etc. More often than not, these are
factored into a set of codified rules or regulations, which in some cases,
prescribe great details, and even mandate separate hearings, where the
judge is obliged to consider evidence presented in that regard. Sadly,
courts in this country do not have the benefit of such specialized assistance.
As a result, courts have to fall back on judicially evolved standards and
ad-hoc notions of penology and theories while exercising discretion in
relation to offences where sentencing choices span a wide spectrum of
penalties and prison terms. Here, the courts have to strike a balance
between the need to impose an ‘‘adequate’’ sentence even while keeping
in mind that the choice has to ultimately sub serve a larger public purpose,
and not be one merely given for the ritualistic satisfaction of notions like
public justice. An offender found to have committed a crime has to
suffer conviction, and also a punishment. However, if sentencing choices
are dominated by notions like popular justice or popularity demanded
sentences or punishments, it is ultimately the cause of justice, and rule
of law which suffers. A French philosopher and mystic (Simone Weil
(1909-43), in her “Draft for a Statement of Human Obligations) said that:
‘‘Whenever a human being, through the commission of a crime,
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has become exiled from good, he needs to be reintegrated with
it through suffering. The suffering should be inflicted with the
aim of bringing the soul to recognize freely some day that its
infliction was just.’’
13. While considering the sentence, it would be apt to notice the
judgment reported as State of A.P. v. Bodem Sundara Rao, (1995) 6
SCC 230. The court upheld the conviction of the respondent, for the
offence of rape, and held that the minimum sentence was 10 years. The
courts below had imposed RI for 4 years; it was enhanced to seven
years. The court held that:
‘‘We, thus, consider it our plain duty to enhance the sentence in
this case. Keeping in view the facts and circumstances of this
case and the submissions made by the learned amicus curiae,
while maintaining the conviction of the respondent for the offence
under Section 376, Indian Penal Code, we enhance the sentence
of 4 years’ RI to 7 years’ RI, which is the minimum prescribed
sentence under the section, for we find no adequate or special
reasons to impose a sentence less than the prescribed minimum.
Necessary warrants shall be issued to take the respondent into
custody to undergo the remaining period of sentence.’’
In State of M.P. v. Bablu Natt, (2009) 2 SCC 272, the Supreme Court
upheld the sentence of four years imprisonment for rape of a minor,
when the lower courts had exercised jurisdiction under proviso to Section
376 (1). The court held that:
‘‘The principle governing imposition of punishment would depend
upon the facts and circumstances of each case. An offence
which affects the morale of the society should be severely dealt
with. Socio-economic status, religion, race, caste or creed of the
accused and the victim although may not be wholly irrelevant,
should be eschewed in a case of this nature, particularly when
Parliament itself had laid down minimum sentence. In India, we
do not have sentencing guidelines. Necessity of the guidelines on
the judicial side has been highlighted in State of Punjab v. Prem
Sagar1 wherein it was noticed: (SCC p. 553, paras 5-8)
‘‘5. Whether the court while awarding a sentence
would take recourse to the principle of deterrence or
351 352State GNCT of Delhi v. Mukesh (S. Ravindra Bhat, J.)
reform or invoke the doctrine of proportionality would no
doubt depend upon the facts and circumstances of each
case. While doing so, however, the nature of the offence
said to have been committed by the accused plays an
important role. The offences which affect public health
must be dealt with severely. For the said purpose, the
courts must notice the object for enacting Article 47 of
the Constitution of India.
6. There are certain offences which touch our social
fabric. We must remind ourselves that even while
introducing the doctrine of plea bargaining in the Code of
Criminal Procedure, certain types of offences had been
kept out of the purview thereof. While imposing sentences,
the said principles should be borne in mind.
7. A sentence is a judgment on conviction of a crime.
It is resorted to after a person is convicted of the offence.
It is the ultimate goal of any justice-delivery system.
Parliament, however, in providing for a hearing on
sentence, as would appear from sub-section (2) of Section
235, sub-section (2) of Section 248, Section 325 as also
Sections 360 and 361 of the Code of Criminal Procedure,
has laid down certain principles. The said provisions lay
down the principle that the court in awarding the sentence
must take into consideration a large number of relevant
factors; sociological backdrop of the accused being one
of them.
8. Although a wide discretion has been conferred
upon the court, the same must be exercised judiciously.
It would depend upon the circumstances in which the
crime has been committed and his mental state. Age of
the accused is also relevant.’’
14. In a previous ruling, the Supreme Court had held that there
cannot be any cast iron rule about what constituted relevant factors while
exercising jurisdiction for ‘‘special’’ reasons, in imposing a sentence
which was less than the minimum prescribed in the case of rape. This
was in State of Karnataka v. Krishnappa, (2000) 4 SCC 75 where it
was held that:
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interference.
16. For the above reasons, the appeal has to fail, and is accordingly
dismissed.
ILR (2011) VI DELHI 354
CRL. APPEAL
STATE (GOVT. OF NCT OF DELHI) ....APPELLANT
VERSUS
GIRDHARI LAL VERMA ....RESPONDENT
(MUKTA GUPTA, J.)
CRL. APPEAL NO. : 90/1999 DATE OF DECISION: 30.05.2011
Indian Penal Code, 1860—Section 161—Prevention of
Corruption Act, 1947—Sections 5(1) (d) and Sections 5
(2)—Respondent was supervisor of Delhi Cantt. Area—
He demanded Rs. 400/- for correction of electoral rolls
and addition of votes deleted—Raid conducted—
Respondent apprehended—After trial, the respondent
was acquitted—Appeal preferred by State—Held—It is
evident that in the entire testimony of PW-3 it is
nowhere stated that the Respondent demanded
money—This evidence of PW3 is also corroborated by
PW 4 who also in his testimony does not state that the
Respondent demanded money; rather has stated that
at no stage money was demanded by the Respondent
either initially or at the time of trap—To constitute an
offence under Section 161 IPC & Section 5 (1) (d) of
the Prevention Corruption Act it is necessary that
there is a demand of money and the same is accepted
for doing a favour—Demand of Money is a sine qua
non for the conviction of the accused—Thus, in the
353 354State GNCT of Delhi v. Mukesh (S. Ravindra Bhat, J.)
‘‘Thus, the normal sentence in a case where rape is committed
on a child below 12 years of age, is not less than 10 years’ RI
though in exceptional cases ‘‘for special and adequate reasons’’
sentence of less than 10 years’ RI can also be awarded. It is a
fundamental rule of construction that a proviso must be
considered with relation to the principal matter to which it stands
as a proviso particularly in such like penal provisions. The courts
are obliged to respect the legislative mandate in the matter of
awarding of sentence in all such cases. Recourse to the proviso
can be had only for ‘‘special and adequate reasons’’ and not in
a casual manner. Whether there exist any ‘‘special and adequate
reasons’’ would depend upon a variety of factors and the peculiar
facts and circumstances of each case. No hard and fast rule can
be laid down in that behalf of universal application.’’
15. In this case, the offence for which the respondent was convicted
was attempted rape, though he was charged for the offence of rape. The
circumstances also show that the prosecutrix, a minor was unable to
depose about the incident; the prosecution cross examined her to elicit
details of the facts. The respondent and prosecutrix were both medically
examined; nothing was discerned. The respondent co-operated with the
prosecution in the investigation. All these were taken into consideration
by the Trial Court. It also considered the offender’s age, as well as his
previous (lack of) record. The materials also did not suggest his propensity
to commit crimes. The accused respondent was an under trial prisoner
for the entire duration of the proceedings before the Trial Court. He
continued to be incarcerated after the impugned judgment was delivered,
and having completed his sentence, was set free. The State does not
dispute that the factors cited by the Trial Court when it chose to impose
the sentence that it did, actually existed. The court has regard to all these
circumstances, and the further fact that this Court would exercise and
interfere with sentencing discretion of the Trial Court in a given case
where the ‘‘inadequacy’’ of sentence is gross or glaring, or shocks the
court’s conscience, and also recollects the decisions of the Supreme
Court noticed in the preceding parts of this judgment, where the sentence
in the case of rape was enhanced from four to seven years, though the
minimum prescribed in the category of rape was imprisonment for ten
years. The court considers that the impugned judgment and order on sente
ce, in the given facts and conspectus of circumstances, does not warran
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absence of demand and the presumption, the offence
punishable under Sections 161 and 5 (1) (d) read with
5 (2) of the PC Act has not been proved beyond
reasonable doubt by the prosecution in the present
case.
The next issue that arises is whether the prosecution has
proved the demand by the respondent at the time of trap.
PW3 Jaipal Singh was accompanied by PW4, the panch
witness and the driver. PW 3 does not depose in his
testimony that the Respondent demanded money while
sitting on the rear seat of the car along with him. According
to PW 3, he stated to the Respondent that he had brought
the papers relating to one public booth as also the money
and requested him to correct the voters list for one polling
booth. The Respondent told him that he had some work at
his office at 5, Alipur Road regarding the transfers and that
he would do the work first and then accept the papers and
the money. The Respondent then enquired about PW4 Mr.
Khanna, to which PW 3 replied that PW 4 wanted permit for
cement and he had to get him the permit. PW3 again
offered money to the Respondent but he was reluctant and
he took the car to the office of Food & Civil Supply, Under
Hill Road. PW3 again offered him the money at the Food &
Civil Supply Office, but the Respondent told him that they
had to go to the office at Begum Zaidi Marg and he would
accept the money there. On the pretext of going to the office
of the Civil supplies PW3 and PW4 came out of the car and
informed PW7 that the Respondent would take money only
in Zaidi Market. He also told the Inspector that they would
reach the Market by 6.30P.M. whereas, the Respondent
remained seated in the car. They came back and got into
the car. On reaching Begum Zaidi Market, PW3 got down
and went to the office for 2-4 minutes while PW4 and the
Respondent remained seated in the car. PW3 came back.
He again offered the money to the Respondent while sitting
in the car and gave money and papers. The Respondent
took the money in his left hand and list in the right hand on
which PW4 gave the signal to the raiding party. It is thus
evident that in the entire testimony of PW3 it is nowhere
stated that the Respondent demanded money. ˇThis
evidence of PW3 is also corroborated by PW 4 who also in
his testimony does not state that the Respondent demanded
money rather has stated that at no stage money was
demanded by the Respondent either initially or at the time
of trap. Though, it is stated that money was given to the
Appellant along with the voters list for correction and
objections however, no documents have been seized from
the right hand of the Appellant. No explanation has been
offered by the prosecution as to why these papers were not
recovered from the right hand of the Appellant by the
raiding officer. (Para 7)
It is now to be examined that in the absence of any demand,
would mere acceptance of money implicate the Respondent
for offence punishable under Section 161 IPC and Section
5(1) (d) read with Section 5(2) of the PC Act, specially when
the corroboration evidence of post raid proceedings is not
authentic. Demand is an essential ingredient for an offence
punishable under Sections 161 IPC and 5 (1) (d) read with
5 (2) of the PC Act. Section 4 of the PC Act lays down a
statutory presumption that in any trial for offence punishable
under Section 161 of the IPC or 5(1) (a) or (b) punishable
under Section 5(1) the Court is duty bound to raise a
presumption after it is proved that an accused person has
accepted or obtain or admitted to obtain for himself or any
other person any gratification or any valuable thing. This
presumption is not available for offence punishable under
Section 5(1) (d) read with Section 5(2) of the PC Act.
Hon’ble Supreme Court in Banarsi Dass Vs. State of
Haryana (2010) SCC 450 has held that to constitute an
offence under Section 161 IPC & Section 5(1)(d) of the PC
Act it is necessary that there is a demand of money and the
same is accepted for doing a favour. Demand of Money is
a sine qua non for the conviction of the accused. Thus, in
the absence of demand and the presumption, the offence
355 356 State (Govt. of NCT of Delhi) v. Girdhari LaL Verma (Mukta Gupta, J.)
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punishable under Sections 161 and 5(1) (d) read with 5(2)
of the PC Act has not been proved beyond reasonable
doubt by the prosecution in the present case. (Para 8)
Important Issue Involved: For constituting offence under
Section 161 IPC and Section 5 (1) (d) of Prevention of
Corruption Act, 1947, it is necessary that there is demand
of money and same is accepted for doing a favour.
[Vi Ba]
APPEARANCES:
FOR THE APPELLANT : Mr. Manoj Ohri, APP for the State.
FOR THE RESPONDENT : Mr. K.B. Andley, Sr. Advocate with
Mr. M. Shamikh, Advocate.
CASES REFERRED TO:
1. Banarsi Dass vs. State of Haryana (2010) SCC 450.
2. Ganpat vs. State of Haryana, 2010 (10) SCALE 237.
3. State of Andhra Pradesh vs. S. Swarnlatha & Ors. 2009
(4) C.C.C. (SC) 168.
4. Sri Chand Gaur vs. CBI Crl. Appeal No. 252/2001.
RESULT: Appeal dismissed.
MUKTA GUPTA, J.
1. This is an appeal against acquittal filed by the State wherein the
Respondent after a trial by the learned Special Judge was acquitted for
offence punishable under Section 161 IPC and Section 5(1) (d) read with
Section 5(2) of the Prevention of Corruption Act, 1947(in short ‘PC
Act’) in case FIR No. 33/1987 at P.S. Anti Corruption Branch, Delhi.
2. Briefly the prosecution case is that the Complainant PW3, Jaipal
Singh the Vice President of Yuva Janta Morcha on 4th December, 1987
lodged a complaint Ex. PW3/A with the Anti Corruption Branch that
during the checking of votes from door-to-door by the supervisors of the
election office, one Girdhari Lal Verma (Respondent herein) who was the
supervisor of the Delhi Cantt area came to his office and told him that
he had deleted 800 votes of Naraina area. The Respondent also dismissed
the objections filed by the Complainant in respect of jhuggis situated in
Kirby Place, Subroto Park and Dhaula Kuan. When PW3 wanted the
electoral rolls to be corrected, the Respondent demanded Rs. 400/- for
every polling booth. The Respondent also told the Complainant that if the
complainant filed a claim, he would correct the votes deleted by him.
PW3 alleged that even his name has been deleted from the list of voters.
On the complaint of PW3, PW4 Sh. J.L. Khanna was associated as
panch witness and pre-raid formalities by noting the numbers of the four
currency notes of Rs. 100/- denomination were prepared. The said notes
were treated with phenolphthalein powder. Since the appointed place of
giving the bribe amount was at Bus stand on Ridge Road near Dhaula
kuan, the raiding party reached at the spot. On reaching the appointed
place, PW3, the complainant told the raiding officer that he would be
going towards old secretariat in his vehicle bearing No. DBR 65 and, the
transaction would take place in the car on the way. The Maruti Van of
PW3 bearing No. DBR 65 came at about 2:15 P.M. PW4, J.L. Khanna
sat on the front seat by the side of the driver and PW3 and the Respondent
on the rear seat. At about 3:00 P.M. the vehicle reached 5, Alipur Road
at the office of Delhi Administration and from there the Maruti Van went
to the office of Food & Supply situated at Under Hill Road. At 3:30 P.M.
PW3 told the raiding party that the Respondent would be taking the bribe
at Begum Zaidi Market, Moti Bagh where the office of Yuva Janta Morcha
was situated and they would be reaching at the spot about 6:30 P.M. The
raiding party took position at the said market. At about 6:30 P.M. Maruti
Van reached the spot where PW3 again offered money to the Respondent
and when PW4 gave the pre-appointed signal, the raiding party rushed
towards the Maruti Van and apprehended the Respondent. Rs.400/- were
recovered from the left hand of the Respondent. Numbers of the G.C.
notes were tallied and the left hand wash of the Respondent turned pink.
The same were seized and sealed in a glass bottle. The Respondent was
arrested and FIR was registered. On completion of investigation, charge-
sheet was filed. After recording of the prosecution ˇwitnesses, statement
of the Respondent was recorded. The Respondent was acquitted vide the
impugned judgment dated 20th November, 1997.
3. Learned APP for the State contends that the date of incident is
357 358 State (Govt. of NCT of Delhi) v. Girdhari LaL Verma (Mukta Gupta, J.)
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4th December, 1987 and the Respondent was on leave on that day. The
learned trial court while acquitting the Respondent has laid a lot of
emphasis on the change of place of payment from Dhaula Kuan to Alipur
Road to Moti Bagh near the office of the Complainant. The change of
place was only an over-cautious approach of the Respondent and in no
way belied the prosecution case. The trial court failed to appreciate that
PW 3 the Complainant was cross-examined on the 9th February, 1996
after more than six years and thus variations are bound to take place in
his testimony. In his statement under Section 313 Cr.P.C., the Respondent
had admitted most of the facts except saying that he has been falsely
implicated. The testimony of PW3, the Complainant is corroborated by
the testimony of PW4 J.L. Khanna, the panch witness who accompanied
PW3 throughout in the van. The conduct of the Respondent becoming
nervous on seeing the raiding party is relevant under Section 8 of the
Evidence Act. Slight variations in the testimony of PW4 as to how the
Respondent was holding the bribe amount has been clarified in his cross-
examination by the learned APP. Moreover the testimony of this witness
was recorded after nine years of the incident and thus variations are
ˇbound to occur in the said testimony. The contradiction between the
statements of PW3 and PW4 as to whether the post raiding work was
done at the office of Anti Corruption Branch or on the spot does not go
to the root of the prosecution case and thus the Respondent could not
have been acquitted on the said ground. The evidence of PW3 and PW4
is further corroborated by the testimony of PW7 the raid officer Insp.
Abhay Ram. The CFSL report Ex. PW6/B further corroborates the
testimony of the witnesses as it opined that the solution gave positive test
for phenolphthalein and sodium carbonate. Referring to a decision of this
Court in Sri Chand Gaur vs. CBI Crl. Appeal No. 252/2001 it is
contended that when witnesses are examined after a longtime, variations
are bound to occur and accused cannot be granted benefit of those minor
variations which do not go to the root of the matter.
4. Per Contra learned counsel for the Respondent has placed reliance
on State of Andhra Pradesh vs. S. Swarnlatha & Ors. 2009 (4)
C.C.C. (SC) 168 to contend that in an appeal against acquittal if two
views are possible and the view taken by the learned trial court is probable
then the Appellate Court will not interfere. It is contended that the trial
of the Respondent was conducted under the PC Act, 1947 where unlike
the Act of 1988 presumption was not available. Thus, the evidence of the
prosecution has to be examined in the light of these two legal principles.
PW1 Ram Kishan, Food and Civil Supply Officer in his cross-examination
has stated that SDM alone was competent to uphold the objection and
rectify the list. Thus, it was not in the competence of the Respondent
to rectify the list or make additions/alterations to the same. In the absence
of such a power vested in the Respondent, he could have neither demanded
the bribe nor would have been given the bribe for this work. PW 3 the
Complainant himself in his examination-in-chief has given the reason for
false implication of the Respondent. PW3 has admitted that he was an
active worker of a political party and his vote has been deleted from the
list of voters from the polling booth No. 41. The conduct of the
Respondent declining the money after being offered four times is not in
consonance with demand and acceptance of bribe. No evidence has been
led to show that PW3 had filled the claim forms and no such document
supporting the claim has been exhibited. Only photocopies were placed
on record which were not accepted and were only marked by the learned
Trial Court. Thus, the same cannot be read in evidence. Even, the
complaint Ex. PW3/A does not indicate the date, month and the year of
initial demand and thus this fact being stated for the first time in the
examination in chief shows that it was a clear improvement in the testimony
of PW3. PW3 has been duly confronted on this count. There are material
improvements in the testimony of PW3 i.e. his having stated that the
money was to be paid at Ridge Road, Dhaula Kuan and stating in his
cross-examination that he does not know which of the worker had filled
up the claim forms. In regard to the original document, he has stated that
the original documents must be in the party office and no verification of
the claim form has been done by the investigating agency. There are
contradictions in the testimony of PW4, the Panch witness also who has
further stated that the money was kept by the respondent in his front
pocket which was recovered by the Inspector. This witness has further
stated that the Seizure memo of the papers recovered from accused was
also prepared by the Police officials. PW 4 who was sitting in the front
seat has in his cross-examination stated that the Respondent did not
demand any money at any stage. In the absence of demand, no case for
conviction under PC Act is made out. There is also discrepancy as to the
place where the writing work i.e. the seizure memo etc. were filled and
the hand wash of the respondent was taken. PW4 has stated that the
hand wash was taken at the office of Anti Corruption Branch whereas
359 360 State (Govt. of NCT of Delhi) v. Girdhari LaL Verma (Mukta Gupta, J.)
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the other witnesses have stated that the same was done at the spot and
thus showing total manipulation. This part of the cross-examination has
not been challenged by the prosecution and no re-examination of the
witness has been conducted to clarify on the aspect that where the
proceedings took place. All the witnesses have admitted that the Respondent
did not make any demand throughout and PW3 was clearly instructed to
give the money only when the demand was made. Thus, in the absence
of the demand, no money could have been paid to the Respondent. PW7
Inspector Abhey Ram in his cross-examination has admitted that he did
not seize any objections or any photocopies thereof and thus the
photocopies of the said documents placed on record have been planted.
The decision of the trial Court acquitting the accused as the prosecution
has failed to prove its case beyond reasonable doubt is correct. Thus,
there being no illegality or perversity in the impugned judgment the present
appeal be dismissed.
5. I have heard learned counsel for the parties and perused the
record. Conscious of the limitation of interference in an appeal against
acquittal, I would now proceed to examine the evidence on record and
examine whether the judgment on the basis of said evidence falls in any
of the categories laid down by the Hon’ble Supreme Court in case of
Ganpat vs. State of Haryana, 2010 (10) SCALE 237 i.e. whether the
learned trial court has ignored material evidence or material legal aspect.
In case two views are possible, this Court will not interfere in this appeal
against acquittal.
6. PW3 Jaipal Singh is the Complainant of the case. According to
him, the Appellant told him to pay Rs. 400/- per polling booth and on the
Complainant giving fresh objections thereafter he would set everything
right. There were number of polling booths and number of discrepancies
in the voter lists. In was finally agreed with the Respondent to pay him
Rs. 400/- only on 4th December, 1987 for one polling both. However,
as per the complainant it was not decided for which polling booth this
money was to be paid. The same sounds highly improbable. When the
money was agreed to be paid, the polling booth for which it was being
paid would have also been decided. This part of the testimony of PW3
is also not supported by the documents which were allegedly given in the
form of list and objections. It has also not been proved for which polling
booth the same related to. There is no doubt that during elections, the
361 362 State (Govt. of NCT of Delhi) v. Girdhari LaL Verma (Mukta Gupta, J.)
time available with the political parties is short and the Complainant
would not wait to pay in installments and get the list corrected for one
polling booth when it is not even decided for which one it is. I do not
find the testimony of PW3 to be reliable on this count.
7. The next issue that arises is whether the prosecution has proved
the demand by the respondent at the time of trap. PW3 Jaipal Singh was
accompanied by PW4, the panch witness and the driver. PW 3 does not
depose in his testimony that the Respondent demanded money while
sitting on the rear seat of the car along with him. According to PW 3,
he stated to the Respondent that he had brought the papers relating to one
public booth as also the money and requested him to correct the voters
list for one polling booth. The Respondent told him that he had some
work at his office at 5, Alipur Road regarding the transfers and that he
would do the work first and then accept the papers and the money. The
Respondent then enquired about PW4 Mr. Khanna, to which PW 3
replied that PW 4 wanted permit for cement and he had to get him the
permit. PW3 again offered money to the Respondent but he was reluctant
and he took the car to the office of Food & Civil Supply, Under Hill
Road. PW3 again offered him the money at the Food & Civil Supply
Office, but the Respondent told him that they had to go to the office at
Begum Zaidi Marg and he would accept the money there. On the pretext
of going to the office of the Civil supplies PW3 and PW4 came out of
the car and informed PW7 that the Respondent would take money only
in Zaidi Market. He also told the Inspector that they would reach the
Market by 6.30 P.M. whereas, the Respondent remained seated in the
car. They came back and got into the car. On reaching Begum Zaidi
Market, PW3 got down and went to the office for 2-4 minutes while
PW4 and the Respondent remained seated in the car. PW3 came back.
