I.L.R. (2012) 4 DELHI Part-II (August, 2012) P.S.D. 25.8.2012 (Pages 441-762) 650

Annual Subscription rate of I.L.R.(D.S.) 2012 INDIAN LAW REPORTS (for 6 volumes each volume consisting of 2 Parts) DELHI SERIES In Indian Rupees : 2500/- 2012 Single Part : 250/- (Containing cases determined by the High Court of Delhi) VOLUME-4, PART-II (CONTAINS GENERAL INDEX) EDITOR MS. R. KIRAN NATH for Subscription Please Contact : REGISTRAR VIGILANCE CO-EDITOR Controller of Publications MS. NEENA BANSAL KRISHNA Department of Publication, Govt. of India, (ADDITIONAL DISTRICT & SESSIONS JUDGE) Civil Lines, Delhi-110054. Website: www.deptpub.nic.in REPORTERS Email:[email protected] (&) [email protected] MR. CHANDER SHEKHAR MS. ANU BAGAI Tel.: 23817823/9689/3761/3762/3764/3765 MR. TALWANT SINGH MR. SANJOY GHOSE Fax.: 23817876 MR. GIRISH KATHPALIA MR. K. PARMESHWAR MR. VINAY KUMAR GUPTA (ADVOCATES) MS. SHALINDER KAUR MR. KESHAV K. BHATI MR. V.K. BANSAL JOINT REGISTRAR MR. L.K. GAUR MR. GURDEEP SINGH MS. ADITI CHAUDHARY MR. ARUN BHARDWAJ (ADDITIONAL DISTRICT & SESSIONS JUDGES) PRINTED BY : J.R. COMPUTERS, 477/7, MOONGA NAGAR, KARAWAL NAGAR ROAD DELHI-110094. PUBLISHED UNDER THE AUTHORITY OF HIGH COURT OF DELHI, AND PUBLISHED UNDER THE AUTHORITY OF HIGH COURT OF DELHI, BY THE CONTROLLER OF PUBLICATIONS, DELHI-110054. BY THE CONTROLLER OF PUBLICATIONS, DELHI-110054—2012. (ii) NOMINAL-INDEX Parmanand Kansotia v. Seetha Lath & Anr...... 488 VOLUME-4, PART-II Prashant Dutta & Anr. v. National Insurance Co. Ltd. & Ors...... 671 AUGUST, 2012 Rangnathan Prasad Mandadapu v. Medical Council of India & Anr. ... 464 Pages Royal Sundaram Alliance Insurance Co Ltd. v. Master Manmeet Anand Bhushan v. R.A. Haritash ...... 657 Singh & Ors...... 547 Airports Authority of India and Ors. v. State of Jammu Sharvan Aggarwal v. Kailash Rani ...... 459 & Kashmir & Ors...... 444 Teka Singh @ Titu & Ors. v. State & Anr...... 475 Atul Kumar Rai v. Koshika Telecom Limited & Ors...... 741 Yahoo India Pvt. Ltd. v. State & Anr...... 634 D.D.A. v. VIP Marble Emporium & Ors...... 652

Devu Samal v. The State ...... 441

Federation of Public Schools v. Government of NCT of Delhi...... 570

Gulshan Rai v. Samrendra Bose Secy & Anr...... 513

Gunjan Sinha Jain v. Registrar General High Court of Delhi ...... 676

Jugan K. Mehta v. Sham Sunder Gulati & Ors...... 534

Kanhaiya Paswan v. State & Ors...... 509

Kuldeep Kumar Kohli & Ors. v. The Registrar of Companies for Delhi And Haryana ...... 480

Maheshwar Dayal (DECED) v. Shanti Devi & Ors...... 613

Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar Chaudhary & Ors...... 527

Mukhinder Singh (Deceased) Through LRs. & Ors. v. Gurbux Singh & Ors...... 578

Narender Kumar v. Union of India & Ors...... 728

National Insurance Company Ltd. v. Ram Rati Devi & Ors...... 627

Neelam Prashar & Ors. v. Mintoo Thakur & Ors...... 528

O.P. Aggarwal & Anr. v. Akshay Lal & Ors...... 645 (i) (iv) SUBJECT-INDEX VOLUME-4, PART-II a party at whose instance such foreign judgment has been AUGUST, 2012 obtained No litigant can be allowed to abuse the process of the Courts or to approbate and reprobate as per convenience. CODE OF CIVIL PROCEDURE, 1908—Order 12 Rule 6— The petitioner had deposed that she was in U.K. from 1993 Transfer of Property Act, 1882—Section 106—Registration to 1999. She has not even whispered, alleged or made out Act, 1908—Section 49—Delhi Rent control Act, 1958—Suit any case of any of the grounds for the foreign judgment of for possession and mesne profits—Premises let out to the dissolution of her marriage with the respondent being not appellant/respondent vide rent agreement dated 01.10.2006 for conclusive. For the said foreign judgment to be not conclusive, a period of three years by the husband of respondent/plaintiff— the petitioner was required to make out a case of the same Tenancy terminated vide notice dated 31.03.2010 w.e.f. being either pronounced by a Court having no jurisdiction and 30.04.2010—Failed to vacate the premises-Suit filed-Suit /or having been not given on the merits of the case or being decreed for possession under order 12 Rule 6 vide judgment, founded on an incorrect view of international law or the dated 14.11.2011—Aggrieved by the judgment filed the present proceedings resulting therein being opposed to natural justice appeal—Alleged tenancy was for manufacturing purposes— or having been obtained by fraud or sustaining a claim founded Notice terminating the tenancy should have been for a period on a breach of any law in force in India. Moreover, all the of six month-Held—Lease deed unregistered—Terms cannot grounds specified in section 13 of the CPC and on be looked into—Purpose of letting is not collateral purpose- establishment whereof a foreign judgment can be said to be notice valid—Appeal dismissed. not conclusive are such which can be set up only by a party Sharvan Aggarwal v. Kailash Rani ...... 459 not himself/herself/itself approaching the foreign Court. Here the petitioner who is challenging the judgment, was at the — Section 13—Criminal Procedure Code, 1973—Section 200, relevant time resident for a fairly long time within jurisdiction 482—Indian Penal Code, 1860—Section 120-B 494A, 498A— of the foreign Court, did not approach the foreign court under Petition against order of MM dismissing the complaint of the the dictates of the respondent and made out a case before the Petitioner—Petitioner after obtaining decree of divorce from foreign Court of obtaining the judgment-Petition dismissed. foreign Court and after the subsequent marriage of the Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar Respondent, filed criminal complaint of bigamy and cruelty Chaudhary & Ors...... 527 against the Respondent alleging that foreign decree of divorce was an invalid decree—Held:- under Section 13 of CPC, a — Order XXXIX Rule 2A read with Section 151—Suit for foreign judgment is conclusive as to any matter thereby partition and rendition of accounts by appellant against her directly adjudicated upon between the same parties except in siblings qua estate of her deceased father—Appellant claimed cases specified thereunder. However, the right if any, to that as per the wishes of her father, soon after her marriage, contend that the said foreign judgment is not conclusive can she came in occupation and possession of the subject be only of the party who had himself/herself/itself not initiated property—Appellant claims to have used the said portion as the process of obtaining the said judgment and cannot be of the residence till year 1974—Defendants struck a deal of (iii) (v) (vi) settlement between themselves—In terms of this arrangement, Held:- Defendant should have moved the Court for varying the parties shifted in different portions of the property and the construction even though there was a restrictive injunction leased out the entire basement for commercial use—The order—However, any additional relief qua these aspects was original defendants No. 1 to 5 are alleged to be in possession not granted to the appellant—Defendant is not guilty of willfully and control of the entire estate except the portion of the violating the interim orders passed by this Court and the interest property in occupation of the appellant—Alleged that of the appellant are protected—Though styled as CCP as CCP defendants No. 1 to 6 were threatening to sell the entire (OS), the petition is under Order XXXIX Rule 2A read with property to defendant no.7, in order to pocket the Section 151 of the said Code and even the prayers are made consideration including the share of the appellant—In this accordingly—No dispute as to the maintainability of the appeal background, partition is sought of the immovable property and from an order dismissing an application under Order XXXIX rendition of accounts of the business apart from recovery of Rule 2A of the said Code in view of the provisions of Order rent realized from the immovable property—Along with the XLIII Rule 1 of the said Code-However, on examination of suit, an application under Order XXXIX Rule 1 and 2 for this matter, there appears to be a conflict of view qua this interim relief filed seeking a restraint against the defendants issue—A learned Single Judge of the Punjab and Haryana High from creating charge or transferring, selling or alienating the Court in Rajinder Kaur vs. Sukhbir Singh, 2002 Civil CC 125 aforesaid immovable property and from dispossessing the MANU/PH/1830/2001 has held that there is no limitation appellant from the portion in her possession on the first floor, whatsoever in the aforesaid Rule as to the nature of the order apart from a restraint against removing the account books passed under this Rule—Thus, a restrictive meaning cannot from the business premises—Summons were issued in the suit be given that an appeal would not lie if the application is as also notice in the application on 02.04.2002 and ad interim dismissed—On the other hand, learned Single Judge of the ex-parte orders were granted to the appellant—Application Gauhati High Court in Shri Banamali Dey vs. Shri Satyendra under Order XXXIX Rule 2A read with section 151 of the Chanda & Ors. (1990) 2GLR 408=MANU/GH/0164/1990 has Code filed by the Plaintiff alleging that there has been violation concluded that an order refusing to take action under Rule of the status quo Order dated 02.04.2002—Respondents 2A on the ground that there was no disobedience or breach denied commission of any contempt stating that the ex-parte of injunction cannot be said to be an order under Rule 2A Order granted on 02.04.2002 simply required the parties to and—Thus, no appeal would be maintainable against such an maintain status quo qua the possession and title of the said order under clause (r) of Rule of Order XLIII of the said property and further restrained alienation, transfer or creating Code—Division Bench of this Court in The Bombay Metal third party interest—In view of the Sale Deed, possession is Works (P) Ltd. Vs. Tara Singh & Ors., ILR (2006) I DELHI stated to have already been passed on to the original defendant Has held that appeal would be maintainable from an order No. 7—There was, thus, no restrain order against the dismissing the application under Order XXXIX Rule 2A of demolition of certain walls, which was carried out—This the said Code—Aforesaid two Judgments have not been argument found favour with learned Singe Judge, who discussed in this cases and the perspective expressed by the dismissed the contempt petition—Hence:- Present appeal— Gauhati High Court has also not been examined—The (vii) (viii)

application filed in The Bombay Metal Works (P) Ltd. case of constructing the building was entrusted by Sardar Sohan (supra) was actually under Sections 2(a), 11 and 12 of the Singh to Sir Sobha Singh—Further, pleaded that the Contempt of Courts Act, 1971 and the learned Single Judge construction material from which the residential house on the absolved the respondents from notice of contempt—An appeal suit plot was made was utilized out of the material of the was filed under Section 19 of the Contempt of Courts Act, partnership firm—After construction, the property was which was pleaded to be by the respondents as not entrusted by Sardar Sohan Singh to Sir Sobha Singh for maintainable in view of the settled legal position—Appellants managing the property—Further pleaded that Sardar Sohan pleaded that the contempt application filed for disobedience Singh continued to remain the owner of the plot in the records of the interim orders purported to have been filed was actually of the Society—Further pleaded in the plaint that the Society under Order XXXIX Rule 2A of the Code and a wrong wrongly transferred the Suit plot by a sale deed in the name provision was cited—The appeal was, thus, treated as FAO of defendant no.1/respondent no.1 on account of fraud and (OS) and while discussing this aspect, it was observed that collusion—Execution of the sale deed in favour of defendant the appeal would be maintainable—It is not appropriate to in no.1/respondent no.1 was contrary to the rules and regulations interfere with the dismissal order of that application for the of the Cooperative Society—When Sardar Sohan Singh reason recorded aforesaid and the rights and obligations of approached the Society for executing the sale deed of the suit the parties would be determined in the suit, which has plot in his name, the Society informed Sardar Sohan Singh unfortunately taken large number of years—The appeal is that the sale deed with respect to the suit plot had already been accordingly dismissed leaving the parties to bear their own executed in favour of defendant no.1/respondent no.1 and costs. thus, the existence of the sale deed come to the Knowledge of Sardar Sohan Singh and the plaintiffs—Defendant No. 1/ Jugan K. Mehta v. Sham Sunder Gulati & Ors...... 534 respondent No. 1 after retiring from Indian Army in about — Suit for possession and mesne profit—The predecessor in 1964, came into the possession of the house constructed on interest late Sardar Sohan Singh, the father of plaintiff Nos. the suit plot and has been living there since then—On the basis 1 and 2 as also the defendant Nos. 2 to 5 was a member of of aforesaid facts, claiming that the cause of action had arisen a Cooperative Society—On 14.01.1952 Sardar Sohan Singh either in January, 1964 or on 25.05.1963, the subject suit for was allotted the suit plot admeasuring 4132 sq. yds and an possession and mesne profits come to be filed—Suit was agreement was entered into by Sardar Sohan Singh with the contested—Contended that Sardar Sohan Singh after making Society—Pleaded that Sardar Sohan Singh paid the entire initial payment of the cost of the plot, was not in a position consideration with respect to the plot—Sardar Sohan Singh to make construction on the plot which was a necessary was stated to have friendly relations with Sir Sobha Singh, requirement of the terms of allotment that construction must the father of defendant no.1/respondent no.1—Both of them be completed within a specified period of time—On account were also partners in a partnership firm plans for construction of inability of Sardar Sohan Singh to complete the were got sanctioned from appropriate authorities on an construction there was consequently a threat of cancellation application made on behalf of Sardar Sohan Singh and the task of the allotment and forfeiture of the money paid—On account (ix) (x) of such threat of cancellation of the allotment and forfeiture The construction on the plot was made by Sir Sobha Singh— of the amounts which were paid by Sardar Sohan Singh to Therefore, the requirement of Section 53-A to Transfer of the Society, Sardar Sohan Singh agreed to mutation of the property Act, 1882 of readiness to perform his part of the plot in the name of the defendant no.1/respondent no.1 the contract was not complied with by Sardar Sohan Singh—No son of Sir Sobha Singh—Sardar Sohan Singh wrote his letter benefit can be derived by Sardar Sohan Singh or now his legal dated 4.10.1954 to the Society to transfer the membership and heirs by claiming that Sardar Sohan Singh had effective the plot in the name of the defendant no.1/respondent no.1- ownership rights in the suit plot by virtue of the agreement By a resolution number 3-C passed in the meeting held on dated 14.01.1952—Sardar Sohan Singh in addition to the fact 13.10.1954, the Society agreed to transfer the suit plot in the that he was not ready and willing to perform his part of name of defendant no.1/respondent. No.1 pursuant to the letter contract (a necessary requirement of Section 53A) in fact dated 4.10.1954 written by Sardar Sohan Singh to the voluntarily gave up his rights in the suit plot and the Society—Sir Sobha Singh never acted as an attorney or an membership of the Society inasmuch as he stated that he agent of Sardar Sohan Singh and, the fact of the matter was could not make the construction on the suit plot and therefore, that Sir Sobha Singh was acting only for and on behalf of his gave up his rights in favour of the defendant no.1/respondent son, the defendant no./respondent no. 1 with the Society— no.1 vide letter dated 4.10.1954-By the specific language of The written statement also denied the alleged plea of fraud section 53-A, rights which are reserved by the seller under and collusion as alleged by the plaintiffs in the plaint—It was the agreement, are not given to the proposed buyer and the further pleaded that as the sale deed was executed in the year Society, having reserved certain rights by requiring 1960, and that right from the year 1960 the plaintiffs were constructions to be completed by allottees in a specified time, aware of the sale deed having been executed in the name of was fully competent under such reserved right to transfer the defendant no.1/respondent no.1 and also of the defendant plot Construction of the building on the plot was not made no.1/respondent no.1 being the owner of the suit property, for and on behalf of Sardar Sohan Singh by Sir Sobha Singh the suit filed in the year 1975 was hence, time barred-Suit by using/spending any alleged monies of Sardar Sohan dismissed—Hence, present appeal—Held:- In the present case, Singh—Undisputed position which has come record is that there is admittedly an agreement in writing, dated 14.01.1952 there has not been shown any actual transfer of funds by by which the plot was agreed to be transferred/sold to Sardar Sardar Sohan Singh either to Sir Sobha Singh or to anybody Sohan Singh and which contained the terms of the transfer. else for raising of construction on the suit plot Sardar Sohan Possession of the plot under this agreement was given to Singh in his lifetime never filed any suit to claim any right in Sardar Sohan Singh. Sardar Sohan Singh paid the the Suit property whether by seeking cancellation of the sale consideration as was them payable under this agreement dated deed dated 3.12.1960 or seeking possession of the building 14.01.1952—However the basic requirement of being ready thereon—Sardar Sohan Singh also in his lifetime, never and willing to perform his part of the contract by Sardar Sohan revoked the letter dated 4.10.1954 seeking transfer of the Singh was that he had to make construction on this plot membership and transfer of allotment of the suit plot to the allotted by the Society within the Specific period of time— defendant No.1. Building was constructed during the years (xi) (xii)

1957 to 1959 and the sale deed was executed on 3.12.1960 the right to the suit property would stand transferred to the whereas Sardar Sohan Singh expired much later in the year person in whose favour such documents have been 1974—Thus, it is only the legal heirs of Sardar Sohan Singh executed—Ownership rights can be construed as entitling who have suddenly woken up after his death hoping that by persons who have documents to claim possession of the suit speculation in litigation, they may be successful and be able property inasmuch as at least the right to the suit property to get some benefits. would stand transferred to the person in whose favour such documents have been executed—Appeal accepted suit decreed. Mukhinder Singh (Deceased) Through LRs. & Ors. v. Gurbux Singh & Ors...... 578 O.P. Aggarwal & Anr. v. Akshay Lal & Ors...... 645

— Section 96—Appellants/plaintiff purchased the rights in the suit CODE OF CRIMINAL PROCEDURE, 1973—Section 320— property by means of Agreement to Sell, Power of Attorney Indian Penal Code, 1860—Section 323, 324, 354, 34— and will from previous owner through a chain of similar Offences being not compoundable, can FIR be quashed on documents—Appellants/plaintiffs filed suit for possession and settlement Held—Compounding of non compounding offences mesne profit claiming the Respondents to be illegal occupants/ permissible as per the judgment of B.S Joshi Vs, State of trespassers in suit property-Respondents prayed for dismissal Haryana Nikhil Merchant vs. CBI and Manoj Sharma vs. of the suit the ground that the appellants were not owners of State. These three judgments have been referred to the larger the suit property and documents relied upon by appellant cannot bench vide judgment in case of Gain Singh vs. State. However confer any ownership rights in suit property-Trial Court till these are set aside, they hold the field—Petition allowed. dismissed the suit holding that they cannot be said to be the Teka Singh @ Titu & Ors. v. State & Anr...... 475 owners on the basis of the documents which do not confer ownership-Hence, present appeal—Held:- Once documents — Section 482, 468(2); Indian Companies Act, 1956—Section being original and registered documents, are filed and proved 63, 628: Petition for quashing of summoning order in complaint on record, the onus of proof that such documents are not u/s 63 and 628—Petitioner contend that complaint beyond genuine documents, in fact shifts to the opposite party— period of limitation—Held—Period of limitation in any offence Ownership of the original owner cannot be disputed and the commences only upon receipt of knowledge of breach-Period same is a strong proof of the ownership of the suit property of limitation will not begin from the date of filling prospectus of the appellants proved by means of chain of the title but from date of filing of balance sheet on which the complaint documents—All earlier owners are not required to be is based— Complaint within period of limitation—Petition summoned—Original documents filed by Respondents not dismissed. proved—Documents such as Agreement to sell, Power of Kuldeep Kumar Kohli & Ors. v. The Registrar of Companies Attorney, Will etc do not strictly confer ownership rights as for Delhi And Haryana...... 480 a sale deed—Such documents create certain rights in an immovable property entitling the persons who have such — Section 200, 482—Indian Penal Code, 1860—Section 120-B documents to claim possession of the suit property—At least 494A, 498A—Petition against order of MM dismissing the (xiii) (xiv) complaint of the Petitioner—Petitioner after obtaining decree foreign Court of obtaining the judgment-Petition dismissed. of divorce from foreign Court and after the subsequent Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar marriage of the Respondent, filed criminal complaint of bigamy Chaudhary & Ors...... 527 and cruelty against the Respondent alleging that foreign decree of divorce was an invalid decree—Held:- under Section 13 of — Section 173—Cross appeals filed by Insurance Company CPC, a foreign judgment is conclusive as to any matter thereby claiming recovery rights against owner of offending vehicle directly adjudicated upon between the same parties except in and cross objections filed by claimants for enhancement of cases specified thereunder. However, the right if any, to compensation—Plea taken, driver did not possess a valid contend that the said foreign judgment is not conclusive can driving license on date of accident and Insurer was entitled be only of the party who had himself/herself/itself not initiated to avoid liability—Per Contra Plea taken, insurer failed to the process of obtaining the said judgment and cannot be of establish breach of policy condition—Deceased was aged 50 a party at whose instance such foreign judgment has been years on date of accident—Claims Tribunal erred in taking obtained No. litigant can be allowed to abuse the process of deceased's age to be 68 years—Held—No effort was made the Courts or to approbate and reprobate as per convenience. by insurer to summon record from RTO with regard to The petitioner had deposed that she was in U.K. from 1993 renewed license produced by driver to show that license was to 1999. She has not even whispered, alleged or made out not valid on date of accident—Investigation Officer not any case of any of the grounds for the foreign judgment of examined to rebut driver's contention that he had a valid dissolution of her marriage with the respondent being not driving license on date of accident which was seized by conclusive. For the said foreign judgment to be not conclusive, Investigating Officer-Mere filing of chargesheet under Section the petitioner was required to make out a case of the same 3 of Act is not sufficient to hold that driver did not possess being either pronounced by a Court having no jurisdiction and a valid driving license at time of accident—Since claimant’s /or having been not given on the merits of the case or being testimony that deceased was 50 years, was not challenged in founded on an incorrect view of international law or the cross examination and in view of contradictory documentary proceedings resulting therein being opposed to natural justice evidence, age favourable to claimants has to be considered or having been obtained by fraud or sustaining a claim founded for grant of compensation as provision of Section 166 is a on a breach of any law in force in India. Moreover, all the piece of social legislation—Compensation enhanced. grounds specified in section 13 of the CPC and on National Insurance Company Ltd. v. Ram Rati Devi establishment whereof a foreign judgment can be said to be & Ors...... 627 not conclusive are such which can be set up only by a party not himself/herself/itself approaching the foreign Court. Here — Section 204—Petition challenging the order passed by the petitioner who is challenging the judgment, was at the LD.M.M summoning the petitioner—Complaint filed alleging relevant time resident for a fairly long time within jurisdiction that main social networking websites are knowingly allowing of the foreign Court, did not approach the foreign court under contents and material which is dangerous to communal the dictates of the respondent and made out a case before the harmony, with common and malafide intentions and have failed (xv) (xvi)

to remove the objectionable content for their wrongful gain- occasionally-However, respondent defaulted in payment of half Ld. M.M passed the summoning order-Challenged-There is yearly installment of interest and in redeeming of bond upon no averment against the petitioner in the complaint-No maturity—On communication from petitioner repeatedly sent, evidence produced against him-Respondent contends- respondent no.2 expressed its inability to make payment on complainant has missed the opportunity to make proper the ground of shortage of fund-Stated that matter taken up averments in the complaint and adduce evidence, in that with State government-Petitioner sent a legal notice— situation he has a right to amend the same and lead the Thereafter, received partial payment—Due payments not made evidence thereafter-Held-There is no iota of evidence deposed despite further reminder—Petitioner filed writ petition— qua the petitioner-Nor proved even by the complainant when Respondent did not deny facts—Pleaded financial stringency— he was examined as PW1—There should have been specific Contended—Respondent located in the Stage of J&K-High averments about the nature of act or omission and law violated Court Delhi had no territorial jurisdiction—Secondly, writ and in the absence of the same, summons issued against the petition to seek recovery of money not maintainable—Court petitioner are not sustainable in law—There is no provision in observed payment for purchase of bond made in Delhi; one Code of Criminal Procedure to amend the complaint or payment of interest made in Delhi Substantial part of cause produce the documents after issuing of the summons— of action arisen in Delhi within the jurisdiction of Delhi High Magistrate has to carefully scrutinize the evidence brought on Court-Objection of territorial jurisdiction rejected-Regarding record and may even put questions to the complainant and second objection-Observed-The jurisdiction under Court under his witnesses to elicit answers to find out the truthfulness of Article 226 unfettered, the only fetters are those which the the allegations or otherwise and then examine if any offence court have themselves placed on the said jurisdiction-Held- is prima-facie committed by all or any of the accused—The firstly, the primary relief to seek-enforcement of a sovereign corrective measure of amending the complaint, cannot be guarantee of State of J&K-No question of disputed facts- accepted, being not tenable under law. Observed in a appropriate case writ petition as against State or an instrumentality of State arising out of a contractual Yahoo India Pvt. Ltd. v. State & Anr...... 634 obligation maintainable-Even though some disputed questions CONSTITUTION OF INDIA, 1950—Article 226—Territorial of facts arise for consideration, same cannot be ground to Jurisdiction Article 12—‘State’—Respondent no.2 Jammu & refuse to entertain writ petition in all the cases as matter of Kashmir State Financial Corporation Set up by respondent no.1 Rule-Issued direction to release amount-Writ Petition allowed. to promote medium/large scale Industry in the State of J&K- Airports Authority of India and Ors. v. State of Jammu & Primary function of respondent no.2 to extend financial Kashmir & Ors...... 444 assistance to industrial projects to speed up industrial investment in the State—Respondent no. 2 invited investments — Article 226—Petitioner completed four and half years of in bonds issued by it; Guaranteed by respondent no.1-Petitioner medical course; furnished certificate—Issued provisional subscribed to the said bond in Delhi by making payment in registration by MCI in 2000—Authenticity of this not certified Delhi—Respondent no. 2 paid interest on the said bond in Delhi by Moscow University—Provisional registration withdrawn on (xvii) (xviii)