He again offered the money to the Respondent while sitting in the car and
gave money and papers. The Respondent took the money in his left hand
and list in the right hand on which PW4 gave the signal to the raiding
party. It is thus evident that in the entire testimony of PW3 it is nowhere
stated that the Respondent demanded money. This evidence of PW3 is
also corroborated by PW 4 who also in his testimony does not state that
the Respondent demanded money rather has stated that at no stage
money was demanded by the Respondent either initially or at the time of
trap. Though, it is stated that money was given to the Appellant along
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with the voters list for correction and objections however, no documents
have been seized from the right hand of the Appellant. No explanation has
been offered by the prosecution as to why these papers were not recovered
from the right hand of the Appellant by the raiding officer.
8. It is now to be examined that in the absence of any demand,
would mere acceptance of money implicate the Respondent for offence
punishable under Section 161 IPC and Section 5(1) (d) read with Section
5(2) of the PC Act, specially when the corroboration evidence of post
raid proceedings is not authentic. Demand is an essential ingredient for
an offence punishable under Sections 161 IPC and 5 (1) (d) read with
5 (2) of the PC Act. Section 4 of the PC Act lays down a statutory
presumption that in any trial for offence punishable under Section 161 of
the IPC or 5(1) (a) or (b) punishable under Section 5(1) the Court is duty
bound to raise a presumption after it is proved that an accused person
has accepted or obtain or admitted to obtain for himself or any other
person any gratification or any valuable thing. This presumption is not
available for offence punishable under Section 5(1) (d) read with ˇSection
5(2) of the PC Act. Hon’ble Supreme Court in Banarsi Dass Vs. State
of Haryana (2010) SCC 450 has held that to constitute an offence under
Section 161 IPC & Section 5(1)(d) of the PC Act it is necessary that
there is a demand of money and the same is accepted for doing a favour.
Demand of Money is a sine qua non for the conviction of the accused.
Thus, in the absence of demand and the presumption, the offence
punishable under Sections 161 and 5(1) (d) read with 5(2) of the PC Act
has not been proved beyond reasonable doubt by the prosecution in the
present case.
9. In the light of the facts elaborated above, I find that there is
neither any illegality nor perversity in the view taken by the learned Trial
Court. The impugned judgment does not warrant any interference. Appeal
is dismissed.
ILR (2011) VI DELHI 364
CS (OS)
IHHR HOSPITALITY PVT. LTD. ....PLAINTIFF
VERSUS
BESTECH INDIA PVT. LTD. ....DEFENDANT
(V.K. JAIN, J.)
CS (OS) NO. : 207/2011 DATE OF DECISION: 31.5.2011
Code of Civil Procedure, 1908—Order 39, Rule 1 & 2—
Permanent Injunction—Trade Marks Act, 1999—
Deceptive similarity—Plaintiff owning and managing
destination spas, luxury business leisure hotels in
India and abroad providing services under Trade Mark
and Service Mark ‘Ananda’—Pre-launch advertising
campaign of residential complex under name ‘Park
View Ananda’ launched by defendant for promoting
residential complexes—Claim of plaintiff that defendant
adopted well known mark ‘Ananda’ to create
association with plaintiff’s properties and to ride on
goodwill and reputation of plaintiff—Held, difficult to
accept that trade mark ‘Ananda’ had become a well
known trade mark or that it came to be associated
exclusively with plaintiff’s company so as to indicate a
connection with the plaintiff company—No material on
record to show that the mark ‘Ananda’ had acquired
such a high brand equity in India that its use by
persons other than plaintiff would dilute its reputation—
Difficult to say that word ‘Ananda’ had become
distinctive with plaintiff company— No evidence of
any legal proceedings having been initiated by the
plaintiff company against registration and/or user of
‘Ananda’ by others—Goods and services of defendant
in wholly unrelated category compared to plaintiff—
Plaintiff failed to make out prima facie case for grant
363 364 State (Govt. of NCT of Delhi) v. Girdhari LaL Verma (Mukta Gupta, J.)
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of injunction against defendant—Application dismissed.
[Ad Ch]
APPEARANCES:
FOR THE PLAINTIFF : Mr. Neeraj Grover, Advocate.
FOR THE DEFENDANT : Mr. Arun Bhardwaj, Sr. Advocate
with Mr. Manish Sharma and Mr.
Amit Bhardwaj, Advocate.
RESULT: Application Dismissed.
V.K. JAIN, J.
IA No. 1376/2011 (O. 39 R. 1&2 CPC)
1. This is a suit for permanent injunction. The plaintiff-company
claims to be engaged in the ownership and management of Destination
Spas, luxury business and leisure hotels in India and destinations around
the world, including Mauritius and is providing services under the ˇtrade
and service mark “Ananda”, which if claims to be its well-known mark
in India and abroad. According to the plaintiff-company, the aforesaid
mark was adopted by it way back in 1998 and it is registered in India
under class 5 in respect of Ayurvedic and herbal preparations; class 30
in respect of breads, biscuits, cakes, pastries, confectioneries, sauces
and spices; class 03 in respect of bath salts for toilets purposes; essential
oils, shampoos, potpourri, herbs and herbal preparations; class 21 in
respect of potteries, crockery and glassware; class 42 in respect of
health resort, hotels and spa. The plaintiff-company is running a hotel
and spa resort in the foothills of Himalayas under the name “Ananda”
which attracts numerous visitors and travellers from India and other
countries and has been voted as world’s best destination spa for three
years. One spa has been opened by the plaintiff in Mauritius under the
name “Shanti Ananda Maurice” which is a joint venture with C&C
Hospitality. It is also claimed that Ananda hotels of the plaintiff-company
have featured in various magazines and newspapers, including New York
Times; The Times; London, Times of India and Economic Times. The
plaintiff has opened Ananda Spa Institute in the premises of its ˇluxurious
hotel ISTA in Hyderabad. It is alleged that the plaintiff-company incurred
advertising and promotion expenses of Rs 2,24,20,644/- Rs 3,93,30,123/
- and Rs.3,02,44,285/- in the years 2007, 2008 and 2009 respectively.
The gross revenue of the plaintiff-company from its spa properties is
stated to be Rs 30,28,12,673/-, Rs 28,68,56,855/- and Rs 31,33,92,622/
- respectively during these years.
It is alleged that the mark Ananda has achieved such distinctiveness
and degree of association with the plaintiff-company that use of an
identical or a deceptively similar mark in relation to any services or goods
is likely and bound to be taken as indicating a connection between those
goods or services and the services of the plaintiff under the mark ‘Ananda’.
2. It is alleged that in August 2010, the plaintiff’s attention was
drawn to the pre-launch advertising campaign of a residential complex
under the name ‘Park View Ananda’. The defendant was thereby promoting
residential complex to be launched in Sector 81 of Gurgaon, near NH-
8. The proposed residential complex is to feature a number of amenities
like swimming pool, health club and gym. The defendant has also been
sending SMS, promoting its property under the name ‘Park View Ananda’.
The plaintiff-company sent a cease and desist notice to the defendant; in
reply to which, it was claimed by the defendant that it was engaged in
real estate and hospitality industry and was primarily involved in
establishment of a number of business hotels and was also developing a
resort besides development of another property called 'Park View Spa in
the vicinity of the site for the ‘Park View Ananda’. It is claimed that the
defendant has adopted the mark ‘Ananda’ as the name of its proposed
residential complex in order to create an association with the plaintiff’s
well-known Ananda properties and to ride on the goodwill and reputation
of the plaintiff-company. It is also alleged that a number of websites are
promoting Park View Ananda on behalf of the defendant though the
board on the site no more displays this name. The defendant also published
an advertisement in Times of India on January 12, 2011, promoting its
project “Park View Ananda” which is also to feature a club with modern
amenities, including a spa and separate Yoga Huts. It is also claimed that
the overseas clients of the plaintiff-company are likely to be attracted to
the project of the defendant under the mistaken belief that the plaintiff-
company is in some way connected to the aforesaid complex and in case
the excellence which is available in the spas of the plaintiff, is not found
in the complex of the defendant, they would form an unfavourable
perception about the brand of the plaintiff-company and would also cease
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to associate the mark Ananda exclusively with the plaintiff-company,
thereby causing irreparable damage to the plaintiff-company and its
reputation and goodwill. The plaintiff has accordingly sought an injunction,
restraining the defendant from using the mark “Ananda’’ with or without
the conjunction of any other mark which is deceptively similar to the
plaintiff’s registered mark ‘Ananda’.
3. The defendant has contested the suit and has stated that the
words being used by it to describe its products are “Bestech Parkview
Ananda” with three words being used conjunctively and written in a
particular artistic manner with an artistic logo in the middle of the three
words and there is absolutely no similarity between the visual manner and
context of the word ‘Ananda’ as used by the defendant vis-à-vis the
word ‘Ananda’, used by the plaintiff. It is also alleged that the plaintiff
is not in the same business of the defendant and the mark of the plaintiff-
company has not become a well-known trademark, within the meaning
of Section 11 of Trademarks Act. It is also pointed out that the business
of the plaintiff is located in Tehri Garwal while the business of the
defendant is located at Gurgaon. It is also stated that the revenue of the
defendant-company was Rs 1,02,97,00,504/-, Rs 2,25,02,13,525/- and
Rs 2,61,60,52,083/- in the years 2008, 2009 and 2010 respectively. It is
also submitted that the defendant has applied for registration of its
trademark in classes 36 and 37 and is awaiting registration.
It is also alleged by the defendant that the word ‘Ananda’ is not a
coined word and the plaintiff can claim no exclusive right to its usage,
the word signifying one of the two female forms of the male Indian
name, Anand. It is also claimed that the root for the name Ananda is a
Sanskrit word meaning “bliss” and, therefore, the meaning of Ananda
can be said to be great joy and great happiness and denoting the state of
mind of happiness and the same is not confined to the hotels of the
plaintiff. It is also alleged that registration has been granted to Ananda
Utsav with label, Anandam with label, Ananda Valley, Ananda Sai with
logo and Anandamaya Wellness Centre, all in class 42 in which the
plaintiff claims registration which shows that even in its own class, the
plaintiff does not have exclusive, distinct and sole right to use of the
trademark ‘Ananda’.
4. I had an opportunity to examine the concept of a well-known
mark in CS(OS) No.264/2008, decided on 28th March, 2011. This Court,
referring to the concept of a well-known trade mark, inter alia, observed
as under:-
“A well known trademark is a mark which is widely known to
the relevant general public and enjoys a comparatively high
reputation amongst them. On account of advancement of
technology, fast access to information, manifold increase in
international business, international travel and advertising/publicity
on internet, television, magazines and periodicals, which now are
widely available throughout the world, of goods and services
during fairs/exhibitions, , more and more persons are coming to
know of the trademarks, which are well known in other countries
and which on account of the quality of the products being sold
under those names and extensive promotional and marketing
efforts have come to enjoy trans-border reputation. It is, therefore,
being increasingly felt that such trademark needs to be protected
not only in the countries in which they are registered but also in
the countries where they are otherwise widely known in the
relevant circles so that the owners of well known trademarks are
encouraged to expand their business activities under those marks
to other jurisdictions as well.
The relevant general public in the case of a well known trademark
would mean consumers, manufacturing and business circles and
persons involved in the sale of the goods or service carrying
such a trademark.
The doctrine of dilution, which has recently gained momentum,
particularly in respect of well known trademarks emphasizes that
use of a well known mark even in respect of goods or services,
which are not similar to those provided by the trademark owner,
though it may not cause confusion amongst the consumer as to
the source of goods or services, may cause damage to the
reputation which the well known trademark enjoys by reducing
or diluting the trademark’s power to indicate the source of goods
or services.
Another reason for growing acceptance of trans-border reputation
is that a person using a well known trademark even in respect
of goods or services which are not similar tries to take unfair
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advantage of the trans-border reputation which that brand enjoys
in the market and thereby tries to exploit and capitalize on the
attraction and reputation which it enjoys amongst the consumers.
When a person uses another person’s well known trademark, he
tries to take advantage of the goodwill that well known trademark
enjoys and such an act constitutes an unfair competition.
The concept of confusion in the mind of consumer is critical in
actions for trademark infringement and passing off, as well as in
determining the registrability of the trademark but, not all use of
identical/similar mark result in consumer confusion and, therefore,
the traditionally principles of likelihood of confusion has been
found to be inadequate to protect famous and well known marks.
The world is steadily moving towards stronger recognition and
protection of well known marks. By doing away with the
requirement of showing likelihood of confusion to the consumer,
by implementing anti-dilution laws and recognizing trans-border
or spill over reputation wherever the use of a mark likely to be
detrimental to the distinctive character or reputation of an earlier
well known mark. Dilution of a well known trademark occurs
when a well known trademark loses its ability to be uniquely and
distinctively identify and distinguish as one source and consequent
change in perception which reduces the market value or selling
power of the product bearing the well known mark. Dilution
may also occur when the well known trademark is used in
respect of goods or services of inferior quality. If a brand which
is well known for the quality of the products sold or services
rendered under that name or a mark similar to that mark is used
in respect of the products which are not of the quality which the
consumer expects in respect of the products sold and/or services
provided using that mark, that may evoke uncharitable thoughts
in the mind of the consumer about the trademark owner’s product
and he can no more be confident that the product being sold or
the service being rendered under that well known brand will
prove to be of expected standard or quality.”
After noticing the provisions of Trademarks Act, 1999 with respect
to well-known trademarks, this Court observed as under:-
“Trademarks Act, 1999 does not specify the factors which the
369 370IHHR Hospitality Pvt. Ltd. v. Bestech India Pvt. Ltd. (V.K. Jain, J.)
Court needs to consider while determining whether a mark is a
well known mark or not, though it does contain factors which
the Registrar has to consider whether a trademark is a well
known mark or not. In determining whether a trademark is a
well known mark or not, the Court needs to consider a number
of factors including (i) the extent of knowledge of the mark to,
and its recognition by the relevant public; (ii) the duration of the
use of the mark; (iii) the extent of the products and services in
relation to which the mark is being used; (iv) the method,
frequency, extent and duration of advertising and promotion of
the mark; (v) the geographical extent of the trading area in
which the mark is used; (vi) the state of registration of the mark;
(vii) the volume of business of the goods or services sold under
that mark; (viii) the nature and extent of the use of same or
similar mark by other parties; (ix) the extent to which the rights
claimed in the mark have been successfully enforced, particularly
before the Courts of law and trademark registry and (x) actual
or potential number of persons consuming goods or availing
services being sold under that brand. A trademark being well
known in one country is not necessarily determinative of its
being well known and famous in other countries, the controlling
requirement being the reputation in the local jurisdiction.”
5. As per plaintiff’s own case, the mark ‘Ananda’ in respect of
health resorts, hotels and spa is being used by it since 22.09.2003.
Though the plaintiff-company claims registration in respect of ayurvedic
and herbal preparations, breads, biscuits, cakes, pastries, confectioneries,
sauces and spices, salts for toilets purposes, essential oils, shampoos,
potpourri, herbs and herbal preparations, potteries, crockery and glassware,
health resort, hotels and spa, it does not claim any actual use of the
trademark in respect of the aforesaid products nor has it filed any
document to show use of the mark ‘Ananda’ in respect of these products.
It appears that, the plaintiff-company has only two resorts, one in
Himalayas under the name Ananda, the other in the name ‘Shanti Ananda’
in Mauritius, which is a joint venture; besides an institute in Hyderabad,
where it is running a spa institute under the name ‘Ananda’. Considering
the duration for which the mark ‘Ananda’ has been used by the plaintiff,
the extent of the services being provided by the plaintiff-company, the
expenditure it claims to have incurred in advertising and promoting its
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services, the geographical extent of the area in which spas are being run
by the plaintiff, the volume of the business and the spas being run under
the name Ananda either alone or in conjunction with Shanti is generating,
I find it difficult to accept that the trademark ‘Ananda’ has become a
well-known trademark or that it has come to be associated exclusively
with the plaintiff-company to such an extent that any product sold or any
service offered using the word “Ananda” either alone or in conjunction
with other words is likely to indicate a connection between that goods/
service and the services being provided by the plaintiff-company. It is
difficult to accept that the persons who have stayed in the resorts of the
plaintiff-company or have otherwise come to know of the reputation
which these resorts claim to enjoy, would, on seeing the advertisement
of the defendant in respect of its project being sold under the name
‘Bestech Parkview Ananda’, associates the project of the defendant-
company with the services being offered by the plaintiff-company or
would presume a connection between the project of the defendant on one
hand and the plaintiff-company on the other hand. It has to be kept in
mind that the persons staying in luxury spas such as Ananda are likely
to be well-educated persons coming from rather higher echelons of the
society. Such persons on seeing advertisements of a housing product in
Gurgaon under the name ‘Bestech Parkview Ananda’ are not at all likely
to believe that the house project originates from the promoters of Ananda
resorts. Therefore, there is no likelihood of their expecting any parity in
the quality of the services being rendered in the resort of the plaintiff-
company and the housing projects being developed by the defendant in
Gurgaon. It is difficult to say that merely because the plaintiff-company
has also opened a spa in Mauritius by way of a joint venture with C&C
Hospitality under the name Shanti Ananda Maurice, the brand Ananda has
come to enjoy a trans-border reputation and, therefore, needs to be
protected in classes other than those in which it has registered in the
name of the plaintiff-company.
6. There is no material on record to show that the mark ‘Ananda’
has acquired such a high brand equity in India that its use by persons
other than the plaintiff in respect of totally unrelated goods/services will
dilute the reputation which the brand ‘Ananda’ enjoys in India. In my
view, considering an altogether different nature of the product being
promoted by the defendant, coupled with the use of the words ‘Bestech
Parkview’ before the word Ananda, there is no reasonable possibility of
any confusion being caused among the consumers as regards the source
of the product being offered by the defendant nor is there any reasonable
probability of any damage to the reputation which is claimed to be
enjoyed by the trademark ‘Ananda’ in India. Considering the origin of the
word Ananda which means nothing, but bliss and which is used primarily
to express a state of mind of a human being, it is difficult to say that
this word has become distinctive with the plaintiff-company and the
defendant is trying to take an unfair advantage by using this word as a
part of the name being used by it to promote its housing project in
Gurgaon. In the facts and circumstances of the case, I find it difficult
to accept that the attempt of the defendant-company by use of the word
‘Ananda’ as a part of the name of its project at Gurgaon is to capitalize
on the reputation which the trademark ‘Ananda’ claims to enjoy in
hospitality sector.
7. The documents filed by the defendant shows that the mark
‘Anand Agency’ has been registered in class 42 in the name of ‘Daulat
Ram Takhatmal Mehani’ since 01.01.1990 vide Registration No. 1243892,
the mark Anandam (label) has been registered in class 42 in the name of
Raji Suresh since 01.08.2001 in respect of providing food and drink in
packet and non-packed forms, the mark “Anandam” has been registered
in the name of Daljeet Gambhir in class 42 in respect of temporary
accommodation (guest/hotel house), the mark ‘Ananda Utsav’ (label) has
been registered in the name of ABP Pvt. Ltd. in class 42 in respect of
computer programming, the mark Anandam (label) has been registered in
the name of M/s Anandam in respect of Ayurvedic Treatment Services,
the mark “Ananda” Valley Valley of Joy. (device) has been registered in
class 42 in favour of Anand Ramlal Kataria in respect of service of
temporary accommodation, agricultural services family week and service,
eco tour, nature walk, corporate meet treak, event, leisure, meditation
service. The mark ‘Ananda Sai’ (logo) has been registered in class 42 in
favour of K. Venkat Rao in respect of Sweet and Bakery mall for the
State of Andhra Pradesh. There is no evidence of any legal proceedings
having been initiated by the plaintiff-company against registration and/or
user of the aforesaid marks which on a comparative basis are much
more close to the registered mark ‘Ananda’ of the plaintiff-company as
compared to the name ‘Bestech Parkview Ananda’ being used by the
defendant-company. Another noteworthy feature in this regard is that the
aforesaid registrations are in class of 42 in which the trademark of the
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plaintiff is registered, whereas the services being provided by the
defendant-company fall in the class 36 and 37, which are altogether
different from the products/services referred in Class 42. The above
referred registrations using the word ‘Ananda’ alone or a word of which
the words “Ananda’ form an integral part, coupled with failure of the
plaintiff to stop their user clearly indicates that the mark ‘Ananda’ has
not become so much associated with the plaintiff company, as to necessarily
indicate a connection with the plaintiff company or to identify the plaintiff
company as the source of those goods/services even when that goods/
services are in wholly unrelated categories and the word ‘Ananda’ is
used in conjunction with other words.
8. For the reasons given in the preceding paragraphs, I am of the
view that the plaintiff-company has failed to make any prima facie case
for grant of injunction against the defendant. The application is devoid of
any merit and the same stands disposed of. The observations made in
this order shall, however, not affect the decision of the suit on merits.
CS(OS) No. 207/2011
The parties to appear before the Court for framing of issues on
05th December, 2011.
ILR (2011) VI DELHI 373
W.P.(C)
M/S. JINDAL STAINLESS LIMITED & ANR. ....PETITIONERS
VERSUS
UNION OF INDIA & ORS. ....RESPONDENTS
(G.S. SISTANI, J.)
W.P.(C) NO. 4452/2008 DATE OF DECISION: 31.05.2011
Constitution of India, 1950—Article 226—Special
Economic Zones Act, 2005—Section 26(1) (e), 26(2), 51,
55 and 58—Special Economic Zone Rules, 2006—Rule
31—Central Excise Act, 1994—Section 37B—Payment
of whole service tax exempted on services provided
to a Developer or Units of SEZ by any service provider,
for purpose of development, operation and
maintenance of SEZ or for setting up of a SEZ unit or
for manufacture of goods by SEZ Units, on satisfaction
of certain conditions—Impugned circular clarified that
service tax is exempted on provision of only such
services which are rendered by service providers to
Developer or Unit for its authorized operation within
area of SEZ—Circular challenged in writ petition before
High Court —Plea taken, only condition required for
availing exemption from payment of service tax by a
Developer/Entrepreneur is that taxable service should
be used for carrying on authorized operations by
Developer/Entrepreneurs—Location of service
provider or place of service is entirely irrelevant for
purpose of this exemption—Per contra plea taken,
service tax exemption is available only for services
which are provided to carry on authorized operation
in a SEZ—Held—Only condition that is required to be
satisfied to avail service tax benefit is that services
must be rendered for purpose of carrying out
‘‘authorized operations in a special economic zone’’—
If intention of legislature was to exempt only those
services from levy of service tax that are rendered
within SEZ, legislature would have categorically stated
so in statute—A subordinate legislation has to confirm
to parent statute and any subordinate legislation
inconsistent to provisions of parent statute is liable to
be set aside—Circulars being executive/administrative
in character cannot supersede or override Act and
statutory Rules—Impugned circular seeks to impose a
condition that was not intention of legislature in SEZ
Act or Rules and is liable to be set aside.
A plain reading of the impugned circular makes it clear that
as per the circular; only those services are exempted from
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service tax which are rendered to a Developer or a Unit/
Entrepreneur within the Special Economic Zone. Thus, while
the SEZ Act and the rules framed thereunder provide for tax
exemption to all services provided to a Developer/
Entrepreneur operating in a Special Economic Zone but vide
the impugned circular the Government has sought to
prescribe an additional condition that the parent statute,
which in the present case is the SEZ Act, 2005, does not
prescribe. The impugned circular curtails the tax exemption
granted to a service provider providing services to a
Developer or a Unit/Entrepreneur operating in a Special
Economic Zone to only those services that have been
rendered within the Special Economic Zone, which in clear
terms, is inconsistent with Section 26(1)(e) of the SEZ Act.
(Para 34)
Important Issue Involved: (A) A subordinate legislation
has to confirm to the parent statute and any subordinate
legislation inconsistent to the provisions of the parent statute
is liable to be set aside.
(B) Circulars being executive/administrative in character
cannot supersede or override the Act and the statutory rules.
[Ar Bh]
APPEARANCES:
FOR THE PETITIONERS : Mr. S. Ganesh, Sr. Advocate with
Mr. Tarun Gulati and Mr. Tushar
Gulati, Advocate.
FOR THE RESPONDENTS : Mr. Rakesh Tiku and Mr. Aditya
Bhardwaj, Advocates.