29.05.2001—MCI intimated the police authority—Lodged FIR registration to the petitioner subject to condition that petitioner against petitioner under S. 420/468/471 IPC-Petitioner would give an undertaking to the court that he would keep Contended—Misled into believing that diploma could be issued updating the status of the pending criminal case after every by Moscow University—The truth otherwise was the matter six month-Writ disposed off. under investigation—He had gone back to Russia and Rangnathan Prasad Mandadapu v. Medical Council of India completed the balance course from St. Petersburg State & Anr...... 464 Medical Academy—This institution certified the petitioner having completed the course-Issued diploma on 23.06.2003— — Article 227—Civil Procedure Code, 1908—Section 13— Petitioner returned—Attempted Screening test-Become Criminal Procedure Code, 1973—Section 200, 482—Indian successful-MCI admitted same—Denied registration on the Penal Code, 1860—Section 120-B 494A, 498A—Petition ground of registration of criminal case—In earlier writ petition against order of MM dismissing the complaint of the filed by the petitioner, High Court issued direction to the Petitioner—Petitioner after obtaining decree of divorce from respondent to provisionally enroll him and permit his foreign Court and after the subsequent marriage of the completion of compulsory, rotatory internship in India—Open Respondent, filed criminal complaint of bigamy and cruelty to MCI to impose condition that in the event of adverse order against the Respondent alleging that foreign decree of divorce in criminal proceedings it would take such action against was an invalid decree—Held:- under Section 13 of CPC, a petitioner a warranted under the law after reviewing the facts foreign judgment is conclusive as to any matter thereby circumstances—The petitioner thereafter completed rotatory directly adjudicated upon between the same parties except in internship-Appeared in CET-NBE conducted by respondent cases specified thereunder. However, the right if any, to no.2—Result not declared as be he had not been granted contend that the said foreign judgment is not conclusive can permanent registration by respondent no.1—Petitioner be only of the party who had himself/herself/itself not initiated contended-The pendency of the criminal proceedings should the process of obtaining the said judgment and cannot be of not be allowed to mar the career prospect of the petitioner— a party at whose instance such foreign judgment has been Admittedly, the petitioner fully qualified and eligible for grant obtained No. litigant can be allowed to abuse the process of of permanent registration by MCI—Criminal trial may takes the Courts or to approbate and reprobate as per convenience. years to be completed—Petitioner could not be deprived of The petitioner had deposed that she was in U.K. from 1993 his right to profess his profession—Respondent MCI to 1999. She has not even whispered, alleged or made out contended—Till the criminal case finally decided, petitioner any case of any of the grounds for the foreign judgment of could not be granted permanent registration—Respondent had dissolution of her marriage with the respondent being not no mechanism to track criminal proceedings—Held—Unless conclusive. For the said foreign judgment to be not conclusive, the petitioner held guilty, cannot be debarred or prevented from the petitioner was required to make out a case of the same pursuing his profession—Even if held guilty, it need being either pronounced by a Court having no jurisdiction and examination whether he should and if so, for what period, so /or having been not given on the merits of the case or being prevented—MCI directed to grant conditional permanent founded on an incorrect view of international law or the (xix) (xx)

proceedings resulting therein being opposed to natural justice amend the complaint or produce the documents after issuing or having been obtained by fraud or sustaining a claim founded of the summons—Magistrate has to carefully scrutinize the on a breach of any law in force in India. Moreover, all the evidence brought on record and may even put questions to grounds specified in section 13 of the CPC and on the complainant and his witnesses to elicit answers to find establishment whereof a foreign judgment can be said to be out the truthfulness of the allegations or otherwise and then not conclusive are such which can be set up only by a party examine if any offence is prima-facie committed by all or any not himself/herself/itself approaching the foreign Court. Here of the accused—The corrective measure of amending the the petitioner who is challenging the judgment, was at the complaint, cannot be accepted, being not tenable under law. relevant time resident for a fairly long time within jurisdiction Yahoo India Pvt. Ltd. v. State & Anr...... 634 of the foreign Court, did not approach the foreign court under the dictates of the respondent and made out a case before the — Article 226 & 227—Right to Information Act, 2005—Section foreign Court of obtaining the judgment-Petition dismissed. 20(1)—Delhi High Court Act, 1966—Section 10—Central Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar Information Commission (CIC) imposed maximum penalty of Chaudhary & Ors...... 527 Rs. 25,000/- on the respondent under section 20(1) of the Act for the delay of over 100 days in furnishing the information — Article 226, 227—Criminal Procedure Code, 1974—Section to the appellant—Chief Secretary, Govt. of Delhi was directed 204—Petition challenging the order passed by LD.M.M to recover the said amount from the salary of the respondent summoning the petitioner—Complaint filed alleging that main @ Rs. 5,000/- per month-Respondent preferred writ petition— social networking websites are knowingly allowing contents Learned Single Judge allowed the writ petition—Reduced the and material which is dangerous to communal harmony, with penalty amount to Rs. 2,500/- recoverable from the salary of common and malafide intentions and have failed to remove the respondent in ten equal monthly installments of Rs. 250/ the objectionable content for their wrongful gain-Ld. M.M - per month—Reason—The question of penalty is essentially passed the summoning order-Challenged-There is no averment between the Court and the respondent and did not really against the petitioner in the complaint-No evidence produced concern the appellant who has been provided with against him-Respondent contends- complainant has missed the information—Respondent took the charge of the post 14 days opportunity to make proper averments in the complaint and after the subject RTI application of the appellant had been adduce evidence, in that situation he has a right to amend the filed—Appellant filed the Intra Court Appeal—Contention— same and lead the evidence thereafter-Held-There is no iota Use of word 'shall' in section 20(1) is indicative of the of evidence deposed qua the petitioner-Nor proved even by imposition of penalty mandatory—Presence of information the complainant when he was examined as PW1—There seeker is essential not only for computing the penalty but also should have been specific averments about the nature of act for establishing the default of the information officer-Exclusion or omission and law violated and in the absence of the same, of the information seeker from penalty proceedings would summons issued against the petitioner are not sustainable in dilute the sprit of the Act—The role of CIC is of an law—There is no provision in Code of Criminal Procedure to adjudicator—Held—A reading of Section 20 shows that while (xxi) (xxii)

the opinion, as to a default having been committed by the penalty—The role of the CIC is of an adjudicator—Held—In Information Officer, is to be formed ‘at the time of deciding the context of RTI Act, merely because the CIC, while any complaint or appeal’, the hearing to be given to such deciding the complaints/appeals is required to hear the Information Officer, is to be held after the decision on the complainant/information seeker, would not require the CIC to Complaint or the appeal. The proceedings before the CIC, of hear them while punishing the erring Information Officer, in hearing the Information Officer qua whom opinion of having exercise of its Supervisory Powers—We may reiterate that committed a default has been formed and of imposition of the complainant/information seeker has the remedy of seeking penalty, in the exercise of supervisory powers of CIC and not costs and compensation and thus the argument of ‘being left in the exercise of adjudicatory Powers. remediless’ is misconceived-However, ‘penalty’ is not to be mixed with costs and compensation—The participation of the Anand Bhushan v. R.A. Haritash ...... 657 information seeker in the penalty proceeding has nothing to — Article 226 & 227—Right to Information Act, 2005—Section do with the principal of accountability—Since the information 20(1)—Central Information Commission (CIC) imposed seeker has no right of participation in penalty proceedings, the maximum penalty of Rs. 25,000/- on the respondent under question of right of being heard in opposition to writ petition section 20(1) of the Act for the delay of over 100 days in challenging imposition of penalty dose not arise-Error was furnishing the Information to the appellant-Chief Secretary, committed by the learned Single Judge in reducing the penalty Govt. of Delhi was directed to recover the said amount from without hearing the appellant. the salary of the respondent @ Rs. 5,000/- per month— Anand Bhushan v. R.A. Haritash ...... 657 Respondent preferred Writ petition—Learned Single Judge allowed the writ petition—Reduced the penalty amount to Rs. — Article 226 & 227—Right to Information Act, 2005—Section 2,500/- recoverable from the salary of the respondent in ten 20(1)—Central Information Commission (CIC) imposed equal monthly installments of Rs. 250/- per month—Reason— maximum penalty of Rs. 25,000/- the respondent under The question of penalty is essentially between the Court and section 20(1) of the Act for delay of over 100 days in the respondent and did not really concern the appellant who furnishing the information to the appellant—Chief Secretary, has been provided with information—Respondent took the Govt. of Delhi was directed to recover the said amount from charge of the post 14 days after the subject RTI application the salary of the respondent @ Rs. 5,000/- per month of the appellant had been filed—Appellant filed the Intra Court Respondent preferred writ petition—Learned Single Judge Appeal—Contention—Use of word ‘shall’ in section 20(1) is allowed the writ petition—Reduced the penalty amount to Rs. indicative of the imposition of penalty mandatory—Presence 2,500/- recoverable from the salary of the respondent in ten of information seeker is essential not only for computing the equal monthly installments of Rs. 250/- per month—Reason— penalty but also for establishing the default of the information The question of penalty is essentially between the Court and officer-Exclusion of the information seeker from penalty the respondent and did not really concern the appellant who proceedings would dilute the spirit of the Act—No notice of has been provided with information—Respondent took the the petition was given to the appellant before reducing the charge of the post 14 days after the subject RTI application (xxiii) (xxiv)

of the appellant had been filed—Appellant filed the Intra Court paper and the answer key seeking re-evaluation after Appeal—Contention—Use of word ‘shall’ in section 20(1) is corrections/ deletions/ amendments to the questions and indicative of the imposition of penalty mandatory—Presence answer keys—Further, seeking restraint on Main examination of information seeker is essential not for computing the penalty till re-evaluation of the Preliminary Examination—HELD:- The but also for establishing the default of the information officer— questions would fall into three categories—The first being Exclusion of the information seeker from penalty proceedings those questions where the answers reflected in the Answer would dilute the sprit of the Act—The role of the CIC is of Key are correct. The second category comprises of those an adjudicator—Held—Though Section 20(1) uses the word questions in respect of which the option shown to be correct ‘shall’, before the words ‘impose a penalty of Rs. Two in the Answer Key is incorrect and instead another option as hundred and fifty rupees but in juxtaposition with the words determined above is correct. The third category of questions ‘without reasonable cause, malafidely of knowingly or covers (1) questions out of syllabus; (2) questions in respect obstructed’—The second proviso thereto further uses the of which the answer in the Answer Key is debatable; (3) words, ‘reasonably and diligently’—The question which arises questions in respect of which there are more than one correct is when the imposition of penalty is dependent on such option; (4) questions in respect of which none of the options variables, can it be said to be mandatory or possible of is correct; and (5) questions which are confusing or do not calculation with mathematical precision—All the expressions supply complete information for a clear answer. As regards used are relative in nature and there may be degrees of, the first category, no change in the Answer Key is required. without reasonable cause, malafide, knowing or The Answer Key in respect of the second category of reasonableness, diligence etc.—The very fact that imposition questions would have to be corrected and the OMR answer of penalty is made dependent on such variables is indicative sheets would have to be re-evaluated. In case of the third of the direction vested in the authority imposing the category and when the table of the disputed questions is taken punishment—Once it is held that the quantum of fine is into considerations it is inferred that 12 questions need to be discretionary, there can be no challenge to the judicial review removed/delete from the purview of the said Delhi Judicial under Article 226 of the Constitution, of exercise of such Service Exams and 7 questions need to be corrected—The discretion, of course within the well recognized limits—If this status of the qualified students stands unaffected as it would Court finds discretion to have been not appropriately exercised be unfair on behalf of the court to tamper with the status of by the CIC, this Court can, in exercise of its power vary the the student already selected. Coming on to the second penalty—Appeal dismissed. condition stipulating that the number of candidates to be Anand Bhushan v. R.A. Haritash ...... 657 admitted to the main examination (written) should not be more than ten times the total number of vacancies of each category — Article 226—Writ Petition quashing of notice issued by the advertised This condition proved to be invalid as the general High Court of Delhi provisionally short listing candidates on vacancies advertised were 23 and ten times 23 is 230 whereas the basis of performance in the Delhi Judicial Service the general candidates which have already been declared as (Preliminary) Examination as there were faults in the question qualified for taking the Main Examination (Written) is 235, (xxv) (xxvi) therefore, it would be unfair to shut out such candidates on — Article 227—Stand of the tenant was that the premises in the basis of the second condition. question had been taken on rent by Mohan Lal only for his son Anand Parkash and this was with the consent of the Gunjan Sinha Jain v. Registrar General High Court landlord who was living in the same premises and who was of Delhi ...... 676 fully aware of the fact that Anand Parkash is carrying on the — Article 226—Disciplinary proceedings—Misconduct imputed business from the said premises; there was no subletting— against petitioner was unauthorized absenteeism from duty as The ARC on the basis of the oral and documentary evidence he repeatedly did not report for duty at the airport in time— had returned a finding that it was the deceased Mohan Lal Petitioner submitted reply to the charge memorandum and after who was the tenant in the premises but since Anand Parkash considering the same, was awarded punishment of censure— was carrying on business in these premises from the very Appeal filed by petitioner was dismissed—After dismissal of beginning which was also admitted by the landlord, no appeal, petitioner filed an application seeking certain inference of parting with possession/subletting/assignment by documents without disclosing the relevance of the same and Mohan Lal favour of Anand Parkash could be made;—An without disclosing as to how he would be prejudiced if the appeal was preferred before the ARCT. The ARCT drew a same are not supplied—In reply, the respondents pointed out conclusion that the tenant was Mohan Lal; he had parted with that under the relevant rule, there was no provision to supply possession of the premises in favour of his son Anand Parkash documents which were not relied upon in the chargesheet— who was carrying on business in the same premises; ground However, later on, same of the documents were supplied to of subletting under Section 14(1)(b) stood confirmed in petitioner—Revision filed by petitioner also dismissed-Writ favour of the landlord. Mohan Lal had died during the petition challenging the punishment and dismissal of appeal and pendency of the eviction proceedings, the premises being revision-Petitioner contended without imputing any mala fides commercial premises and Anand Parkash being the son and or perversity that other members of the staff also go for the legal heir of deceased Mohan Lal had inherited this tenancy call of nature and break fast, etc but no action was taken from his father;—The Judgment of Gain Devi vs. Jiwan Kaur, against them—Respondents contended that wherever a AIR 1985 SC 796 was relied upon to give a finding that such member of the force leaves for call of nature or other absence, a tenant i.e. Anand Prakash being in possession of the premises entries are made in registers and explanations rendered by in the capacity as legal representative of deceased father petitioner were disbelieved by disciplinary authority as well as Mohan Lal, he could be evicted from the suit premises— appellate authority—Held, as regards non-supply of certain Petition of the landlord accordingly stood dismissed—It is well documents, petitioner ought to have established the prejudice settled that to make out a case for sub-letting or parting with as a matter of fact and prejudice cannot be based on possession, it means giving of possession to persons other apprehension—Further held, the totality of circumstances of than those to whom the possession had been given by the the case do not reflect non-application of mind or original lessor and that parting with possession must have been disproportionate punishment. made by the tenant —Article 66 of the Limitation Act, 1963 was held applicable i.e period of 12 years was available to the Narender Kumar v. Union of India & Ors...... 728 (xxvii) (xxviii)

landlord to seek eviction of his tenant-In this factual scenario, for advertisement with Official Liquidator-IFCI Limited instead the impugned judgment suffers from no infirmity. of depositing the sale proceeds with Official Liquidator, chose to file application before Recovery Officer praying that the Maheshwar Dayal (DECED) v. Shanti Devi sale proceeds received from the sale of assets of M/s Koshika & Ors...... 613 Telecom Limited be directed to be appropriated by the IFCI CONTEMPT OF COURTS ACTS, 1971—Section 19,11 & 12— Limited in partial discharge of the Recovery Certificate— IFCI Limited advanced a loan to M/s Koshika Telecom Ltd.— Application allowed by the Recovery Officer on 22.02.2010 Loan was secured by hypothecation of the tower and other with a direction that IFCI would furnish and undertaking that movable assets—Two of the directors gave personal in future if any eligible claim in excess of the amount available guarantees—IFCI filed proceedings before DRT—M/s Koshika with the Official Liquidator is received by the Official Telecom Limited was held liable for sum of Rs. Liquidator, the requisite amount will be remitted to the Official 233,73,92,900.27 along with pendent lite and future interest Liquidator within seven days—Official Liquidator being @ 10% per annum from 19.07.2002 till realization with cost aggrieved by the non compliance of the directions of the of Rs. 1.5 lakh and recovery certificate was issued in terms learned Company judge dated 08.10.2008 filed a petition under thereof—IFCI filed recovery proceedings—Moved application Sections 11 and 12 of the Contempt of Courts Act, 1971 for sale property (towers) which were hypothecated— arraying Ms. Shalini Soni alone as a respondent/contemnor for Recovery officer vide order dated 18.12.2007 directed not depositing the sale proceeds with official Liquidator— attachment and sale of the hypothecated properties—However, Official Liquidator filed an appeal before the DRT against the the Company was wound up vide order dated 02.08.2005 and order of the Recovery Officer dated 22.02.2010—Appeal the Official Liquidator took over charge of its assets—The allowed partially observing that the Official Liquidator would hypothecated assets were sold for a sum of Rs. 12 Crores— be entitled to the amount to the extent of value of the land of IFCI filed an application before the Recovery Officer praying the company while IFCI is entitled to the amount received for the proceeds realized from sale of assets to be made over from the sale of movable assets—IFCI also preferred an appeal to IFCI as the Official Liquidator had received only one claim before the DRAT—Appeal was dismissed by DRAT—IFCI which was yet to verified—Official Liquidator opposed the assailed the Order of DRT and DRAT in WP (C) No. 5014/ application—It appears that the Official Liquidator had a 2010-WP(C) was allowed on 16.12.2010 IFCI was held meeting with Ms. Shalini Soni, AGM (one of the contemnors) entitled to retain the amounts both from the sale of movable on 19.08.2009 where a decision was taken that the sale and immovable assets of M/s Koshika Telecom Limited subject proceeds of the land will be deposited with the official to the other directions—Though the Official Liquidator sought liquidator—Official Liquidator filed a compliance/status report to withdraw the contempt proceedings on 08.03.2011 in view No. 281/2009 dated 06.10.2009 before learned Company judge of orders passed by the division Bench, Learned Single Judge and requested for appropriate directions—On 12.10.2010 declined the prayer—Issued notice to IFCI through Managing Official Liquidator filed a report bearing No. 13/2010 for Director (contemnor herein) and the Recovery Officer direction to IFCI to deposit the sale proceeds and expenses (contemnor herein)—Mr. Atul Kumar Rai is the Managing (xxix) (xxx)