CASES REFERRED TO:
1. Ajmera Housing Corpn. vs. CIT reported at (2010) 8 SCC
739.
2. Federation of Indian Airlines vs. Union of India (WP
(C) No. 8004/2010).
3. Godrej & Boyce Mfg. Co. Ltd. vs. State of Maharashtra
reported at (2009)5 SCC 24.
4. Punjab Water Supply and Sewerage Board vs. Ranjodh
Singh AIR 2007 SC 1082.
5. Tata Teleservices Ltd. vs. Commission of Customs, reported
at (2006) 1 SCC 746.
6. Dilip Kumar Ghosh vs. Chairman AIR 2005 SC 3485.
7. Ashok Lanka vs. Rishi Dixit (2005) 5 SCC 598.
8. Hansraj & Sons vs. State of J&K, reported at (2002) 6
SCC 227.
9. Union of India & Ors. vs. Inter Continental (India),
reported at C.A. 6529/2002.
10. Additional District Magistrate (Rev.), Delhi Administration
vs. Shri Ram AIR 2000 SC 2143.
11. CCE, Baroda vs. Vipul Shipyard, reported at 1997 (10)
SCC 337.
12. General Officer Commanding-in-Chief vs. Dr. Subhash
Chandra Yadav, AIR 1988 SC 876.
13. B.K. Garad vs. Nasik Merchants Co-op. Bank Ltd, AIR
1984 SC 192.
14. Hansraj Gordhandas vs. H.H. Dav, Asstt. CCE, reported
at Surat 1969 (2) SCR 253.
15. CIT vs. Ajax Products, reported at 55 ITR 741, 747
(SC).
16. CIT vs. Shahzada Nand, reported at 60 ITR 392, 400
(SC).
17. State of Punjab vs. Jaswant, reported at 186 ITR 655.
RESULT: Allowed.
G.S. SISTANI, J.
1. The present petition has been filed under Article 226 of the
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Constitution of India and is directed against the impugned Circular dated
03.04.2008, issued by the Additional Director, Directorate General of
Export Promotion, Government of India.
2. The brief facts as set out in the petition are that petitioner No.1
is a public limited company registered under the Companies Act, 1956,
and is engaged, inter alia, in the business of manufacture and trade of
stainless steel and allied products. Petitioner No.1 is stated to be the
largest and the only integrated stainless steel and ferroalloys producer in
India.
3. With a view to encourage and promote exports, generate additional
economic activities and employment opportunities, promote investment
and development of infrastructural facilities in the country, the Government
of India introduced the concept of Special Economic Zone (hereinafter
referred to “SEZ”) in India. Such zones are specifically delineated duty
free enclaves, which are deemed to be a foreign territory for trade
operations, duties and tariff purposes. In order to increase the
competitiveness of exporters, the SEZs have been accorded special status
and are provided with a number of tax concessions and exemptions. In
order to give effect to the assurances made by respondent No.2, which
included the exemption from payment of service tax, respondent No.1
issued notification No.17/2002-ST, dated 21.11.2002, for an exemption
from the whole of payment of service tax on services provided to a
Developer or Units of SEZ by any service provider, for the purposes of
development, operation and maintenance of SEZ or for setting up of a
SEZ Unit or for manufacture of goods by the SEZ Unit, on the satisfaction
of certain conditions. This notification was superseded by a subsequent
notification No.4/2004-ST dated 31.03.2004 which provided for an
exemption from the payment of whole of service tax on the services
provided to a Developer or a Unit for consumption of services within the
SEZ subject to certain conditions.
4. Initially for the first time on 01.04.2000, the concept of SEZs
was introduced under the Export and Import Policy (Now referred to as
‘Foreign Trade Policy’). The Foreign Trade Policy is issued by respondent
No.2 which provides for exemptions and concessions from the payment
of various taxes and duties. To give more clear and emphatic approach
to the aspect of SEZs, a separate Special Economic Zones Act, 2005 (the
‘SEZ Act’) and the Special Economic Zone Rules, 2006 (the ‘SEZ Rules’)
were brought into effect from 10.02.2006. The provisions of the SEZ
Act and the SEZ Rules include the substantive law and the relevant
procedures relating to SEZs in one legislation. The SEZ Act in terms of
Section 51 of the SEZ Act provides for a non-obstante provision, which
is extracted hereunder:
“Act to have overriding effect
The provisions of this Act shall have effect notwithstanding
anything inconsistent herewith contained in any other law for the
time being in force or in any other instrument having effect by
virtue of any law other than this Act.”
5. Since the focus of the petitioner was to export stainless steel
products from India, they decided to set up a SEZ talking into consideration
various direct and indirect tax benefits. Land was identified in the State
of Orissa and during the course of the year 2007, requisite clearances
from State and Central Govt. were obtained. The SEZ was notified by
the Central Govt. on 28.11.2007 and the petitioner started carrying out
the default authorized operations in its capacity of a Developer and availed
services of various service providers.
6. Vide the impugned circular dated 03.04.2008, Respondent No.3
issued various internal guidelines seeking to deny tax benefits to service
provided outside the SEZ. Consequently, service providers who are
providing services to the petitioner are insisting upon charging service tax
despite the tax exemptions available to the petitioner under the SEZ Act,
2005 and the SEZ Rules, 2006.
7. Counsel for the petitioner submits that on 15.05.2008, M/s KSMN
& Co., Chartered Accountants, having their office in New Delhi, raised
an invoice of Rs. 5,00,000/- (Five lakhs) charging a service tax of
Rs.60,000/-on the petitioners for providing services in relation to the
accounting to the petitioners. The petitioners wrote a letter to the Chartered
Accountants from Delhi requesting them to cancel the invoice issued by
them as Section 26(1)(e) of the SEZ Act read with Rule 31 of the SEZ
Rules provides for a service tax exemption on the rendition of such
services. M/s. KSMN & Co., Chartered Accountants, New Delhi replied
to the letter of the petitioners stating that they are aware of the provisions
of the SEZ Act and the SEZ Rules. However, service tax has been
charged in the invoice in view of the impugned circular issued by
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respondent No.3 which provides that service tax exemption will not be
provided if the services are not rendered within the SEZ. The Chartered
Accountants further stated that since the liability to pay service tax to the
Government lies on them, they do not want to take a chance by not
paying now and be required to pay by the Department later without
recovering it from the petitioners. The petitioner-company issued another
letter dated 30.05.2008 to M/s KSMN & Company, Chartered Accountants,
submitting that the petitioners have been advised by the petitioner’s internal
legal team and the lawyers that the impugned guidelines are for the
Departmental Officers and are not binding on the assesses. The Chartered
Accountants replied to the petitioners stating that the matter is not free
from doubt and that the Department may in accordance with the impugned
guidelines demand service tax from them. This has led to the filing of the
present petition.
8. It is contended by learned counsel for the petitioner that Section
58 of the SEZ Act provides that any notification, etc., issued under a
Central Act would continue to have effect only if it was not inconsistent
with the provisions of the SEZ Act. Section 26(1)(e) of the SEZ Act
specifically grants an exemption from service tax on taxable services
provided to a Developer or Unit to carry on the authorized operations by
the Developer and the Entrepreneur/Unit. The authorized operations are
those operations which have been approved by the Board of Approval
(hereinafter referred to as the ‘BoA’) for a Developer and the Development
Commissioner for a Unit
9. Mr. Ganesh states that Section 26(2) of the SEZ Act provides
the power to the Central Government to prescribe the manner in which
and subject to the terms and conditions to which the exemptions shall be
granted to the Developer or Unit under Section 26(1). Further, Section
55 of the Act provides a general power to the Central Government to
make rules to carry out the provisions of the Act. Under the powers of
Section 55 of the SEZ Act, the Central Government has introduced the
SEZ Rules. Rule 31 of the SEZ Rules prescribes the manner in which,
and the terms and conditions, subject to which, the service tax exemption
is available to a Developer or a Unit. This Rule provides that exemption
from service tax shall be available on the rendition of all taxable services
by any service provider to a Developer or a Unit for the purpose of
carrying on authorized operations of the SEZ. Rule 31 of the SEZ Rules
is extracted hereunder:
“Exemption from service tax
“The exemption from payment of service tax on taxable services
under Section 65 of the Finance Act, 1994 (32 of 1994) rendered
to a Developer or a Unit (including a Unit under construction) by
any service provider shall be available for the authorized operations
in a Special Economic Zone.”
10. Learned counsel for the petitioner next submits that a combined
reading of Section 26(1)(e) of the SEZ Act with Rule 31 of the SEZ
Rules would show that the only condition required for availing exemption
from payment of Service Tax by a developer/Entrepreneur is that the
taxable service should be used for the carrying on the authorized operations
by the Developer/Entrepreneurs. The location of the service provider or
the place of service is entirely irrelevant for the purpose of this exemption.
It is submitted by learned counsel for the petitioner that Respondent No.3
by issuing the impugned circular dated 03.04.2008 has virtually directed
the departmental officers to deny tax exemptions to SEZs in accordance
with its views. Therefore, the departmental officers, who are bound by
such clarifications, are seeking to deny the tax benefits which are otherwise
available to SEZs under the statutory provisions of the SEZ Act and the
SEZ Rules. Similarly, service providers, who are providing services to
the petitioners are insisting on charging service tax despite the fact that
there is a clear exemption from service tax available to the petitioners
under the statutory provisions of the SEZ Act/Rules. The impugned
circular, inter alia, clarified the following in paras 8 and 10.
“9. The SEZ Act and Rules do not permit any exemption to
services provided by a SEZ unit to any individual inside an SEZ
as it does not get covered under the export of services. Similarly,
regarding exemption of service tax on services availed by units/
developers in SEZs and regarding taxability of service rendered
to an SEZ unit in respect of authorized operations by a DTA
service provider in DTA, it may be kept in mind that service tax
is exempted only for services rendered within the area of SEZ.
10. CENVAT credit is not available for the inputs used in the
finished product supplied to “Developer” of SEZ in terms of
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Rule 6(6) of CENVAT Credit Rules, 2004.
11. The impugned circular has clarified that service tax is exempted
on the provision of only such services which are rendered by the service
providers to the Developer or the Unit for its authorized operation within
the area of the SEZ. This interpretation given by the impugned circular
is clearly contrary to the provisions of the SEZ Act and the SEZ Rules
as the statutory provisions which do not require that only such services
which are physically rendered within the SEZ are allowed for an exemption
from service tax. The impugned circular has sought to introduce new
conditions which are not prescribed by the statutory provisions.
12. Learned counsel for the petitioner submits that the petitioner is
availing a number of services which are not physically rendered within
the SEZ but are used for the authorized operations of the Developer and
the Unit. Learned counsel for the petitioner submits that even though
these services are to be used for carrying out the authorized operations
of the petitioners, service tax is being charged on them by the service
provider as they have not been rendered within the SEZ. Learned counsel
for the petitioners submits that the SEZ Act has a non-obstante provision
contained in Section 51 which expressly provides that the provisions of
this Act will have effect and will override any other law for the time
being in force which is inconsistent with the provisions of the Act.
Therefore, a reading of Section 51 would clear that the provisions of
SEZ Act/SEZ Rules are paramount and anything contrary to the said
provisions will be overridden. In view of the fact that para 9 of the
impugned circular contains provisions contrary to the provisions of the
SEZ Act/SEZ Rules, the impugned circular is illegal and are liable to be
overridden by the provisions of Section 51 read with Section 26(1)(e) of
the SEZ Act read with Rule 3 of the SEZ Rules.
13. Learned counsel for the petitioners has strongly urged before
this Court that the provisions of an Act which provide for an exemption
from a tax have to be interpreted strictly. It is a well settled legal principle
that in a taxing statute, one has to look merely at what is clearly said.
There is no room for any intendment. These principles have been laid
down by the Hon’ble Supreme Court in CIT Vs. Ajax Products, reported
at 55 ITR 741, 747 (SC); CIT Vs. Shahzada Nand, reported at 60 ITR
392, 400 (SC) and State of Punjab Vs. Jaswant, reported at 186 ITR
655. In view of the plain language of the SEZ Act/SEZ Rules, there is
no scope of an interpretation of such provisions to include a condition
that the exemption would be available only if the services are rendered
within a SEZ. Mr. Ganesh has strongly urged before this Court that the
impugned circular has been issued and/or inserted without proper
application of mind and in colourable and mechanical exercise of powers.
The impugned circular has no nexus with the object and purpose of SEZ
Act and SEZ Rules which was to provide impetus to exports. By the
impugned circular, respondent No.3 has virtually attempted to defeat the
object with which the SEZ Act/SEZ Rules were formed.
14. Learned counsel for the petitioner further submits that it is a
well settled legal principle that no additional condition can be read into an
exemption notification when there exists no such condition and that and
exemption has to be interpreted strictly. This principle has been laid
down by the Hon’ble Supreme Court in Hansraj Gordhandas Vs. H.H.
Dav, Asstt. CCE, reported at Surat 1969 (2) SCR 253, and CCE,
Baroda Vs. Vipul Shipyard, reported at 1997 (10) SCC 337. The
exemption from service tax has been provided in the SEZ Act and SEZ
Rules for carrying out the authorized operations of the developer/Unit.
Further, the impugned circular issued by respondent No.3 purports to
add a new condition in the exemption provided by the statutory provisions
of the SEZ Act read with SEZ Rules which never existed in the provisions.
15. It is vehemently argued by learned counsel for the petitioners
that proposition of law being whether that the Department can add a new
condition to a notification thereby either restricting the scope of the
exemption notification or whittling it down when the notification itself did
not provide for the same by issuing a Circular came before the Hon’ble
Supreme Court in the case of Tata Teleservices Ltd. Vs. Commission
of Customs, reported at (2006) 1 SCC 746 and in the case of Union
of India & Ors. Vs. Inter Continental (India), reported at C.A. 6529/
2002. The Hon’ble Supreme Court observed that such circular sought to
impose a limitation on the exemption notification which the exemption
notification itself did not provide and therefore it was not open to the
Board to whittle down the exemption notification in such a manner.
16. Learned counsel for the petitioners further submits that it is a
settled law that Circulars/Guidelines are administrative in nature and are
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issued in exercise of executive powers. Similarly, the power of respondent
No.1 to issue guidelines can only be exercised to prescribe procedure.
Such Guidelines cannot have the effect of adding new and fresh conditions
in the SEZ Act or SEZ Rules. It is submitted that by means of the
impugned circular, the respondents have also arbitrarily sought to negate
the excise duty benefits available to the SEZ Developers like the petitioners.
It has been erroneously stated in Para 10 of the impugned circular that
input credit is not available to manufacturers making supplies to SEZ
developers. By making this erroneous clarification which is contrary to
the statutory provisions, the impugned circular has virtually taken away
the excise duty benefit available to SEZ developers as suppliers would
substantially lose the excise duty benefit available to them for making
such supplies.
17. Lastly, learned counsel for the petitioners submits that the power
to issue clarifications rests only with the Central Board of Excise and
Customs (hereinafter referred to as the ‘Board’) under Section 37B of
the Central Excise Act, 1944. Thus, the impugned circular is illegal so
far as they have not been issued by the Board and, in any event, are also
beyond the scope of even the Boards. powers.
18. Per contra, learned counsel for the respondents submits that the
present writ petition is liable to be dismissed as the same amounts to an
abuse of the process of law. Counsel submits that by this petition, the
petitioners are trying to seek anticipatory declaration regarding the leviability
of service tax in respect of certain transactions. Further there is adequate
mechanism provided in the Act itself, and should there arise any dispute
by any assessee, it is open for him to take recourse to the adjudication
mechanism as provided under the Act. Thus, the writ petition is legally
misconceived.
19. Learned counsel for the respondents has also challenged the
locus standi of the petitioners to file the present petition and it is submitted
that the liability to pay service tax is on the service provider which is M/
s KSMN and Company, Chartered Accountant, for the taxable service
provided. It is for the said service provider to decide whether to pass or
not to pass on the service tax liability to its client, namely, the petitioners.
The liability to pay service tax is on M/s KSMN and Company, Chartered
Accountants, and any relief from levy of service tax on the taxable
services provided by it, should be sought only by the aggrieved party,
namely, M/s KSMN and Company, Chartered Accountants, and not by
the petitioners. It is to be noted that in the present case the levy or denial
of exemption is challenged not by the person who is liable to pay service
tax but by another person on the assumption that service tax levied has
been passed on to him. Accordingly, the petitioners have no locus standi
to challenge the levy of the service tax. Further the petitioners have not
been able to show the existence of any legal right, which is threatened
to be violated by the said impugned circular dated 03.04.2008. Learned
counsel for the respondent contends that there is no legal right shown
by the petitioners, therefore, there cannot be any legal injury and
consequently writ petition filed by the petitioners is utterly misconceived
and liable to be dismissed. Counsel further submits that the letter dated
03.04.2008 is in the nature of internal guidelines intended to provide
guidelines to the departmental officers so as to enable them to take a
uniform stand on matter pertaining to tax relief. No challenge can be
sustained against the impugned letter dated 03.04.2008 at the instance of
the petitioners. Even otherwise the said letter dated 03.04.2009 is perfectly
within the parameters of the special mechanism which is the Act and the
Rules framed thereunder.
20. The counsel next submits that the dispute is between the
petitioners and M/s KSMN & Company, Chartered Accountants, and for
disputes between two parties various legal remedies are available and
filing of writ petition against tax collecting authorities is not maintainable.
21. Learned counsel for the respondents submits that the impugned
circular is in fact a letter F.No.DGEP/SEZ/473/2006 dated 03.04.2008
issued by the Additional Director General, Directorate General of Export
Promotion, respondent No.3 herein, to all the Chief Commissioners, which
correctly interprets the provisions of Special Economic Zones Act and
Rules, and provides internal guidelines to the departmental officers
representing department of Revenue in the Approval Committees of SEZs,
so as to enable them to take uniform stand on matters pertaining to tax
revenue/exemptions related to Special Economic Zones at the meetings of
the Approval Committee. Further Section 26(1)(e) of the Special Economic
Zones Act, 2005, and Rule 31 of the Special Economic Zones Rules,
2006 clearly state that the Service Tax exemption is available only if the
services are provided to carry on authorized operation in a Special
Economic Zone.
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22. Learned counsel for the respondents submits that the Notification
No.17/2002-ST, dated 21.11.2002 provides conditional exemptions from
Service Tax to the developer or unit of a Special Economic Zone for the
taxable services provided to a developer or unit of Special Economic
Zone by any service provider for the purposes of development, operation
and maintenance of Special Economic Zone, or for manufacture of goods
by the Special Economic Zone unit provided that the said taxable services
have been authorized to be rendered by the service provider, by a committee
headed by the Commissioner of Customs having jurisdiction over the said
Special Economic Zone. Condition No.3, required the developer or unit
of a Special Economic Zone to maintain proper account of receipt and
utilization of said taxable services. Further it is correct that the above
notification No.17/2000-ST dated 21.11.2002 was superseded by
Notification No.4/2004 dated 31.03.2004 issued by the Central Board of
Excise and Customs, Department of Revenue and provided for an
exemption from the payment of all of Service Tax on the services provided
to a developer for a unit for consumption of services within such Special
Economic Zones, subject to certain conditions. Thus, it is clear that the
Department of Revenue, which is responsible for administering service
tax all along provided that exemption from the payment of Service Tax
would be available for services provided to a developer or a unit for
consumption of services within such Special Economic Zones.
23. It is further submitted that the authorized operations are always
those operations which are to be carried out inside the Special Economic
Zones, hence, it is evident that the words “In Special Economic Zone”
in sub-Section 26(1)(e) are to be read with taxable services provided in
a Special Economic Zone and not to be read with “authorized operations”
only because if so read it would make the wordings “ In Special Economic
Zone” superfluous since the authorized operations by very definition are
already such operations that are carried out inside Special Economic
Zones. Further the exemption from levy of Service Tax under the Special
Economic Zones Act is available only for taxable services consumed
within Special Economic Zones. Relief from any tax on services consumed
outside Special Economic Zones but relatable to export is available not
under the Special Economic Zones but under the provisions contained in
the Central Excise Act and the Finance Act, 1994 (Service Tax), as per
notification 41/2007-ST dated 06.10.2007 and notification 43/2007-ST
dated 29.11.2007. The exemption from Service Tax under Special
Economic Zones Act is for consumption of Services within Special
Economic Zones Act cannot provide Service Tax exemption merely on
the ground that the recipient of service is a Unit or Developer of Special
Economic Zones. The counsel for respondent further submits that the
Special Economic Zones Act, by its very nature, does not envisage
enforcement of Special Economic Zone Rules cannot go and actually has
not gone beyond this scheme of SEZ Act.
24. The counsel for respondent strongly contends that exemption
from levy of service tax under the Special Economic Zones Act is
available only for taxable services consumed within Special Economic
Zones. Relief from any tax on services consumed outside SEZ but relatable
to export is available not under the SEZ Act but under the provisions
contained in the Central Excise Act and the Finance Act, 1994 as per
notification 41/2007-ST dated 06.10.2007 and notification 43/2007-ST
dated 29.11.2007. It is submitted by the counsel for respondent that area
under the SEZ is distinct from Domestic Tariff Area for the purpose of
taxation and under the SEZ Act, taxable services provided to a developer
or a unit for consumption in SEZ is treated as export. Services are
intangible and are taxed in a place where they are consumed and because
of intangible nature of services, place of consumption of service generally
known as place of supply of service is to be determined in accordance
with the principles enunciated in relevant Rules. The scheme of the SEZ
Act recognises the intangible nature of services and envisages exemptions
only for those services which are consumed within a Special Economic
Zone and therefore, the Department of Revenue is consistent of the view
that exemption from payment of Service tax is not available for the
services provided outside Special Economic Zones.
25. It is vehemently argued by counsel for respondent that the
interpretation given in the impugned circular is consistent with the scheme
of the SEZ Act and does not introduce any new condition which is not
prescribed by the statutory provisions. It is the contention of the counsel
for respondent that under section 26(2) of the SEZ Act, the Central
Government has been empowered to prescribe the manner in which, and
the terms and conditions subject to which, the exemptions, concessions,
drawback or other benefits shall be granted to the Developer or
entrepreneur under sub-section (1) of section 26. The impugned circular
is not giving any new interpretation to the words of a statuette and is
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only in the form of internal guidelines to the departmental officers merely
clarifying the existing provisions of a statute. It only clarifies the existing
statutory provision without adding nay new condition or provision.
26. The counsel also submits that from the invoice dated 15.05.2007
raised by M/s KSMN & Co., Chartered Accountants charging a service
tax of Rs. 50,000 on accounting services rendered by them to the
petitioner, it cannot be made out that the services rendered are anywhere
related to any authorised operation as defined in section 2(c) of the
Special Economic Zones Act.
27. Refuting the contention of the counsel for petitioner that only
Central Board of Excise & Customs can pass such circular, the counsel
for respondent submits that the aforesaid section is not relevant for the
present case since the said section empowers the Central Excise &
Customs to issue clarifications where it considers it necessary for purpose
of uniformity in the classification of excisable goods or with respect to
levy of duties of excise on such goods, to issue such orders , instructions
and directions to Central Excise Officers as it may deem fit. In the
present case, the impugned circular is a letter dated 03.04.2008 that is
in the form of internal guidelines on matters relating to Special Economic
Zone to departmental officers to enable them to take a uniform stand
while attending meetings of approval committee. It is next submitted that
it is not a clarification under section 37B of Central Excise Act. It is only
a letter which reiterates some of the legal provisions of Special Economic
Zones Act and Rules and does not in any way impose or add any
condition or denied nay right of exemption bestowed under the Special
Economic Zones Act and Rules.
28. I have heard the counsel for parties and have carefully perused
the pleadings on record and the written submission filed by both the
parties.
29. Before proceeding further, it would be relevant to reproduce
section 26(1) (e) of the SEZ Act, 2005 and Rule 31 of the SEZ Rules,
2006. Section 26 (1)(e) reads as under:
“26. Exemptions, drawbacks and concessions to every
Developer and entrepreneur:
(1) Subject to the provisions of sub-section (2), every
Developer and entrepreneur shall be entitled to the following
exemptions, drawbacks and concessions,
namely:(a).......................
(e) Exemption from service tax under Chapter-V of the
Finance Act, 1994 (32 of 1994) on taxable services
provided to a developer or Unit to carry on authorised
operation in a Special Economic Zone;
(f)..................................
(2) The Central Government may prescribe the manner in which,
and the terms and conditions subject to which, the exemptions,
concessions, drawback or other benefits shall be granted to the
Developer or entrepreneur under sub-section (1).
Rule 31 of the SEZ Rules, 2006 reads as under:
“The exemption from payment of service tax on taxable services
under section 65 of Finance Act, 1994 (32 of 1994) rendered to
a Developer or a Unit (including a Unit under construction) by
any service provider shall be available for the authorised operations
in a Special Economic Zone”.
30. It is contended by the counsel for respondent that since the
expression “authorised operations” refers to those operations which are
to be carried out inside the Special Economic Zones, hence the words
“in Special Economic Zone” as they appear in section 26 and Rule 31 are
to be read with “taxable services” so as to mean that the exemption is
available only with regard to those services that are rendered in a special
economic zone. The aforementioned argument of the counsel for
respondent has no basis. It is a well established law that statutes have
to be given strict interpretation. If the words of a statute are precise and
clear, they must be accepted as declaring the express intention of the
legislature. It is equally well-settled that a subject is not to be taxed unless
the words of a taxing statute unambiguously impose the tax on him. In
Ajmera Housing Corpn. v. CIT reported at (2010) 8 SCC 739, the
Apex Court observed as under:
“36. It is trite law that a taxing statute is to be construed strictly.
In a taxing Act one has to look merely at what is said in the
relevant provision. There is no presumption as to a tax. Nothing
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is to be read in, nothing is to be implied. There is no room for
any intendment. There is no equity about a tax. (See Cape
Brandy Syndicate v. IRC1 and Federation of A.P. Chambers
of Commerce & Industry v. State of A.P2) In interpreting a
taxing statute, the court must look squarely at the words of the
statute and interpret them. Considerations of hardship, injustice
and equity are entirely out of place in interpreting a taxing statute.
(Also see CST v. Modi Sugar Mills Ltd3)”
31. A similar view was expressed in Hansraj & Sons v. State of
J&K, reported at (2002) 6 SCC 227. The relevant portion reads as
under:
“22. A Constitution Bench of this Court in the case of A.V.
Fernandez v. State of Kerala4 observed: (AIR p. 661, para 29)
“29. It is no doubt true that in construing fiscal statutes
and in determining the liability of a subject to tax one
must have regard to the strict letter of the law and not
merely to the spirit of the statute or the substance of the
strictly within the provisions of the law, the subject can
be taxed. If, on the other hand, the case is not covered
within the four corners of the provisions of the taxing
statute, no tax can be imposed by inference or by analogy
or by trying to probe into the intentions of the legislature
and by considering what was the substance of the matter.
We must of necessity, therefore, have regard to the actual
provisions of the Act and the rules made thereunder before
we can come to the conclusion that the appellant was
liable to assessment as contended by the Sales Tax
Authorities.”
‘In that case this Court noted with approval, the following
observations of Lord Russel of Killowen in IRC v. Duke of
Westminster5, AC at p. 24: (AIR p. 661, para 27)
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1. (1921) 1 KB 64
2. (2000) 6 SCC 550
3. AIR 1961 SC 1047 : (1961) 2 SCR 189
4. AIR 1957 SC 657 : 1957 SCR 837
5. 1936 AC 1 : 1935 All ER Rep 259 : 104 LJ KB 383 (HL)
6. AIR 1940 PC 183 : (1940) 8 ITR 522
7. (1998) 1 SCC 384
8. (1976) 3 SCC 800
9. AIR 1964 SC 457 : (1964) 5 SCR 230
‘I confess that I view with disfavour the doctrine that in
taxation cases the subject is to be taxed if in accordance
with court.s view of what it considers the substance of
the transaction, the court thinks that the case falls within
the contemplation or spirit of the statute. The subject is
not taxable by inference or by analogy, but only by the
plain words of a statute applicable to the facts and
circumstances of his case.”
The observations of Lord Russel in the aforementioned case
were also referred by the Privy Council in Bank of Chettinad
Ltd. v. CIT6. The Privy Council did not accept the suggestion
that in revenue cases “the substance of the matter” may be
regarded as distinguished from the strict legal position.
23. A similar view was taken in CWT v. Ellis Bridge Gymkhana7
in which it was observed:
“5. The rule of construction of a charging section is that
before taxing any person, it must be shown that he falls
within the ambit of the charging section by clear words
used in the section. No one can be taxed by implication.
A charging section has to be construed strictly. If a person
has not been brought within the ambit of the charging
section by clear words, he cannot be taxed at all.”
24. Again in the case of Diwan Bros. v. Central Bank of
India8 a three-Judge Bench of this Court, construing the principles
of interpretation of fiscal statutes, quoted with approval, the
observations in A.V. Fernandez v. State of Kerala and in
State of Maharashtra v. Mishrilal Tarachand Lodha9in which
it was observed: (AIR p. 459, para 9)
“The Act is a taxing statute and its provisions therefore
have to be construed strictly, in favour of the subject
litigant.”
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25. Following the ratio in the aforementioned decisions it was
observed: (SCC p. 807, para 7)
“7. These observations manifestly show that the courts
have to interpret the provisions of a fiscal statute strictly
so as to give benefit of doubt to the litigant. The principles
deducible from the decisions referred to above are well
established and admit of no doubt.”
26. From the discussions in the foregoing paragraphs, the position
that emerges is that Notification No. SRO 348 in which the
additional toll tax was levied was clearly beyond the purview of
Section 3 of the Act. Further, the finding of the High Court that
in the context of facts and circumstances of the case, processing
of the dry fruits like almonds, walnuts and walnut kernels did
not come within the expression “manufacture” cannot be said to
be erroneous. The judgment of the High Court upholding the levy
of additional toll tax in the case is also unsustainable.”
32. A plain grammatical reading of section 26(1) (e) of the SEZ
Act, 2005 makes it clear that taxable services provided by a service
provider to a Developer or a Unit/entrepreneur to carry out authorised
operations in a Special Economic Zone are exempted from levy of service
tax. Similarly, a bare perusal of Rule 31 of the SEZ Rules, 2006 make
it abundantly clear that the exemption from service tax is available on
services rendered to a developer or a unit/entrepreneur for carrying out
authorised operations. Further, from a combined reading of section 26(1)(e)
with Rule 31 makes it evident that the only condition that is required to
be satisfied to avail the service tax benefit under the said provisions is
that the services must be rendered for the purpose of carrying out the
“authorised operations in a special economic zone”. Had it been the
intention of the legislature that only those services are exempted from
levy of service tax that are rendered within the special economic zones,
the legislature would have categorically and clearly stated so in the statute.
In the absence of such express intention, the court cannot add words to
the statute to lead to an interpretation which could not have been the
intention of the legislature.
33. The counsel for petitioner has vehemently argued before this
Court that in the absence of any such condition under the parent statute,
the impugned circular being administrative in nature cannot impose a new
condition nor can it supersede the parent statute which in the present
case is section 26(1) (e) of the SEZ Act, 2005 read with Rule 31 of the
SEZ Rules, 2006. The relevant portion of the impugned circular reads as
under:
"9. The SEZ Act and Rules do not permit any exemption to
services provided by a SEZ unit to any individual inside an SEZ
as it does not get covered under the export of services. Similarly,
regarding exemption of service tax on services availed by units/
developers in SEZs and regarding taxability of service rendered
to an SEZ unit in respect of authorized operations”
34. A plain reading of the impugned circular makes it clear that as
per the circular; only those services are exempted from service tax
which are rendered to a Developer or a Unit/Entrepreneur within the
Special Economic Zone. Thus, while the SEZ Act and the rules framed
thereunder provide for tax exemption to all services provided to a
Developer/ Entrepreneur operating in a Special Economic Zone but vide
the impugned circular the Government has sought to prescribe an additional
condition that the parent statute, which in the present case is the SEZ
Act, 2005, does not prescribe. The impugned circular curtails the tax
exemption granted to a service provider providing services to a Developer
or a Unit/Entrepreneur operating in a Special Economic Zone to only
those services that have been rendered within the Special Economic
Zone, which in clear terms, is inconsistent with Section 26(1)(e) of the
SEZ Act.
35. It is trite law that a subordinate legislation has to conform to
the parent statute and any subordinate legislation inconsistent to the
provisions of the parent statute is liable to be set aside. It is equally well
settled that circulars being executive/administrative in character cannot
supersede or override the Act and the statutory rules. A division Bench
of this Court in decision dated 04.03.2011 in Federation of Indian
Airlines v. Union of India (WP (C) No. 8004/2010) has elaborately
discussed the above proposition of law. the relevant extract of the judgment
reads as under:
“67. The basic test is to determine whether a rule to have
effect must have its source of power which is relatable to the
rule making authority. Similarly, a notification must be in accord
with the rules, as it cannot travel beyond it. In this context, we
may refer with profit to the decision in General Officer
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Commanding-in-Chief v. Dr. Subhash Chandra Yadav, AIR
1988 SC 876 wherein it has been held that before a rule can have
the effect of a statutory provision, two conditions must be fulfilled,
namely (1) it must conform to the provisions of the statute
under which it is framed; and (2) it must also come within the
scope and purview of the rule making power of the authority
framing the rule. If either of these two conditions is not fulfilled,
the rule so framed would be void.
68. In Additional District Magistrate (Rev.), Delhi
Administration v. Shri Ram AIR 2000 SC 2143, it has been
held that it is a well recognized principle that conferment of rule
making power by an Act does not enable the rule making authority
to make a rule which travels beyond the scope of the enabling
Act or which is inconsistent therewith or repugnant thereto.
69. In B.K. Garad v. Nasik Merchants Co-op. Bank Ltd, AIR
1984 SC 192, it has been held that if there is any conflict
between a statute and the subordinate legislation, the statute shall
prevail over the subordinate legislation and if the subordinate
legislation is not in conformity with the statute, the same has to
be ignored.
70. In Ashok Lanka v. Rishi Dixit (2005) 5 SCC 598, it has
been laid down that although the State may delegate its power to
an administrative authority, yet such a delegation cannot be made
in relation to the matters contained in the rule-making power of
the State. The matters which are outside the purview of the
Rules only could be the subject-matter of delegation in favour of
the authority. Their Lordships have further opined that a
subordinate legislation must be framed strictly in consonance
with the legislative intent.
71. In Dilip Kumar Ghosh v. Chairman AIR 2005 SC 3485,
their Lordships have expressed the view that it is well settled
principle of law that Circular cannot override the rules occupying
the field and if there is a clash between the Rule and the circular,
the circular has to be treated as non est.
72. In Punjab Water Supply and Sewerage Board v. Ranjodh
Singh AIR 2007 SC 1082; their Lordships have observed that a
Scheme under Article 162 of the Constitution of India would not
prevail over the statutory rule. Their Lordships have further clearly
held that any departmental letter or executive instruction cannot
prevail over the statutory rule.”
36. In Godrej & Boyce Mfg. Co. Ltd. V. State of Maharashtra
reported at (2009)5 SCC 24, the Apex Court held that circulars are
administrative in nature and cannot alter the provisions of a statute nor
can they impose additional conditions. Para 64 of the judgment of the
judgment reads as under:
“64. Having regard to the nature of the law the submission
advanced on behalf of the municipal authority would lead to
palpably unjust and inequitable results. The landowner whose
land is designated in the development plan as reserved for any of
the purposes enumerated in Section 22 of the Act or for any of
the amenities as defined under Section 2(2) of the Act or Regulation
2(7) [sic Regulation 3(7)] of the Regulations is not left with
many options and he does not have the same bargaining position
as the municipal authority. Therefore, surrender of the land in
terms of clause (b) of Section 126(1) of the Act cannot be
subjected to any further conditions than those already provided
for in the statutory provisions. It is of course open to the legislature
to add to the conditions provided for in the statute (or for that
matter to do away with certain conditions that might be in
existence). But it certainly cannot be left in the hands of the
executive to impose conditions in addition to those in the statutes
for accepting the offer to surrender the designated land.”
37. Thus, applying the settled position of law to the facts and
circumstances of the present case, I find that the impugned circular
dated 03.04.2008 seeks to impose a condition that was not the intention
of the legislature as expressed in the SEZ Act or in the SEZ Rules framed
thereunder and thus, is liable to be set aside.
38. The writ petition is disposed of in above terms.
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ILR (2011) VI DELHI 395
CS (OS)
M/S. CHUGH KATHURIA ENGINEERS (P) LTD. ....PLAINTIFF
VERSUS
DELHI DEVELOPMENT AUTHORITY (DDA) ....DEFENDANT
(VIPIN SANGHI, J.)
CS (OS) NO. : 1043/2009 DATE OF DECISION : 15.06.2011
Arbitration Act, 1940—Section 30 and 33—Indian
Contract Act, 1872—Section 15 and 16—Code of Civil
Procedure, 1908—Section 34, Order IX Rule 8, Order VI
Rule 4—Petitioner was allotted work of construction
of flats—Disputes between parties referred to sole
arbitrator—Award rendered by arbitrator challenged
before High Court—As arbitrator had failed to consider
a letter of petitioner accepting responsibility for delay
in execution of work, award partly set aside and new
arbitrator appointed to decide claims—Arbitrator held
delay in completion was on part of respondent—Award
challenged before High Court—Plea taken, impugned
order is not based on any evidence placed before
arbitrator and that there is an error apparent on face
of award—There was no pleading to support story that
letter admitting delay was obtained from petitioner
under duress or coercion—Per contra plea taken,
arbitrator had considered evidence and concluded
delay was attributable to respondent at various stages
of work—Held—A plea of coercion or undue influence
or duress has necessarily to be specifically raised and
pleaded as a fact—Though Code of Civil Proceedure
is not strictly applicable to arbitral proceedings,
Principles thereof, which are evolved to achieve
fairness in proceedings, are attached even to arbitral
proceedings—To permit a party to arbitration
proceeding to raise oral plea of ‘‘coercion’’ or ‘‘duress’’
or ‘‘undue influence’’, would cause irreparable
injustice to opposite party as opposite party would be
put to grave disadvantage in dealing with such a
vague and indefinite plea which is devoid of particulars
and specifics—Grant of extension of time by
respondent, till date of abandonment, cannot
necessarily lead to conclusion that delay was
attributable to respondent, and not petitioner—A party
to a contract has option to accept breach thereof by
opposite party and require opposite party to still
complete contract—It is not that whenever there is
breach of contract by one party, opposite party should
rescind contract—Claim for tools & plants stationed at
site for prolonged period made rule of Court—Arbitrator
appointed to reconsider claims for expenses incurred
for delayed work/losses suffered by petitioner due to
contract getting prolonged.
Important Issue Involved: (A) A plea of coercion, or
undue influence or duress (which is not a legally defined
term and is used interchangeably with the first two terms)
has necessarily to be specifically raised and pleaded as a
fact.
(B) A party to a contract has the option to accept the
breach thereof by the opposite party and require the opposite
party to still complete the contract.
[Ar Bh]
APPEARANCES:
FOR THE PLAINTIFF : Mr. Sandeep Sharma, Advocate.
FOR THE DEFENDANT : Mr. Abhishek Puri, Advocate.
CASES REFERRED TO:
1. National Insurance Company Limited vs. Sehtia Shoes,
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(2008) 5 SCC 400.
2. Ranganayakamma and Another vs. K.S. Prakash (Dead)
By LRs. and Others, (2008) 15 SCC 673.
3. Double Dot Finance Ltd. vs. Goyal MG Bases Ltd., 2005(1)
ALR 324 (Delhi).
4. Divisional Manager, United India Insurance Co. Ltd. &
Anr. vs. Sameer Chandra Chaudhary, JT 2005(6) SC
289.
5. Maharashtra S.E.B. and Another vs. Suresh Raghunath
Bhokare [(2005) 10 SCC 465].
6. ONGC vs. Comex Services SA, 2003(3) Arb.LR 197(Bom).
7. Delhi Development Authority vs. Polo Singh, 101 (2002)
DLT 401.
8. NDMC vs. Priya Constructions and another 2001 (2),
Arbitration Law Reporter 126 (Delhi).
9. United India Insurance vs. Ajmer Singh Cotton & General
Mills, (1999) 6 SCC 400.
10. Hindustan Construction Co. Ltd. vs. State of J & K (1992)
4 SCC 217.
11. DDA and others vs. Alkarma AIR 1985 Delhi 132.
12. Pao On and Others vs. Lau Yiu and Another, 1979 (3)
All ER 65.
13. Kale & Others vs. Deputy Director of Consolidation &
Others, (1976) 3 SCC 119.
14. Union of India vs. Baldev Dutt and another, ILR (1972)
I Delhi 811.
15. Union of Indian vs. Bungo Steel Furniture Pvt. Ltd. AIR
1967 SC 1032.
16. Lala Kapurchand Godha and Others vs. Mir Nawab
Himayatalikhan Azamjah, AIR 1963 SC 250 (V 50 C23).
17. Narayan Bhagwantrao Gosavi Balajiwale vs. Gopal
Vinayak Gosavi and Ors., AIR 1960 SC 100).
RESULT: Partly allowed.
VIPIN SANGHI, J.
I.A. No. 1008/2010
1. These are objections preferred by the respondent-DDA under
Sections 30 & 33 of the Arbitration Act, 1940 against the award dated
19.03.2009 passed by Mr. Justice R.C. Chopra, retired Judge, Delhi High
Court.
2. The petitioner M/s Chugh Kathuria Engineers (P) Ltd. was awarded
the work of construction of 96 Type-III, 96 Type II quarters and 140
Scooter Garage in Block-B, Janak Puri, New Delhi vide an agreement
No. 41/EE/HD/VII/DDA/81-82. The stipulated date of commencement of
work was 20.08.1981. The work was to be completed on or before
19.05.1982 i.e. within a period of nine months. However, the work
continued till 1985, and was never completed by the petitioner.
3. The respondent-DDA alleged that the petitioner had abandoned
the work. On the other hand, the case of the petitioner was that the
respondent was responsible for delays and breaches. Disputes arose
between the parties which were referred to arbitration by Mr. M.S.
Telang. Mr. Telang rendered his award on 31.01.1994. The DDA
challenged the said award by filing I.A. No. 8700/1994 in CS(OS) No.
543/1994. By judgment dated 01.08.2006, the learned Single Judge decided
the objection petition. While dealing with the award on claim No. 3,
additional claim No. 3 and counter-clam No. 2, the court observed that
the learned Arbitrator had failed to take into consideration a relevant
document, namely, Exhibit R-2 dated 01.08.1985 which was written by
the petitioner. Consequently, the court set aside the award pertaining to
claim No. 3, additional claim No. 3 and counter-claim No. 2. The relevant
extract from the said order reads as follows:
“44. On claim No.3 of the contractor as also additional ˇclaim
no.3 and counter claim no.2 of DDA, in my opinion there is
serious problem with the award.
45. Claim No.3 was on account recompense claimed by the
contractor for the expenditure incurred during the period contract
got prolonged. Sum of Rs.6,05,800/- has been awarded to the
contractor. On additional claim No.3 sum of Rs.28,900/- has
been awarded. This claim also related to the contract prolonged
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period and was pertaining to the tools and plants stationed at the
site.
46. Counter claim no.2 of DDA was for losses suffered due to
contract getting prolonged.
47. In the preamble of the award, learned Arbitrator has referred
to the delay in furnishing the structural drawings. He has also
referred to the fact that the contractor established that the site
had hindrances. Learned Arbitrator has also held that there was
delay in supply of cement and steel items which were to be
supplied by DDA. Learned Arbitrator has held delay attributable
only to DDA.
48. Consequence of said finding is that DDA's counter claim
No.2 has been rejected and contractor's claim No.3 and additional
claim No.3 has been allowed in sum of Rs.6,05,800/- and
Rs.28,900/- respectively.
49. Learned counsel for DDA drew my attention to Ex R-2 being
a letter relied upon by DDA., The said letter dated 1.8.1995
bears the signature of the contractor.
50. The said letter written by the contractor contains an admission
that delay was occasioned due to contractor's faults.
51. Learned counsel for the contractor drew my attention to the
minutes of the hearing held on 20th August, 1993 (pages 49 to
57 of Part-I of the Arbitrator's record).
52. Minutes of the said meeting notes the stand of the contractor
to the effect that Ex.R-2 was obtained under duress by the
Engineer concerned.
It records the justification of the contractor that the said letter
was written after 2 years of letter Ex. C-24 dated 6.5.1983. The
minutes note that the letter Ex C-24 pertains to grant of extension
of time and does not refer to any delay by the contractor. Minutes
record the submission of the contractor that the language of Ex
R-2 does not show volition of the contractor. It is also noted
that the letter is not on the letter head of the contractor. It is also
recorded that case of the contractor is that in the parliament a
question was raised as to why the project had got delayed and
to save their skin the engineers of DDA had obtained said letter
from the contractor.
53. Unfortunately, learned Arbitrator has not discussed Ex.R-2
while giving his justifications in the award.
54. What has been noted in the minutes dated 20.8.1993 is the
respective stand of the parties. Stand of the contractor qua the
said letter has been noted. But that would not be the justification
for the award.
55. Reasons have to be stated in the award. I cannot enter into
surmises and conjectures. As I read the award I find an omission,
in that, there is no reference whatsoever to Ex.R-2.
56. It is settled law that where a material document has been
ignored by the Arbitrator, in that, while discussing on the issue,
no mention is made thereto, same would vitiate the award as
being a case of legal misconduct, i.e. failure to consider a relevant
and material document.
57. Ex.R-2 is certainly a material document. Its importance can
be gauged from the fact that extensive reference has been made
by learned Arbitrator to the submissions of a contractor made on
20.8.1993 pertaining to Ex.R-2.
58. Findings of the learned Arbitrator pertaining to claim No.3,
additional claim No.3 and counter claim No.2 cannot be sustained
due to non-consideration of Ex.R-2.”
4. The court appointed Mr. Justice R.C. Chopra (Retired), as the
Arbitrator to decide the petitioner’s claim No.3, additional claim No.3 and
DDA’s counter-claim No.2. The court directed that the Arbitrator would
not record any further evidence, but would decide the aforesaid claims
and counter-claim on the basis of the existing evidence. As a consequence
of the aforesaid order, the learned Arbitrator has rendered the impugned
award which is challenged by the DDA.
5. The learned Arbitrator in his award takes note of the judgment
of the High Court aforesaid. He also takes note of the submissions of the
petitioner, inter alia, to the effect that the respondent was responsible for
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the delays in, amongst others, handing over of the construction site, the
supply of construction drawings, granting approvals, issuing cement and
steel doors, pipes, etc. The learned Arbitrator also takes note of the
submission of the petitioner in relation to the Exhibit R-2, that there was
a Parliament Question in 1985 and the Executive Engineer concerned, in
order to save his skin, pressurized and coerced the claimant to write this
letter accepting the responsibility for delay in execution of the work. The
learned Arbitrator observes that before the previous Arbitrator, in the
sixth sitting held on 20.08.1993, it was contended by the petitioner that
the letter Ex. R-2 had been obtained from him in view of a parliament
question. It was also argued that all letters had been written by the
claimant on its letterhead whereas Exhibit R-2 alone was a letter written
on plain paper. The petitioner also highlighted the fact that up to the 34th
RA Bill dated 23.11.1985, the respondent had made payment under Clause
10(C) of the agreement which provides for escalation on labour cost.
The conduct of the respondent in making payment under Clause 10(C)
of the agreement for the period up to November 1985 shows the
acknowledgement by the respondent, of the fact that the delay up to that
period was not on account of the petitioner.
6. The learned Arbitrator also noticed the submission of the
ˇrespondent that Exhibit R-2 was voluntarily written by the claimant
which clinches the issue with regard to the responsibility for the delay
in completion of the project. It was argued that Exhibit R-2 was the
truthful admission on the part of the petitioner that the delay was on its
part only. The respondent relied upon the judgment reported as Double
Dot Finance Ltd. V. Goyal MG Bases Ltd., 2005(1) ALR 324 (Delhi),
to submit that coercion or duress in commercial contracts cannot be
inferred on account of financial pressures only and various other factors
have to be considered to ascertain whether the freedom of exercising
free will was there or not when the person had made the admission.