Director of IFCI Limited—No notice was issued to him by to be set aside with the acceptance of apology on the part of name but only by designation—In response to the contempt Ms. Shalini Soni and Mr. R.K. Bansal while Mr. Atul Kumar notice, affidavits were filed by all the three contemnors—They Rai is held not to have any role in the matter in issue. all tendered unconditional apology—All the three contemnors Atul Kumar Rai v. Koshika Telecom Limited were found guilty of contempt—Sentenced to undergo simple & Ors...... 741 imprisonment for a period of one month—IFCI as an institution has been imposed with a fine of Rs. 5 lakh out of DELHI DEVELOPMENT ACT, 1957—Sections 14 & 29 (2)— which Rs. 3,50,000/- should be deducted from the salary of Accused persons running marble shop in an area of 500 sq. Mr. Atul Kumar Rai while the balance amount should be ft. which as per Master Plan, could be used only for deducted from the salary of Ms. Shalini Soni—Appeals—Held:- agricultural purposes or water body—Magistrate acquitted We are of the view that the controversy ought to have been accused persons—Held:- Magistrate committed error in put to a rest when the Official Liquidator itself wanted to appreciating evidence by not believing CW1 Junior Engineer withdraw the contempt petition on 08.03.2011—The learned and giving more weightage to testimony of CW2 as compared single Judge did not even permit that but proceeded to issue to DW1 who was a junior officer—CWI testified about notices further to the Managing Director of IFCI by conducting inspection and finding marble shop of the accused Designation and Recovery Officer ostensibly to Know whether functioning—Testimony of CW1 unshaken-Magistrate wrongly the Recovery Officer was aware of the orders passed by the observed that testimony of CW2 Sales Tax Officers should learned Company Judge on 08.10.2009 when he passed the be given more weightage as compared to DW1 who was orders dated 22.02.2010—No notice was issued to Mr. Atul officer of Junior Rank-Credence to testimony should not be Kumar Rai in person, but since the affidavits filed on behalf based on post, but should be assessed by reading entire of IFCI were not by the Managing Director, even the testimony—Testimony of CW1 cannot be disbelieved just Managing Director filed his personal affidavit—All the there because there was no independent corroboration—Judgment contemnors had tendered unqualified apology and the Recovery acquitting accused persons set aside and they held guilty of Officer had stated in so many words that he should have been offence u/s 14 r/w Section 29 (2) of DDA Act—Respondents more careful in analyzing the papers before him—We find that sentenced to be released after admonition—Accused company there is no case whatsoever of contempt made out against fined Rs. 100—Appeal allowed. Mr. Atul Kumar Rai—The Recovery Officer ought to have D.D.A. v. VIP Marble Emporium & Ors...... 652 perused the reply filed by the Official Liquidator given this situation, unqualified apology tendered more than met the DELHI RENT CONTROL ACT, 1958—Suit for possession and requirement as it was not a case of any willful contumacious mesne profits—Premises let out to the appellant/respondent conduct for the court to either proceed with conviction or vide rent agreement dated 01.10.2006 for a period of three impose sentence and that too such a harsh one—All the three years by the husband of respondent/plaintiff—Tenancy appeals are liable to be allowed—Orders of conviction dated terminated vide notice dated 31.03.2010 w.e.f. 30.04.2010— 06.02.2012 and order on sentence dated 19.03.2012 are liable Failed to vacate the premises-Suit filed-Suit decreed for (xxxi) (xxxii)

possession under order 12 Rule 6 vide judgment, dated taken on rent by Mohan Lal only for his son Anand Parkash 14.11.2011—Aggrieved by the judgment filed the present and this was with the consent of the landlord who was living appeal—Alleged tenancy was for manufacturing purposes— in the same premises and who was fully aware of the fact Notice terminating the tenancy should have been for a period that Anand Parkash is carrying on the business from the said of six month-Held—Lease deed unregistered—Terms cannot premises; there was no subletting—The ARC on the basis of be looked into—Purpose of letting is not collateral purpose- the oral and documentary evidence had returned a finding that notice valid—Appeal dismissed. it was the deceased Mohan Lal who was the tenant in the premises but since Anand Parkash was carrying on business Sharvan Aggarwal v. Kailash Rani ...... 459 in these premises from the very beginning which was also — S.14(1)(e)—Bonafide necessity—Petitioner owner/landlord let admitted by the landlord, no inference of parting with out portion of first floor to the respondent—In remaining possession/subletting/assignment by Mohan Lal favour of portions guest house run by landlord—Stated in eviction Anand Parkash could be made;—An appeal was preferred petition that he needs more space for expansion of business before the ARCT. The ARCT drew a conclusion that the for bonafide need—Application for leave to defend filed by tenant was Mohan Lal; he had parted with possession of the tenant—Contested that premises was property and house run premises in favour of his son Anand Parkash who was by landlord was without permission—Building by laws carrying on business in the same premises; ground of prohibited the landlord from changing nature of heritage site— subletting under Section 14(1)(b) stood confirmed in favour Landlord let out huge place on the ground floor to wine of the landlord. Mohan Lal had died during the pendency of shop—Leave to defend granted since the property was heritage the eviction proceedings, the premises being commercial property and guest house cannot be run without permission premises and Anand Parkash being the son and legal heir of which raises triable issue—Held—Tenant has no locus-standi deceased Mohan Lal had inherited this tenancy from his to challenge the illegality of the landlord in running a guest father;—The Judgment of Gain Devi vs. Jiwan Kaur, AIR house in a portion immediately adjacent to Bengali Club, the 1985 SC 796 was relied upon to give a finding that such a tenanted portion—The building bylaws do not prohibit such tenant i.e. Anand Prakash being in possession of the premises activities—Leave to defend cannot be granted as a matter of in the capacity as legal representative of deceased father routine. If defence raised is moonshine, sham and illusioary— Mohan Lal, he could be evicted from the suit premises— Leave to defend has to be refused—Landlord best judge of Petition of the landlord accordingly stood dismissed—It is well his requirement—It is not open to tenant or court to dictate settled that to make out a case for sub-letting or parting with to the landlord the manner or the style in which he must live— possession, it means giving of possession to persons other Order set aside—Eviction petition decreed. than those to whom the possession had been given by the original lessor and that parting with possession must have been Gulshan Rai v. Samrendra Bose Secy & Anr...... 513 made by the tenant —Article 66 of the Limitation Act, 1963 — Section 14 (1)(b) Constitution of India, 1950—Article 227— was held applicable i.e period of 12 years was available to the Stand of the tenant was that the premises in question had been landlord to seek eviction of his tenant-In this factual scenario, (xxxiii) (xxxiv)

the impugned judgment suffers from no infirmity. Agreement to sell—Suit by Purchaser for Specific Maheshwar Dayal (DECED) v. Shanti Devi performance-Suit by Seller for mandatory injunction and & Ors...... 613 possession-Suits decreed in favour of seller—Appeal filed by Purchaser—Held—Purchaser failed to make payment of INDIAN COMPANIES ACT, 1956—Section 63, 628: Petition balance sale consideration—Purchaser’s contention that oral for quashing of summoning order in complaint u/s 63 and agreement was entered into at the time of sale agreement which 628—Petitioner contend that complaint beyond period of provided for deduction of amounts spent on renovation, limitation—Held—Period of limitation in any offence furnishing etc. from the sale consideration, is barred under commences only upon receipt of knowledge of breach-Period S. 29 of Contract Act and S. 91 and 92 of Evidence Act— of limitation will not begin from the date of filling prospectus Held—S. 114 of Evidence Act enables the Judge to infer one but from date of filing of balance sheet on which the complaint fact having regard to the common course of natural events is based— Complaint within period of limitation—Petition or human conduct—In natural course of event the Seller dismissed. hands over the vacant peaceful possession of the suit property Kuldeep Kumar Kohli & Ors. v. The Registrar of Companies to the Purchaser at a time of receiving the balance sale for Delhi and Haryana ...... 480 consideration and not before that—In exceptional cases possession is handed over where substantial payment has been INDIAN CONTRACT ACT, 1872—Costs: Where Courts find made and there are special circumstance to secure the balance that using Courts as a tool a litigant has perpetuated illegalities sale consideration, such as relationship between the parties. or has perpetuated an illegal possession, the courts must No. such special circumstance in the present case—It is impose costs on such litigant which should be equal to the improbable that the seller would have authorized purchaser to benefits derived by the litigant and harm and deprivation renovate, furnish without even specifying the amount. Appeal suffered by the rightful person, so as to check frivolous dismissed. litigation and prevent the people from reaping a rich harvest Parmanand Kansotia v. Seetha Lath & Anr...... 488 of illegal acts through the Courts. Despite settled legal positions, the obvious wrong doers, use one after another tier INDIAN EVIDENCE ACT, 1872—Section 91, 92, 114: of judicial review mechanism as a gamble, knowing fully well Agreement to sell—Suit by Purchaser for Specific that dice is always loaded in their favour, since even if they performance-Suit by Seller for mandatory injunction and lose, the time gained is the real gain. This situation must be possession-Suits decreed in favour of seller—Appeal filed by redeemed by the Courts. Purchaser’s conduct dishonest-Both Purchaser—Held—Purchaser failed to make payment of appeals dismissed with exemplary costs of Rs. 2,00,000/- on balance sale consideration—Purchaser’s contention that oral the Purchaser. agreement was entered into at the time of sale agreement which Parmanand Kansotia v. Seetha Lath & Anr...... 488 provided for deduction of amounts spent on renovation, furnishing etc. from the sale consideration, is barred under — Section 29—Indian Evidence Act, 1872—Section 91, 92, 114: S. 29 of Contract Act and S. 91 and 92 of Evidence Act— (xxxv) (xxxvi)

Held—S. 114 of Evidence Act enables the Judge to infer one INDIAN PENAL CODE, 1860—Section 376—As per fact having regard to the common course of natural events prosecution appellant, relative of victim’s husband, arranged or human conduct—In natural course of event the Seller job for her and husband-On the assurance that he will take hands over the vacant peaceful possession of the suit property prosecutrix to where her husband was working, accused took to the Purchaser at a time of receiving the balance sale her to his quarter and raped her—Accused took prosecutrix consideration and not before that—In exceptional cases to taxi stand and asked taxi driver to drop prosecutrix to her possession is handed over where substantial payment has been husband’s place—When prosecutrix told taxi driver that made and there are special circumstance to secure the balance appellant had committed rape, taxi driver called police on sale consideration, such as relationship between the parties. phone—Trial Court convicted accused u/s 376 IPC-Held as No. such special circumstance in the present case—It is per examination-in-chief of prosecutrix. She was raped when improbable that the seller would have authorized purchaser to she went to house of accused. However. In cross-examination renovate, furnish without even specifying the amount. Appeal she deposed that she was raped both at her residence and dismissed. thereafter, when she went with the appellant to his quarter— As per FSL report underwear of prosecutrix gave AB group Parmanand Kansotia v. Seetha Lath & Anr...... 488 whereas on bedsheet it was B Group-In view of contradictory — Section 115—Appellants/plaintiff are estopped from filing the testimony of prosecutrix which is not supported by FSL subject suit—As per the provision of Section 115 of a person report, Conviction set aside-Appellant acquitted-Appeal has a belief that he is the owner of a plot, and such person allowed. thereafter builds on the plot having the impression that he is Devu Samal v. The State ...... 441 the owner of the plot, and the real owner stands by and allows him to construct on the plot, the real owner is then estopped — Section 120-B 494A, 498A—Petition against order of MM in law from claiming any rights on the plot once the third dismissing the complaint of the Petitioner—Petitioner after person has made construction on the plot—Sir Sobha Singh obtaining decree of divorce from foreign Court and after the was entitled to have an impression that it was the defendant subsequent marriage of the Respondent, filed criminal no.1/respondent no.1 who is the owner of the plot inasmuch complaint of bigamy and cruelty against the Respondent as there was a letter dated 4.10.1954 by Sardar Sohan Singh alleging that foreign decree of divorce was an invalid decree— to the society for transfer of the plot and membership and Held:- under Section 13 of CPC, a foreign judgment is which letter was never revoked—Defendant no.1/respondent conclusive as to any matter thereby directly adjudicated upon no.1 is also the owner of the suit property on the basis of the between the same parties except in cases specified thereunder. principal of estoppel enshrined in section 115 of the Evidence However, the right if any, to contend that the said foreign Act, 1872. judgment is not conclusive can be only of the party who had himself/herself/itself not initiated the process of obtaining the Mukhinder Singh (Deceased) Through LRs. & Ors. v. said judgment and cannot be of a party at whose instance such Gurbux Singh & Ors...... 578 foreign judgment has been obtained No. litigant can be allowed to abuse the process of the Courts or to approbate and (xxxvii) (xxxviii)

reprobate as per convenience. The petitioner had deposed that LIMITATION ACT, 1993—Section 27—As per Section 27 once she was in U.K. from 1993 to 1999. She has not even the limitation for claiming a relief/right with respect to an whispered, alleged or made out any case of any of the grounds immovable property expired, the right in the property itself is for the foreign judgment of dissolution of her marriage with lost—This provision of Section 27 of the Limitation Act, 1963 the respondent being not conclusive. For the said foreign is a departure from the normal law of limitation, and as per judgment to be not conclusive, the petitioner was required to which normal law of limitation on expiry of limitation, right make out a case of the same being either pronounced by a is not lost but only the entitlement to approach the Court is Court having no jurisdiction and /or having been not given on lost—Once it was clear to the plaintiff/appellants that from the merits of the case or being founded on an incorrect view the year 1960 ownership in the suit property was being claimed of international law or the proceedings resulting therein being by defendant no.1/respondent no.1 the period of 12 years for opposed to natural justice or having been obtained by fraud the appellants/plaintiffs to have filed a suit for possession with or sustaining a claim founded on a breach of any law in force respect to this property under Article 65 commenced in 1960 in India. Moreover, all the grounds specified in section 13 of itself—Once the limitation commenced in the year 1960, by the CPC and on establishment whereof a foreign judgment can the year 1972, the right to approach the Court by means of a be said to be not conclusive are such which can be set up suit for possession governed by Article 65 of the Limitation only by a party not himself/herself/itself approaching the Act, 1963 was lost—Once the right is lost in the year 1972, foreign Court. Here the petitioner who is challenging the the subject suit having been filed in the year 1975, the judgment, was at the relevant time resident for a fairly long ownership of the defendant no.1/respondent no.1 becomes time within jurisdiction of the foreign Court, did not approach absolute by virtue of law of prescription contained in Section the foreign court under the dictates of the respondent and made 27 of the Limitation Act, 1963—In view of the above, no. out a case before the foreign Court of obtaining the judgment- merit in the appeal, which is accordingly dismissed. Petition dismissed. Mukhinder Singh (Deceased) Through LRs. & Ors. v. Gurbux Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar Singh & Ors...... 578 Chaudhary & Ors...... 527 MOTOR VEHICLE ACT, 1988—By these two cross Appeals, — Section 323, 324, 354, 34—Offences being not the parties impugn the judgment dated 19.01.2010 whereby a compoundable, can FIR be quashed on settlement Held— compensation of Rs. 1,03,68,744/- was awarded for the death Compounding of non compounding offences permissible as of Atul Prashar, aged 37 years, who died in a motor accident, per the judgment of B.S Joshi Vs, State of Haryana Nikhil which took place on 18.01.2008, The MAC APP. No. 179/ Merchant vs. CBI and Manoj Sharma vs. State. These three 2010 has been filed by the legal representatives of the deceased judgments have been referred to the larger bench vide judgment i.e Neelam Prashar and others (hereinafter referred to as the in case of Gain Singh vs. State. However till these are set “Claimants”) whereas MAC. APP. No. 313/2010 has been aside, they hold the field—Petition allowed. preferred by the National Insurance Co. Ltd. (hereinafter referred to as “insurer”) disputing the negligence on the part Teka Singh @ Titu & Ors. v. State & Anr...... 475 (xxxix) (xl) of the driver of Maruti Esteem bearing Registration No. DL- towards income tax is liable to be made as the net income of 2CAC-5813 and reduction of the amount of compensation the deceased is the starting point for calculation of loss of awarded by the Motor Accident Claims Tribunal (the dependency. Tribunal)—It is urged for the Insurer that in order to prove Neelam Prashar & Ors. v. Mintoo Thakur & Ors. ... 528 negligence the Claimants examined PW- Dushyant Vasudev — Section 163A and 168—Second Schedule Clause 6(b)— and PW-4 Ashish Aggarwal. The accident took place at about Compensation—Accident took place on 04.11.2009—Parents 6.30 AM. Both PW-2 & PW-4 were working in separate of the claimants/respondent no. 1 to 3 died in the accident- offices (though in the same vicinity) & their office would start Mother was a non-matriculate, Aged about 34 years Rendering at 9/ 9.30 AM. Thus, their presence at the time of the accident gratuitous service to Husband and three children—Tribunal was highly improbable. If the testimony of these two assessed the value of gratuitous service rendered by the witnesses is taken off the record, there is nothing to establish deceased mother at Rs. 6000/- per month—Awarded the negligence on the part of the driver of Maruti Esteem Car compensation of Rs. 8,50,000/- Aggrieved, appellant/ No.DL-2CAC-5813. It is well settled that in a claim petition respondent Insurance Company preferred appeal seeking negligence is required to be proved only on the test of reduction of Compensation—Alleged assessment for gratuitous preponderance of probabilities, The FIR in this case was services @ Rs. 6000/- per month arbitrary—Held:- Addition registered on the basis of the statement of PW-2. The offending of 25% in the salary of non matriculate, multiplier of 16 vehicle was seized from the spot. The driver of the Esteem applicable, Total compensation Works out to be Rs. 9,95,040/ car No. DL. 2CAC-5813 was not produced by the Insurer to -—No cross appeal—Compensation is less that what works rebut the testimony of PW-2 and PW-4-Pw-2 gave an out on the principles laid down—Appeal dismissed. explanation that he was called in the office because some — MAC. APP. 563/2010 guests were scheduled to come. In the absence of examination of the driver to rebut PW-2 and PW-4’s testimonies, their — Death of lady aged about 31 years—Taking care of five presence at the spot at the time of accident cannot be doubted children—Doing tailoring work-value of gratuitous service merely on the assumption that they could not have proceeded taken @ Rs. 6000/- per month—Multiplier of 15 applied- for the office early and that too, in the same vehicle. On the compensation of Rs. 11,65,000/- awarded—Respondent/ test of preponderance of probabilities, PW-2 and PW-4’s Insurance Company preferred appeal—Held-no evidence of testimonies that, the accident was caused on account of rash educational qualification;—Taken to be a non matriculate; and negligent driving by the driver of Car No. DL 2CAC 5813, multiplier of 16 applicable—Total compensation reduced to has to be accepted. It is held that the finding of fact reached Rs.10,35,040/-—Appeal disposed of with directions. by the Tribunal on this count cannot be faulted—It is well — MAC. APP. No. 753/2011 settled that for determination of loss of dependency, the amount paid to the deceased by his employer by way of perks — Death of a lady about 40 years—Claimed to be earning should be included in the monthly income—The Tribunal fell Rs.4000/- per month from sewing work-compensation of Rs. into error in ignoring this amount of Rs. 1,250/- deduction 4,10,000/- awarded—Aggrieved claimants/appellant preferred appeal—Held:- No evidence of earnings or qualification-taken (xli) (xlii)

to be a non matriculate—Multiplier of 15 applicable—Overall Appeal Allowed—compensation reduced. compensation comes toRs.9,63,575/-—Appeal allowed- Royal Sundaram Alliance Insurance Co Ltd. v. Master Compensation enhanced. Manmeet Singh & Ors...... 547 — MAC. APP. No. 772/2011 — Section 3, 5, 149 (2) (a) (ii), 166 and 181—Code of Criminal — Death of a lady-left behind her husband, four sons and a Procedure, 1973—Section 173—Cross appeals filed by daughter—Tribunal valued gratuitous services @ Rs. 3000/- Insurance Company claiming recovery rights against owner per month—Awarded compensation of Rs.6,41,00/- Aggrieved of offending vehicle and cross objections filed by claimants claimants/App. Preferred the appeal—Held:- No evidence of for enhancement of compensation—Plea taken, driver did not her educational qualification—Taken to be a non matriculate- possess a valid driving license on date of accident and Insurer Age of deceased taken to be between 35 to 40 years-Multiplier was entitled to avoid liability—Per Contra Plea taken, insurer of 15 applicable—Total compensation comes to Rs. failed to establish breach of policy condition—Deceased was 13,56,250/-—Appeal allowed—Compensation enhanced. aged 50 years on date of accident—Claims Tribunal erred in — MAC. APP. No. 857/2011 taking deceased's age to be 68 years—Held—No effort was made by insurer to summon record from RTO with regard — Death of lady aged about 40 years—Died on 19.05.2010— to renewed license produced by driver to show that license Left behind husband and five children out of which three were was not valid on date of accident—Investigation Officer not minors—Compensation of Rs. 4,68,300/- awarded by the examined to rebut driver's contention that he had a valid Tribunal—Aggrieved claimants/app. Preferred appeal seeking driving license on date of accident which was seized by enhancement of compensation—No cross appeal by Insurance Investigating Officer-Mere filing of chargesheet under Section Company—No evidence as to educational qualification—Held:- 3 of Act is not sufficient to hold that driver did not possess Taken to be a non matriculate—Multiplier of 15 applicable— a valid driving license at time of accident—Since claimant’s Over all compensation comes to Rs. 13,56,250/-—Appeal testimony that deceased was 50 years, was not challenged in allowed-Compensation enhanced. cross examination and in view of contradictory documentary — MAC. APP. No. 289/2010 evidence, age favourable to claimants has to be considered for grant of compensation as provision of Section 166 is a — Accident took place on 17.11.2007—Death of a lady aged 31 piece of social legislation—Compensation enhanced. years-Claimed to be working as computer editor earning Rs. 4600/- per month—Held:- Taken to be housewife-Gratuitous National Insurance Company Ltd. v. Ram Rati Devi services rendered valued at Rs. 3000/- per month—Multiplier & Ors...... 627 of 16 applied—Awarded compensation of Rs. 11,97,000/- — The accident dated 4th June, 2006 resulted in death of Om Aggrieved Insurance Company preferred appeal seeking Prakash. The deceased was survived by his widow, mother reduction of compensation—Held:- Educational qualification and four children who filed the claim petition before the Claim considered to be as a matriculate—Aged 31 years—Multiplier Tribunal-The deceased was aged 27 years at the time of the of 16 applicable—Overall compensation Rs. 9,80,320/-— (xliii) (xliv) accident and was working as a conductor on the offending employee is accepted, the policy should be construed to cover bus bearing No. Dl-IP-5998. The claims Tribunal took the the deceased. In that view of the matter, this Court is of the minimum wages of Rs. 3,271/- into consideration, deducted view that respondent No.1 is liable to pay Workmen’s 1/4th towards personal expenses, applied the multiplier of 18, Compensation in respect of death of the deceased and the added Rs. 60,00/- towards loss of love and affection and Rs. remaining amount of compensation is liable to be paid by the 20,000/- towards funeral expenses. The total compensation appellants.-The appeal is partly allowed to the extent that out awarded is Rs. 6,09,902/- The Claims Tribunal exonerated the of the award amount of Rs. 6,09,902/-, respondent No.1 shall insurance company and held the driver and owner liable to be liable to pay Rs. 3,49,294/- along with interest @ 7.5% pay the award amount—The appellants are the owner and per annum from the date of filling of the claim petition till driver of the offending vehicle and have challenged the realization to respondent Nos. 2 to 7. The remaining amount impugned award on the limited ground that the offending of Rs. 2,60,608/- (Rs. 6,09,902/- Rs. 3,49,294) along with vehicle was validly insured and, therefore, respondent No.1 interest @ 7.5% per annum for the date of filing of the claim alone is liable to pay the entire award amount to the claimants— petition till realization shall be paid by the appellants. Learned counsel for the appellants submit that the deceased, Prashant Dutta & Anr. v. National Insurance Co. Ltd. & employed as a conductor, was validly covered under the Ors...... 671 insurance policy and therefore, respondent No.1 alone is responsible to pay the insurance amount—The liability of the REGISTRATION ACT, 1908—Section 49—Delhi Rent control insurance company in respect of the Workmen’s Act, 1958—Suit for possession and mesne profits—Premises Compensation in respect of the driver and conductor of the let out to the appellant/respondent vide rent agreement dated offending vehicle under Section 147(1) of the Motor Vehicles 01.10.2006 for a period of three years by the husband of Act is statutory and therefore, respondent No.1 would be liable respondent/plaintiff—Tenancy terminated vide notice dated to pay the Workmen’s Compensation. The insurance policy 31.03.2010 w.e.f. 30.04.2010—Failed to vacate the premises- of the offending vehicle has been placed on record as Suit filed-Suit decreed for possession under order 12 Rule 6 Annexure-F (colly.) with the appeal in which respondent No.1 vide judgment, dated 14.11.2011—Aggrieved by the judgment has charged the premium for Workmen’s Compensation to filed the present appeal—Alleged tenancy was for the employee. Under Section 147(1) of the Motor Vehicle Act, manufacturing purposes—Notice terminating the tenancy 1988, the insurance company is required to compulsorily should have been for a period of six month-Held—Lease deed cover the liability in respect of the death or bodily injury of unregistered—Terms cannot be looked into—Purpose of letting the driver and conductor in the case of public service vehicle. is not collateral purpose-notice valid—Appeal dismissed. The contention of Respondent No. 1 that they have charged Sharvan Aggarwal v. Kailash Rani...... 459 for premium for one employee is untenable in view of the statutory requirement of Section 147 (1) of the Motor Vehicle RIGHT OF CHILDREN TO FREE AND COMPULSORY Act to cover the driver and the conductor. Even if the EDUCATION ACT, 2009—Petitioner impugned Rule 10(3) contention of respondent NO.1 that the policy covered one Delhi RTE Rules and alternatively claimed that the Court should (xlv) (xlvi) frame guidelines for exercise of powers under Rule 10(3) for RIGHT TO INFORMATION ACT, 2005—Section 20(1)—Delhi extending the limits of “neighbourhood” as defined under the High Court Act, 1966—Section 10—Central Information Act and the Rules—Although the Act uses the term Commission (CIC) imposed maximum penalty of Rs. 25,000/ “neighbourhood”, but does not define the same-However, the - on the respondent under section 20(1) of the Act for the definition is found in the Rules, which prescribe the limits of delay of over 100 days in furnishing the information to the neighbourhood in respect of children of Classes-I to V as appellant—Chief Secretary, Govt. of Delhi was directed to within walking distance of 1Km and in respect of Children of recover the said amount from the salary of the respondent @ Classes-IV to VIII as within 3km—Private unaided schools Rs. 5,000/- per month-Respondent preferred writ petition— are required to admit children belonging to EWS and Learned Single Judge allowed the writ petition—Reduced the disadvantaged groups in Class-I to the extent of 25% of penalty amount to Rs. 2,500/- recoverable from the salary of strength and resident of within the limits of neighbourhood— the respondent in ten equal monthly installments of Rs. 250/ While admitting general category children, the private unaided - per month—Reason—The question of penalty is essentially schools do not follow the prescribed limits of between the Court and the respondent and did not really neighbourhood—However, the respondent issued order concern the appellant who has been provided with directing that all schools shall ensure that no child under EWS information—Respondent took the charge of the post 14 days and disadvantaged groups is denied admission on after the subject RTI application of the appellant had been neighbourhood basis, so long as the locality of the child's filed—Appellant filed the Intra Court Appeal—Contention— residence falls within the distance criteria devised by the Use of word 'shall' in section 20(1) is indicative of the schools for the general category—Challenged—Held, Petitioner imposition of penalty mandatory—Presence of information has no cause of action as it should not matter to the School seeker is essential not only for computing the penalty but also whether the children of EWS and disadvantaged groups are for establishing the default of the information officer-Exclusion residing within 1km or more and the grievance, if any should of the information seeker from penalty proceedings would be of the children for inability of government to provide dilute the sprit of the Act—The role of CIC is of an schools within the neighbourhood—Further held, the adjudicator—Held—A reading of Section 20 shows that while paramount purpose is to provide access to education and the opinion, as to a default having been committed by the distance to be travelled by the child is secondary—Directed, Information Officer, is to be formed ‘at the time of deciding admission shall first be offered to eligible students of EWS any complaint or appeal’, the hearing to be given to such and disadvantaged groups residing within 1Km; in case Information Officer, is to be held after the decision on the vacancies remain unfilled, students residing within 3km shall Complaint or the appeal. The proceedings before the CIC, of be admitted; if still vacancies remain, students residing within hearing the Information Officer qua whom opinion of having 6km shall be admitted; and even thereafter if vacancies remain, committed a default has been formed and of imposition of students residing beyond 6km shall be considered. penalty, in the exercise of supervisory powers of CIC and not in the exercise of adjudicatory Powers. Federation of Public Schools v. Government of NCT of Delhi ...... 570 Anand Bhushan v. R.A. Haritash ...... 657 (xlvii) (xlviii)