Pertinently, it was the submission of the respondent that a question was
raised in Parliament in regard to delay in completion of the work and,
therefore, the respondent was pressing the petitioner to re-organise its
work and complete the same.
7. The learned Arbitrator proceed to consider the issue whether
Exhibit R-2 was a voluntary and genuine admission on the part of the
petitioner-claimant regarding its fault in delaying the project, or whether
it was obtained from him under coercion or duress by the Engineers of
the respondent who wanted to save themselves in the wake of Parliament
Question. While dealing with this issue, the learned Arbitrator examines
the correspondence exchanged between the parties as also the various
steps taken by them for the performance of the contract. On this basis,
he concludes that the delay was on the part of the respondent. He also
takes note of the fact that for about three years the respondent allowed
the claimant to go ahead with the work which, according to him, showed
that the petitioner was not to blame for delay in execution of the work.
He notes that as per record till May 1984, when inspection was carried
out the completed work was about 62% only. Still no action taken
against the petitioner. He observes that this indicates that the respondent
was satisfied that the petitioner was not to blame for the delay. He also
notices the fact that the petitioner was paid escalation under Clause 10(C)
upto the 34th RA Bill dated 23.11.1985, which indicated that till then the
respondent did not blame the claimant for delay in execution of the work.
He holds that the letters issued by the respondent, and relied upon by
them, to claim that the progress of the work was slow were of no
consequence. He holds that the said letters were apparently written in
routine, only to save their own skin in regard to delay in completion of
the project.
8. At this stage, I may note that the learned Arbitrator has observed
that the respondent rescinded the contract on 11.10.1985. However, as
a matter of fact, a perusal of Exhibit R-47 dated 11.10.1985 shows that
the said letter does not purport to rescind the contract. The learned
Arbitrator in paragraph 18 of the impugned award holds as follows:
“18. In the light of the aforesaid facts and circumstances and the
evidence on record, it can be safely held that right from the
beginning, the respondent was not adhering to the time schedule
for completion of the work and did not provide the site free
from hindrances to the claimant contractor. It had also defaulted
in supplying the requisite drawings and the material to the claimant
promptly and as such the delay was attributable to the respondent.
Throughout the period of subsistence of the contractual
relationship between the parties, the claimant had been
continuously writing to the respondent that it was not responsible
for the delay in the project. It is not understandable as to why
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all of a sudden on 1st August 1985, the claimant should have
taken a U-turn and written Ex.R2, which was absolutely self-
damaging, contrary to its stand and exonerated the respondent of
all its defaults. The claimant has been contending before the
previous Arbitrator also that Ex.R2 was obtained from him by
the Engineers of the respondent in the wake of a Parliament
Question to save their skin. The respondent has not been able to
suggest even as to why the claimant should have written such
a self damaging letter Ex.R2 without any rhyme or reason. It is
also noticed that all other letters by the claimant were on the
letterheads of the claimant whereas Ex.R2 was on a plain paper,
which indicates that it was not sent from the office of claimant
but was written at some other place. This fact supports the
stand of the claimant that it was obtained from him under pressure
and coercion and it had no reason to write such self-damaging
letter when its disputes with the respondent were still pending
and its accounts had not been settled. The Judgment cited by ld.
Counsel for the respondent is not applicable to the facts of the
present case as it is not pleaded that Ex.R2 was obtained for
releasing payments. I therefore have no hesitation in holding that
Ex.R2 is a procured and false document and cannot be relied
upon to hold that claimant was liable for delay in the project.”
9. The submission of learned counsel for the respondent-applicant
is that the impugned award is not based on any evidence placed before
the learned Arbitrator, and that is an error apparent on the face of the
award. It is submitted that the learned Arbitrator has ignored various
documents relied upon by the respondent. These documents showed that
the petitioner was behind schedule, and in spite of extensions granted to
the petitioner and his promise to complete the work within the extended
period, the same was not so completed. It is also argued that the petitioner-
claimant did not deny the fact that the Ex.R-2 dated 01.08.1985 was a
letter written by it. There was no pleading or averment made to support
the story that the said letter Ex. R-2 was obtained from the petitioner
under coercion or duress by the respondent. This oral plea raised in a
hearing held on 20.08.1993 was not corroborated by any material or
evidence placed on record of the learned Arbitrator. Learned counsel for
the respondent submits that the learned Arbitrator has misconducted
himself by accepting the said plea of the petitioner.
10. On the other hand, learned counsel for the petitioner has supported
the impugned award by submitting that the learned Arbitrator has
considered documentary evidence placed before him to conclude that the
delay was attributable to the respondent at various stages of the work,
and there was no reason for the petitioner to have issued Ex.R-2 dated
01.08.1985 which was self destructive and went contrary to the position
as it emerges from the evidence placed on record. The petitioner also
submits that claim No. 2 had been made by the petitioner to claim
escalation on account of delay by the respondent. The said claim had
been allowed by the earlier appointed Arbitrator and also upheld by the
High Court, which establishes that the delay was not on account of
defaults of the claimant-petitioner, but on account of hindrances and
delay caused by the respondent. It is argued that the decision of the High
Court in regard to claim No. 2 operates as issue estoppel against the
respondent inasmuch, as, by allowing this claim the High Court had put
the blame for delay on the respondent. Learned counsel for the petitioner
has raised various other submissions which I shall record a little later.
11. A perusal of the impugned award shows that the learned
Arbitrator has recorded a finding in paragraph 18 to the effect “This fact
supports the stand of the claimant that it was obtained from him under
pressure and coercion and it had no reason to write such a damaging
letter when its disputes with the respondent were still pending and its
accounts had not been settled”. The coercion and duress alleged by the
petitioner was on the premise that there was a Parliament question in
1985 and the Executive Engineer concerned, in order to save his skin,
pressurized and coerced the claimant to write this letter, accepting
responsibility for the delay in execution of the work.
12. In relation to the said cause for coercion, pertinently there is
no finding returned by the learned Arbitrator. The learned Arbitrator has
not found, as a matter of fact, that a parliament question was raised
around the time when the letter Ex.R-2 was issued, or that the same was
issued due to coercion exercised by the respondent due to the said
parliamentary question being raised, to save their skin. A perusal of the
impugned award shows that the finding of coercion returned by the
Learned Arbitrator is only inferential i.e. it is inferred from the finding
that the respondent alone was responsible for the delay. On the basis of
this finding it is inferred that there could be no other reason for the
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petitioner to voluntarily give a self destructive letter as Ex. R-2. There is
no direct finding of fact, to the effect that the respondent exercised
coercion or duress upon the petitioner to extract Ex. R-2.
13. During the course of arguments, I called upon the petitioner to
show me the pleading of the petitioner to the effect that Ex. R-2 had been
given under coercion and pressure for the reason that there was a
Parliament question raised in 1985, and that the Executive engineer
concerned, in order to save his skin had pressurized and coerced the
petitioner into writing Ex.R-2. There was absolutely no mention of Ex.R-
2 in the petitioner’s statement of claim. Therefore there is no pleading
in relation to Ex. R-2 either. Ex.R-2 was relied upon by the respondent
in it counter statement of fact while dealing with claim no.2. It would
be appropriate to set out the pleading of the respondent in reply to Claim
No.2. The same reads as follows:-
“Claim No.2
Claim No.2 is in fact mischievous and without any basis. In
terms of clause-10C of the agreement the claimant is entitled for
claim towards the cost of material till the date of completion of
the work but the claimant is not entitled to claim any rise in the
cost of materials if the delay is on the part of the claimant. Since
in the present case the work has been delayed by the
claimant and it is entirely attributable to the claimant
therefore the claimant is not entitled for any payment under
Clause 10-C after the extended date of completion. It is
further submitted that since the claimant had abandoned
the work on 25.11.1985 the respondent became entitled to
get the work done at the risk & cost of the claimant. In
fact the delay has already been admitted by the claimant in
his letter dt. 1.8.85 (Exh.R-2) wherein the claimant himself
has admitted that on account of some financial problem of
the contractor/claimant the claimant was not in a position
to deploy the sufficient labour to complete the work as per
the programme submitted by the claimant, duly concurred
by the respondents. In view of the situation that the claimant
has admitted the delay, he is not entitled for payment under
Clause 10-C as the delay is entirely attributable to the
claimant himself. The details of the payments made under clause
10-C are given in Exh.R-3 of counter statement of facts. Such
payments are reimbursed to the claimant. The claim is therefore
liable to be rejected and the excess payments made to the claimant
may please be awarded in favour of the respondents which are
being filed under the head of Counter Claims.” (emphasis supplied)
14. Pertinently, the petitioner did not file any rejoinder before the
arbitral tribunal to controvert the aforesaid averments and, in particular,
to controvert the respondent’s reliance placed at Ex.R-2. It would be
appropriate at this stage to reproduce Ex.R-2 a well. The same reads as
follows:-
“M/S Chugh Kathuria Engineers (P) Ltd.
J-11/94 Rajouri Garden, N. Delhi.
To,
The Executive Engineers,
Housing Division No.XXX,
DDA, New Delhi.
Sub: C/o 96, Type-III, 96, Type-II house and 144 S/Grs. In
Block B Janakpuri.
Dear Sir,
Kindly refer your letter No.F(31)A/HDXXX/DDA/84/85/ 1276
dated 24/7/1985 regarding slow progress on the above cited
work. It is admitted that on account of some financial problem
with the firm, we could not deploy sufficient labour required to
complete the work as per programme given by you. We now
reaffirm that the entire work as per terms and conditions of the
agreement like flooring, plastering, white washing, sanitary
installations, water supply installations, miscellaneous items and
item of internal development shall all be completed by 30th Sep.
85. We further assured that labour to the extent of about 150
Nos. including 30-35 Masons, carpenters and fitters etc. shall be
deployed with immediate effect and department shall be liberty to
deploy labour at our risk and cost, in case we fail to keep our
promise and fullfil the targets.
Chugh Kathuria Engineers (P) Ltd.
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c.c.S.E. Circle-XIII for kind information.”
15. The stand of the petitioner that Ex.R-2 was given under duress
and coercion was raised by the petitioner only during the course of oral
submissions made before the arbitral tribunal in the proceedings held on
20.08.1993, while discussing counter claim No. 2 of the respondent. I
think it appropriate to extract the relevant proceedings drawn up by the
learned Arbitrator in relation to Ex.R-2. The same read as follows:-
“All emphasis is drawn by respondent from R-2 Ext.” is granted
by C-24/6.5.83 (upto 31.8.83 extension stands granted). This is
the last extension on record.
R-2/1.8.85. from Claimant is almost 2 years after C-24/6.5.83.
In the light of querry in Parliament: R-2 was LC found.
Language of R-2 is not on claimants own volition. Even so, it is
mere promise. It cannot therefore said to be one drafted for
Claim 3 of Agt.”
16. The petitioner, it appears did not lead any direct evidence before
the earlier Arbitrator to establish duress or coercion. Before the learned
Arbitrator it was claimed that the Parliamentary question was raised in
1985 and that Exhibit R-2 was taken from the petitioner under ˇduress
and coercion in the wake of the said parliamentary question, to save the
skin of the respondent’s officers. However, there was no document
placed on the record of the learned Arbitrator to show that any
parliamentary question was raised in relation to the project in the year
1985. On the contrary, there is a communication dated 04.02.1984 issued
by the respondent (Ex.R-30) which, inter alia, records “You are well
aware that these houses are to be completed by June. 84 as per programme
given by the department to the Parliament”. It would, therefore, appear
that the issue in relation to the project was raised in Parliament well
before 04.02.1984. In fact, a letter dated 30.01.1984 addressed to Sh.
Harish Khanna, Vice Chairman, DDA (Ex. R-33) shows that the question
in the Lok Sabha was raised as early as on 19.12.1983. As aforesaid,
there is no evidence placed on record by the petitioner to substantiate the
plea that the said issue was again raised before the Parliament close to
the date of issue of the communication dated 01.08.1985, Ex. R-2.
17. In my view, the learned Arbitrator has grossly misconducted
himself in adopting such a course of action. Firstly, the Court had
remanded back the matter to the learned Arbitrator to consider Ex.R-2.
Consideration of Ex.R-2 entailed the consideration of the issue, whether,
in the absence of any pleading whatsoever by the petitioner, the petitioner
could, at all, raise an oral plea of exercise of coercion and duress by the
respondent to obtain Ex.R-2, only at the time of making its oral submissions
before the Arbitral Tribunal. Even if it were to be assumed for the sake
of argument, that such a plea could be raised orally, without any foundation
in pleadings, consideration of Ex.R-2 would also have entailed the
consideration of the issue whether Ex.R-2 had, in fact, been obtained by
duress and coercion.
18. Unfortunately, the learned Arbitrator has not addressed himself
to the issue, whether the petitioner could have raised a plea of coercion
and duress in relation to Ex. R-2 for the first time during the course of
its oral submissions before the learned Arbitrator on 20.08.1993, without
there being any basis for such a plea in the pleadings before the Arbitrator.
19. The Indian Contract Act, 1872 defines ‘Coercion’ in Section 15
as follows :
“Coercion is the committing, or threatening to commit, any act
forbidden by the Indian Penal Code (45 of 1860) or the unlawful
detaining, or threatening to detain, any property, to the prejudice
of any person whatever, with the intention of causing any person
to enter into an agreement.”
“Undue influence” is defined in Section 16 in the following manner:
“(1) A contract is said to be induced by "under influence" where
the relations subsisting between the parties are such that one of
the parties is in a position to dominate the will of the other and
uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generally of the
foregoing principle, a person is deemed to be in a position to
dominate the will of another -
(a) where he hold a real or apparent authority over the other, or
where he stands in a fiduciary relation to the other; or
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(b) where he makes a contract with a person whose mental
capacity is temporarily or permanently affected by reason of
age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of
another, enters into a contract with him, and the transaction
appears, on the face of it or on the evidence adduced, to be
unconscionable, the burden of proving that such contract was
not induced by undue influence shall be upon the person in a
position to dominate the will of the other. Nothing in the sub-
section shall affect the provisions of section 111 of the Indian
Evidence Act, 1872 (1 of 1872).”
A plea of coercion, or undue influence, or duress (which is not a
legally defined term and is used interchangeably with the first two terms)
has necessarily to be specifically raised and pleaded as a fact. As to how
coercion or undue influence has been exercised by one party upon the
other are all matters of fact.
20. Though the Code of Civil Procedure is not strictly applicable to
arbitral proceedings, the Principles thereof, which are evolved to achieve
fairness in proceedings, are attracted even to arbitral proceedings. In
Union of Indian Vs. Bungo Steel Furniture Pvt. Ltd. AIR 1967 SC
1032 and Hindustan Construction Co. Ltd. Vs State of J & K (1992)
4 SCC 217 the Supreme Court held that though Section 34 CPC per se
did not apply to arbitral proceedings, but the principles thereof have been
held to be applicable to arbitral proceedings.
21. In Union of India Vs. Baldev Dutt and another, ILR (1972)
I Delhi 811 the Court held that in an Arbitration (under the Arbitration
Act, 1940), the Arbitrator is entirely in the same position as a Judge with
the difference that his authority is derived not by virtue of a public office
but by virtue of an agreement between the parties. The proceedings
before the arbitrator are, therefore, entirely judicial. The Court distinguished
the proceedings before an arbitrator appointed under the Arbitration Act,
1940 from proceedings which are called quasi judicial proceedings before
an authority which combines two capacities of a Judge and an
administrator. The Court held that where an arbitrator is appointed by the
parties to decide the disputes arising out of the contract between them,
he is just like a Judge. The arbitrator is not governed by the technical
rules contained in the Civil Procedure Code and the Evidence Act. He is
nevertheless required to follow the fundamental rules of fair procedure.
This is why his award would be vitiated if he misconducts the
proceedings. The proceedings would include the hearing of the parties
and taking evidence with a view to decide the disputes between them.
Evidence may, however, be documentary or oral or both. It may even
consist of the admissions made in the pleadings.
22. The Court further held that if on examination of award by the
Court “it is apparent that the proceedings were misconducted by the
arbitrator then the effect of such misconduct would be a question of law
and it would be difficult for the Court to shut its eyes to such misconduct.
It is true that the misconduct must be flagrant to vitiate the proceedings.
Minor mistakes of technical nature would not be misconduct. But the
complete failure of an arbitrator to collect any evidence on which
he based his award would be such misconduct.”
23. I may also note that, without going into the issue whether the
provisions contained in the Civil Procedure Code, or the principles thereof
apply to arbitral proceedings, this Court in NDMC Vs. Priya
Constructions and another 2001 (2), Arbitration Law Reporter 126
(Delhi) invoked the provisions contained in Rule 8 of Order IX, Civil
Procedure Code. In this case the claimant failed to appear before the
Arbitrator despite notices. The learned Arbitrator, inspite of that, proceeded
to pass a ‘nil’ award. The Court held that the arbitrator could have
dismissed the claim in default but could have not rendered an award on
merits. Reliance was placed on the provisions of the Civil Procedure
Code, and, in particular Order IX Rule 8 Civil Procedure Code to set
aside the award made by the Arbitrator.
24. In DDA and others Vs. Alkarma AIR 1985 Delhi 132, this
court held as follows:
“The administration of justice would require that there should
not be multiplicity of proceedings and the parties should not be
permitted to raise disputes over and over again once the disputes
have been entitled (settled sic) either by the pronouncement of
a Court on (of sic) competent jurisdiction or by an award by an
arbitrator. Once the suit, which is filed, has been decided, the
provisions of Order II Rule 2 become applicable. After the trial
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of the suit if any claim, which could have been made, has not
been made, then it is deemed that the same has been relinquished
and a fresh suit in respect to the said claim cannot be filed.
During the pendency of the suit, however, the plaintiff has a
right to apply for amendment of the plaint under Order VI Rule
17 in order to enlarge the scope of the suit and, if he so desires,
raise additional pleas praying for a larger relief than what he had
prayed for originally. Just as a Court while exercising its
power under Order VI Rule 17 has the jurisdiction to allow
amendment, in the arbitration proceedings as well as the
same principle should be invoked. It is true that if an award
has been made then the principles analogous to Order II
Rule 2, C.P.C. would apply and after the making of the
award a claimant cannot seek to raise a dispute which he
ought to or could have raised earlier. This being so, it would
indeed be unfair and unjust not to invoke the principles of
Order VI Rule 17 during the pendency of the arbitration
proceedings.” (emphasis supplied)
25. It is not without purpose that Order VI Rule 4 CPC provides
that “In all cases in which the party pleading relies on any
misrepresentation, fraud, breach of trust, willful default, or undue influence,
and in all other cases in which particulars may be necessary beyond such
as are exemplified in the forms aforesaid, particulars (with dates and
items if necessary) shall be stated in the pleading.” The above rule is
engrafted to bind the party making the pleading to his case (so that he
does not shift from his stand), and also to enable to opposite to effectively
meet the same. To permit a party to an arbitration proceeding to raise an
oral plea of “coercion” or “duress” or “undue influence” would cause
irreparable injustice to the opposite party as the opposite party would be
put to grave disadvantage in dealing with such a vague and indefinite plea
which is devoid of particulars and specifics.
26. In Lala Kapurchand Godha and Others Vs. Mir Nawab
Himayatalikhan Azamjah, AIR 1963 SC 250 (V 50 C23), as no plea
was raised by the appellants to the effect that the endorsement on the
promissory notes has been obtained by coercion, and no issue was
struck between the parties as to the endorsements on the promissory
notes having been obtained by coercion, the court held that the question
of coercion was introduced as and by way of afterthought.
27. In Kale & Others Vs. Deputy Director of Consolidation &
Others, (1976) 3 SCC 119, the Supreme Court was dealing with an
argument that the family settlement in question had been brought about
by duress or undue influence or fraud. The Supreme Court, in para 29,
held that in respect of the challenge to the family settlement that it was
brought about by duress, or undue influence or fraud, there was no iota
of evidence or whisper of an allegation by the challenger either in the
Subordinate Courts or in the High Court. The Supreme Court held that
“it is well-settled that allegations of fraud or undue influence must be first
clearly pleaded and then proved by clear and cogent evidence”.
28. In Ranganayakamma and Another Vs. K.S. Prakash (Dead)
By LRs. and Others, (2008) 15 SCC 673, the Supreme Court held that:
“43. We are, however, not oblivious of the decisions of this
Court and other High Courts that illegality of a contract need not
be pleaded. But, when a contract is said to be voidable by reason
of any coercion, misrepresentation or fraud, the particulars thereof
are required to be pleaded. In Maharashtra S.E.B. and Another
v. Suresh Raghunath Bhokare [(2005) 10 SCC 465], the law
is stated in the following terms:
"5...The Industrial Court after perusing the pleadings and
the notice issued to the respondent came to the conclusion
that the alleged misrepresentation which is now said to be
a fraud was not specifically pleaded or proved. In the
show-cause notice, no basis was laid to show what is the
nature of fraud that was being attributed to the appellant.
No particulars of the alleged fraud were given and the
said pleadings did not even contain any allegation as to
how the appellant was responsible for sending the so-
called fraudulent proposal or what role he had to play in
such proposal being sent..."
[See also Prem Singh Vs. Birbal, (2006) 5 SCC 353]
44. In Ramesh B. Desai and Others v. Bipin Vadilal Mehta
and Others [(2006) 5 SCC 638], this Court emphasized the
necessity of making requisite plea of Order 6, Rule 4 stating:
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"22. Undoubtedly, Order 6 Rule 4 CPC requires that
complete particulars of fraud shall be stated in the pleadings.
The particulars of alleged fraud, which are required to be
stated in the plaint, will depend upon the facts of each
particular case and no abstract principle can be laid down
in this regard."
45. In Sangramsinh P. Gaekwad and Others v. Shantadevi
P. Gaekwad [(2005) 11 SCC 314], this Court held:
"207. We may now consider the submissions of Mr Desai
that Appellant 1 herein is guilty of commission of fraud.
Application filed by Respondent 1 before the Gujarat High
Court does not contain the requisite pleadings in this behalf,
the requirements wherefor can neither be denied nor
disputed.
208. It is not in dispute that having regard to Rule 6 of
the Companies (Court) Rules, the provisions of the Code
of Civil Procedure will be applicable in a proceeding under
the Companies Act. In terms of Order 6 Rule 4 of the
Code of Civil Procedure, the plaintiff is bound to give
particulars of the cases where he relies on
misrepresentation, fraud, breach of trust, etc." (emphasis
supplied)
29. In National Insurance Company Limited Vs. Sehtia Shoes,
(2008) 5 SCC 400, the respondent had preferred a consumer claim under
the Consumer Protection Act against the appellant. The matter travelled
to the Supreme Court. The Supreme Court took notice of the decision
in United India Insurance Vs. Ajmer Singh Cotton & General Mills,
(1999) 6 SCC 400, wherein it was held that the discharge vouchers were
executed voluntarily and the complainant had not alleged their execution
to be under fraud, undue influence, misrepresentation or the like. The
Supreme Court in Ajmer Singh (supra) held that in the absence of
pleadings and evidence, the State Commission was justified in dismissing
the complaint. In Sehtia Shoes (supra), though the plea of coercion has
been raised by the complainant before the District Forum, but the same
had not been proved. Consequently, the Supreme Court allowed the
appeal of National Insurance Company Limited and remitted the matter
back to the District Forum for fresh adjudication. Pertinently, the Civil
Procedure Code and the Evidence Act do not apply to the proceedings
under the Consumer Protection Act, just as they are not strictly applicable
to the proceedings before the Arbitrator under the Arbitration Act, 1940.
However, the principles of these statutes were made applicable to the
Consumer Courts because the fundamental principles of procedure and
evidence cannot be given a go-bye, as these principles are founded upon
concepts of fair play and natural justice.
30. Therefore, in the light of the aforesaid legal position, I cannot
appreciate how the learned Arbitrator could have examined the petitioner’s
oral defence to Ex. R-2 that the same was obtained by coercion or
duress. Such a plea could not have been entertained as it was raised
without any specific pleading. The learned arbitrator has misconducted
the proceedings by falling in this patent error.