— Section 20(1)—Central Information Commission (CIC) of the direction vested in the authority imposing the imposed maximum penalty of Rs. 25,000/- the respondent punishment—Once it is held that the quantum of fine is under section 20(1) of the Act for delay of over 100 days in discretionary, there can be no challenge to the judicial review furnishing the information to the appellant—Chief Secretary, under Article 226 of the Constitution, of exercise of such Govt. of Delhi was directed to recover the said amount from discretion, of course within the well recognized limits—If this the salary of the respondent @ Rs. 5,000/- per month Court finds discretion to have been not appropriately exercised Respondent preferred writ petition—Learned Single Judge by the CIC, this Court can, in exercise of its power vary the allowed the writ petition—Reduced the penalty amount to Rs. penalty—Appeal dismissed. 2,500/- recoverable from the salary of the respondent in ten Anand Bhushan v. R.A. Haritash ...... 657 equal monthly installments of Rs. 250/- per month—Reason— The question of penalty is essentially between the Court and SCHEDULE CAST & SCHEDULE TRIBES (PREVENTION OF the respondent and did not really concern the appellant who ATROCITIES) ACT, 1989—Section 3(1) (X)—Petition has been provided with information—Respondent took the Against non framing of charges by the L.d ASJ—Accused charge of the post 14 days after the subject RTI application must have knowledge or awareness that the victim belongs of the appellant had been filed—Appellant filed the Intra Court to Scheduled Caste or Scheduled Tribe in order to constitution Appeal—Contention—Use of word ‘shall’ in section 20(1) is offence under S. 3.(1)(x) ‘Public view’ in S.3(1)(x) implied indicative of the imposition of penalty mandatory—Presence within view of group of people of the place/locality/village not of information seeker is essential not for computing the penalty linked with the Complaint through kingship, business, but also for establishing the default of the information officer— commercial or any other vested interest—Public view means Exclusion of the information seeker from penalty proceedings presence of one or more persons who are neutral or impartial, would dilute the sprit of the Act—The role of the CIC is of even though he may be known to the complainant to attract an adjudicator—Held—Though Section 20(1) uses the word ingredients of offence. Petition dismissed. ‘shall’, before the words ‘impose a penalty of Rs. Two Kanhaiya Paswan v. State & Ors...... 509 hundred and fifty rupees but in juxtaposition with the words ‘without reasonable cause, malafidely of knowingly or TRANSFER OF PROPERTY ACT, 1882—Section 54—An obstructed’—The second proviso thereto further uses the ownership of a property is transferred by means of a words, ‘reasonably and diligently’—The question which arises registered sale deed as per Section 54—Every sale deed has is when the imposition of penalty is dependent on such an effect of divesting the transferor of the ownership of the variables, can it be said to be mandatory or possible of property and the vesting of the ownership in the transferee— calculation with mathematical precision—All the expressions A Sale deed by which the ownership rights in an immovable used are relative in nature and there may be degrees of, property are transferred can be ignored only under two without reasonable cause, malafide, knowing or circumstances—First, it the sale deed is a nominal transaction reasonableness, diligence etc.—The very fact that imposition or a paper transaction because the parties intended it to be of penalty is made dependent on such variables is indicative so or secondly, if the document being the sale deed is void (xlix) (l)

ab initio. It is in these two circumstances that it is not Premises let out to the appellant/respondent vide rent agreement necessary to have the sale deed set aside inasmuch as the dated 01.10.2006 for a period of three years by the husband sale cannot have he effect of transferring ownership— of respondent/plaintiff—Tenancy terminated vide notice dated However, in all other cases where it is pleaded that deed is a 31.03.2010 w.e.f. 30.04.2010—Failed to vacate the premises- voidable document because it ought not to have been executed Suit filed-Suit decreed for possession under order 12 Rule 6 or there is a fraudulent transfer of title by means of the vide judgment, dated 14.11.2011—Aggrieved by the judgment particular sale deed or for any reason which makes the filed the present appeal—Alleged tenancy was for transfer voidable (and not void), it is necessary that a suit manufacturing purposes—Notice terminating the tenancy has to be filed for cancellation of such a sale deed within a should have been for a period of six month-Held—Lease deed period of three of years from the date a person comes to know unregistered—Terms cannot be looked into—Purpose of letting of execution and existence of the sale deed which goes against is not collateral purpose-notice valid—Appeal dismissed. the interest of such person-This is the mandate of Article 59 Sharvan Aggarwal v. Kailash Rani...... 459 of the Limitation Act, 1963—In the facts of the present case, the Knowledge of the appellants/plaintiff and their predecessor in interest, Sardar Sohan Singh of the existence of the sale deed dated 03.12.1950, is actually from 1960 itself-On registration of the sale deed dated 3.12.1960, the appellants/ plaintiffs and Sardar Sohan Singh in accordance with Section 3 of Transfer of property Act, 1882 were deemed to have notice of the fact that the sale deed was actually executed— Suit of the appellants/plaintiffs, even if the present suit was one for cancellation of the sale deed dated 3.12.1960, would have become barred by 1963, or at best 1965/1966 even if we take the knowledge from the year 1963, as pleaded by the appellants/plaintiff. Once, there cannot be cancellation of the sale deed, the ownership of the defendant no.1/respondent no.1 become final and also the disentitlement of the appellants/ plaintiff to the reliefs claimed in the suit of possession and mesne profits. Mukhinder Singh (Deceased) Through LRs. & Ors. v. Gurbux Singh & Ors...... 578

— Section 106—Registration Act, 1908—Section 49—Delhi Rent control Act, 1958—Suit for possession and mesne profits— Devu Samal v. State (Mukta Gupta, J.) 441 442 Indian Law Reports (Delhi) ILR (2012) IV Delhi

ILR (2012) IV DELHI 441 A FOR THE RESPONDENT : Mr. Mukesh Gupta, APP for the CRL. A State with ASI Suraj Mal, PS Tuglak Road.

DEVU SAMAL ….APPELLANT RESULT: Appeal allowed. B VERSUS MUKTA GUPTA, J. B THE STATE ….RESPONDENT 1. By this appeal the Appellant challenges the judgment dated 20th (MUKTA GUPTA, J.) May, 2000 passed by the learned Additional Sessions Judge convicting C him for offence under Section 376 IPC and the order on sentence dated CRL. APPEAL NO. : 412/2000 DATE OF DECISION: 03.01.2012 22nd June, 2000 directing him to undergo rigorous imprisonment for a C period of seven years and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo simple imprisonment for a period of six Indian Penal Code, 1860—Section 376—As per months. prosecution appellant, relative of victim’s husband, D arranged job for her and husband-On the assurance 2. Learned counsel for the Appellant contends that primarily two that he will take prosecutrix to where her husband D witnesses have been examined against the Appellant. The testimony of was working, accused took her to his quarter and the Prosecutrix PW1 does not inspire confidence and is not trustworthy. raped her—Accused took prosecutrix to taxi stand In her examination-in-chief she states that the Appellant raped her at his and asked taxi driver to drop prosecutrix to her E house, however, in her cross-examination she states that she was at her husband’s place—When prosecutrix told taxi driver residence. According to her the Appellant came to the premises where that appellant had committed rape, taxi driver called E she was working and the landlady opened the house thereafter the Appellant police on phone—Trial Court convicted accused u/s took her to Sujan Singh Park. Though the clothes were stated to be 376 IPC—Held as per examination-in-chief of F seized however, no statement of the Prosecutrix has been recorded prosecutrix. She was raped when she went to house identifying the seized clothes. The PCR call received by the police was of accused. However. In cross-examination she regarding a quarrel between the parties. Further the Prosecutrix stated F deposed that she was raped both at her residence that when rape was committed her feet were tied by the Appellant. and thereafter, when she went with the appellant to G Further the FSL report does not fortify the claim of the Prosecutrix. his quarter—As per FSL report underwear of Though semen was found on the bed cover and the underwear of the prosecutrix gave AB group whereas on bedsheet it prosecutrix, however, the same did not match with that of the Appellant. was B Group-In view of contradictory testimony of G Further the vaginal smear gave AB group positive whereas on the bed prosecutrix which is not supported by FSL report, sheet group B was found. Even as per the MLC there is no external Conviction set aside—Appellant acquitted-Appeal H injury on the prosecutrix except a cut on the lip though she has alleged allowed. that her legs and feet were tied. In view of the contradictory uninspiring evidence of the prosecutrix the Appellant is liable to be acquitted. [Ad Ch] H 3. Learned APP for the State on the other hand contends that the APPEARANCES: I Prosecutrix who appeared in the witness box has clearly deposed about FOR THE APPELLANT : Dr. R.S. Sasan, Amicus Curiae. the rape committed on her. Though there are certain contradictions in the cross-examination however, she has stated that during the mid night the I Devu Samal v. State (Mukta Gupta, J.) 443 444 Indian Law Reports (Delhi) ILR (2012) IV Delhi

Appellant raped her by force at his quarter without her consent. The A examination the offence of rape was committed on her when she went Appellant further gave her slap and threatened that he would tie her feet to the house of the Appellant however, in the cross-examination she with her chin. The Prosecutrix was medically examined after the incident stated that it was committed both at her residence and thereafter when and as per the MLC there was cut mark on the lip which corroborates A she went with the Appellant where he committed rape on her. Further the version of the prosecutrix. Hence the appeal is liable to be dismissed. when the rape was committed her feet were tied up. Moreover, as per B the FSL report the vaginal swab of the Prosecutrix and the pajama, 4. I have heard learned counsel for the parties and perused the underwear and bed sheet of the prosecutrix gave positive of human record. semen. However, the underwear of the Prosecutrix gave AB group whereas 5. PW1 the Prosecutrix in her testimony has stated that in the year B on the bed sheet it was B group. Thus in view of the contradictory 1998 she was working at Chitranjan Park with one Mr. Verma. The C testimony of the prosecutrix which is not supported by the FSL report Appellant is a relation of her husband. The Appellant asked her to leave I think it is a fit case of grant of benefit of doubt to the Petitioner. that job and arranged another job for her. The Appellant also arranged a Accordingly the impugned judgment of conviction and the order on sentence job for her husband at some distant place. When the Prosecutrix contacted C are set aside and the Appellant is acquitted of the charges framed. the Appellant to know the address of her husband, the Appellant assured 6. The appeal is disposed of. that he will take her to the place where her husband was working. Thus D the Appellant took her to his quarter on the evening of 8th April, 1998. 7. The Superintendent, Tihar Jail, is directed to release the Appellant During the night the Appellant raped her by using force at his quarter forthwith, if not required in any other case. without her consent. The Appellant gave her a slap and threatened that D he would tie her feet with a chain. Thereafter the Appellant took her to a taxi stand and asked the taxi driver to drop her to her husband’s place. E When the Prosecutrix told the taxi driver that the Appellant had committed ILR (2012) IV DELHI 444 rape with her the taxi driver called the police on telephone. Thereafter her E W.P. (C) statement was recorded vide Ex.PW1/A. The Prosecutrix was also examined medically. However, in her cross-examination the Prosecutrix F has stated that she and her husband left the job from the house of Mr. AIRPORTS AUTHORITY OF INDIA AND ORS. ….PETITIONERS Verma at the instance of the Appellant when he told that a relation of her F husband had died and they had to go to their village. The Appellant came VERSUS to her residence in the night when he committed rape on her but she did STATE OF JAMMU & KASHMIR & ORS. ….RESPONDENTS not remember the date and the day. The Appellant came at night and gave G the bell. The door was opened by the landlady. Thereafter the Appellant (VIPIN SANGHI, J.) took the Prosecutrix to his room in Sujan Singh Park in an auto. According G to her the room of the accused was on the third floor and when the W.P. (C). NO. : 76/2010 DATE OF DECISION: 04.01.2012 Appellant raped her none was present in that room. The Appellant tied both her feet and her legs while hands were free. Thereafter the Appellant H Constitution of India, 1950—Article 226—Territorial brought her downstairs and took her to the taxi stand. At the taxi stand H Jurisdiction Article 12—‘State’—Respondent no.2 she wept and thereafter she was made to sit in the taxi and that the Jammu & Kashmir State Financial Corporation Set up Appellant told the taxi driver to drop her at her husband’s house. A by respondent no.1 to promote medium/large scale perusal of the testimony of the Prosecutrix shows that as per her Industry in the State of J&K-Primary function of I I Airports Authority of India v. State of Jammu & Kashmir (Vipin Sanghi, J.) 445 446 Indian Law Reports (Delhi) ILR (2012) IV Delhi

respondent no.2 to extend financial assistance to A The second objection raised by counsel for respondents industrial projects to speed up industrial investment A that the present petition is not maintainable only to seek in the State—Respondent no. 2 invited investments in refund of the amounts due under the said bonds also bonds issued by it; Guaranteed by respondent no.1- cannot be accepted. The jurisdiction of the Court under Petitioner subscribed to the said bond in Delhi by B Article 226 of the Constitution of India is unfettered. The making payment in Delhi—Respondent no. 2 paid only fetters are those which the Courts have itself placed on B interest on the said bond in Delhi occasionally- the exercise of its said jurisdiction. There are well known However, respondent defaulted in payment of half and well recognized grounds on which the Court chooses yearly installment of interest and in redeeming of not to exercise its discretionary writ jurisdiction. One of them bond upon maturity—On communication from petitioner C is, where disputed questions of fact are raised before it. repeatedly sent, respondent no.2 expressed its C (Para 16) inability to make payment on the ground of shortage of fund-Stated that matter taken up with State The guarantee issued by the respondent no.1 is that of the State of Jammu and Kashmir, which is a sovereign guarantee. government-Petitioner sent a legal notice—Thereafter, D received partial payment—Due payments not made The State cannot say that it does not have the fund to despite further reminder—Petitioner filed writ D honour its sovereign guarantee. The Court would enforce petition—Respondent did not deny facts—Pleaded the sovereign guarantee, because a sovereign guarantee financial stringency—Contended—Respondent located cannot be allowed to fail, if rule of law is to be upheld. This in the Stage of J&K-High Court Delhi had no territorial E aspect, as well as the aspect of maintainability of the writ jurisdiction—Secondly, writ petition to seek recovery petition to recover amounts which have been guaranteed by of money not maintainable—Court observed payment E the State has been dealt with by this Court in Modern for purchase of bond made in Delhi; one payment of Food Industries (India) Limited (supra). I consider it interest made in Delhi Substantial part of cause of F appropriate to extract the relevant portion of the said action arisen in Delhi within the jurisdiction of Delhi judgment, which stands affirmed by the Supreme Court. The High Court-Objection of territorial jurisdiction rejected- same reads as follows: F Regarding second objection-Observed-The jurisdiction “4. Learned counsel for the Respondent have raised under Court under Article 226 unfettered, the only G a Preliminary Objection with regard to the maintainability fetters are those which the court have themselves of the Writ Petition. It stands uncontroverted that placed on the said jurisdiction-Held-firstly, the primary Respondent No.1 had extended its sovereign relief to seek-enforcement of a sovereign guarantee G guarantee to the Bonds issued in favour of investors, of State of J&K-No question of disputed facts-Observed such as the Petitioners, issued by Respondent No.2. in a appropriate case writ petition as against State or H Over thirty years ago the Hon’ble Supreme Court had an instrumentality of State arising out of a contractual clarified in The Gujarat State Financial Corporation obligation maintainable-Even though some disputed vs. M/s. Lotus Hotels Pvt. Ltd., AIR 1983 SC 848 questions of facts arise for consideration, same cannot H that it was too late in the day to contend that the be ground to refuse to entertain writ petition in all the I “State can commit breach of a solemn undertaking on cases as matter of Rule-Issued direction to release which other side has acted and then contend that the amount-Writ Petition allowed.

I Airports Authority of India v. State of Jammu & Kashmir (Vipin Sanghi, J.) 447 448 Indian Law Reports (Delhi) ILR (2012) IV Delhi

party suffering by the breach of contract may sue for A was competent to order a refund of tax deposited damages but cannot compel specific performance of under a mistaken understanding of the law. In Smt. the contract”. The Apex Court applied the principle of Nilabati Behera v. The State of Orissa, JT 1993 (2) SC 503 the Apex Court did not find any fetters in promissory estoppel for enforcement of such A contractual undertakings. Thereafter, similar views granting relief to heirs of a victim of custodial death have been expressed in Kumari Shrilekha Vidyarthi B on the foundation of an infraction of fundamental vs. State of U.P., JT 1990 (4) SC 211 by a Bench rights guaranteed under Article 21 of the Constitution comprising J.S. Verma, J. (as the learned Chief Justice of India and observed as follows: then was) and R.M. Sahai, J. B “Adverting to the grant of relief to the heirs of a victim It was opined that “the primary source of the public C of custodial death for the infraction or invasion of his law proceedings stems from the prerogative writs and rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the the courts have, therefore, to evolve ‘new tools’ to C give relief in public law by moulding it according to the ordinary remedy of a civil suit to claim damages for situation with a view to preserve and protect the Rule the tortuous act of the State as that remedy in private D of Law”. law indeed is available to the aggrieved party. The citizen complaining of the infringement of the 5. In ABL International Ltd. vs. Export Credit D indefeasible right under Article 21 of the Constitution Guarantee Corporation of India Limited, JT 2003 cannot be told that for the established violation of the (10) SC 300 the following principles were culled out E fundamental right of life, he cannot get any relief and explained: under the public law by the Courts exercising writ jurisdiction. The primary source of the public law From the above discussion of ours, following legal E proceedings stems from the prerogative writs and the principles emerge as to the maintainability of a writ Courts have, therefore, to evolve ‘new tools’ to give petition:- F relief in public law by moulding it according to the (a) In an appropriate case, a writ petition as against situation with a view to preserve and protect the Rule a State or an instrumentality of a State arising out of F of Law. While concluding his first Hamlyn Lecture in a contractual obligation is maintainable. 1949 under the tile ‘Freedom under the law’ Lord Denning in his own style warned: (b) Merely because some disputed questions of facts G arise for consideration, same cannot be a ground to “No one can suppose that the executive will never be G refuse to entertain a writ petition in all cases as a guilty of the sins that are common to all of us. You matter of rule. may be sure that they will sometimes do things which they ought not to do: and will not do things that they 6. Contemporaneously, the Bench presided by H ought to do. But if and when wrongs are thereby Sabyasachi Mukharji (as the learned Chief Justice H suffered by any of us what is the remedy? Our then was) and S. Ranganathan, J. held in Salonah procedure for securing our personal freedom is Tea Company Ltd. vs. The Superintendent of efficient, our procedure for preventing the abuse of Taxes, Nowgong, AIR 1990 SC 772 that a Writ Court power if not. Just as the pick and shovel is no longer I I Airports Authority of India v. State of Jammu & Kashmir (Vipin Sanghi, J.) 449 450 Indian Law Reports (Delhi) ILR (2012) IV Delhi suitable for the winning of coal, so also the procedure A writs in the nature of mandamus would not ordinarily of mandamus, certiorari, and actions on the case are A issue for enforcement of a contract, it has been not suitable for the winning of freedom in the new observed that a writ can issue when questions of age. They must be replaced by new and up-do-date public law character arise for consideration. The machinery, by declarations, injunctions and actions B preliminary objection is wholly without substance and for negligence. This is not the task of Parliament, the is rejected”. Court must do this. Of all the great tasks that lie B ahead this is the greatest. Properly exercised the new For the aforesaid reasons, the second objection of powers of the executive lead to the welfares state; but the respondent is also rejected. (Para 18) abused they lead to a totalitarian state. None such C must ever be allowed in this country”. Important Issue Involved: (i) If substantial cause of action C has arisen within jurisdiction of Court, its territorial (c) A writ petition involving a consequential relief of jurisdiction cannot be ousted. (ii) The writ petition for monetary claim is also maintainable. payment of money is maintainable against the State and its D instrumentality for enforceing the contractual obligation. 28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of D the Constitution of India, the Court should bear in [Gu Si] mind the fact that the power to issue prerogative writs E APPEARANCES: under Article 226 of the Constitution is plenary in FOR THE PETITIONER : V.P. Chaudhary, Sr. Advocate. With nature and is not limited by any other provisions of Mr. Digvijay Rai, Advocate the Constitution. The High Court having regard to the E facts of the case, has a discretion to entertain or not FOR THE RESPONDENT : Mr. Sunil Fernandes for R-I&2. to entertain a writ petition. The court has imposed F CASES REFERRED TO: upon itself certain restrictions in the exercise of this 1. Airports Authority of India & Others vs. State of Uttar power [See: Whirlpool Corporation v. Registrar of F Trade Marks, Mumbai and Ors. JT 1998 (7) SC 243 Pradesh & Anr., W.P.(C.) No.7949/2009. : 1998 (8) SCC 1]. And this plenary right of the High G 2. Modern Food Industries (India) Limited vs. State of Uttar Court to issue a prerogative writ will not normally be Pradesh and Others, bearing W.P.(C.) No.16462-63/2004. exercised by the court to the exclusion of other 3. State of Jammu and Kashmir vs. Ghulam Mohd. Dar, available remedies unless such action of the State or G (2004) 12 SCC 327. its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or H 4. ABL International Ltd. vs. Export Credit Guarantee for other valid and legitimate reasons, for which the Corporation of India Limited, JT 2003 (10) SC 300. court thinks it necessary to exercise the said 5. Whirlpool Corporation vs. Registrar of Trade Marks, jurisdiction. H Mumbai and Ors. JT 1998 (7) SC 243 : 1998 (8) SCC 1. 7. In State of Jammu and Kashmir vs. Ghulam I Mohd. Dar, (2004) 12 SCC 327, after noting that 6. Smt. Nilabati Behera vs. The State of Orissa, JT 1993 (2) SC 503. I Airports Authority of India v. State of Jammu & Kashmir (Vipin Sanghi, J.) 451 452 Indian Law Reports (Delhi) ILR (2012) IV Delhi

7. Kumari Shrilekha Vidyarthi vs. State of U.P., JT 1990 A 11.5%, while the others carried interest @ 10.5%. These bonds were (4) SC 211. offered by respondent no.2 through its agents in various locations including 8. Salonah Tea Company Ltd. vs. The Superintendent of in Delhi. The petitioners submit that they subscribed to the said bonds Taxes, Nowgong, AIR 1990 SC 772. A in Delhi by making payments therefor in Delhi. The details of the bonds subscribed for by the petitioners are as follows: 9. The Gujarat State Financial Corporation vs. M/s. Lotus B Hotels Pvt. Ltd., AIR 1983 SC 848. RESULT: Writ Petition allowed. Name of Bond Date of Invested Date of B Bond Certificate Investment amount (Rs. redemption VIPIN SANGHI, J. (Oral) No. in crores) C 1. The present writ petition under Article 226 of the Constitution 10.5% JKFC 000235 25.01.2005 Rs.5.00 29.03.2011 of India has been preferred by the Airports Authority of India (the Bonds 2011 petitioner no.1); the C.P.F. Trusts constituted by the petitioner no.1 vide C trust deed dated 08.06.1988, which has been formed for the purpose of 11.5% JKFC 001067 25.01.2005 Rs.1.00 15.02.2011 managing the Contributory Provident Fund (CPF) of the employees of D Bonds 2011 petitioner no.1, as petitioner no.2. The employees of petitioner no.1 are the beneficiaries of the said Trust, which has been constituted to prudently 11.5% JKFC 001070 06.04.2005 Rs.4.40 06.09.2011 manage and invest the CPF of the said employees. Petitioner no.3 has D Bonds 2011 been formed upon repeal of the National Airports Authority Act and International Airport Authority Act, as petitioner no.1 was desirous of E 4. These bonds were sold through the Securities International Limited constituting a Provident Fund Trust after merging of the existing Provident (formerly SREI International Securities Limited) having their office at 8, Fund Trust (National Airports Authority Employees Contributory Provident E Central Lane, Bengali Market, New Delhi. The petitioners submit that the Fund Trust and International Airport Authority Employees Contributory respondents paid interest on the said bonds occasionally at Delhi. However, Provident Fund Trust) under the erstwhile two repealed Acts. Petitioner the respondents have defaulted in the payment of half yearly installments no.3 has been registered vide registration dated 27.02.2009 before the F of interest and in redeeming the bonds upon maturity. Sub Registrar-V, New Delhi. All the petitioners are collectively and severally F referred to as the petitioners. 5. According to the petitioners, respondent no.2 defaulted in payment of the half yearly interest on the 11.5% JKFC SLR Bonds 2011 and the 2. The case of the petitioners is that the respondent no.2, i.e. 10.5% JKFC SLR Bonds 2011. Consequently, the petitioners sent a Jammu and Kashmir State Financial Corporation is a financial institution G communication dated 27.09.2005 to respondent no.2. Further reminders set up by respondent no.1, the Government of Jammu and Kashmir, to G were sent thereafter. However, the respondents did not pay the interest, promote medium/large scale industries in the State of Jammu and Kashmir. and also did not return the original bond certificates to the petitioners. The primary function of respondent no.2 is to extend financial assistance to industrial projects and undertake such other activities as may be 6. The petitioners sent another communication dated 19.01.2006 necessary to speed up industrial investment in the State. H enclosing the original bond certificate in respect of the 11.5% secured H redeemable JKFC SLR Bond 2011 of the face value of Rs.1 crore, 3. The petitioners submit that respondent no.2 invited investments interest whereof was due and payable on 15.02.2006. The petitioner in bonds issued by it, which were guaranteed by respondent no.1. The requested for payment on an urgent basis. bonds were of two kinds. Some of these bonds carried interest @ I I Airports Authority of India v. State of Jammu & Kashmir (Vipin Sanghi, J.) 453 454 Indian Law Reports (Delhi) ILR (2012) IV Delhi

7. On 28.01.2006, respondent no.2 expressed its inability to make A facts, and the fact that they have defaulted in making payment of the payment on the ground of facing shortage of funds. It was stated that A interest under the said bonds, and also the fact that the said bonds have the matter had been taken up with the State Government. The respondent not been redeemed on the due dates, which have already passed. The no.2 vide its communication dated 04.02.2006 once again expressed its respondents plead financial stringency as the cause of their default in inability to make payment to the petitioners, either of the interest or of B making the payments. the principal amount, on the ground that its cumulative losses had reached B 13. Learned counsel for the respondent has urged two legal Rs.200 crores as on March 2005. submissions to oppose the present writ petition. It is firstly contended 8. The petitioners kept on demanding payment even thereafter, and that since the respondents are located in the State of Jammu and Kashmir, the respondent again denied payment to the petitioners vide letter dated C this Court has no territorial jurisdiction. It is secondly argued that a writ 21.07.2006. The petitioners sent a legal notice dated 05.03.2007 calling petition to seek recovery of money alone is not maintainable. upon the respondents to make payment of interest due till 28.02.2007. C 14. In answer to the said submissions, Mr. Chaudhary, learned Only thereafter, the petitioners received partial payment of an amount of senior counsel for the petitioner places reliance upon the decision in Rs.50.60 lacs in respect of the 11.5% JKFC SLR Bonds of face value Airports Authority of India & Others v. State of Uttar Pradesh & of Rs.4.5 crores for half year ending 06.09.2005 and 06.03.2006. D Anr., W.P.(C.) No.7949/2009, wherein this Court had rejected a similar 9. Respondent no.1 also issued a communication dated 19.04.2007 D objection to the territorial jurisdiction of the Court. The Court had held to respondent no.2 directing respondent no.2 to clear the outstanding that a substantial part of cause of action had arisen within the territorial dues of the petitioners. On 23.06.2008, the respondents communicated jurisdiction of this Court. The information memorandum was circulated to the petitioners that the issue of discharge of liabilities of respondent E through the lead arrangers of PICUP in Delhi. The cheques for the no.2 had been taken up by the State Government. The petitioners were investments were issued in Delhi. asked to await further action in the matter. Even the Secretary to the E 15. I have already noticed herein above that the investments had Government of India in the Ministry of Civil Aviation called upon the been made by the petitioners in Delhi through the agents/lead arrangers Chief Secretary of respondent no.1 to look into the matter and ensure F of the respondent no.2 in Delhi, namely, the Securities International payment of overdue interest to petitioner no.2 immediately. Further Limited. This is evident from their communication dated 20.01.2005, reminders were sent, but to no avail. F whereby they offered the said bonds to the petitioner. It is also evident 10. In this background, the petitioners have preferred the present from the documents placed on record, such as the payment voucher writ petition. G dated 02.04.2005 that the petitioner had made the payment for purchase of the bonds in Delhi. In fact, it is not even denied that one of payment 11. The petitioners submit that a similar writ petition in the case of of interest by the respondent no.2 was also made at Delhi. It is, therefore, Modern Food Industries (India) Limited v. State of Uttar Pradesh G clear that a substantial part of the cause of action has arisen within the and Others, bearing W.P.(C.) No.16462-63/2004 had been allowed by jurisdiction of this Court. The objection to the territorial jurisdiction of this court vide judgment dated 21.11.2005. The said judgment has been H this Court to entertain the present petition is, therefore, rejected. upheld by the Supreme Court, as the Special Leave Petition bearing No.3146/2006 and the Civil Appeal arising therefrom bearing C.A. No.6126/ 16. The second objection raised by counsel for respondents that the 2008 has been dismissed. H present petition is not maintainable only to seek refund of the amounts due under the said bonds also cannot be accepted. The jurisdiction of the 12. Upon issuance of notice, respondent nos.1 and 2 have filed I Court under Article 226 of the Constitution of India is unfettered. The their counter affidavits. The said respondents do not deny the aforesaid only fetters are those which the Courts have itself placed on the exercise

I Airports Authority of India v. State of Jammu & Kashmir (Vipin Sanghi, J.) 455 456 Indian Law Reports (Delhi) ILR (2012) IV Delhi of its said jurisdiction. There are well known and well recognized grounds A the breach of contract may sue for damages but cannot compel on which the Court chooses not to exercise its discretionary writ specific performance of the contract”. The Apex Court applied jurisdiction. One of them is, where disputed questions of fact are raised the principle of promissory estoppel for enforcement of such before it. A contractual undertakings. Thereafter, similar views have been expressed in Kumari Shrilekha Vidyarthi vs. State of U.P., 17. In the present case, firstly, it may be noted that the primary B JT 1990 (4) SC 211 by a Bench comprising J.S. Verma, J. (as relief is to seek enforcement of a sovereign guarantee of the State of the learned Chief Justice then was) and R.M. Sahai, J. Jammu and Kashmir. Moreover, there is absolutely no disputed question of fact arising before this Court. The factum of the petitioner having B It was opined that “the primary source of the public law invested in the said bond is not in dispute. The fact that the said bonds proceedings stems from the prerogative writs and the courts were issued by respondent no.2, and guaranteed by respondent no.1 has C have, therefore, to evolve ‘new tools’ to give relief in public law also not been disputed. The fact that there was consistent default in by moulding it according to the situation with a view to preserve payment of interest, and in redemption of the said bonds on the due dates and protect the Rule of Law”. C is also not in dispute. It is not the respondents case that any other 5. In ABL International Ltd. vs. Export Credit Guarantee amounts have been paid under the said bonds, apart from those disclosed Corporation of India Limited, JT 2003 (10) SC 300 the by the petitioners in the writ petition. There is no accounting dispute D following principles were culled out and explained: raised by the respondents. D From the above discussion of ours, following legal 18. The guarantee issued by the respondent no.1 is that of the State principles emerge as to the maintainability of a writ petition:- of Jammu and Kashmir, which is a sovereign guarantee. The State cannot say that it does not have the fund to honour its sovereign guarantee. The E (a) In an appropriate case, a writ petition as against a Court would enforce the sovereign guarantee, because a sovereign State or an instrumentality of a State arising out of a contractual obligation is maintainable. guarantee cannot be allowed to fail, if rule of law is to be upheld. This E aspect, as well as the aspect of maintainability of the writ petition to (b) Merely because some disputed questions of facts arise recover amounts which have been guaranteed by the State has been dealt for consideration, same cannot be a ground to refuse to with by this Court in Modern Food Industries (India) Limited (supra). F entertain a writ petition in all cases as a matter of rule. I consider it appropriate to extract the relevant portion of the said judgment, F 6. Contemporaneously, the Bench presided by Sabyasachi Mukharji which stands affirmed by the Supreme Court. The same reads as follows: (as the learned Chief Justice then was) and S. Ranganathan, J. “4. Learned counsel for the Respondent have raised a Preliminary held in Salonah Tea Company Ltd. vs. The Superintendent of Objection with regard to the maintainability of the Writ Petition. G Taxes, Nowgong, AIR 1990 SC 772 that a Writ Court was It stands uncontroverted that Respondent No.1 had extended its G competent to order a refund of tax deposited under a mistaken sovereign guarantee to the Bonds issued in favour of investors, understanding of the law. In Smt. Nilabati Behera v. The such as the Petitioners, issued by Respondent No.2. Over thirty State of Orissa, JT 1993 (2) SC 503 the Apex Court did not years ago the Hon’ble Supreme Court had clarified in The Gujarat find any fetters in granting relief to heirs of a victim of custodial State Financial Corporation vs. M/s. Lotus Hotels Pvt. Ltd., H death on the foundation of an infraction of fundamental rights AIR 1983 SC 848 that it was too late in the day to contend that H guaranteed under Article 21 of the Constitution of India and the “State can commit breach of a solemn undertaking on which observed as follows: other side has acted and then contend that the party suffering by “Adverting to the grant of relief to the heirs of a victim I I Airports Authority of India v. State of Jammu & Kashmir (Vipin Sanghi, J.) 457 458 Indian Law Reports (Delhi) ILR (2012) IV Delhi

of custodial death for the infraction or invasion of his A (c) A writ petition involving a consequential relief of monetary rights guaranteed under Article 21 of the Constitution of A claim is also maintainable. India, it is not always enough to relegate him to the ordinary 28. However, while entertaining an objection as to the remedy of a civil suit to claim damages for the tortuous maintainability of a writ petition under Article 226 of the act of the State as that remedy in private law indeed is B Constitution of India, the Court should bear in mind the fact that available to the aggrieved party. The citizen complaining B the power to issue prerogative writs under Article 226 of the of the infringement of the indefeasible right under Article Constitution is plenary in nature and is not limited by any other 21 of the Constitution cannot be told that for the provisions of the Constitution. The High Court having regard to established violation of the fundamental right of life, he the facts of the case, has a discretion to entertain or not to cannot get any relief under the public law by the Courts C entertain a writ petition. The court has imposed upon itself certain exercising writ jurisdiction. The primary source of the C restrictions in the exercise of this power [See: Whirlpool public law proceedings stems from the prerogative writs Corporation v. Registrar of Trade Marks, Mumbai and Ors. and the Courts have, therefore, to evolve ‘new tools’ to JT 1998 (7) SC 243 : 1998 (8) SCC 1]. And this plenary right give relief in public law by moulding it according to the D of the High Court to issue a prerogative writ will not normally situation with a view to preserve and protect the Rule of be exercised by the court to the exclusion of other available Law. While concluding his first Hamlyn Lecture in 1949 D remedies unless such action of the State or its instrumentality is under the tile ‘Freedom under the law’ Lord Denning in arbitrary and unreasonable so as to violate the constitutional his own style warned: E mandate of Article 14 or for other valid and legitimate reasons, “No one can suppose that the executive will never be for which the court thinks it necessary to exercise the said guilty of the sins that are common to all of us. You may E jurisdiction. be sure that they will sometimes do things which they ought not to do: and will not do things that they ought 7. In State of Jammu and Kashmir vs. Ghulam Mohd. Dar, to do. But if and when wrongs are thereby suffered by F (2004) 12 SCC 327, after noting that writs in the nature of any of us what is the remedy? Our procedure for securing mandamus would not ordinarily issue for enforcement of a contract, it has been observed that a writ can issue when our personal freedom is efficient, our procedure for F preventing the abuse of power if not. Just as the pick questions of public law character arise for consideration. The and shovel is no longer suitable for the winning of coal, G preliminary objection is wholly without substance and is rejected”. so also the procedure of mandamus, certiorari, and actions For the aforesaid reasons, the second objection of the on the case are not suitable for the winning of freedom respondent is also rejected. in the new age. They must be replaced by new and up- G do-date machinery, by declarations, injunctions and actions 19. Accordingly, the present writ petition is allowed and a direction for negligence. This is not the task of Parliament, the H is issued to respondent no.1 to honour its sovereign guarantee in respect Court must do this. Of all the great tasks that lie ahead of 11.5% and 10.5% JKFC SLR Bonds 2011 issued by Jammu and this is the greatest. Properly exercised the new powers Kashmir State Financial Corporation i.e. respondent no.2, and to make of the executive lead to the welfares state; but abused H payments of the amount due comprising of the face value of the bonds they lead to a totalitarian state. None such must ever be I which is Rs.10,40,00,00/- alongwith interest upto the date of redemption allowed in this country”. at the rates prescribed in the said bonds. The overdue interest from the date of maturity/redemption shall be paid on the entire amounts found

I Sharvan Aggarwal v. Kailash Rani (Valmiki J. Mehta, J.) 459 460 Indian Law Reports (Delhi) ILR (2012) IV Delhi due and payable on the due date of maturity/redemption at the rate of 8% A the appellant/defendant by Sh. K.L.Chawla, who is the late p.a. till actual payment. The petitioners are also entitled to costs quantified husband of the respondent. It is not disputed that the at Rs.25,000/-. respondent/plaintiff is one of the legal heirs of late A Sh.K.L.Chawla and therefore will succeed as a co-owner to the suit property. The deceased Sh.K.L. Chawla was also B survived by his son-Sh. Desh Raj Chawla. It is now settled ILR (2012) IV DELHI 459 law, as per the ratio of catena of judgments of the Supreme RFA Court, that a co-owner is entitled to file a suit for possession, B unless, it is shown that the other co-owner is objecting to C such a suit. It is not an issue in the present case that there SHARVAN AGGARWAL ….APPELLANT is any objection by Sh.Desh Raj Chawla to the subject suit for possession filed by the respondent/plaintiff. An owner of VERSUS C a property is always a landlord and the owner of a property KAILASH RANI ….RESPONDENT is entitled to receive possession from an unauthorized D occupant. Since the respondent/plaintiff is the widow of late (VALMIKI J. MEHTA, J.) Sh. K.L.Chawla, I am of the opinion that the Trial Court has rightly held that there is a relationship of landlord and tenant RFA NO. : 19/2012 DATE OF DECISION: 09.01.2012 D between the parties. (Para 4)

E I have in the recent judgment reported as M/s.Jeevan Code of Civil Procedure, 1908—Order 12 Rule 6— Diesels & Electricals Ltd. vs. M/s. Jasbir Singh Chadha Transfer of Property Act, 1882—Section 106— E (HUF) & Anr. 2011 (182) DLT 402 held that M/s.Jeevan Registration Act, 1908—Section 49—Delhi Rent control Diesels & Electricals Ltd. vs. M/s. Jasbir Singh Chadha Act, 1958—Suit for possession and mesne profits— (HUF) & Anr. 2011 (182) DLT 402uring purpose. Premises let out to the appellant/respondent vide F (Para 8) rent agreement dated 01.10.2006 for a period of three years by the husband of respondent/plaintiff—Tenancy F Important Issue Involved: A co-owner is entitled to file terminated vide notice dated 31.03.2010 w.e.f. a suit for possession, unless it is shown that the other co- 30.04.2010—Failed to vacate the premises-Suit filed- owner is objecting to such a suit. An owner of a property Suit decreed for possession under order 12 Rule 6 G is always a landlord and the owner of a property is entitled vide judgment, dated 14.11.2011—Aggrieved by the G to receive possession from an unauthorized occupant. judgment filed the present appeal—Alleged tenancy was for manufacturing purposes—Notice terminating the tenancy should have been for a period of six Even it is not proved that a legal notice was served prior to month-Held—Lease deed unregistered—Terms cannot H filing of the Suit, service of summons of the suit can be be looked into—Purpose of letting is not collateral H taken as a notice under section 106 of the Act. If alongwith purpose-notice valid—Appeal dismissed. the plaint, a copy of the notices is served no the tenant and once again, this can be taken as service of notice, In the present case, the premises were originally let out to I I Sharvan Aggarwal v. Kailash Rani (Valmiki J. Mehta, J.) 461 462 Indian Law Reports (Delhi) ILR (2012) IV Delhi