31. The submission of Mr. Sharma is that when this court, in the
earlier round had remanded the matter back to the Ld. arbitrator, at that
stage, such a view was not taken. The court required the arbitrator to
examine the issue afresh on the basis of the existing evidence and,
therefore, it can not be said that without any pleading the said plea of
coercion and duress could not have been entertained. This plea is meritless.
A perusal of the order passed by the court in the earlier round shows that
the court had not even examined whether there was, or was not, any
pleading of coercion or duress raised by the petitioner. There is no
discussion on the aspect of the petitioner not having raised the said
defense to Ex. R-2 in its pleading. Therefore, it can not be inferred that
the court had ruled that even without a specific pleading, the defence of
coercion and duress could be raised.
32. Pertinently, the learned Arbitrator himself holds that in the facts
of this case it was not pleaded that the coercion and duress was economic
or financial coercion or duress. The questions then arise, what kind of
coercion or duress was exercised; was it threat to the life of any of the
officers of the petitioner, or to the and property of the petitioner, or any
of its officers? If so, to whom was the threat issued? If so, by whom?
If so, when? If so, where? It is also pertinent to note that the petitioner,
on its own, did not even bother to make a reference to Ex. R-2 in its
statement of claim.
33. The aforesaid are some of the obvious questions that the arbitrator
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should have addressed himself to, before concluding inferentially that
there was exercise of coercion or duress by the respondent upon the
petitioner. In the absence of any pleading the aforesaid questions could,
obviously, not have been raised or answered.
34. Even if one were to assume for the sake of argument, that in
arbitration proceedings the plea of coercion or duress need not be
specifically pleaded by a party in its pleadings, and that the same could
be raised in an oral hearing, as aforesaid, the learned Arbitrator has not
even gone into the absolutely imperative factual enquiry with regard to
the exercise of coercion and duress by the officers of the respondent.
35. The document Ex.R-2 was suppressed by the petitioner. It was
only brought out by the respondent. The petitioner, even after the execution
of the said document as early as 01.08.1985, did not retract it or make
any allegation of its being obtained by coercion or duress till as late as
20.08.1993, i.e., after a lapse of more than eight years. Even this statement
was made only orally during the course of the advancement of submissions
before the learned Arbitrator. Despite the fact that the petitioner could
have raised the said plea by filing a rejoinder to the counter-statement of
facts filed by the respondent, no such opportunity was sought or availed
of by the petitioner. Pertinently, the counter-statement of facts, wherein
the respondent had relied upon Ex.R-2, was filed by the respondent
before the learned Arbitrator on or about 04.09.1989. The oral plea, as
aforesaid, was made by the petitioner nearly four years thereafter.
36. I also find that the manner in which the learned Arbitrator has
dealt with the decision in Double Dot Finance Limited (supra) specifically
relied upon by the respondent to be completely perfunctory. The only
reason given by the learned Arbitrator to distinguish the said decision in
the facts of the present case is that, in the present case, the petitioner
had not alleged economic duress, whereas in the case of Double Dot
Finance Limited (supra) economic duress had been raised as a defence
to the execution of a full and final settlement receipt. Pertinently, the
decision in Double Dot Finance Limited (supra) was rendered by Mr.
Justice R.C. Chopra i.e. learned Arbitrator while sitting as a Judge of this
court. In para 9 of this decision the court took note of the judgment of
the Privy Council in Pao On and Others Vs. Lau Yiu and Another,
1979 (3) All ER 65. By referring to the said decision, this court had held:
“It was also held that the question as to whether at the time the
person making a contract allegedly under coercion had or not
any alternative course open to him which could be an adequate
legal remedy and whether after entering into the contract, he
took steps or not to avoid it are matters which are relevant for
determining as to whether he acted voluntarily or not. It was
also held that the compulsion has to be of a nature which deprives
a party of his freedom of exercising free will leaving no alternative
course open to him. Therefore, the 'coercion' or 'duress' required
for vitiating 'free consent' has to be of the category under which
the person under 'duress' is left with no other option but to give
consent and is unable to take an independent decision, which is
in his interest.”.
37. This court further held as follows:
“11. In certain cases, the plea of entering into 'settlement' under
coercion, mistake, duress or misrepresentation may, however,
be examined and accepted even if the facts and circumstances
establish that the party repudiating the agreement was under
pressure of the other party at the time of entering into settlement
and had without delay taken steps to disclaim the accord and
satisfaction. Mere financial exigency or economic expediency
cannot constitute 'pressure'.
12. .……………...However, the plea of coercion, undue influence
or duress raised by a party to challenge the 'accord and
satisfaction' cannot be accepted lightly merely upon word of
mouth. The facts and circumstances, material on record and
conduct of the parties at the time of signing the settlement
agreement and soon thereafter have to be looked into. It need not
be stated that the burden to establish this plea remains on the
party which raises it.”
38. In para 14, this court held:
“14. If such pleas are sustained, the sanctity and purpose of
‘amicable settlements’ between the parties would stand totally
eroded. Amicable resolution of disputes and negotiated settlements
is ‘public policy of India’. Section 89 of the Code of Civil
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Procedure, 1908, Arbitration and Conciliation Act, 1996 as well
as Legal Services Authorities Act, 1995 call upon the Courts to
encourage settlement of legal disputes through negotiations
between the parties. If amicable settlements are discarded and
rejected on flimsy pleas, the parties would be wary of entering
into negotiated settlements and making payments there under as
a shrewed party after entering into a negotiated settlement, may
pocket the amount received under it and thereafter challenge the
settlement ad re-agitate the dispute causing immeasurable loss
and harassment to the party making payment there under. This
tendency has to be checked and such litigants discouraged by
the Courts. It would be in consonance with public policy of
India. The Arbitrator, Therefore, had acted against public policy
of India by accepting the plea as raised by the respondent No.1
and thereafter, passing an Award. The view taken by the Arbitrator
was absolutely capricious, unfair and unreasonable and as such,
the impugned ward dated 29.11.2002 passed by him is liable to
be set aside.”
39. Merely because the present was not a case wherein the petitioner
had alleged exercise of duress and coercion on economic grounds, the
decision in Double Dot Finance Limited (supra) did not become irrelevant,
as this court had set out the General Principles and Guidelines to examine
a plea of coercion, duress, or undue influence on the basis of settled law.
Pertinently, it was not even pleaded, even during the oral submissions by
the petitioners before the learned Arbitrator on 20.08.1993, as to what
was the nature of the coercion or duress exercised by the officers of the
respondent. Was it that the officers of the respondent had physically
threatened any officer of the petitioner or had threatened the petitioner
that the petitioner may be blacklisted, etc.? None of this is pleaded or
proved. In the absence of such pleading and proof the finding returned
by the learned Arbitrator that the Ex.R-2 was obtained by exercise of
coercion or undue influence or duress cannot be sustained and it suffers
from error apparent on the face of the award. As observed in Double
Dot Finance Limited (supra), in this case as well I have to say that the
view taken by the Arbitrator is absolutely capricious, unfair and
unreasonable and the learned Arbitrator has misconducted himself in
making the impugned award.
40. The learned Arbitrator goes into the plea of duress and coercion
not by directly examining the said plea as orally raised by the petitioner,
for the first time, in the proceedings held on 20th August, 1993. The said
plea should have been examined, if at all, by asking the question whether
the petitioner had placed any material or evidence on record to show that
a parliamentary question was raised regarding the construction of the
flats in question some time before Ex. R-2 was issued. However, the
learned Arbitrator has not even gone into this aspect of the matter. Had
he ventured that way, he would have found that the petitioner had not
placed on record any material or evidence to show that a parliamentary
question was raised in respect of the project in question at any time
proximate to the date of issuance of the Ex.R-2. Instead he would have
found that the parliamentary question was raised well before early February,
1984 i.e. at least 1½ years before the issuance of Ex.R-2 dated 01.08.1985.
He would have also found that there was not an iota of evidence lead by
the petitioner in the arbitral proceedings to substantiate the said oral plea
of duress or coercion.
41. The learned Arbitrator has examined various documents placed
ˇon record by the petitioner while dealing with the issue of delay.
Undoubtedly, the documents relied upon by the petitioner before the
learned Arbitrator do show that the respondent was indeed responsible
for the initial delay of the project. However, the documents taken note
of by the learned Arbitrator in the impugned award do not show delays
and defaults on the part of the respondent till August, 1985 or thereafter.
In fact, the petitioner in its letter dated. 10.2.1984 (C-45), while raising
the issue of payment of dues under clause 10(C) and 12 of the agreement
stated as follows :
“We have sufficient labour and material with us and as such
there is no hindrance in our work on account of this but the
progress of our work is being hindered only for non-payment
of our long outstanding dues. Kindly release the same
immediately so that we may be able to show our worth in
completing the job by the target already committed.” (emphasis
supplied)
42. It is pertinent to note that after issuance of this letter dated
10.2.1984 (C-45), there was no communication from the side of the
petitioner, and on 16.11.1984, the respondent issued a show cause notice
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under Clauses 2 and 3 of the Agreement (C-46) thereby complaining that
there was slow progress of the work without any reason. On 7.12.1984
(C-47), the petitioner sent its reply. In this reply the petitioner referred
to the earlier defaults and failures of the respondent, but did not refer to
any ongoing failure or default of the respondent. In the concluding
paragraphs of this communication the petitioner stated as follows :
“We are still on the job and hope to complete the same ˇwith
in the shortest possible time provided, we continue to get your
present co-operation.
We would therefore earnestly request you to kindly atleast go
through the realities of the case before the imposing penal clauses
2 & 3 of the contract.
In the end we may assure you, Sir, that with the present state
of affairs, we hope to hand over the completed flats to you in
the very near future.
We have deployed sufficient labour for rectification of the defects
and when our labourers are at the job there is no point in engaging
departmental labour on the same very job. Hence we may either
be specifically informed of the work done and the quantum there
to by the departmental labour to enable us to make necessary
deductions from our labourers or no such claim of the department
shall be entertained.”
43. On 24.07.1985, the respondent issued another show-cause notice
(Ex. R-45) to the petitioner, alleging that the petitioner was “not executing
the work speadily. It is evident that you have failed to carry out the work
as per conditions of agreement”.
44. Between 07.12.1984 and 01.08.1985 (the date of issuance of
Ex.R-2) there is no other communication issued by the petitioner alleging
any further delay or defaults on the part of the respondent.
45. Pertinently, the learned Arbitrator in Para 15 of the impugned
award observes “Not only this, the drawings for water supply duly
approved by MCD were supplied to the claimant on 05.09.1984 only i.e.
after about two years of stipulated date of the completion of the contract”.
This observations appears to be patently incorrect as none of the documents
referred to or relied upon in the award suggests so. In para 6 of the
impugned award, the date of supply of drawings for water supply,
approved by MCD has been noticed as 05.04.1984 i.e. 5 months earlier.
Pertinently, the stipulated date of start under the contract was 20.08.1981,
and the stipulated date of completion was 19.05.1982. Therefore, the
period of the contract was nine months. Even if the said period is
assumed to begin in April, 1984, the same would have expired in January
1985. It is not as if before April 1984, no work could be carried out by
the petitioner. The petitioner had been able to complete substantial work
by April 1984 (nearly 60%) as noticed by the Ld. Arbitrator. The issuance
of the letter Ex. R-2 dated 01.08.1985 in these circumstances cannot be
said to be unusual, or that the said letter was against the other facts
emerging from the record.
46. In Divisional Manager, United India Insurance Co. Ltd. &
Anr. v. Sameer Chandra Chaudhary, JT 2005(6) SC 289 the Supreme
Court held as follows:
“……Admission is the best piece of evidence against the persons
making admission. As was observed by this Court in Avadh
Kishore Das v. Ram Gopal and Ors. AIR 1979 SC 861 in the
backdrop of Section 31 of Indian Evidence Act, 1872 (in short
the ‘Evidence Act’) it is true that evidentiary admissions are not
conclusive proof of the facts admitted and may be explained or
shown to be wrong; but they do raise an estoppels and shift the
burden of proof placing it on the person making the admission
or his representative-in-interest. Unless shown or explained to be
wrong, they are an efficacious proof of the facts admitted. As
observed by Phipson in his Law of Evidence (1963 Edition, Para
678) as the weight of an admission depends on the circumstances
under which it was made, these circumstances may always be
proved to impeach or enhance its credibility. The effect of
admission is that it shifts the onus on the person admitting the
fact on the principle that what a party himself admits to be true
may reasonably be presumed to be so, and until the presumption
is rebutted, the fact admitted must be taken to be established. An
admission is the best evidence that an opposing party can rely
upon, and though not conclusive is decisive of matter, unless
successfully withdrawn or proved erroneous. (See Narayan
419 420Chugh Kathuria Eng. (P) Ltd. v. Delhi Devel. Auth. (DDA) (Vipin Sanghi, J.)
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The admission contained in Ex.R-2 binds the petitioner as the petitioner
has not pleaded or proved coercion or duress before the learned arbitrator.
47. Ex. R-2 clearly demonstrates the admission on the part of the
petitioner to the fact that the petitioner was responsible for the delay. I
am not suggesting that the entire delay was attributable to the petitioner.
48. From the documents referred to in the impugned award, it
emerges that the delays and defaults on the part of the respondent did
not continue, in any event, after April, 1984.
49. The finding of the learned Arbitrator that “It is not understandable
as to why all of a sudden on 1st August 1985, the claimant should have
taken a U-turn and written Ex.R2, which was absolutely self-damaging,
contrary to its stand and exonerated the respondent of all its defaults”,
appears to be result of non-application of mind to the aforesaid facts and
documents/evidence on record.
50. Pertinently, the learned arbitrator has even failed to notice that
Ex. R-2 had been issued in response to the respondent’s show cause
notice bearing No.F(31)A/HDEXXX/DDA/84-85/1276 dated 24.07.1985
regarding slow progress of the work at the site. The said show cause
notice dated 24.07.1985 was also placed on record by the respondent as
Ex. R-45. Therefore, it could not be said that the letter dated 01.08.1985
(Ex. R-2) came as bolt from the blue, as held by the learned arbitrator.
The facts discussed above show that the communication dated 01.08.1985
was not issued, as suddenly, as held by the learned Arbitrator. It was
also not a U-turn inasmuch, as, the respondent had issued notices dated
16.11.1984 (C-46), 07.12.1984 (C-47) and 24.07.1985 (R-45) accusing
the petitioner of delays and defaults in the completion of the works. The
petitioner had, as early as on 07.12.1984 and responded by assuring the
completion of the works “in the very near future”. It is clear that the
learned Arbitrator has ignored, inter alia, the petitioner’s reply (C-47)
dated 07.12.1984, and the respondents notice dated 24.07.1985 (R-45)
while rendering his impugned award. Failure to consider such relevant
documents amounts to misconduct on the part of the learned Arbitrator.
There is nothing placed on record to show that “throughout the period
of subsistence of contractual relationship between the parties, the claimant
421 422 Chugh Kathuria Eng. (P) Ltd. v. Delhi Devel. Auth. (DDA) (Vipin Sanghi, J.)
had not continuously written to the respondent that it was not responsible
for the delay in the project”. As aforesaid, firstly, the contract was not
rescinded on 11.10.1985. Secondly, after the issuance of the letter dated
10.02.1984 (C-45), the petitioner, of its own, did not even once make
a grievance of the existence of any further hindrances, delays or defaults
on the part of the respondent. The observations of the learned Arbitrator
that “the mere fact that the respondent has been writing certain letters
to the claimant that the progress of the work was slow is of no
consequence. It appears that the respondent was writing these letters in
routine only with a view to save its own skin in regard to the delay in
the completion of the project”, shows non-application of mind by the
learned Arbitrator to very relevant documents and facts. The dates and
contents of these letters have not at all been examined and considered by
the learned Arbitrator.
51. A perusal of the impugned award shows that the learned
Arbitrator has heavily relied upon the fact that the respondent had granted
escalation to the petitioner under Clause 10(C) up to 34th RA Bill dated
23.11.1985. The learned Arbitrator held that this indicates that till then
the respondent did not blame the claimant-contractor for delay in execution
of the work. However, the learned Arbitrator has failed to notice the case
of the respondent as set out in its counter statement of facts. It was the
specific plea of the respondent, in response to claim No. 2, that the
claimant was not entitled to escalation under Clause 10(C). I have already
extracted the stand of the respondent in this regard hereinabove. The
respondent had, in fact, given the details of payments made under Clause
10(C) in Ex. R-3. The excess payment made under clause 10 (C)
according to the respondent, was to the tune of Rs.1,73,220.30/- on
labour account, and Rs.96,562.72/- on account of Bricks. As already
noticed above, there was no rejoinder filed by the petitioner in the arbitration
proceedings to controvert the said plea of the respondent. Therefore, no
conclusion could have been drawn by the learned Arbitrator to the effect
that the mere over payment of escalation under Clause 10 (C) upto the
34th RA Bill dated 23.11.1985, tantamounted to an admission that the
petitioner was not liable for delay after the expiry of the extended period
of contract. The release of the said payment was pleaded to be in excess
of what was due. Whether the payment under Clause 10(C) was in
excess or not, itself depended on the determination of the issue whether
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on to the Executive Engineer, DDA.
33. Unfortunately, the rough calculations submitted by the
contractor are not to be found in the record of arbitration, but
what is relevant for the purposes of the present decision is that
in the minutes recorded on 15th December, 1992 it was recorded
that the Executive Engineer DDA, after re-conciling the figures
has recorded consent to claim No.2 being allowed in sum of
Rs.37,117.69.
34. Objection filed by DDA to claim No.2 is accordingly rejected.”
54. The aforesaid submission of Mr. Sharma cannot be accepted
also for the reason that Ex. R-2, on a plain reading thereof, shows that
the petitioner took upon itself the responsibility for, at least, partial delay
in the execution of the works. Therefore, when the Court remanded the
matter back to the sole arbitrator for reconsideration of Ex. R-2, it
obviously meant that the aspect of fixing the responsibility for delay/
apportionment of the said responsibility was required to be reconsidered.
55. It is well settled that levy of liquidated damages under clause
2 is not an arbitrable dispute. In fact, this aspect was dealt with by the
court while dealing with the earlier award in paras 22 to 25. The same
reads as follows:
“22. DDA had levied a compensation (LD) under Clause 2 of the
agreement in sum of Rs. 8,51,839/-.
23. While raising counter claim No.1 it sought adjustment of said
sum. Learned Arbitrator has held that the levy of compensation
under Clause 2 is arbitrary and illegal.
24. Learned counsel for the petitioner does not dispute that the
issue of liquidated damages is a non-arbitrable dispute in as much
as it is an excepted matter.
25. I accordingly dispose of DDA’s objections to the award
pertaining to claim No.1 and 4 as also DDA’s counter claim
No.1 by holding that the award in so far it adjudicates on the
question of liquidated damages is without jurisdiction.”
56. Inspite of the aforesaid position, in the impugned award, the
learned arbitrator has commented on the levy of liquidated damages as
423 424 Chugh Kathuria Eng. (P) Ltd. v. Delhi Devel. Auth. (DDA) (Vipin Sanghi, J.)
the petitioner was responsible for the delay, and if so, to what extent.
52. The submission of Mr. Sharma that the award made on claim
no.2 by Sh. M.S. Telang, the sole arbitrator, on 31.01.1994 having been
upheld by this court, it stood established that the entire delay was
attributable to the respondent, cannot be accepted.
53. A perusal of the award dated 31.01.1994 shows that the learned
sole arbitrator first discussed the aspect of delay and concluded that the
respondent was responsible for the same. In his consideration, the learned
arbitrator did not take into account Ex. R-2. So far as claim no.2 is
concerned, the amount of Rs.37,117.69 had been awarded on the basis
of mutual reconciliation. It is for this reason that this Court while dealing
with the award made by Sh. M.S. Telang did not interfere with the said
award. Reference may be made to paras 28 to 34 of the judgment dated
01.08.2006 passed in I.A. No.8770/1994 in C.S. (OS) No.543/1994. The
said paragraphs are reproduced herein below:
“28 Claim No.2 was the contractor's claim under Clause 10C of
the agreement. Contractor claimed Rs.3 lacs, sum awarded is
Rs.37,117.69.
29. Objection taken by DDA is to the quantification of the amount.
Shri Anil Sapra, learned counsel for DDA states that no reasons
are forthcoming on the record as to how the sum of Rs.37,117.69
has been arrived at.
30. In my opinion the objection is not sustainable for the reason
minutes of the various proceedings held by the learned Arbitrator
shows that from time to time he was calling upon the parties to
submit clarificatory statement and has been recording that disputes
were narrowing down.
31. A perusal of the minutes recorded on 15th December 1992
shows that claim No.2, was discussed. Following has been noted
by the learned Arbitrator :-
'respondents state that they have reconciled the figures
and the amount of Rs.37,117.69 as claimed is correct.'
32. The previous minutes show that the contractor had submitted
fresh calculations to the learned Arbitrator which were passed
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being unjustified. The said finding of the learned arbitrator is wholly
without jurisdiction and cannot be sustained.
57. The decision in Delhi Development Authority v. Polo Singh,
101 (2002) DLT 401 relied upon by the petitioner is of no avail. In Polo
Singh (supra), the award made on all the claims, except in relation to
claim no.5 (for Rs.14,39,972/- being loss of profit to the extent of 10%
of the contract value), was made a rule of the court. The award made
in relation to claim no.5 was set aside when the matter was remanded
back to the arbitrator for fresh adjudication thereon in the light of the
observations made in the judgment. The arbitrator, on reconsideration,
published a fresh award dated 04.03.1998 in relation to claim no.5 awarding
a sum of Rs.12,35,742/- in favour of the claimant. Repelling the challenge
to the award made on claim no.5, the Division Bench held that in the
earlier award, while allowing claim no.1 and disallowing the counter
claim of the appellant, DDA, the earlier arbitrator had returned his finding
that the recession of the contract was illegal and bad in law. The said
award had been made a rule of the court, except in relation to claim no.5.
That decision of the learned Single Judge had become final against the
appellant DDA. The Division Bench, therefore, held that while assailing
the award made on claim no.5, the validity of the earlier award could not
be challenged.
58. However, in the present case, the Court remanded the matter
back for reconsideration of Ex. R-2, which has a direct nexus with the
issue of delay, and with the issue as to who was responsible for the
delay, and to what extent. It can not be said that the court while dealing
with the award of Mr. Telang had accepted the finding that the entire
delay was attributable to the respondent alone. The Court while disposing
of the earlier objections to the award made by Mr. M.S. Telang, had
remanded the matter back for reconsideration of evidence not considered
by the learned arbitrator. The Court had not put its stamp of approval on
any finding to the effect that the entire delay was on the part of the
respondent DDA, and that none of it was attributable to the petitioner/
contractor. If that had been the case, there was no purpose of remanding
the case back to the learned arbitrator for reconsideration of Ex. R-2, as
that would have been a futile and wasteful exercise.
59. It is also urged by Mr. Sharma that there is no specific ground
taken by the respondent in its objections contained in I.A. No.1008/2010
to the effect that the learned arbitrator had rendered his finding without
any pleading of exercise of coercion or duress by the respondent at the
time of issuance of Ex. R-2 dated 01.08.1985. I do not find any merit
in this submission either. Grounds 7 and 8 taken by the respondent in its
application raising objections reads as follows:
“VII. That Learned Arbitrator has failed to appreciate that Exhibit
R-2 was a voluntary and genuine admission on the part of
the claimant regarding its fault in delaying the project. The
Respondent/DDA pleaded that there were no hindrances
or delays on the part of the respondent/DDA and right
from the beginning the claimant/contractor was not taking
the work seriously. Several letters and notices were issued
to the Claimant to speed up the work but it failed to
complete the project and for this reason only the
ˇrespondent had written the letter Exhibit R2 dated
01.08.1985 explicitly admitting that the delay was on
account of its fault. The Claimant does not deny that the
letter was written by him. But creates a story that the
letter was obtained from the Claimant under duress by the
Respondent. Which is not supplemented by any material
on record of the arbitration proceedings and this amounts
to misconduct on the part of the Arbitrator.