The Purpose of letting out is very much a main term of a A parties; A lease deed, and no stretch of imagination the same can be ii) The rate of rent is more than Rs. 3,500/- per month; and said to be collateral purpose. iii) The monthly tenancy is terminated by means of a legal notice under Section 106 of the Transfer of Property Act, [Vi Ba] B 1882 (hereinafter referred to as ‘the Act’). B APPEARANCES: 4. In the present case, the premises were originally let out to the FOR THE APPELLANT : Mr. J.P. Sengh, Sr. Advocate with appellant/defendant by Sh. K.L.Chawla, who is the late husband of the respondent. It is not disputed that the respondent/plaintiff is one of the Mr. K.L. Nandwani and Ms. Ankita C Gupta, Advocates. legal heirs of late Sh.K.L.Chawla and therefore will succeed as a co- C owner to the suit property. The deceased Sh.K.L. Chawla was also FOR THE RESPONDENT : None. survived by his son-Sh. Desh Raj Chawla. It is now settled law, as per CASE REFERRED TO: the ratio of catena of judgments of the Supreme Court, that a co-owner D is entitled to file a suit for possession, unless, it is shown that the other 1. M/s.Jeevan Diesels & Electricals Ltd. vs. M/s. Jasbir co-owner is objecting to such a suit. It is not an issue in the present case Singh Chadha (HUF) & Anr. 2011 (182) DLT 402. D that there is any objection by Sh.Desh Raj Chawla to the subject suit for RESULT: Appeal dismissed. possession filed by the respondent/plaintiff. An owner of a property is always a landlord and the owner of a property is entitled to receive VALMIKI J. MEHTA, J. (ORAL) E possession from an unauthorized occupant. Since the respondent/plaintiff 1. The challenge by means of this Regular First Appeal (RFA) filed is the widow of late Sh. K.L.Chawla, I am of the opinion that the Trial under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the E Court has rightly held that there is a relationship of landlord and tenant impugned judgment dated 14.11.2011 of the Trial Court decreeing the between the parties. F suit of the respondent/landlord under Order 12 Rule 6 CPC, limited to the 5. So far as the rate of rent is concerned, though the respondent/ relief of possession. The suit on the aspect of payments of mesne profits plaintiff claimed the rent to be Rs.51,000/- per month, the appellant/ is pending trial and disposal before the Trial Court. F defendant claimed that original rent was Rs.11,000/- per month and 2. The plaintiff/respondent in the plaint pleaded that the suit premises which was subsequently enhanced to Rs.13,500/- per month. Therefore, being A-103/7, Wazirpur Industrial Area, Delhi were let out to the appellant/ G even if we accept the stand of the appellant/defendant, the rate of rent defendant at Rs. 51,000/- per month vide rent agreement dated 1.10.2006 is more than Rs.3,500/- per month, and thus the premises are outside the for a period of three years. It was pleaded that in spite of the tenancy protection of the Delhi Rent Control Act, 1958 and consequently the suit having expired by efflux of time, the premises were not vacated and G for possession could have been filed terminating the monthly tenancy. therefore the respondent/plaintiff by a notice dated 31.3.2010 terminated H 6. So far as the aspect of service of notice terminating tenancy the tenancy with effect from 30.4.2010. The subject suit for possession under Section 106 of the Act is concerned, counsel for the appellant/ and mesne profits thereafter came to be filed. defendant has very strongly argued that the premises in question were let 3. In a suit for possession of a premises which is outside the H out vide rent agreement dated 17.12.2003 for manufacturing purposes, protection of Delhi Rent Control Act, 1958, the following three I i.e. for “Steel Hot Rolling etc” and therefore in terms of Section 106 of requirements have to be established:- the Act, such a tenancy can only be terminated by a six months notice, and, since the notice which has been issued in the present case terminating i) There is a relationship of landlord and tenant between the I Sharvan Aggarwal v. Kailash Rani (Valmiki J. Mehta, J.) 463 464 Indian Law Reports (Delhi) ILR (2012) IV Delhi the tenancy was for a notice period of only one month, the same was A payable, is an issue which will be gone into by the Trial Court while defective and therefore the suit was pre-mature. deciding the issue of mense profits, however for the present, it cannot be said that the suit cannot be decreed so far as the limited relief of 7. I have in the recent judgment reported as M/s.Jeevan Diesels possession is concerned. & Electricals Ltd. vs. M/s. Jasbir Singh Chadha (HUF) & Anr. 2011 A (182) DLT 402 held that even if it is not proved that a legal notice was B 10. In view of the above, I do not find any merit in the appeal, served prior to filing of the suit, service of summons of the suit can be which is accordingly dismissed, leaving the parties to bear their own taken as a notice under Section 106 of the Act. I have also held in the costs. judgment of M/s.Jeevan Diesels (Supra) that if along with the plaint, B copy of the notice is served on the tenant and once again, this can be taken as service of notice. The aforesaid aspects can be taken note of C under Order 7 Rule 7 CPC. I have held that Court should take a pragmatic ILR (2012) IV DELHI 464 view in view of the legislative intendment as demonstrated by Act 3 of C W.P. (C) 2003, amending Section 106 of the Act. An SLP against the said judgment being SLP No.15740/2011 has been dismissed by the Supreme Court on D 7.7.2011. RANGNATHAN PRASAD MANDADAPU ….PETITIONER

8. The argument as raised on behalf of the appellant/defendant that VERSUS the lease in this case should be held to be for a manufacturing purpose D because it is so provided in para 3 of the lease deed dated 17.12.2003, MEDICAL COUNCIL OF INDIA & ANR. ….RESPONDENTS is an argument which I reject inasmuch as the lease deed dated 17.12.2003 E (VIPIN SANGHI, J.) is not a registered document, and therefore, the terms of the lease deed cannot be looked into in view of the Section 49 of the Registration Act, E W.P. (C). NO. : 8745/2011 DATE OF DECISION: 16.01.2012 1908. I also do not agree with the argument of the learned senior counsel & 19767-68/2011 for the appellant that a letting purpose is a collateral purpose within the expression under Section 49 of the Registration Act, 1908. Surely, the F Constitution of India, 1950—Article 226—Petitioner purpose of letting out is very much a main term of a lease deed, and by F no stretch of imagination the same can be said to a collateral purpose. completed four and half years of medical course; I therefore hold that the lease deed dated 17.12.2003 cannot be looked furnished certificate—Issued provisional registration by MCI in 2000—Authenticity of this not certified by into and once the same cannot be looked into, there is no basis to hold G that the lease was created for a manufacturing purpose. Moscow University—Provisional registration withdrawn G on 29.05.2001—MCI intimated the police authority— 9. Even for the sake of argument if I accept that the lease was Lodged FIR against petitioner under S. 420/468/471 created for manufacturing purpose, then applying the ratio of M/s.Jeevan IPC-Petitioner Contended—Misled into believing that Diesels (Supra), a period of six months has definitely expired since the diploma could be issued by Moscow University—The H filing of the subject suit. The subject suit was filed on 1.5.2010, and the truth otherwise was the matter under investigation— appellant/defendant was served in September, 2010, therefore, the appellant/ H He had gone back to Russia and completed the balance defendant in any case had a six months notice to vacate the premises. course from St. Petersburg State Medical Academy— Ultimately, which would be the date from which mesne profits would be This institution certified the petitioner having I I Rangnathan Prasad Mandadapu v. Medical Council of India (Vipin Sanghi, J.) 465 466 Indian Law Reports (Delhi) ILR (2012) IV Delhi

completed the course-Issued diploma on 23.06.2003— A proceedings cannot come in his way in obtaining a conditional Petitioner returned—Attempted Screening test-Become A permanent registration, as without any such registration, the successful-MCI admitted same—Denied registration petitioner will not be in a position to pursue his higher on the ground of registration of criminal case—In studies or be able to practice as a qualified doctor. The fact earlier writ petition filed by the petitioner, High Court B that various other similar cases may be pending is no issued direction to the respondent to provisionally ground to deny relief to the petitioner, to which he appears B enroll him and permit his completion of compulsory, to be fairly, reasonably and equitably entitled. (Para 9) rotatory internship in India—Open to MCI to impose condition that in the event of adverse order in criminal Today, the issue is not whether the petitioner is academically proceedings it would take such action against C qualified or not, to get permanent registration. He has the requisite qualification to get the permanent registration. The petitioner a warranted under the law after reviewing C the facts circumstances—The petitioner thereafter issue is only whether he is guilty of playing a fraud upon the completed rotatory internship-Appeared in CET-NBE MCI, in earlier submitting documents – wherein he claimed himself to be qualified. The issue is with regard to the said conducted by respondent no.2—Result not declared D as be he had not been granted permanent registration conduct of the petitioner. Unless the petitioner is held guilty by respondent no.1—Petitioner contended-The D in respect of that conduct, he cannot be debarred or pendency of the criminal proceedings should not be prevented from pursuing his profession, as he is, admittedly, allowed to mar the career prospect of the petitioner— academically qualified. Even if he is held guilty, it would Admittedly, the petitioner fully qualified and eligible E need examination whether he should, and if so, for what for grant of permanent registration by MCI—Criminal period, so prevented. (Para 10) trial may takes years to be completed—Petitioner could E not be deprived of his right to profess his profession— Important Issue Involved: (i) Mere pendency of criminal Respondent MCI contended—Till the criminal case F case, does not debar the individual from pursuing his finally decided, petitioner could not be granted profession. permanent registration—Respondent had no F mechanism to track criminal proceedings—Held— [Gu Si] Unless the petitioner held guilty, cannot be debarred G APPEARANCES: or prevented from pursuing his profession—Even if held guilty, it need examination whether he should FOR THE PETITIONER : Ms. Suman Kapoor and Anand Shailani, Advocates. and if so, for what period, so prevented—MCI directed G to grant conditional permanent registration to the FOR THE RESPONDENTS : Ms. Ashish Kumar and Amit Kumar, petitioner subject to condition that petitioner would H Advocates. give an undertaking to the court that he would keep updating the status of the pending criminal case after CASE REFERRED TO: every six month-Writ disposed off. H 1. Dr. Sukanta Ghosh vs. MCI (LPA 376 of 2006). The petitioner having completed the compulsory rotatory I RESULT: Writ disposed off. internship, in my view, the pendency of the aforesaid criminal

I Rangnathan Prasad Mandadapu v. Medical Council of India (Vipin Sanghi, J.) 467 468 Indian Law Reports (Delhi) ILR (2012) IV Delhi

VIPIN SANGHI, J. (Oral) A contends that having regard to the judgment of the Supreme Court in W.P.(C.) No.604/2002 delivered on 16.11.2004, the 1. The petitioner has preferred the present writ petition under Article guidelines for registration of doctors mandated that if candidates 226 of the Constitution of India, to seek a direction against respondent completed their medical course abroad, before 15.03.2002, and no.1, i.e. Medical Council of India (MCI) to grant permanent registration A appeared in the Screening Test, they should be permitted to the petitioner. The petitioner also seeks a direction to respondent no.2, B registration. i.e. National Board of Examinations (NBE) to recognize the petitioner’s candidature in the CET, NBE December 2011 Examination. The petitioner 3. The petitioner alleges having fulfilled the necessary also seeks a direction to respondent no.2 to communicate the result of B requirements spelt out in the Supreme Court’s judgment as is the petitioner for the CET NBE examination held in December 2010. quoted in extenso from the ruling. He contends that since the C M.D. Physician degree issued by the St. Petersburg Academy is 2. The petitioner had earlier preferred a writ petition being W.P.(C.) a recognized qualification, therefore, the MCI, even after he No.5548/2006, which was allowed by the Court. A direction was issued being declared successful in the Screening Test, has unjustly to the respondent, MCI to provisionally enroll the petitioner with it, and C denied him registration. to permit him to complete the compulsory rotatory internship in India. The relevant facts of the case, and the respective submissions of the D 4. The petitioner alleges that he had completed four years of parties, have been set out in the judgment dated 13.01.2009 passed in the medical studies at the Russian University when he became aware aforesaid writ petition. I consider it appropriate to set out the relevant that those who studied regularly for more than five years could paragraphs of the said judgment: D directly join the final semester to obtain the medical degree. He alleges having completed the course and passed all exams in “2. The facts necessary for the purpose of deciding this case are E Medicine, Surgery, Pediatrics, Social Medicine, Obstetrics and that the petitioner had completed his intermediate (10+2) from Gynecology in the Moscow University in 2000 and further having the Board of Intermediate Education, Andhra Pradesh, with first E obtained a degree through the then Dean. The petitioner contends division. He joined the medical course at the Russian Peoples that he believed the degree to be genuine, on the basis of which, Friendship University, Moscow in 1993. He alleges having he obtained provisional registration for internship at Vijaywada, completed Russian Language Course in that University (hereafter F Andhra Pradesh. Unfortunately, the information furnished to him called “Moscow University”), in 1993-94, which was mandatory was wrong and the degree was found to be fake by the MCI. for foreign students and joined the first year of the medical F As soon as he was informed by MCI about fake degree, he course in 1995. He claims to have completed his medical course obtained Visa and went back to Russia to verify the genuineness and obtained the M.D. Physician Degree from the St. Petersburg of the document, and completed the rest of three semesters of State Medical Academy (hereafter referred to as “St. Petersburg G study which he did at the St. Petersburg Academy. He claims Academy”) in 2003. The petitioner appeared in the Screening G having successfully completed the fifth year second semester Test conducted by the National Board of Examination (NBE) for and sixth year and the State Board Examination from the St. securing provisional registration, with the Medical Council of Petersburg Academy and then obtained the medical degree on India (MCI); he qualified. It is alleged that at that stage, MCI 20.06.2003. The petitioner contends that the allegations about his refused to accept the application, contending that a First H involvement in forgery and submission of false documents are Information Report (FIR) alleging commission of offences H unfounded and that he was a victim of misrepresentation that led (offences under Sections 420/468/471 IPC) by him, i.e. the to his return to Russia to complete the balance course. In these petitioner were registered and pending against him. The petitioner circumstances, he states that having qualified in the Screening I I Rangnathan Prasad Mandadapu v. Medical Council of India (Vipin Sanghi, J.) 469 470 Indian Law Reports (Delhi) ILR (2012) IV Delhi

Test, the respondent cannot deny registration merely on the basis A Ministry of External Affairs, Govt. of India and the MCI. The of pendency of criminal prosecution. A Consulate General of India had sought verification from the St. Petersburg State Medical Academy, which on 04.09.2007, 5. The MCI contends that according to its procedure, certificates confirmed having issued the diploma certificate to the petitioner submitted by the applicants have to be verified by the concerned on 26.06.2003. The Consulate General communicated this through foreign Board or University. It is after this evaluation that applicants B letter to the New Delhi office. This was communicated to the are permitted provisional recognition and allowed to start the 12 B MCI by the Ministry of External Affairs through its letter dated months mandatory internship. This, the counsel contends applies 25.09.2007. The letter of the Consulate General to the foreign even to those students who completed a Six-years course. office in Delhi is as follows: C 6. The MCI contends that along with the application furnished From : Congendia Saint Petersburg earlier on 21.11.2000, the petitioner had furnished a degree C certificate dated 14.06.2000, ostensibly issued by the Moscow To : Foreign New Delhi University, stating that he had undertaken graduate medical course Shri Rahul Srivastava, US (Russia), Eurasia Division, MEA from Consul (Consular) during the period 1994-2000. On the strength of these documents, D the MCI had granted provisional registration on 18.12.2000 Reptd to: i) SO (Consular), MEA, Patiala HouseAnnexe pending authenticity and verification of the documents. It claims D ii) Dr P. Kumar, Addl. Secy, MCI, Dwarka, ND that the authenticity verification received from the Embassy of Subject: Verification of medical degree required in Court case India at Moscow on 14.05.2001 stated that the medical certificate dated 14.06.2000 was fake according to the information given E Please refer to your fax msg. No. Nil dated 17.8.2007 regarding by the Dean of Foreign Students Department, Moscow University, checking of authenticity of medical degree of Dr. Ranganatha MCI, therefore, cancelled the provisional registration on E Prasad Mandadapu required in connection with a court matter. 29.05.2011. His medical document was forwarded to concerned authorities in F 9. It is contended on behalf of the petitioner that the MCI harped the St. Petersburg State Medical Academy named after I.I. on old facts and that the charge of suppression or Machnikav for immediate verification. They have now replied misrepresentation is baseless. According to the petitioner, he is F and confirmed issuing Doctor’s Diploma No.DIS 0025552, a victim of fraud and cannot be penalized doubly for it. Registration No.1133 to Mr. Ranganatha Prasad Mandadapu on Immediately on learning that the Russian State Medical University, G 26.6.2003. A copy of their letter (in Russian) with its English Moscow had disclaimed his candidature, he returned to Moscow translation is also faxed herewith. and on the basis of his admitted academic course undertaken by Sd/- (Abhay Kumar) him, enrolled at the St. Petersburg State Medical Academy. It G was contended that the Court had, on 19.02.2007, directed the Consul (Consular) H respondent to verify the diploma/degree and the other documents 11. The preceding discussion shows that the petitioner apparently submitted by the petitioner purportedly, issued by St. Petersburg completed about four and half years medical course, furnished Academy. The MCI was required to complete the verification H a certificate, which led to issuance of provisional registration, by process through appropriate channels. Further to this verification the MCI in 2000. Further, the authenticity of this was not certified I process, the MCI filed an affidavit on 17.11.2007. by the Moscow University and the provisional registration was 10. The affidavit encloses copies of correspondence between the withdrawn on 29.05.2001. The MCI intimated the police

I Rangnathan Prasad Mandadapu v. Medical Council of India (Vipin Sanghi, J.) 471 472 Indian Law Reports (Delhi) ILR (2012) IV Delhi authorities; this led to lodging of a First Information Report. The A distinguishes the petitioner’s case from Dr. Sukanta Ghosh’s petitioner’s version was that he was also misled into the believing case. that the diploma could be issued by the Moscow University. The 14. Besides above, the Court cannot ignore the fact that often truth or otherwise of that matter is pending investigation. A times students are misled into situations where they turn up to 12. The petitioner contends (a fact now not denied by the MCI) B be victims. Whether the petitioner really was entitled to a degree having gone back to Russia and completed the balance course in 2000 or not and whether the document was fake and his role but from another institution, i.e. St. Petersburg State Medical or responsibility are questions that will undoubtedly be gone into Academy. The latter institution certified the petitioner’s having B in criminal proceedings. However, the pendency of those completed the course and having issued the diploma on proceedings cannot, in the opinion of the Court, automatically 23.06.2003. The petitioner came back and attempted the Screening C elevate the suspicions, howsoever strong, into proven facts, which Test. It is again not denied that he was successful in the process. should damn an individual’s career, particularly in such cases. The MCI, however, is denying registration on the ground of The MCIs “hands of” policy in not taking any action at all, pendency of a criminal case. C without any rudiment of enquiry, can result in irreparable damage to the career and life of students who might ultimately turn out 13. In this Court’s decision in Dr. Sukanta Ghosh v. MCI D to be innocent. In this case, the petitioner had the ability to (LPA 376 of 2006), the petitioner’s marksheet in the AISSCE return to Russia and secure an acceptable medical qualification. issued by the CBSE in 1991 was under a cloud. He had like the In other cases, students may not be so fortunately placed. The present petitioner completed the medical course and also the D MCI should in such circumstances, in the opinion of the Court, compulsory rotator internship in Russia. The MCI, on account carry out its own independent investigation to verify whether of pendency of criminal proceedings, cancelled his resignation. E such students are victims or are perpetrators and not merely The Court declined to interfere and held that MCI could consider assume the role of a by-stander. the issue again after completion of the criminal proceedings. In E 15. In view of above discussion, this Court is of the opinion that the present case, the MCIs contention is primarily about the the petitioner should be granted the relief he claims. A direction existence of criminal case and not pertaining to the genuineness F is, therefore, issued to the respondent MCI to provisionally enroll of certificate, which led to awarding the degree. The degree was him with it and permit his completion of compulsory rotatory produced by the petitioner in 2000; he claimed to have obtained F internship in India. While doing so, it is open to the MCI to it from the Moscow University. The later events, however, are impose a condition that in the event of an adverse order in the not in dispute at all. That the petitioner subsequently went to criminal proceedings, it would take such action against the another institution in Russia, i.e. the St. Petersburg Academy G petitioner as warranted in law after reviewing the facts and which issued the certificate on 23.06.2003, which is acceptable G circumstances”. to the MCI from the academic perspective; that the petitioner qualified in the Screening Test, (like other students, who complete 3. Consequent upon the aforesaid decision, the petitioner has their studies in foreign universities are required to), and that the completed his rotatory internship. The petitioner thereafter appeared in St. Petersburg Academy has authenticated the document, which H the CET NBE conducted by respondent no.2 in December 2010. However, is now deemed found genuine are no longer in dispute. What, H the petitioner’s result has not been declared by respondent no.2, as the therefore, stands established is that the petitioner holds a valid petitioner has not been granted permanent registration by respondent degree, duly authenticated from a foreign university, i.e. St. no.1. Petersburg Academy. These acts, in the opinion of the Court, I I Rangnathan Prasad Mandadapu v. Medical Council of India (Vipin Sanghi, J.) 473 474 Indian Law Reports (Delhi) ILR (2012) IV Delhi 4. The submission of learned counsel for the petitioner is that the A this basis that the Court had allowed the earlier writ petition and permitted pendency of the criminal proceedings should not be allowed to mar the A the petitioner to undergo compulsory rotatory internship in India on the career prospects of the petitioner. Admittedly, the petitioner is fully qualified basis of a provisional registration. and eligible to be granted permanent registration by the MCI. The criminal 9. The petitioner having completed the compulsory rotatory trial may take years to get completed. The petitioner cannot be deprived B internship, in my view, the pendency of the aforesaid criminal proceedings his right to profess his profession merely because the said trial is pending. B cannot come in his way in obtaining a conditional permanent registration, 5. The submission of counsel for the respondent, MCI is that the as without any such registration, the petitioner will not be in a position criminal proceeding against the petitioner is still pending. He submits that to pursue his higher studies or be able to practice as a qualified doctor. till the said criminal case is finally decided, the petitioner cannot be C The fact that various other similar cases may be pending is no ground granted permanent registration. He further submits that the learned Single to deny relief to the petitioner, to which he appears to be fairly, reasonably Judge, while allowing the petitioner’s earlier writ petition had observed C and equitably entitled. that it is open to the MCI to impose a condition that in the event of an 10. Today, the issue is not whether the petitioner is academically adverse order in the criminal proceedings, it would take such action qualified or not, to get permanent registration. He has the requisite against the petitioner as warranted in law, after reviewing the facts and D qualification to get the permanent registration. The issue is only whether circumstances. D he is guilty of playing a fraud upon the MCI, in earlier submitting 6. Counsel for the respondent further submits that there are a large documents – wherein he claimed himself to be qualified. The issue is number of other similar cases pending, and a decision in this case to with regard to the said conduct of the petitioner. Unless the petitioner is allow the petitioner to seek permanent registration would have an impact E held guilty in respect of that conduct, he cannot be debarred or prevented on those cases as well. He further submits that the respondent has no from pursuing his profession, as he is, admittedly, academically qualified. mechanism of keeping a track on the criminal proceedings, and in case E Even if he is held guilty, it would need examination whether he should, the petitioner is condemned in the criminal proceedings, the respondent and if so, for what period, so prevented. would not even come to know, to be able to take action against him. F 11. However, to safeguard the concern of the respondents, the 7. It is clear from the aforesaid judgment dated 13.01.2009 that the petitioner should be subjected to terms. Court has accepted the position that the petitioner has successfully F 12. Accordingly, this petition is allowed and I direct the respondent, completed the entire medical course which is recognized by the MCI as MCI to grant conditional permanent registration to the petitioner, provided a qualification falling within the schedules. The issue whether the petitioner G the petitioner fulfills all other terms and conditions required under the was a culprit, or a victim, in the process of issuance of an earlier rules and regulations of the Medical Council of India, and not to deny the certificate, which is alleged to be fake, is still pending consideration same to the petitioner only on account of the pendency of the criminal before the concerned Court. As held by the learned Single Judge, the G proceedings. This is subject to the condition that the petitioner gives an pendency of the said criminal proceedings should not be permitted to undertaking to this Court that the petitioner shall keep updating the status damn the petitioner’s career, as the said proceedings are likely to take H of the criminal case with the respondent every six months, i.e. on the 1st considerable time. of January and 1st of July every year, and shall also provide certified 8. Undisputedly, the petitioner went back to complete the course H copies of the order sheets of the criminal proceedings to the respondent upon it being discovered that earlier he had not completed the course, MCI. The undertaking be furnished before this Court within four weeks I and only thereafter a fresh certificate was issued to him on 23.06.2003, with a copy to counsel for the respondent. Upon it being furnished, the which is acceptable to the MCI from the academic perspective. It is on

I Teka Singh @ Titu v. State (Suresh Kait, J.) 475 476 Indian Law Reports (Delhi) ILR (2012) IV Delhi undertaking shall stand accepted, and shall bind the petitioner. A referred to the larger bench vide judgment in case of Gain Singh vs. State. However till these are set aside, 13. The conditional permanent registration that may be granted to they hold the field—Petition allowed. the petitioner would not come in the way of the MCI in taking action against the petitioner, in case any adverse orders are passed in the criminal A The Division Bench of Mumbai High Court in Nari Motiram proceedings against the petitioner, as warranted in law, after reviewing B Hira v. Avinash Balkrishnan & Anr. in Crl.W.P.No.995/ the facts and circumstances. 2010 decided on 03.02.2011 has permitted for compounding of the offences of ‘non-compoundable’ category as per 14. Since the conditional permanent registration of the petitioner B Section 320 Cr. P.C. even after discussing Gian Singh would be granted only after the passing of this order, the same cannot (supra). (Para 8) relate back and, therefore, the petitioner’s attempt in the examination C conducted by respondent no.2 in the past cannot be regularized. To that Therefore, I feel that unless and until, the decisions which extent, the relief prayed for against respondent no.2 is not granted. have been referred above, are set aside or altered, by the C larger Bench of the Supreme Court, all the above three 15. Petition stands disposed of in the above terms. Parties are left decision hold the field and are the binding precedents. 10. to bear their respective costs. D In addition, the Supreme Court in Shiji @ Pappu & Ors. v. Radhika & Anr in Crl.Appeal No.2064/2011 decided on 14.11.2011 that the cases of non-compoundable nature can D be compounded, certainly not after the conviction observing ILR (2012) IV DELHI 475 as under:- CRL. M.C E ‘...... That being so, continuance of the prosecution E where the complainant is not ready to support the TEKA SINGH @ TITU & ORS. ….PETITIONERS allegations which are now described by her as arising out of some “misunderstanding and misconception”; VERSUS F will be a futile exercise that will serve no purpose. It is noteworthy that the two alleged eye witnesses, who STATE & ANR. ….RESPONDENT F are closely related to the complainant, are also no (SURESH KAIT, J.) longer supportive of the prosecution version. The continuance of the proceedings is thus nothing G CRL. M.C. NO. : 189/2012 DATE OF DECISION: 18.01.2012 but an empty formality. Section 482 Cr.P.C. could, G in such circumstances, be justifiably invoked by Code of Criminal Procedure, 1973—Section 320—Indian the High Court to prevent abuse of the process Penal Code, 1860—Section 323, 324, 354, 34—Offences of law and thereby preventing a wasteful being not compoundable, can FIR be quashed on H exercise by the Courts below.’ (Para 9) settlement Held—Compounding of non compounding H [An Ba] offences permissible as per the judgment of B.S Joshi Vs, State of Haryana Nikhil Merchant vs. CBI and Manoj APPEARANCES: Sharma vs. State. These three judgments have been FOR THE PETITIONER : Avinash Lakhanpal, Advocate. I I Teka Singh @ Titu v. State (Suresh Kait, J.) 477 478 Indian Law Reports (Delhi) ILR (2012) IV Delhi

FOR THE RESPONDENT : Mr. Navin Sharma, APP with Si A 5. Respondent no.2 is present in person who does not dispute the Bansilal, PS Roop Nagar. A contention of learned counsel for the petitioner and states that if the CASES REFERRED TO: present FIR is quashed, he has no objection. 1. Shiji @ Pappu & Ors. vs. Radhika & Anr in Crl.Appeal 6. Learned APP on the other hand submits that the offence under B No.2064/2011. Section 324 is not compoundable and submits that the Division Bench of B Hon’ble Supreme Court in Gian Singh Vs. State of Punjab & Anr. 2. Nari Motiram Hira vs. Avinash Balkrishnan & Anr. in dated 23rd November, 2010 in SLP (Crl.) No.8989/2010 has referred the Crl.W.P.No.995/2010. issues to the larger Bench, which were earlier decided in the case of B.S. 3. Gian Singh vs. State of Punjab & Anr. dated 23rd C Joshi V. State of Haryana (2003) 4 SCC 675, Nikhil Merchant v. November, 2010 in SLP (Crl.) No.8989/2010. Central Bureau of Investigation and Anr. (2008) 9 SCC 677 and 4. Nikhil Merchant vs. Central Bureau of Investigation and C Manoj Sharma Vs, State & Ors. (2008) 16 SCC 1 and has observed Anr. (2008) 9 SCC 677. that Section 320 Cr. P.C. mentions certain offences as compoundable, 5. Manoj Sharma vs. State & Ors. (2008) 16 SCC 1. certain other offences as compoundable with the permission of the Court D and the other offences as non-compoundable vide Section 320(7) of the 6. B.S. Joshi vs. State of Haryana (2003) 4 SCC 675. D Code. RESULT: Petition allowed. 7. He submits that keeping in view the judgment in the case SURESH KAIT, J. (Oral) mentioned above, the instant case may be adjourned sine die till the E disposal by the Larger Bench. He further submits that if this court is still Crl. M.A. 705/2012 (Exemption) inclined to quash the FIR, heavy costs be imposed. E Exemption allowed, subject to all just exceptions. The application is 8. The Division Bench of Mumbai High Court in Nari Motiram disposed of. F Hira v. Avinash Balkrishnan & Anr. in Crl.W.P.No.995/2010 decided Crl.M.C. 189/2012 on 03.02.2011 has permitted for compounding of the offences of ‘non- compoundable’ category as per Section 320 Cr. P.C. even after discussing 1. Notice issued. F Gian Singh (supra). 2. Learned APP accepts notice on behalf of the State/respondent G 9. Therefore, I feel that unless and until, the decisions which have No.1. Respondent No.2 is present in person in the Court. been referred above, are set aside or altered, by the larger Bench of the 3. Learned counsel for the petitioner submits that vide FIR No.180/ Supreme Court, all the above three decision hold the field and are the 2011 dated 22.11.2011, a case under Sections 323/324/354/34 Indian G binding precedents. 10. In addition, the Supreme Court in Shiji @ Pappu Penal Code, 1860 was registered at PS Roop Nagar against the petitioners & Ors. v. Radhika & Anr in Crl.Appeal No.2064/2011 decided on on the complaint of respondent no.2. H 14.11.2011 that the cases of non-compoundable nature can be compounded, certainly not after the conviction observing as under:- 4. Learned counsel further submits that respondent No.2 has settled all the issues qua the aforesaid FIR due to the intervention of the local H ‘...... That being so, continuance of the prosecution where the people and common friends. Learned counsel further submits that complainant is not ready to support the allegations which are respondent No.2 and the petitioners are from the same family, and therefore, I now described by her as arising out of some “misunderstanding just to stop enmity he has settled the matter with the petitioners. and misconception”; will be a futile exercise that will serve no

I Teka Singh @ Titu v. State (Suresh Kait, J.) 479 480 Indian Law Reports (Delhi) ILR (2012) IV Delhi

purpose. It is noteworthy that the two alleged eye witnesses, A ILR (2012) IV DELHI 480 who are closely related to the complainant, are also no longer CRL. M.C supportive of the prosecution version. The continuance of the proceedings is thus nothing but an empty formality. Section A 482 Cr.P.C. could, in such circumstances, be justifiably KULDEEP KUMAR KOHLI & ORS. ….PETITIONERS B invoked by the High Court to prevent abuse of the process VERSUS of law and thereby preventing a wasteful exercise by the Courts below.’ THE REGISTRAR OF COMPANIES ….RESPONDENT B FOR DELHI AND HARYANA 11. Learned counsel for the petitioner submits that all the petitioners except petitioner No.5 are having dairy and they are in the business of C (M.L. MEHTA, J.) selling milk, therefore, they shall supply milk for 15 days to the Children CRL. M.C NO. : 371/2011 DATE OF DECISION: 19.01.2012 and destitute women at Nirmal Chhaya, Jail Road, Hari Nagar, Delhi. C 12. Accordingly all the petitioners No.1 to 4 are directed to supply 25 litre milk each at Nirmal Chhaya. The milk shall be distributed daily D Code of Criminal Procedure, 1973—Section 482, 468(2); to all the inmates of all homes situated there. Indian Companies Act, 1956—Section 63, 628: Petition for quashing of summoning order in complaint u/s 63 13. The superintendent, Nirmal Chhaya is further directed to ensure D and 628—Petitioner contend that complaint beyond the purity of milk on daily basis. period of limitation—Held—Period of limitation in any 14. In view of above discussion, FIR No.180/2011 registered at PS E offence commences only upon receipt of knowledge Roop Nagar against the petitioners and proceedings emanating thereto are of breach-Period of limitation will not begin from the hereby quashed. E date of filling prospectus but from date of filing of balance sheet on which the complaint is based— 15. Criminal M.C.No.189/2012 is allowed and disposed of in above Complaint within period of limitation—Petition terms. F dismissed. 16. Order dasti. F Thus from the above pronouncements , it can be gauged that the period of limitation in such offences will begin not from the date of filling of prospectus, as urged by the G counsel for petitioner, but from the date of filling the balance G sheet on which the complaint has been based. In the present case, the Registrar of Companies came to know about the commission of the offences after the filing of balance sheet by the petitioner for the year 1999-2001 and H the complaint was filed in the year 2002 which is well within H the prescribed limitation period of three years. Hence, the question of the period of limitation is answered in favour of the respondents and there is no ground for quashing of the I I Kuldeep Kumar Kohli v. Registrar of Companies for Delhi And Haryana (M.L. Mehta, J.) 481 482 Indian Law Reports (Delhi) ILR (2012) IV Delhi summoning order on this ground. (Para 12) A company named Pariksha Fin-invest-lease Pvt. Ltd having its registered A office at B-18, Swami Dayanand Colony, Sarai Rohilla, Delhi-110007 [An Ba] since 27.8.1995. The object of the company was investments, financing, APPEARANCES: leasing, consultancy services etc. mentioned in the articles and FOR THE PETITIONER : O.P. Gaggar, Advocate. B memorandum of association. The said company became a public company and made a public issue of its equity shares in September 1996. In the FOR THE RESPONDENT : Mr. Khalid Arshad, Advocate. B prospectus issued for the said capital issue, the proposed deployment of CASES REFERRED TO: the funds was given as leasing, finance and investments etc. The total issue size was Rs. 235 lakhs and the promoters’ own contribution was 1. Manjit Jaju vs. Registrar of Companies, N.C.T. of Delhi C Rs. 90 lakhs. The company shifted its’ registered office to another leased and Haryana [2011] 101 CLA 153 (Delhi). C premises at 71/77, Prem Nagar, Janakpuri, Delhi on 22.06.1998. 2. Ajay Jain vs. Registrar of Companies NCT of Delhi and 3. The Delhi Stock Exchange corresponded with the petitioners’ Haryana 2010 (119) DRJ 545. company at the old address between August 1998 to March 1999. Due 3. Bhupinder Kaur Singh and Ors. vs. Registrar of Companies D to the letters being returned undelivered, the DSE sent a letter to the 142 (2007) DLT 277. residential address of the petitioners on 23.3.1999 warning them of their D 4. Zandu Pharmaceutical Works Ltd. and Others vs. Mohd. company being treated as vanishing company. The petitioners received a Sharaful Haque And Another (2005) 1 SCC 122. show cause notice number ROC/Pros/Vanishing/57377/6003 dated 30.4.02 under section 62,63 read with section 68 and section 628 of the Companies 5. Manganese Ore (India) Ltd. vs. Municipal Council through E Act from the office of the Registrar of Companies. The then Deputy its Chief Officer, Uttarwar MANU/MH/0613/2002. E Registrar Mr.J.K. Jolly was appointed to inquire into the affairs of the 6. Thomas Philip vs. Asst. Registrar being Crl.M.C. No. company. On the above said premises two complaints being case no. 4113/2002. 1333/2002 under section 62 and 68 of the Act and case number 1332/ 7. Anita Chadha vs. Registrar of Companies 96 (1999) CC F 2002 under section 63 and 628 of the Act were lodged by Registrar of 265. Companies in the court of MM against the petitioners on 13.11.2002. 8. State of Rajasthan vs. Sanjay Kumar and Ors. MANU/ F 4. In the present case i.e. complaint case 1332/2002, it has been SC/0335/1998 : (1998) 5 SCC 82. alleged that the directors of the company did not utilize the funds from G RESULT: Petition dismissed. the public issue for the purpose mentioned in the prospectus and in fact the funds were allocated and invested in purposes which were not M.L. MEHTA, J. G mentioned in the prospectus, therefore, the company and its directors 1. The present petition is preferred by the petitioner under section have made false statements in the prospectus by not disclosing the true 482 of the Code of Criminal procedure 1973, for quashing of the complaint H purpose of the prospectus. lodged by the respondents against the petitioner under section 63 and 628 5. I have heard the learned counsels for the petitioners and the of the Companies Act, 1956 pending in the Court of Metropolitan respondent. Magistrate, Delhi and for quashing of the summoning order dated H 6. It is submitted by the learned counsel for the respondent that the 13.11.2002. I funds for leased assets and the purchase of office space have not been 2. The petitioners were directors of a finance, leasing and investment used but have been diverted to investments for their own purposes.

I Kuldeep Kumar Kohli v. Registrar of Companies for Delhi And Haryana (M.L. Mehta, J.) 483 484 Indian Law Reports (Delhi) ILR (2012) IV Delhi

Therefore, the directors are liable to be prosecuted u/s 63 and 628 of the A that the funds of the company which were generated through public companies Act, 1956. issue were deployed in the objects of the company and the office could not be purchased because the deal failed due to volatility in the property Section 63 and section 628 of the companies Act, 1956 are market. It is submitted that the Registrar of Companies did not take into reproduced as under: A account the report of the Deputy Registrar who had exonerated the 63. Criminal liability for misstatements in prospectus. - B petitioners from any criminal liability in his report. It is urged that the petitioners gave the notice of change in address to all the authorities like (1) Where a prospectus issued after the commencement of this RBI, DSE and Income Tax Office by filling form 18. Another contention Act includes any untrue statement, every person who authorised B of the petitioners is that they have resigned from the directorship of the the issue of the prospectus shall be punishable with imprisonment company before the filling of the complaint and hence no liability can be C for a term which may extend to two years, or with fine which fastened on them. Amongst these grounds, the main ground taken up by may extend to 1 [fifty thousand rupees], or with both, unless he the petitioners for quashing of the summoning order is that the complaint proves either that the statement was immaterial or that he had C lodged by the Registrar of Companies is barred by time and is filed after reasonable ground to believe, and did up to the time of the issue the expiry of the limitation period. It is contended that the prospectus of the prospectus believe, that the statement was true. D was issued by the company on 10.09.1996 and the impugned complaint (2) A person shall not be deemed for the purposes of this section no. 1332/2002 was filed on 13.11.2002 which is beyond the limitation to have authorised the issue of a prospectus by reason only of period of three years under section 468(2) Cr.P.C. D his having given - 8. At the outset, it must be mentioned that the petition having been filed after 8 years of passing of the summoning order, is highly belated (a) the consent required by section 58 to the inclusion therein E of a statement purporting to be made by him as an expert, or and the petition finds no mention of any explanation of such a long delay. On this ground alone, it was liable to be dismissed. (b) the consent required by 2[***] sub-section (3) of section E 60. 9. Before adverting to the other grounds raised by the petitioner, it is important to lay down the rule as affirmed by various judgments 628. PENALTY FOR FALSE STATEMENTS. F regarding the initialization of the period of limitation in such offences. Needless to mention, the maximum punishment prescribed under the two If in any return, report, certificate, balance sheet, prospectus, F statement or other document required by or for the purposes of sections of the complaint namely section 63 and 628 of the companies any of the provisions of this Act, any person makes a statement Act is two years. As per section 468(2) the maximum period of limitation for commencement of prosecution of these offences is three years. The - G point of examination now boils down to the question as to when does (a) which is false in any material particular, knowing it to be G the limitation period begins. It is a well settled legal proposition that the false; or period of limitation in any offence commences only upon the receipt of (b) which omits any material fact knowing it to be material; knowledge of breach. H he shall, save as otherwise expressly provided in this Act, be 10. Shedding light on this issue, this Court in Ajay Jain Vs. Registrar punishable with imprisonment for a term which may extend to H of Companies NCT of Delhi and Haryana 2010(119) DRJ 545 has held two years, and shall also be liable to fine. that the limitation would start only after the filing of the date of balance sheet and not from the date of the issue of prospectus. The relevant part 7. Per contra it is submitted by the learned counsel for the petitioners of the judgment reads as under: I I Kuldeep Kumar Kohli v. Registrar of Companies for Delhi And Haryana (M.L. Mehta, J.) 485 486 Indian Law Reports (Delhi) ILR (2012) IV Delhi “5. As far as limitation aspect is concerned, limitation of offences A in the complaint. Whether the complaint was filed within period under Sections 63 and 628 of the Companies Act, 1956 starts A of limitation is a matter of evidence. from the date of knowledge of making a false statement. The This Court in Bhupinder Kaur Singh and Ors. v. Registrar of Registrar of Companies learnt about making of false statement Companies 142(2007) DLT 277 considered this question and after filing of balance sheet in the year 1999-2000, therefore, B observed as under: limitation would start only after the date of filing of balance sheet B and not from the date of issuing prospectus and this plea, 11. Coming to the question of limitation, again this is a mixed therefore, is not tenable.” question of law and fact. As mentioned above, falsity/misstatement in the prospectus can be proved by showing that funds were 11. The point was reiterated in Manjit Jaju Vs. Registrar of C utilized ultimately for some other purpose, which event would Companies, N.C.T. of Delhi and Haryana [2011] 101 CLA 153 (Delhi), C happen subsequently and only when this is brought to the notice “4. The plea taken by the petitioner that the period of limitation of the complainant and the complainant gets knowledge thereof has to be counted from the date of issuance of prospectus is a that the period of limitation would run. See Rajshree Sugar baseless plea. The offence under Section 63 of the Companies (supra); Anita Chadha v. Registrar of Companies 96 (1999) D Act stands committed when prospectus containing untrue CC 265; Thomas Philip v. Asst. Registrar being Crl.M.C. No. statement is issued and offence under Section 468 of the D 4113/2002 decided by the High Court of Kerala; Manganese Companies Act is committed if the return, report, balance sheet, Ore (India) Ltd. v. Municipal Council through its Chief prospectus, the statement etc. issued by the company are found Officer, Uttarwar MANU/MH/0613/2002; and State of Rajasthan to contain untrue statements or false material or such vital material E v. Sanjay Kumar and Ors. MANU/SC/0335/1998 : (1998) 5 is omitted which has bearing. Both the offences are punishable SCC 82. with imprisonment upto two years and/or with fine. Thus, the E Therefore, at this stage the complaints cannot be thrown out on period of limitation for both the offences is three years. However, the ground of limitation and this is the issue which will have to the limitation would start from the date when Registrar of F be decided by the trial court after the evidence is led by the Companies acquired knowledge about false statement. The process parties.” of issuing prospectus or filing of balance sheet, statements, certificate cannot be a starting point of limitation as by such an F 12. Thus from the above pronouncements , it can be gauged that act, the Registrar of Companies would not come to know whether G the period of limitation in such offences will begin not from the date of the statement made in the prospectus was a false statement or filling of prospectus, as urged by the counsel for petitioner, but from the truthful statement. Unless it is brought to its knowledge by the date of filling the balance sheet on which the complaint has been based. affected persons or an enquiry is held by Registrar of Companies G In the present case, the Registrar of Companies came to know about the about the truthfulness, the knowledge that the statement was commission of the offences after the filing of balance sheet by the false cannot be attributed to the Registrar of Companies. When H petitioner for the year 1999-2001 and the complaint was filed in the year the Registrar of Companies acquired knowledge about the false 2002 which is well within the prescribed limitation period of three years. statement cannot be gone into by this Court under Section 482 Hence, the question of the period of limitation is answered in favour of Cr.P.C. as it involves a probe into the facts. When a complaint H the respondents and there is no ground for quashing of the summoning is filed before the Court of Magistrate under Section 63 and 628 order on this ground. I of the Companies Act, the Court of Magistrate is supposed to 13. The contention of the petitioners that they have resigned from take cognizance of the offence on the basis of allegations made the directorship of the company and hence cannot be made liable, does I Kuldeep Kumar Kohli v. Registrar of Companies for Delhi And Haryana (M.L. Mehta, J.) 487 488 Indian Law Reports (Delhi) ILR (2012) IV Delhi not find any favour as the question that whether they had resigned or not A the evidence in question is reliable or not or whether on a is a question of fact which cannot be gone into by this court and only reasonable appreciation of it accusation would not be sustained. the trial court, during trial can decide this issue. With regard to the plea That is the function of the trial Judge. Judicial process should taken by the petitioners that the Registrar of Companies have not taken A not be an instrument of oppression, or, needless harassment. into account the report of the Inquiry Officer before filing the complaint Court should be circumspect and judicious in exercising discretion does not hold water as it is the discretion of the Department to rely or B and should take all relevant facts and circumstances into not upon the report of its Officer. If it proceeds to take action against consideration before issuing process, lest it would be an instrument any entity based on incriminating material available, then it cannot be in the hands of a private complainant to unleash vendetta to stated as a defense that the Department has not relied upon its internal B harass any person needlessly. At the same time the section is not communication with its Officers or any internal inquiry. These are all C an instrument handed over to an accused to short-circuit a triable issues to assess the evidentiary value of the evidence that may be prosecution and bring about its sudden death.” led by the parties. 16. From the facts and circumstances of the case it can be seen C 14. The argument of the petitioners that the fact of change of that a prima facie case has been made out against the petitioners and address was duly notified to all the agencies including RBI, DSE and there is no reason to interfere with the order of the Ld. M.M. It cannot Income Tax Office, does not have any merit because after the perusal D be said that the Magistrate has not viewed the ingredients of the complaint of the record it can be seen that only correspondence made in this regard before taking cognizance and has passed a mechanical order. was to the Registrar of Companies and no other authority. The petitioners D 17. I find no illegality in the impugned order of the trial court. The cannot shift their liability arising out of their own inaction by stating that petition is hereby dismissed. there was lack of communication between the various Authorities. The E onus of notifying the various agencies about the change of address lied only and only on the petitioners which they have not been able to discharge. E 15. Coming to the issue of power of High Court to quash the ILR (2012) IV DELHI 488 complaint and summoning order it has been categorically laid down that RFA it would not be proper for the High Court to analyse the case of the F complainant in the light of all probabilities in order to determine whether F a conviction would be sustainable and on such premises arrive at a PARMANAND KANSOTIA ….APPELLANT conclusion that the proceedings are to be quashed. The complaint has to be read as a whole. If it appears that on consideration of the allegations VERSUS G in the light of the statement made on oath of the complainant that the SEETHA LATH & ANR. ….RESPONDENTS ingredients of the offence or offences are disclosed and there is no G material to show that the complaint is mala fide, frivolous or vexatious. (J.R. MIDHA, J.) In that event there would be no justification for interference by the High Court. The Hon’ble Supreme Court in the case of Zandu Pharmaceutical H RFA NO. : 333/2010 & 362/2010 DATE OF DECISION: 20.01.2012 Works Ltd. And Others v. Mohd. Sharaful Haque And H Another(2005)1 SCC 122 held that: (A) Indian Contract Act, 1872—Section 29—Indian Evidence “When exercising jurisdiction under Section 482 of the Code, the Act, 1872—Section 91, 92, 114: Agreement to sell—Suit High Court would not ordinarily embark upon an enquiry whether by Purchaser for Specific performance-Suit by Seller I I Parmanand Kansotia v. Seetha Lath & Anr. (J.R. Midha, J.) 489 490 Indian Law Reports (Delhi) ILR (2012) IV Delhi for mandatory injunction and possession-Suits decreed A furnishing and decoration and cash payment of Rs. 2,00,000/ in favour of seller—Appeal filed by Purchaser—Held— A - alleged to have been made in February, 2006. Purchaser failed to make payment of balance sale consideration—Purchaser’s contention that oral 9.3 The Purchaser has failed to prove the cash payment of Rs. 2,00,000/- in February, 2006 to the Seller. agreement was entered into at the time of sale B agreement which provided for deduction of amounts B 9.4 The Purchaser has failed to prove that the possession spent on renovation, furnishing etc. from the sale of the suit property was handed over by the Seller to him on consideration, is barred under S. 29 of Contract Act 20th September, 2005. Although the sale agreement dated and S. 91 and 92 of Evidence Act—Held—S. 114 of C 20th September, 2005 records that the Seller shall handover Evidence Act enables the Judge to infer one fact the vacant and peaceful possession of the suit property to having regard to the common course of natural events C the Purchaser at the time of the sale agreement but the or human conduct—In natural course of event the factum of actual handing over of the physical possession of Seller hands over the vacant peaceful possession of the suit property has not been proved by the Purchaser. the suit property to the Purchaser at a time of receiving D The Purchaser is, therefore, in unlawful possession of the the balance sale consideration and not before that— suit property since 17th March, 2006 and is liable to pay In exceptional cases possession is handed over where D mesne profits from the said date. substantial payment has been made and there are special circumstance to secure the balance sale 9.5 There was no agreement between the parties for consideration, such as relationship between the E renovation, furnishing, decoration and construction with parties. No. such special circumstance in the present modern fittings in the suit property by the Purchaser and for case—It is improbable that the seller would have E adjustment of the amount from the sale consideration and, authorized purchaser to renovate, furnish without even therefore, the Purchaser is not entitled to adjust Rs. 4,00,000/ specifying the amount. Appeal dismissed. F - towards the alleged cost of renovation, furnishing, decoration and construction. There was no such clause in the sale Findings agreement dated 20th September, 2005. No oral agreement F 9.1 The Purchaser has committed the breach of the sale in this regard has been proved by the Purchaser. agreement dated 20th September, 2005 by failing to make G 9.6 The Purchaser’s contention that at the time of the sale the payment of balance sale consideration of Rs. 12,65,000/ agreement dated 20th September, 2005, there was an oral - to the Seller on or before the 21st November, 2005 in agreement that the Purchaser shall spend an unspecified terms of clause 9 of the sale agreement and, therefore, the G amount for renovation, furnishing, decoration and Seller has rightly forfeited the earnest money in terms of the construction with modern fittings and shall deduct/adjust the clause 9 and is entitled to the possession of the suit H same from the sale consideration is barred by Section 29 of property from the Seller. the Indian Contract Act. Section 29 of the Indian Contract Act declares all uncertain contracts to be void. The reason 9.2 The Purchaser was admittedly never ready and willing to H pay Rs. 2,65,000/- to the Seller. The Purchaser’s own case is obvious. What if the Purchaser would have claimed to is that he was ready and willing to pay Rs. 6,65,000/- after I have spent the entire balance sale consideration on adjusting Rs. 4,00,000/- towards the cost of renovation, renovation and sought the adjustment or would have spent