VIII. That the contention, reasons as stated by the Arbitrator in
Para 16 are baseless and is made on assumption. The
reason given in the para are without proper reasoning, not
based on the evidence placed before him and there apparent
on the face of award, and the award is liable to be set
aside for the misconduct on part of the arbitrator in
conducting the proceedings.” (emphasis supplied)
60. In Baldev Dutt & Another (supra), the Division Bench of this
Court has rejected a similar argument, while observing as follows:
“Shri R.L. Aggarwal, learned counsel for the Contractor firstly
argued that this objection to the proceedings of the arbitrator has
not been given specifically raised by the Government under section
30 of the Arbitration Act, 1940 and even in the grounds of
425 426 Chugh Kathuria Eng. (P) Ltd. v. Delhi Devel. Auth. (DDA) (Vipin Sanghi, J.)
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appeal before us and we cannot, therefore, consider it. It is true
that the objection raised was only in general terms, namely, that
the arbitrator misconducted the proceedings. We are of the view,
however, that section 30(a) of the Arbitration Act, 1940 gives
the Court power to examine the proceedings of the arbitrator. If
on such examination it is apparent that the proceedings were
misconducted by the arbitrator then the effect of such misconduct
would be a question of law and it would be difficult for the
Court to shut its eyes to such misconduct.”
The decision of the Bombay High Court in ONGC v. Comex
Services SA, 2003(3) Arb.LR 197(Bom), does not come to the aid of
the petitioner in the light of the aforesaid judgment of the Division Bench
of this Court. The aforesaid submission of Mr. Sharma, therefore, stands
rejected.
61. It is then contended by Mr. Sharma that the respondent had
granted extension of time till the date of abandonment of the contract by
the petitioner while imposing liquidated damages for non completion of
the work. In this regard, he makes reference to Ex. R-54 dated 15.04.1986,
which, inter alia, states as follows:
“Extension of time is granted upto the date of abandonment of
work without prejudice to the right of DDA to recover liquidated
damages in accordance with the provisions of Clause 2 of the
agreement.
In exercise of the powers conferred on me under clause 2 of the
agreement, I.R.G. Bhatnager, Suptdg. Engineer, DDA, decide
and determine that you are liable to pay Rs.8,51,839/- (Rs. Eight
lakhs fifty one thousand eight hundred thirty nine only) as and
by way of compensation, as stipulated in clause 2 of the
agreement.”
62. Mr. Sharma raises the question that if Ex. R-2 had been given
by the petitioner voluntarily, where was the occasion for the respondent
to grant extension of time upto the date of abandonment. He further
points out that in the impugned award, the learned arbitrator has also
observed that if the delay was on the part of the petitioner, why was the
contract not rescinded by the respondent.
63. I cannot accept the aforesaid submissions of the petitioner.
Grant of extension of time by the respondent, till the date of abandonment,
cannot necessarily lead to the conclusion that the delay was attributable
to the respondent, and not the petitioner. Pertinently, by the same order
(Ex. R-54), the respondent has also imposed liquidated damages. A party
to a contract has the option to accept the breach thereof by the opposite
party and require the opposite party to still complete the contract. It is
not that whenever there is a breach of contract by one party, the opposite
party should necessarily rescind the contract. Therefore, the submission
of Mr. Sharma and the logic adopted by the learned arbitrator in the
impugned award is contrary to the law of the land, and is rejected.
64. Coming to the award made on claim no.3, I find that though
the learned arbitrator has broadly indicated the principle for computing
the compensation, there is still lack of clarity as to how the learned
arbitrator arrived at a figure of Rs.6 lacs. In any event, as I am of the
view that the impugned award cannot be sustained, the award made on
claim no.3 is set aside.
65. So far as the additional claim no.3 is concerned, learned counsel
for the respondent/applicant has fairly not raised any challenge to the said
award. Accordingly, the award made on additional claim no.3 is made a
rule of the court.
66. Counter claim no.2 has been rejected by the learned arbitrator
by holding that the entire delay in completion of the project was attributable
to the respondent. This finding cannot be sustained in the face of Ex. R-
2. The rejection of Ex. R-2, as I have already found, is bad. Therefore,
the award on counter claim no.2 is set aside.
67. The award made on claim no.3 and counter claim no.2 requires
reconsideration. I appoint Mr. Justice S.N. Kapoor, retired Judge, Delhi
High Court as the arbitrator to re-examine claim no.3 and counter claim
no.2, in the light of the aforesaid discussion and observations. The learned
arbitrator may fix his own fee, subject to a ceiling of Rs.50,000/-.
68. For all the aforesaid reasons, I partially allow the application
and set aside the impugned award to the extent indicated hereinabove, as
the learned arbitrator has clearly misconducted himself, and the award
suffers from serious errors on the face of the award itself. At the same
time, the award made on additional claim no.3 is made a ‘Rule’ of the
427 428Chugh Kathuria Eng. (P) Ltd. v. Delhi Devel. Auth. (DDA) (Vipin Sanghi, J.)
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Court and a decree is passed in terms thereof.
69. The respondent/applicant shall be entitled to costs quantified at
Rs.One Lac.
70. The complete arbitral record and a copy of this order be
communicated to the newly appointed arbitrator.
ILR (2011) VI DELHI 429
LPA
BSES RAJDHANI POWER LTD. ....APPELLANT
VERSUS
UNION OF INDIA & ORS. ....RESPONDENTS
(DIPAK MISRA, CJ. & SANJIV KHANNA, J.)
LPA NO. : 647/2010. DATE OF DECISION: 04.07.2011.
(A) Industrial Disputes Act, 1947—Section 10—Indian Penal
Code, 1860—Section 323, 148, 149—Moral Turpitude—
Respondent workman was employee of Delhi Vidyut
Board—On 04.05.1973, he was convicted for offences
punishable under Sections 148/302/323 and 149 IPC—
In Criminal appeal, the High Court of Punjab and
Haryana found him guilty of offences under Sections
323/149/148 of IPC but the charges levelled against
him under Section 302 IPC were not found to have
been proven—On 30.09.1996, his services terminated
on the ground that he had been convicted for offences
which involved moral turpitude—Industrial dispute
raised—Labour Court vide award dated 17.12.2005,
directed his reinstatement with back wages and
consequential benefits—Appellant invoked
jurisdiction—The workman was involved in commission
of a serious criminal offence which involved moral
turpitude—The workman contends that finding
recorded by labour Court is impeccable and do not
warrant interference—Single Judge held—The
imposition of punishment was excessive—The award
passed by the labour Court did not warrant
interference—Letters Patent Appeal—Held—The
punishment under Section 323 of the IPC has a different
contour but when a person is convicted under Section
148 of the Act, it establishes, in a way, the nature,
attitude, proclivity and propensity of the person
concerned—The petitioner was working as a peon in
the Delhi Vidyut Board—He got himself involved in a
criminal case of this nature and eventually, the
conviction has been recorded under Sections 323/149
and 148 of the IPC—Regard being had to the conviction
in respect of the nature of an offence, as engrafted
under Section 148 of the IPC, we are disposed to think
that it involves an offence involving moral turpitude.
The punishment under Section 323 of the IPC has a
different contour but when a person is convicted under
Section 148 of the Act, it establishes, in a way, the nature,
attitude, proclivity and propensity of the person concerned.
The petitioner was working as a peon in the Delhi Vidyut
Board. He got himself involved in a criminal case of this
nature and eventually, the conviction has been recorded
under Sections 323/149 and 148 of the IPC. Regard being
had to the conviction in respect of the nature of an offence,
as engrafted under Section 148 of the IPC, we are disposed
to think that it involves an offence involving moral turpitude
and the petitioner has been convicted to undergo rigorous
imprisonment for six months for the said offence. Both facts
have their own signification. (Para 27)
(B) Industrial Disputes Act, 1947—Section 10—Indian Penal
429 430BSES Rajdhani Power Ltd. v. Union of India (Dipak Misra, CJ.)
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Code, 1860—Section 323, 148, 149—Moral Turpitude—
Respondent workman was employee of Delhi Vidyut
Board—On 04.05.1973, he was convicted for offences
punishable under Sections 148/302/323 and 149 IPC—
In Criminal appeal, the High Court of Punjab and
Haryana found him guilty of offences under Sections
323/149148 of IPC but the charges levelled against him
under Section 302 IPC were not found to have been
proven—On 30.09.1996, his services terminated on
the ground that he had been convicted for offences
which involved moral turpitude—Industrial dispute
raised—Labour Court vide award dated 17.12.2005,
directed his reinstatement with back wages and
consequential benefits—Appellant invoked writ
jurisdiction—The workman was involved in commission
of a serious criminal offence which involved moral
turpitude—The workman contends that finding
recorded by labour Court is impeccable and do not
want interference—Single Judge held—The imposition
of punishment was excessive—The award passed by
the labour Court did not warrant interference—Letters
Patent Appeal—Disproportionate punishment—Held—
In the case at hand, when the offence committed by
the respondent is in the realm or sphere of moral
turpitude and there is imposition of sentence of
rigorous imprisonment for a period of six months on
two counts (although with a stipulation that the
sentences would run concurrently), the punishment
of termination cannot be said to be shocking to the
judicial conscience—We are disposed to think that
the punishment is not excessive or shockingly
disproportionate—An employee, who has been
involved in an offence of moral turpitude, has no right
to continue in service—A lesser punishment would be
contrary to the norms—It is difficult to hold that such
a punishment shocks the judicial conscience or is
totally unreasonable.
In the case at hand, when the offence committed by the
respondent is in the realm or sphere of moral turpitude and
there is imposition of sentence of rigorous imprisonment for
a period of six months on two counts (although with a
stipulation that the sentences would run concurrently), the
punishment of termination cannot be said to be shocking to
the judicial conscience. We are disposed to think that the
punishment is not excessive or shockingly disproportionate.
An employee, who has been involved in an offence of moral
turpitude, has no right to continue in service. A lesser
punishment would be contrary to the norms. It is difficult to
hold that such a punishment shocks the judicial conscience
or is totally unreasonable. (Para 35)
Important Issue Involved: (A) Conviction for an offence
punishable u/s 148 IPC involves moral turpitude.
(B) When the offence committed is in the realm of moral
turpitude and there is imposition of sentence of rigorous
imprisonment, the punishment of termination cannot be said
to be shocking to the judicial conscience.
[Vi Ba]
APPEARANCES:
FOR THE APPELLANT : Mr. Sandeep Prabhakar, Ms. Prerna
Mehta & Mr. Amit Kumar,
Advocates.
FOR THE RESPONDENTS : Mr. Anuj Agarwal, Mr. Jatin Rajput,
Advocates for Respondent No.1. Ms.
Ruchi Sindhwani and Ms. Megha
Bharara, Advocates for Respondent
No.3.
CASES REFERRED TO:
1. Chairman cum Managing Director, Coal India Limited
and Anr. vs. Mukul Kumar Choudhuri and Ors.; (2009)
431 432BSES Rajdhani Power Ltd. v. Union of India (Dipak Misra, CJ.)
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433 434BSES Rajdhani Power Ltd. v. Union of India (Dipak Misra, CJ.)
15 SCC 620.
2. On-Dot Couriers and Cargo Ltd. vs. Anand Singh Rawat;
WP(C) No.4197/2008.
3. State of M.P. & Ors. vs. Hazarilal; 2008-II-LLJ-715
(SC).
4. Coimbatore District Central Coop. Bank vs. Employees
Assn.; (2007) 4 SCC 669.
5. Hombey Gowda Educational Trust & Another vs. State of
Karnataka & Others; (2006) 1 SCC 430.
6. State of Rajasthan & Another vs. Mohammad Ayub Naz;
(2006) 1 SCC 589.
7. State of U.P. vs. Sheo Shanker Lal Srivastava and Others;
(2006) 3 SCC 276.
8. V. Ramana vs. A.P.S.R.T.C. and Ors.; (2005) 7 SCC
338.
9. Bharat Forge Co. Ltd. vs. Utam Manohar Nakate; (2005)
2 SCC 489.
10. Regional Manager, Rajasthan SRTC vs. Sohan Lal;
(2004) 8 SCC 218.
11. Om Kumar and Ors. vs. Union of India; (2001) 2 SCC
386.
12. Mahak Singh vs. State of UP & Ors., AIR 1999 Allahabad
274.
13. Bhagwati Prasad Tiwari vs. Regional Manager, Bank of
Baroda, Branch Manager, Bank of Baroda & Ors.;
W.P.No.41636/98 (Allahabad High Court).
14. Allahabad Bank & Anr. vs. Deepak Kumar Bhola, (1997)
4 SCC 1.
15. J.Jaishankar vs. Government of India & Anr.; 1996 SCC
(L&S) 1372.
16. Pawan Kumar vs. State of Haryana & Anr.; AIR 1996
SC 3300.
17. Pawan Kumar vs. State of Haryana (1996) 4 SCC 17:
1996 SCC (Cri) 583 (SCC at p.21).
18. Karam Singh vs. State of Punjab & Anr.; 1996 SCC
(L&S) 668.
19. State of Punjab & Ors. vs. Ram Singh, AIR 1992 SC
2188.
20. Glaxo Laboratories (I) Limited vs. Labour Court, Meerut
& Ors.; 1984 (I) LLJ 16 (SC).
21. Krishnankutty vs. Senior Supt. Of Post Offices, Ernakulam
& Ors.; 1976 (I) LLJ 175 (Kerala High Court).
22. Harsukh Lal vs. Sarnam Singh, 1964 ALL LJ 1118.
23. Durga Singh vs. The State of Punjab, AIR 1957 Punjab
97.
24. State of West Bengal & Ors. vs. Ram Nagina Dubey; 199
(64) FLR 272 (Cal HC).
RESULT: Appeal allowed.
DIPAK MISRA, CJ.
1. In this intra-court appeal, the assail is to the order dated 28.7.2010
passed by the learned Single Judge in WP(C) No.14237/2006 declining
to interfere with the award dated 17.12.2005 passed by the Labour Court
X, Karkardooma Courts in ID No.63/1998 whereby the reference was
answered in favour of the respondent-workman on the foundation that
the order of termination which was passed on conviction for offences
punishable under Section 323/149/148 of the Indian Penal Code (for
short "IPC?) did not tantamount to conviction for offences involving
moral turpitude and further the punishment imposed did not reflect proper
exercise of discretion vested in an employer while dealing with an employee.
2. The facts which are essential to be enumerated are that the
respondent-workman was in the employment of Delhi Vidyut Board as
a Peon since 25.10.1978. On 4.5.1993, he was convicted in a criminal
case for offences punishable under Sections 148/302/323 and 149 IPC
and sentenced to undergo life imprisonment. The judgment of conviction
and the order of sentence were assailed in a criminal appeal before the
High Court of Punjab & Haryana wherein the High Court found him
guilty of offences under Sections 323/149/148 of IPC but the charges
levelled against him under Section 302 IPC were not found to have been
proven. It is worth noting that during the pendency of the criminal
appeal, he was released on bail and joined the services under Delhi
Vidyut Board, till 17.4.1996 but was arrested again on 22.4.1996 to
undergo remaining period of imprisonment. On 30.9.1996, his services
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were terminated on the ground that he had been convicted for offences
which involved moral turpitude.
3. Being dissatisfied with the order of termination, an industrial
dispute was raised and eventually, it travelled to the Labour Court forming
the subject matter of ID No.63/1998. The Labour Court, by the award
dated 17.12.2005, directed his reinstatement with backwages and
consequential benefits.
4. Grieved by the aforesaid award, the present appellant, BSES
Rajdhani Yamuna Power Limited ( one of the companies that came into
existence after the bifurcation of the Delhi Vidyut Board), invoked the
writ jurisdiction of the Court for quashment of the order of reinstatement
with backwages and consequential benefits. It was contended before the
learned Single Judge that the respondent-workman was not convicted for
committing a petty offence but was involved in commission of a serious
criminal offence which involved moral turpitude. It was also urged that
the respondent-workman might have been acquitted under Section 302
IPC but was convicted under Section 323/149 IPC and sentenced to
undergo six months? rigorous imprisonment and also for the same period
for the conviction under Section 148 IPC with the stipulation that both
the sentences shall run concurrently and, hence, the punishment is quite
grave involving moral turpitude. It was canvassed that if Rule 10(ii) of
the DESU (DMC) Service (C&A) Regulations, 1976 is scanned in proper
perspective, it would be quite clear that such a conviction constitutes
moral turpitude as the same discloses depravity in his conduct and
behaviour but the Labour Court has placed a narrow interpretation on the
concept of moral turpitude and, therefore, the award passed by the
Labour Court was absolutely vulnerable. On behalf of the appellant,
decisions rendered in J.Jaishankar v. Government of India & Anr.;
1996 SCC (L&S) 1372, Pawan Kumar v. State of Haryana & Anr.;
AIR 1996 SC 3300 and Karam Singh v. State of Punjab & Anr.; 1996
SCC (L&S) 668 were pressed into service.
5. The aforesaid submissions were combated by the learned counsel
for the workman contending, inter alia, that the findings recorded by the
Labour Court are impeccable and do not warrant interference in exercise
of extraordinary jurisdiction. It was put forth that by no stretch of
imagination, the conviction in the case at hand can be construed as a
conviction in respect of offences involving moral turpitude. In support
of the said submissions, the learned counsel for the workman placed
reliance on the decisions in State of M.P. & Ors. v. Hazarilal; 2008-
II-LLJ-715 (SC), Glaxo Laboratories (I) Limited v. Labour Court,
Meerut & Ors.; 1984 (I) LLJ 16 (SC), Karam Singh (supra), State
of West Bengal & Ors. v. Ram Nagina Dubey; 199 (64) FLR 272
(Cal HC), Bhagwati Prasad Tiwari v. Regional Manager, Bank of
Baroda, Branch Manager, Bank of Baroda & Ors.; W.P.No.41636/
98 (Allahabad High Court), Krishnankutty v. Senior Supt. Of Post
Offices, Ernakulam & Ors.; 1976 (I) LLJ 175 (Kerala High Court),
On-Dot Couriers and Cargo Ltd. v. Anand Singh Rawat; WP(C)
No.4197/2008 (Delhi High Court) and Pawan Kumar (supra).
6. The learned Single Judge referred to the 1976 Regulations
framed under Section 95 of the DMC Act, 1957 and also to few
passages from Durga Singh v. State of Punjab, AIR 1957 Punjab 97 and
Pawan Kumar (supra), and opined that the facts of the instant case
would be nearer to the decision of the Apex Court in the case of Hazarilal
(supra) wherein the employee was prosecuted under Section 323 read
with Section 34 IPC and sentenced to undergo one month simple
imprisonment which was reduced to a fine of Rs. 500/- in appeal. The
learned Single Judge also referred to the concept of discretion and
proportionality and, eventually, held that the imposition of punishment
was excessive and, hence, the award passed by the Labour Court did not
warrant interference.
7. We have heard Mr. Sandeep Prabhakar, learned counsel for the
appellant, Mr.Anuj Agarwal, learned counsel for the respondent No.1 and
Ms. Megha Bharara, learned counsel on behalf of Ms. Ruchi Sindhwani,
learned counsel for the respondent No.3. Despite service of notice,
none has appeared on behalf of the respondent No.2, the workman.
8. The seminal issues that emerge for consideration in the present
appeal are whether the conviction recorded against the second respondent
can be regarded as a conviction involving moral turpitude and whether
the punishment is disproportionate in the obtaining factual matrix. Be
it noted, the judgment of conviction is one under Sections 323/149 and
148 of the IPC. The submission of the learned counsel for the appellant
is that because of the acquittal of the offence punishable under Section
302 of IPC, it cannot be said that other punishment does not relate to
moral turpitude.
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9. In this context, we may refer with profit to the order dated
0.09.1996 which reads as follows:
" O R D E R
Whereas Shri Jai Prakash, E. NO. 25719, Peon under SE(C-III)
had been convicted by the Sessions Court Sonipat under Section
148 IPC & Section 302 read with Section 148 IPC & Section
323 read with Section 149 IPC & sentenced him to undergo life
imprisonment in criminal case registered against him under FIR
No. Sl dated 22.02.1991 O.S.Rai Sonipat. And whereas Shri Jai
Prakash filed an appeal before the High Court of Punjab &
Haryana, Chandigarh against the judgment passed by the Sessions
Court and he was released on bail.
And Whereas the Hon’ble High Court of Punjab and Haryana
now vide their order dated 18.03.1996 held him guilty Under
Section 323/149 IPC and also Under Section 148 IPC reducing
the life imprisonment to six months only and Shri Jai Prakash
has undergone the imprisonment and has been released.
And whereas Shri Jai Prakash had begun to absent himself from
duty w.e.f. 18.04.1996 onwards.
And whereas Shri Jai Prakash in the above manner has been
convicted by two successive Courts including the Hon’ble High
Court. His involvement in the Criminal activity has been clearly
established through the Police investigation and also during the
regular trial of his case in the court of law and as such there is
no need to institute a regular departmental inquiry.
And whereas the U/s therefore dispenses with holding of any
regular Department inquiry and other proceedings to be conducted
under Regulations 10(ii) of the DESU(DMC) Service (C&A)
Regulations, 1976 read with Section 95 of the DMC Act, 1957.
And whereas in the totality of the circumstances and after perusal
of relevant records and careful consideration of the case the U/
s is of the opinion that the conduct and character of Shri Jai
Prakash is such that he is not a liability to a public utility
organization like DESU and therefore the U/s exercising the
powers conferred on him in the DESU (Delhi Municipal
Corporation) Service (Control & Appeal) Regulation, 1976 has
no hesitation to impose the penalty of "dismissal from service"
which shall ordinarily be a disqualification for future employment
on Shri Jai Prakash, E.No.25719, Peon.
The above orders are subject to recovery of dues recoverable
from him on any account.”
10. Clause 14 of the Regulations, 1976 deals with the disciplinary
action for misconduct. Sub-clause 3 of the said clause enumerates what
acts and omissions shall be treated as misconduct. In the case at hand,
as we are only concerned with clause (q) of Clause 14 of the Regulations,
1976, the same is reproduced below:
"(q) Any offence involving moral turpitude which punishable
under the I.P.C."
11. First, we shall refer to the decision in Hazarilal (supra) as the
learned Single Judge has based his conclusion on the bedrock of the ratio
laid down therein. In Hazarilal (supra), the respondent, a peon in a
middle school, had assaulted one Ram Singh. He was prosecuted for the
commission of the said offence and was convicted by the trial Magistrate
under Section 323 read with Section 34 of the IPC and sentenced to
undergo one month’s simple imprisonment. On an appeal being preferred
by him, the sentence was reduced to a fine of Rs.500/- only. The
revision preferred before the High Court was dismissed. It is worth
noting that after conviction, the services were terminated and the appeal
preferred by him also faced dismissal. Being grieved by the said action,
the employee/ government servant preferred an application before the
State Administrative Tribunal which allowed the application holding that
the punishment of removal was grossly excessive. The State of Madhya
Pradesh preferred a writ petition before the High Court which was
dismissed. The Apex Court referred to Rule 19 of the MP Civil Service
(Classification, Control and Appeal) Rules, 1996 and interpreted the said
provision to convey that the disciplinary authority has been empowered
to consider the circumstances of the case where any penalty is imposed
on a Government servant on the ground of misconduct which has led
to his conviction on a criminal charge but the same would not mean that
irrespective of the nature of the case in which he was involved or the
punishment which had been imposed upon him, an order of dismissal
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must be passed. Their Lordships further opined that an authority which
is conferred with the statutory discretionary power is bound to take into
consideration all the attendant facts and circumstances of the case before
imposing an order of punishment and at that juncture, it must act reasonably
and fairly. Their Lordships referred to the doctrine of proportionality and
eventually came to hold that the appeal was bereft of merit and, accordingly,
dismissed the same. It is worth noting that Rule 19 of the MP Civil
Service (Classification, Control and Appeal) Rules, 1996 only uses the
words "conviction on a criminal charge" and the term "moral turpitude"
is not a part of the Rule. That apart, the peon was convicted under
Section 323 read with Section 34 IPC at his native place and, therefore,
their Lordships invoked the doctrine of proportionality. It is submitted
by the learned counsel for the appellant that the said decision is
distinguishable as in the said case, the employee/government servantw
as convicted for inflicting a simple injury and was eventually sentenced
to pay a fine of Rs.500/- but in the case at hand, the respondent was
convicted for offences punishable under Sections 302, 323, 148 and 149
IPC and on an appeal, the conviction under Section 302 IPC was set
aside on technical grounds. The learned counsel for the respondent,
per contra, submitted that once the order of acquittal has been recorded
in respect of the offence under Section 302 IPC, the Court has to see
the judgment of conviction in respect of the offences and should not go
into the facts. In our considered opinion, the said decision is distinguishable
regard being had to the language employed in the Rule and also keeping
in view the nature of punishment.
12. In our considered opinion, what is required to be scrutinized is
whether the conviction for offence involves moral turpitude or not. That
is the fulcrum of the matter. If there is no moral turpitude in the
commission of the offence, there is no misconduct. In case there is
moral turpitude, the issue that would further emerge for consideration is
whether the doctrine of proportionality qua punishment is to be invoked.
13. The learned counsel for both the sides have relied on the
decision rendered in Pawan Kumar (supra). In the said case, their
Lordships expressed the view that moral turpitude is an expression which
is used in legal as well as societal parlance to describe conduct which
is inherently base, vile, depraved or having any connection showing
depravity. After so stating, their Lordships referred to the policy decision
of the State Government which has stated thus:
"Decision in each case will, however, depend on the
circumstances of the case and the competent authority has to
exercise its discretion while taking a decision in accordance with
the above mentioned principles. A list of offences which involve
moral turpitude is enclosed for your information and guidance.
This list, however, cannot be said to be exhaustive and there
might be offence which are not included in it but which in
certain situations and circumstances may involve moral turpitude."
After analyzing the same, their Lordships proceeded to state that
the appellant therein was imposed with a fine of Rs.20/-. Be it noted,
their Lordships called for the judgment but only a copy of the institution/
summary register maintained by the Court of the Chief Judicial Magistrate,
First Class was produced. Thereafter, their Lordships proceeded to state
as follows:
"…..Mere payment of fine of Rs.20/- does not go to show that
the conviction was validly and legally recorded. Assuming that
the conviction is not open to challenge at the present juncture,
we cannot but deprecate the action of the respondents in having
proceeded to adversely certify the character and antecedents of
the appellant on the basis of the conviction per se, opining to
have involved moral turpitude, without satisfying the tests laid
down in the policy decision of the Government. We are rather
unhappy to note that all the three Courts below, even when
invited to judge the matter in the said perspective, went on to
hold that the act/s involved in conviction under Section 294,
I.P.C. per se established moral turpitude. They should have
been sensitive to the changing perspectives and concepts of
morality to appreciate the effect of Section 294, I.P.C. on today’s
society and its standards, and its changing views of obscenity.
The matter unfortunately was dealt with casually at all levels.
"14. Before concluding this judgment we hereby draw attention
of the Parliament to step in and perceive the large many cases
which per law and public policy are tried summarily, involving
thousands and thousands of people throughout the country
appearing before summary Courts and paying small amounts of
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fine, more often than not, as a measure of plea-bargaining.
Foremost among them being traffic, municipal and other petty
offences under the Indian Penal Code, mostly committed by the
young and/or the inexperienced. The cruel result of a conviction
of that kind and a fine of payment of a paltry sum on
pleabargaining is the end of career, future or present, as the case
may be, of that young and/or inexperienced person, putting a
blast to his life and his dreams. Life is too precious to be staked
over a petty incident like this. Immediate remedial measures are,
therefore, necessary in raising the toleration limits with regard
petty offences especially when tried summarily. Provision need
be made that punishment of fine up to a certain limit, say up to
Rs.2,000/- or so, on a summary/ordinary conviction shall not be
treated as conviction at all for any purpose and all the more for
entry into the retention in Government service. This can brook
no delay, whatsoever."
Regard being had to the factual matrix in the case of Pawan Kumar
(supra), we have no trace of doubt that the said decision is distinguishable
and, in fact, the learned Single Judge has also not placed reliance on the
same.
14. Presently, we shall proceed to deal with the concept of moral
turpitude and how it has been understood and interpreted. In Black’s
Law Dictionary, (8th Edn., 2004), the term "moral turpitude" has been
defined thus:
"Conduct that is contrary to justice, honesty, or morality. In the
area of legal ethics, offences involving moral turpitude - such
as fraud or breach of trust… Also termed moral depravity….
"Moral turpitude means, in general, shameful wickedness - so
extreme a departure from ordinary standards of honest, good
morals, justice, or ethics as to be shocking to the moral sense
of the community. It has also been defined as an act of baseness,
vileness, or depravity in the private and social duties which one
person owes to another, or to society in general, contrary to the
accepted and customary rule of right and duty between people.’"
15. In this context, we may refer to the Corpus Juris Secundum,
wherein “moral turpitude” has been described as follows:
"While frequently general statements have been made to the effect
that mere assault does not or may not, involve moral turpitude,
or that assault and battery rarely involve moral turpitude, the rule
would seem to be that assault and battery may involve moral
turpitude and it may not, the difference depending on the
circumstances, and whether an assault does or does not involve
moral turpitude generally will be determined by the particular
facts of each individual case. The statutes of various jurisdictions
divide assaults into different degrees, and many of the crimes
which are included within such definition are crimes that involve
moral turpitude. Homicide may or may not involve moral turpitude
depending on the degree of the crime."
16. In Ram Nagina (supra), the respondent was convicted under
Sections 147 and 325/149 of the IPC and on an appeal being preferred,
the learned Sessions Judge converted the same to one under Sections
147/323 of the IPC. The question that arose before the Calcutta High
Court was whether such a conviction would imply moral turpitude.
The learned Single Judge had opined that the conviction in respect of
the offences under Sections 149 and 323 of the IPC do not involve moral
turpitude and, accordingly, set aside the punishment. On an appeal being
preferred, the Division Bench took note of the fact that the employee,
being a constable, was a member of the disciplined force and his
involvement in the crime did tantamount to moral turpitude and resultantly
set aside the decision of the learned Single Judge.
17. In this regard, we may refer with profit to the decision in In
re 'P' An Advocate; AIR 1963 SC 1313 wherein the Constitution
Bench, while dealing with the facet of moral turpitude in the context of
delinquency byan “Advocate-on-record”, held thus:
“It is true that mere negligence or error of judgment on the part
of the Advocate would not amount to professional misconduct.
Error of judgment cannot be completely eliminated in all human
affairs and mere negligence may not necessarily show that the
Advocate who was guilty of it can be charged with misconduct,
vide In re A Vakil, ILR 49 Mad 523: (AIR 1926 Mad 568) and
in the matter of an Advocate of Agra, ILR (1940) All 386: (AIR
1940 All 289 (SB)). But different considerations arise where the
negligence of the Advocate is gross. It may be that before
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condemning an Advocate for misconduct, courts are inclined to
examine the question as to whether such gross negligence involves
moral turpitude or delinquency. In dealing with this aspect of
the matter, however, it is of utmost importance to remember that
the expression "moral turpitude or delinquency" is not to receive
a narrow construction. Wherever conduct proved against an
Advocate is contrary to honesty, or opposed to good morals, or
is unethical, it may be safely held that it involves moral turpitude.
A willful and callous disregard for the interests of the client may,
in a proper case, be characterised as conduct unbefitting an
Advocate. In dealing with matters of professional propriety, we
cannot ignore the fact that the profession of law is an honourable
profession and it occupies a place of pride in the liberal professions
of the country. Any conduct which makes a person unworthy
to belong to the noble fraternity of lawyers or makes an advocate
unfitto be entrusted with the responsible task of looking after the
interests of the litigant, must be regarded as conduct involving
moral turpitude. The Advocate-on-record like the other members
of the Bar are Officers of the Court and the purity of the
administration of justice depends as much on the integrity of the
Judges as on the honesty of the Bar. That is why dealing with
the question as to whether an Advocate has rendered himself
unfit to belong to the brotherhood at the Bar, the expression
"moral turpitude or delinquency" is not to be construed in an
unduly narrow and restricted sense.”
18. In J. Jaishanker (supra), the appellant was convicted for an
offence under Section 509 IPC and sentenced to pay a fine of Rs.100/
-. The employee sought a reference under Section 10 of the Industrial
Disputes Act, 1947 for adjudication of his dismissal from service. The
Central Government declined to refer the dispute. Being dissatisfied, a
writ petition was filed before the learned Single Judge. The learned
Single Judge allowed the petition. In appeal, the Division Bench modified
the order and on the basis of a concession given by the respondent, the
order of dismissal was converted into discharge from service without
retiral benefits. However, the Division Bench directed to pay him gratuity,
as payable, in accordance with law. In appeal, reliance was placed on
the decision in Pawan Kumar (supra). Their Lordships have held thus:
“In view of the admitted position that the conviction of the
petitioner for an offence under Section 509 IPC had attained
finality, it undoubtedly involves moral turpitude as it is
impermissible for such an employee to continue in service. When
a government servant is dismissed from service on conviction by
a criminal court involving moral turpitude, it automatically leads
to removal from service, without further enquiry. Can a worker
be put on a higher pedestal than as a government servant” The
obvious answer is “No”. In view of the conviction for moral
turpitude of the petitioner and due to conviction for an offence
under Section 509 IPC, the order of dismissal was rightly passed.
The recommendation made by this Court was made after noticing
the trivial offences like traffic offences, municipal offences and
other petty offences under the IPC which do not involve moral
turpitude. This Court recommended to Parliament to step in and
make necessary alteration in law so that consequence of the
conviction and sentence would suitably be modulated and mitigated
in the light of the judgment. That ratio is clearly inapplicable to
the facts of this case. As a fact, on the basis of concession
made by the learned counsel for the respondents, the Division
Bench of the High Court modified the order of dismissal to one
of discharge from service without consequential retiral benefits
but with payment of gratuity in accordance with law. The
learned Single Judge was obviously in error in directing reference
to the Industrial Tribunal. We do not, therefore, find any illegality
warranting interference."
[Emphasis Supplied]
19. In Durga Singh v. The State of Punjab, AIR 1957 Punjab 97,
it has been opined thus:
"The term "moral turpitude" is a rather vague one and it may
have different meanings in different contexts. The term has
generally been taken to mean to be a conduct contrary to justice,
honesty, modesty or good morals and contrary to what a man
owes to a fellow-man or to society in general. It has never been
held that gravity of punishment is to be considered in determining
whether the misconduct involves moral turpitude or not. Even
if the words "involving moral turpitude" are held to be implied in
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as also societal parlance to describe conduct which is
inherently base, vile, depraved or having any connection
showing depravity."
This expression has been more elaborately explained in Baleshwar
Singh v. District Magistrate and Collector where it was observed
as follows:
"The expression 'moral turpitude' is not defined anywhere.
But it means anything done contrary to justice, honesty,
modesty or goods morals. It implies depravity and
wickedness of character of disposition of the person
charged with the particular conduct. Every false statement
made by a person may not be moral turpitude, but it
would be so if it discloses vileness or depravity in the
doing of any private and social duty which a person owes
to his fellowmen or to the society in general. If therefore
the individual charged with a certain conduct owes a
duty, either to another individual or to the society in
general, to act in a specific manner or not to so act and
he still acts contrary to it and does so knowingly, his
conduct must be held to be due to vileness and depravity.
It will be contrary to accepted customary rule and duty
between man and man."
21. In State of Punjab & Ors. v. Ram Singh, AIR 1992 SC
2188, a three Judge Bench was dealing with the dismissal of an employee
on the ground that he had misconducted himself as per Rule 16.2(1) of
the Punjab Police Manual, 1934 inasmuch as he was heavily drunk and
had become uncontrollable. Their Lordships referred to the clause which
provided that dismissal shall be awarded only for the gravest acts of
misconduct or as the cumulative effect of continued misconduct proving
incorrigibility and complete unfitness for police service, and in making
such an award, regard shall be had to the length of service of the
offender and his claim to pension. In that context, their Lordships
referred to the meaning given to the term "misconduct" in Black’s Law
Dictionary and in P. Ramanatha Aiyar’s Law Lexicon, Reprint Edition
1987 and eventually expressed the view as follows:
"Thus it could be seen that the word 'misconduct' though not
"conviction on a criminal charge" in Proviso to Art. 311(2) it
appears to me clear that if a member of the Police Force is guilty
of having been found drunk at a public place or to have become
habituated to liquor and if he is convicted by a criminal Court,
then his conviction should be held as involving moral turpitude.
It appears to me rather incongruous that persons who are
habituated to liquor and are found drunk in public places should
be allowed to remain in Police Force to bring such persons to
book. I have, therefore, no hesitation in rejecting this contention
on behalf of the petitioner. I accordingly hold that the petitioner
in the present case was not entitled to protection under Art.
311(2) of the Constitution."
20. In Allahabad Bank & Anr. v. Deepak Kumar Bhola, (1997)
4 SCC 1, the respondent was visited with an order of suspension which
was challenged on the ground that solely because there was an allegation
that he had entered into a criminal conspiracy, it could not be regarded
that an offence involving moral turpitude had been committed by him
and, therefore, the Bank had no jurisdiction to pass the order of suspension.
The High Court quashed the order of suspension and directed full payment
of salary and allowances to the respondent. In that case, their Lordships
posed a question as to what is an offence involving moral turpitude in
the context of handling of accounts of the bank and expressed the view
as follows:
"8. What is an offence involving "moral turpitude" must depend
upon the facts of each case. But whatever may be the meaning
which may be given to the term "moral turpitude" it appears to
us that one of the most serious offences involving "moral
turpitude" would be where a person employed in a banking
company dealing with money of the general public, commits
forgery and wrongfully withdraws money which he is not entitled
to withdraw.
9. This Court in Pawan Kumar v. State of Haryana (1996)
4 SCC 17: 1996 SCC (Cri) 583 (SCC at p.21) dealt with the
question as to what is the meaning of expression "moral turpitude"
and it was observed as follows:
" ‘Moral turpitude’ is an expression which is used in legal
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capable of precise definition, its reflection receive its connotation
from the context, the delinquency in its performance and its
effect on the discipline and the nature of the duty. It may involve
moral turpitude, it must be improper or wrong behaviour; unlawful
bahaviour, wilful in character; forbidden act, a transgression of
established and definite rule of action or code of conduct but not
mere error 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."
22. We have referred to the said decision as it highlights that a
misconduct may involve moral turpitude and the whole ambit has to be
construed with reference to the subject matter. Be it noted, the factum
of disciplinary service and the requirement of maintaining strict discipline
have been taken into consideration in the said case.
23. In Mahak Singh v. State of UP & Ors., AIR 1999 Allahabad
274, the Bench referred to the decision in Harsukh Lal v. Sarnam
Singh, 1964 ALL LJ 1118 wherein the observations of Hon’ble V. Broome,
J. were reproduced. They read as follows:
“ ‘Turpitude’ is a word of high emotional significance, suggesting
conduct of such depravity as to excite feelings of disgust and
contempt. The crime of simple hurt does not normally provoke
any such reaction and consequently cannot be classed as an
offence involving moral turpitude and it seems to me that there
is no logical reason why the offence of murder, which in essence
is only and aggravated form of hurt, should be held necessarily
to involve moral turpitude. I am willing to concede that murders
which are premeditated and planned in cold blood, those which
the perpetrated for some base motive and those which are carried
out with extreme ferocity and cruelty do involve moral turpitude,
as they naturally evoke a spontaneous feeling of repulsion and
condemnation in the mind. But a murder committed in the head
of a fight or in response to serious provocation could hardly be
placed in the same category.”
24. In the said case, as the petitioner has committed murder of his
step mother, the Bench expressed the view that the conviction was an
act of moral turpitude.
25. Regard being had to the basic concept of moral turpitude, we
are obliged to analyse whether the conviction in the case at hand can be
regarded to fall in the compartment of an offence involving moral turpitude.
It is worth noting that the appellant along with others was tried for
offences punishable under Sections 322, 133, 134, 149 and 148 of IPC
and sentenced to undergo rigorous imprisonment as has been indicated
earlier. In appeal, the Division Bench came to hold that the co-accused
did not share the common intention with the main accused Kalu for
inflicting the injury that had caused death of the deceased and, hence,
they were liable to be punished for the individual acts. The Division
Bench has found that the injuries caused by others including the respondent
No.2were caused by blunt weapon and, hence, they are to be convicted
under Section 123/149 IPC. The Bench has also found that the offence
against them under Section 148 IPC is fully established. It is worth
noting that regard being had to the gap of time when the death occurred,
the Division Bench converted the offence from Section 302 to Section
304 Part I of IPC. We have referred to the said facts only to highlight
that the appellant was found to have committed an offence under Section
148 IPC also. Section 148 of the IPC reads as follows:-
"148. Rioting, armed with deadly weapon.-Whoever is guilty
of rioting, being armed with a deadly weapon or with anything
which, used as a weapon of offence, is likely to cause death,
shall be punished with imprisonment of either description for a
term which may extend to three years, or with find, or with
both."
26. It is worth noting that "rioting" is an offence under Section 147
of the IPC. Section 148 is an accentuated form of rioting inasmuch as
it stipulates that the rioting has to be done being armed with a deadly
weapon or with anything which used as a weapon of offence is likely
to cause death. The punishment is severe than what has been provided
under Section 147 of the IPC. The basic ingredients of an offence under
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its jurisdiction is wide but the same must be applied in terms of
the provisions of the statute and no other.
31. If the punishment is harsh, albeit a lesser punishment may
be imposed, but such an order cannot be passed on an irrational
or extraneous factor and certainly not on a compassionate ground.
32. In Regional Manager, Rajasthan SRTC v. Sohan Lal;
(2004) 8 SCC 218, it has been held that it is not the normal
jurisdiction of the superior courts to interfere with the quantum
of sentence unless it is wholly disproportionate to the misconduct
proved. Such is not the case herein. In the facts and circumstances
of the case and having regard to the past conduct of the
respondent as also his conduct during the domestic enquiry
proceedings, we cannot say that the quantum of punishment
imposed upon the respondent was wholly disproportionate to his
act of misconduct or otherwise arbitrary.”
30. The said principles were reiterated in Hombey Gowda
Educational Trust & Another v. State of Karnataka & Others;
(2006) 1 SCC 430.
31. In this context, we may refer fruitfully to the decision in V.
Ramana Vs. A.P.S.R.T.C. and Ors.; (2005) 7 SCC 338 wherein it
has been held thus:
"The common thread running through in all these decisions is
that the Court should not interfere with the administrator's decision
unless it was illogical or suffers from procedural impropriety or
was shocking to the conscience of the Court, in the sense that
it was in defiance of logic or moral standards. In view of what
has been stated in the Wednesbury's case the Court would not
go into the correctness of the choice made by the administrator
open to him and the Court should not substitute its decision to
that of the administrator. The scope of judicial review is limited
to the deficiency in decision-making process and not the decision.
11. To put it differently unless the punishment imposed by the
Disciplinary Authority or the Appellate Authority shocks the
conscience of the Court/Tribunal, there is no scope for
interference. Further to shorten litigations it may, in exceptional
Section 148 are that there was an unlawful assembly, that there was use
of force or violence by the members of such an assembly, that the
accused was a member of such an assembly and that the accused, in
prosecution of the common object of such assembly, used force. The
term "offence of rioting” finds place in Section 146 of the IPC. It
stipulates that whenever force or violence is used by an unlawful assembly
or any member thereof in prosecution of the common object of such
assembly, every member of such assembly is guilty of the offence of
rioting. The term "deadly weapon’ has its own signification. As has been
indicated in many an authority which we have referred to herein before,
the offence involving moral turpitude has to adjudged regard being had
to the moral and societal paradigms.
27. The punishment under Section 323 of the IPC has a different
contour but when a person is convicted under Section 148 of the Act,
it establishes, in a way, the nature, attitude, proclivity and propensity of
the person concerned. The petitioner was working as a peon in the
Delhi Vidyut Board. He got himself involved in a criminal case of this
nature and eventually, the conviction has been recorded under Sections
323/149 and 148 of the IPC. Regard being had to the conviction in
respect of the nature of an offence, as engrafted under Section 148 of
the IPC, we are disposed to think that it involves an offence involving
moral turpitude and the petitioner has been convicted to undergo rigorous
imprisonment for six months for the said offence. Both facts have their
own signification.
28. As is evident from the order passed by the learned Single
Judge, he has also referred to the doctrine of proportionality to give the
stamp of approval to the award passed by the Labour Court. In this
context, we think it appropriate to discuss under what circumstances
the doctrine of proportionality should be invoked or deserves to be invoked.
29. In Bharat Forge Co. Ltd. v. Utam Manohar Nakate; (2005)
2 SCC 489, it has been ruled thus.
“30. Furthermore, it is trite, the Labour Court or the Industrial
Tribunal, as the case may be, in terms of the provisions of the
Act, must act within the four-corner thereof. The Industrial
Courts would not sit in appeal over the decision of the employer
unless there exists a statutory provision in this behalf. Although
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and rare cases, impose appropriate punishment by recording cogent
reasons in support thereof. In a normal course if the punishment
imposed is shockingly disproportionate it would be appropriate
to direct the Disciplinary Authority or the Appellate Authority to
reconsider the penalty imposed."
32. In State of Rajasthan & Another v. Mohammad Ayub Naz;
(2006) 1 SCC 589, their Lordships have expressed thus:
“10. This Court in Om Kumar and Ors. v. Union of India;
(2001) 2 SCC 386 while considering the quantum of punishment/
proportionality has observed that in determining the quantum,
role of administrative authority is primary and that of court is
secondary, confined to see if discretion exercised by the
administrative authority caused excessive infringement of rights.
In the instant case, the authorities have not omitted any relevant
materials nor has any irrelevant fact been taken into account nor
any illegality committed by the authority nor was the punishment
awarded was shockingly disproportionate. The punishment was
awarded in the instant case after considering all the relevant
materials, and, therefore, in our view, the interference by the
High Court on reduction of punishment of removal was not
called for.”
33. In Chairman cum Managing Director, Coal India Limited
and Anr. Vs. Mukul Kumar Choudhuri and Ors.; (2009) 15 SCC
620, while dealing with the doctrine of proportionality, the Apex Court,
after referring to the decision in Coimbatore District Central Coop.
Bank v. Employees Assn.; (2007) 4 SCC 669, has ruled thus:
"19. The doctrine of proportionality is, thus, well recognized
concept of judicial review in our jurisprudence. What is otherwise
within the discretionary domain and sole power of the decision-
maker to quantify punishment once the charge of misconduct
stands proved, such discretionary power is exposed to judicial
intervention if exercised in a manner which is out of proportion
to the fault. Award of punishment which is grossly in excess to
the allegations cannot claim immunity and remains open for
interference under limited scope of judicial review.
20. One of the tests to be applied while dealing with the question
of quantum of punishment would be: would any reasonable
employer have imposed such punishment in like circumstances?
Obviously, a reasonable employer is expected to take into
consideration measure, magnitude and degree of misconduct and
all other relevant circumstances and exclude irrelevant matters
before imposing punishment."
34. In State of U.P. v. Sheo Shanker Lal Srivastava and Others;
(2006) 3 SCC 276, it has been held that the High Court should be very
slow in interfering with the quantum of punishment, unless it is found
to be shocking to one’s conscience.
35. In the case at hand, when the offence committed by the
respondent is in the realm or sphere of moral turpitude and there is
imposition of sentence of rigorous imprisonment for a period of six
months on two counts (although with a stipulation that the sentences
would run concurrently), the punishment of termination cannot be said
to be shocking to the judicial conscience. We are disposed to think that
the punishment is not excessive or shockingly disproportionate. An
employee, who has been involved in an offence of moral turpitude, has
no right to continue in service. A lesser punishment would be contrary
to the norms. It is difficult to hold that such a punishment shocks the
judicial conscience or is totally unreasonable.
36. In view of our aforesaid premised reasons, we are unable to
concur with the view expressed by the learned Single Judge by which
the learned Single Judge has concurred with the award passed by the
Labour Court and resultantly, the appeal is allowed and the order passed
in the writ petition as well as the award passed by the Labour Court
are set aside.
There shall be no order as to costs.