I Parmanand Kansotia v. Seetha Lath & Anr. (J.R. Midha, J.) 491 492 Indian Law Reports (Delhi) ILR (2012) IV Delhi more than a balance sale consideration and made a claim A the vacant and peaceful possession of the suit property against the Seller. Section 29 of the Indian Contract Act is to the Purchaser at a time of receiving the balance reproduced hereinbelow:- sale consideration and not before that. However, in exceptional cases, the possession is handed over A “29. Agreements void for uncertainty- Agreements, where substantial payment has been made and there the meaning of which is not certain, or capable of B are special circumstances to secure the balance sale being made certain, are void.” consideration such as relationship between the parties. 9.7 The Purchaser’s contention that at the time of the sale There are no special circumstances in the present B agreement dated 20th September, 2005, there was an oral case. It is improbable that the Seller would have authorized the Purchaser to carry out renovation, agreement that the Purchaser shall spend an unspecified C amount for renovation, furnishing, decoration and furnishing, decoration and construction in the suit construction with modern fittings and shall deduct/adjust the property without even specifying the amount. C same from the sale consideration is also barred by Sections 9.10 The Purchaser’s contention that the Seller had 91 and 92 of the Indian Evidence Act as the terms of the limited Power of Attorney was not raised before the sale agreement between the parties have been reduced into D Trial Court and no evidence was led with respect writing on 20th September, 2005 and evidence of any oral thereof. The Purchaser cannot raise a new and agreement for the purpose of contradicting, varying, adding D contradictory plea for the first time in appeal. The and subtracting to its terms is barred by Sections 91 and 92 Purchaser entered into the sale agreement with the of the Indian Evidence Act. E Seller and sought specific performance against him. 9.8 This is a fit case for application of Section 114 of the The Purchaser is estopped from disputing the authority of the Seller to sell the suit property. (Para 9) Indian Evidence Act, which provides guidance for drawing E natural presumptions. Section 114 of the Indian Evidence Act enables the Judge to infer one fact from existence of (B) Costs: Where Courts find that using Courts as a tool another proved fact having regard to the common course of F a litigant has perpetuated illegalities or has natural events or human conduct. This section provides a perpetuated an illegal possession, the courts must F guiding principle, namely that the Court shall be guided by impose costs on such litigant which should be equal its own experience and knowledge of the common course of to the benefits derived by the litigant and harm and natural events, and public and private affairs. Section 114 of deprivation suffered by the rightful person, so as to G the Indian Evidence Act is reproduced hereinbelow:- check frivolous litigation and prevent the people from G reaping a rich harvest of illegal acts through the “114. Court may presume existence of certain Courts. Despite settled legal positions, the obvious facts - The Court may presume the existence of any wrong doers, use one after another tier of judicial fact which it thinks likely to have happened, regard review mechanism as a gamble, knowing fully well that H being had to the common course of natural events, dice is always loaded in their favour, since even if human conduct and public and private business, in H they lose, the time gained is the real gain. This situation their relation to the facts of the particular case.” must be redeemed by the Courts. Purchaser’s conduct dishonest-Both appeals dismissed with exemplary 9.9 In natural course of events, the Seller hands over I I Parmanand Kansotia v. Seetha Lath & Anr. (J.R. Midha, J.) 493 494 Indian Law Reports (Delhi) ILR (2012) IV Delhi costs of Rs. 2,00,000/- on the Purchaser. A the rights of a person and enjoy the fruits of illegalities. A I consider that in such cases where Court finds that Conduct of the Purchaser using the Courts as a tool, a litigant has perpetuated 10.1 In Dalip Singh v. State of U.P., (2010) 2 SCC 114, illegalities or has perpetuated an illegal possession, the Supreme Court noted as under:- B the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant “1. For many centuries, Indian society cherished two B and harm and deprivation suffered by the rightful basic values of life i.e. ‘Satya’ (truth) and ‘Ahimsa’ person so as to check the frivolous litigation and (non-violence). Mahavir, Gautam Buddha and Mahatma prevent the people from reaping a rich harvest of Gandhi guided the people to ingrain these values in C illegal acts through the Courts. One of the aim of their daily life. Truth constituted an integral part of the C every judicial system has to be to discourage unjust justice-delivery system which was in vogue in pre- enrichment using Courts as a tool. The costs imposed Independence era and the people used to feel proud by the Courts must in all cases should be the real to tell truth in the courts irrespective of the costs equal to deprivation suffered by the rightful D consequences. However, post-Independence period person.” has seen drastic changes in our value system. The D materialism has over-shadowed the old ethos and the “9. Before parting with this case, I consider it quest for personal gain has become so intense that necessary to pen down that one of the reasons those involved in litigation do not hesitate to take E for over-flowing of court dockets is the frivolous shelter of falsehood, misrepresentation and litigation in which the Courts are engaged by suppression of facts in the court proceedings. In the E the litigants and which is dragged as long as last 40 years, a new creed of litigants has cropped possible. Even if these litigants ultimately loose the lis, they become the real victors and have up. Those who belong to this creed do not have any F respect for truth. They shamelessly resort to falsehood the last laugh. This class of people who and unethical means for achieving their goals. In perpetuate illegal acts by obtaining stays and order to meet the challenge posed by this new creed F injunctions from the Courts must be made to pay of litigants, the courts have, from time to time, evolved the sufferer not only the entire illegal gains G new rules and it is now well established that a litigant, made by them as costs to the person deprived who attempts to pollute the stream of justice or who of his right and also must be burdened with touches the pure fountain of justice with tainted hands, exemplary costs. Faith of people in judiciary can G is not entitled to any relief, interim or final.” only be sustained if the persons on the right side of the law do not feel that even if they keep H 10.2 In Padmawati and Ors. v. Harijan Sewak Sangh, fighting for justice in the Court and ultimately 154 (2008) DLT 411, this Court noted as under: win, they would turn out to be a fool since winning a case after 20 or 30 years would make H “6. The case at hand shows that frivolous defences wrong doer as real gainer, who had reaped the and frivolous litigation is a calculated venture involving I benefits for all those years. Thus, it becomes no risks situation. You have only to engage the duty of the Courts to see that such wrong professionals to prolong the litigation so as to deprive I Parmanand Kansotia v. Seetha Lath & Anr. (J.R. Midha, J.) 495 496 Indian Law Reports (Delhi) ILR (2012) IV Delhi doers are discouraged at every step and even if A and construction with modern fittings in the suit property and they succeed in prolonging the litigation due to handing over of the possession of the suit property by the their money power, ultimately they must suffer Seller on 20th September, 2005. The Purchaser has made the costs of all these years long litigation. Despite false statements on oath before the learned Trial Court and A settled legal positions, the obvious wrong doers, this is a fit case to direct the prosecution of the Purchaser. use one after another tier of judicial review B However, considering that the Courts are already over- mechanism as a gamble, knowing fully well that burdened, directing prosecution of the Purchaser would dice is always loaded in their favour, since even further burden the system. I feel that such litigating parties if they lose, the time gained is the real gain. This B should be burdened with heavy cost to be paid to the State situation must be redeemed by the Courts.” which spends money on providing the judicial infrastructure. C (Para 10) (Emphasis supplied) [An Ba] 10.3 I agree with the findings by the learned Judge in C Padmawati’s case (supra) and wish to add a few words. APPEARANCES: There is another feature which has been observed and it is D FOR THE APPELLANT : Ms. Manasi Sahoo, Advocate. of unscrupulous persons filing false claims or defences with a view that the other person would get tired and would then FOR THE RESPONDENT : Mr. Partap Singh, Advocates. D agree to compromise with him by giving up some right or CASES REFERRED TO: paying some money. If the other party is not able to 1. Dalip Singh vs. State of U.P., (2010) 2 SCC 114. continue contesting the case or the Court by reason of E falsehood falls into an error, the wrong succeeds. Many 2. Padmawati and Ors. vs. Harijan Sewak Sangh, 154 (2008) times, the other party compromises, or at other times, he E DLT 411. may continue to fight it out. But as far as the party in the RESULT: Appeals dismissed. wrong is concerned, as this Court noted in Padmawati’s case (supra), even if these litigants ultimately lose the lis, F J.R. MIDHA, J. they become the real victors and have the last laugh. F 1. Vide sale agreement dated 20th September, 2005, Rajinder Prashad 10.4 In the present case, the conduct of the Purchaser does Rathi as attorney of Seetha Lath (hereinafter referred to as ‘the Seller’) not appear to be honest. The Purchaser has raised a agreed to sell the first floor without terrace rights of property bearing dishonest plea with the hope that the Purchaser can, with G No.6549, Ward No.XVI, plot No.172, measuring about 1125 sq.ft. covered the Court delays, drag the case for years and the other side G area, Khasra No.453/152 in Block 9-B, Gali No.1-2, Dev Nagar, Karol would succumb to buy peace. If the other side does not so Bagh, New Delhi (hereinafter referred to as ‘the suit property’) to settle in the end, they are hardly compensated and remains Parmanand Kansotia (hereinafter referred to as ‘the Purchaser’) for a a loser. The Purchaser has set up a false, frivolous and total sale consideration of Rs. 15,65,000/-. The Purchaser paid a sum of H dishonest plea of an oral agreement to spend unspecified Rs. 3,00,000/- to the Seller at the time of the sale agreement and agreed amount on the renovation, furnishing, decoration and H to pay the balance sale consideration on or before 21st November, 2005. construction with modern fittings of the suit property, claim 2. On 2nd November, 2006, the Purchaser instituted a suit for of ‘4,00,000/- towards the renovation, furnishing, decoration specific performance, permanent injunction and recovery bearing Suit I I Parmanand Kansotia v. Seetha Lath & Anr. (J.R. Midha, J.) 497 498 Indian Law Reports (Delhi) ILR (2012) IV Delhi

No.182/2006 against the Seller on the following averments:- A with police on 30th October, 2006. A (i) At the time of the execution of the sale agreement dated (ix) The Purchaser is ready and willing to make the payment 20th September, 2005, the suit property was not complete, of Rs. 6,65,000/- towards the balance sale consideration. furnished, decorated and renovated and it was agreed that 3. The Seller raised the following defence in his written statement:- the Purchaser shall spend his own funds for renovation, B furnishing, decoration and construction with modern B 3.1 The Purchaser committed the breach of the sale agreement fittings and shall deduct/adjust the said amount from the dated 20th September, 2005 by failing to make the payment of balance sale consideration. sale consideration of Rs. 12,65,000/- on or before 21st November, 2005 and, therefore, the earnest money of Rs. 3,00,000/- has been forfeited (ii) The Seller handed over the vacant and peaceful possession C by the Seller. of the suit property to the Purchaser at the time of the C sale agreement on 20th September, 2005 with liberty to 3.2 The Purchaser has encroached upon the suit property. The renovate, furnish, decorate and construct with modern Seller came to know of the encroachment on 17th March, 2006 at about fittings. 2:30pm whereupon he lodged a complaint with the police on 22nd July, D (iii) The Purchaser spent a sum of ‘4,00,000/- towards the 2006 in respect of which DD No.15B was recorded on 4th August, renovation, furnishing, decoration and construction with D 2006. modern fittings and adjusted the said amount against the 3.3 There was no agreement for renovation, furnishing, decoration sale consideration. (iv) In the middle week of November, and construction with modern fittings in the suit property between the E 2005, the Purchaser approached the Seller to execute the parties. sale deed and receive the balance sale consideration of Rs. 8,65,000/- but the Seller sought time to execute the sale E 3.4 The Seller never agreed for any amount to be spent by the deed. Despite repeated requests and reminders, the Seller Purchaser for renovation, furnishing, decoration and construction with did not execute the sale deed in favour of the Purchaser. F modern fittings by the Purchaser or for deduction/adjustment of the (v) In February, 2006, the Purchaser made cash payment same from the sale consideration. of Rs. 2,00,000/- to the Seller for which Purchaser did F 3.5 The Seller had agreed to hand over the vacant and peaceful not issue a receipt. possession of the suit property at the time of the payment of the balance (vi) In June, 2006, the Purchaser again approached the Seller G sale consideration of Rs. 12,65,000/-. for execution of the sale deed against the payment of However, the Purchaser who got the sale agreement typed, balance sale consideration of Rs. 6,65,000/-. dishonestly mentioned ‘at the time of execution of sale agreement’ instead (vii) On 2nd July, 2006, the Seller visited the Purchaser and G of ‘at the time of execution of sale deed and payment of balance amount demanded further payment of Rs. 2,00,000/-. The H of Rs. 12,65,000/-’ in clause 2 of the agreement. Purchaser again offered to pay the balance sale consideration of Rs. 6,65,000/-. However, the Seller 3.6 The Purchaser was never ready to make the payment of balance threatened the Purchaser with dire consequences. sale consideration of Rs. 12,65,000/-. The Seller denied the receipt of H cash amount of Rs. 2,00,000/- from the Purchaser in February, 2006. (viii) On 29th October, 2006, the Seller again visited the Purchaser and threatened his wife and minor child to I 4. On 5th December, 2006, the Seller instituted Suit No.219/2006 vacate the suit property. The Purchaser made a complaint for possession, mesne profits, permanent and mandatory injunction seeking

I Rs.5.00 lakhs

Parmanand Kansotia v. Seetha Lath & Anr. (J.R. Midha, J.) 499 500 Indian Law Reports (Delhi) ILR (2012) IV Delhi possession of the suit property, mesne profits at the rate of Rs. 12,000/ A property. She could not tell, if the Purchaser appeared before the Office - per month as well as permanent injunction on the ground that the of the Sub-Registrar on 21st November, 2005. She could not tell if the Purchaser has trespassed into the suit property which came to the demand drafts for the balance consideration amount were purchased knowledge of the Seller on 17th March, 2006 at about 2:30 pm. The from any bank by the Purchaser. She could not tell anything about the A Seller lodged a written complaint with the police on 22nd July, 2006. repairs of the suit property and whether expenses incurred for the same, According to the Seller, the Purchaser has committed the breach of the B were mentioned in the sale agreement. She testified that Rs. 2,00,000/- sale agreement dated 20th September, 2005 by failing to make the payment was paid in cash to the Seller in her presence but admitted that no receipt of balance sale consideration of Rs. 12,65,000/- on or before 21st was issued/given by him. November, 2005. The submissions made by the Seller in the plaint are B 5.3 PW-2, in cross-examination, stated that he did not remember as same as set up in the written statement in Suit No.182/2006 whereas the C to who else had signed the sale agreement as witness. He testified that defence set up by the Purchaser in this suit is same as the case set up besides him and his brother, two other persons, namely, Seller and his in Suit No.182/2006. father, Nand Lal Rathi were present. He further testified that the key was 5. Evidence in Suit No.182/2006 C handed over for carrying out the necessary repairs in the suit property as the same was not fit for habitation. He admitted that this fact was not 5.1 The Purchaser examined two witnesses. Shashi Bali, mother-in- D mentioned in the sale agreement. He testified that the key was handed to law of the Purchaser appeared in the witness box as PW-1 and Rohtas the Purchaser in good faith and that this fact was not mentioned in the Kumar Kansotia, the brother of the Purchaser appeared as PW-2. They sale agreement. He also admitted that it was not mentioned in the sale both deposed about the sale agreement dated 20th September, 2005 and D agreement that the amount to be spent on renovation would be adjusted payment of Rs. 3,00,000/- at the time of the sale agreement to the against the amount of sale consideration. He could not tell when the sum Purchaser. They deposed that the Seller handed over the keys of the suit E of Rs. 2,00,000/- was given to the Seller. He admitted that there was no property to the Purchaser at the time of the sale agreement in their receipt regarding the payment of Rs. 2,00,000/- in cash. He testified that presence. They deposed that the building was old and without any fixtures E he could not say as to what rent the suit property can fetch in the and fittings, electricity connection and sanitary fittings and it was agreed market. between the parties to deduct the cost of renovation from the balance sale consideration. They deposed that Rs. 3,00,000/- was paid by the F 5.4 The Seller, Rajinder Prashad Rathi appeared in the witness box Purchaser to the Seller on 31st May, 2007. They also deposed that the as DW-1 and deposed that he as a special attorney of Seetha Lath agreed F Purchaser has spent Rs. 4,00,000/- towards renovation of electrical and to sell the suit property to the Purchaser for a total sale consideration of sanitary fittings and has given cash amount of Rs. 2,00,000/- to the ‘15,65,000/- vide sale agreement dated 20th September, 2005, Ex.DW1/ Seller in June/July, 2006 in their presence. The witnesses exhibited the 2. The site plan was proved as Ex.DW1/3. DW-1 admitted the payment G affidavits as Ex.PW1 and Ex.PW1/A, photographs as Ex.PW1/B to of Rs. 3,00,000/- at the time of the sale agreement. The last date for Ex.PW1/E and bills towards cost of renovation as Ex.PW1/F to Ex.PW1/ G payment of balance sale consideration of Rs. 12,65,000/- was on or S which were objected to by the Seller. before 21st November, 2005 as per the agreement. The Purchaser failed to make the payment of balance sale consideration of ‘12,65,000/- on or 5.2 PW-1, in cross-examination, could not tell the name of the before 21st November, 2005 and, therefore, the earnest money of Rs. photographer and the date when the photographs, Ex.PW1/B to Ex.PW1/ H 3,00,000/- stood forfeited. DW-1 visited the suit property on 17th March, E were taken. PW-1 could not tell the date of sale agreement. PW-1 did H 2006 at about 2:30 pm and found that the lock of the outside gate was not visit the suit property prior to 20th September, 2005. She could not broken and the Purchaser was residing there. DW-1 lodged a written tell the amount paid by the Purchaser to the Seller on 20th September, complaint with the police on 22nd July, 2006 which was converted into 2005. She did not remember when the Purchaser had shifted to the suit I I Parmanand Kansotia v. Seetha Lath & Anr. (J.R. Midha, J.) 501 502 Indian Law Reports (Delhi) ILR (2012) IV Delhi FIR No.101/2007 under Sections 454/448/380/506 IPC, P.S. Prasad Nagar, A suit for possession, mesne profits, permanent and mandatory injunction. marked as Ex.DW1/4, against the Purchaser. The Purchaser filed A The findings of the learned Trial Court are as under:- application for anticipatory bail before the learned District and Sessions 7.1 The Purchaser has committed the breach of the sale agreement Judge and agreed to make payment of Rs. 6,65,000/- without prejudice dated 20th September, 2005 by failing to make the payment of balance to his rights out of which he paid Rs. 3,00,000/- on 31st May, 2007. The B sale consideration of Rs. 12,65,000/- on or before 21st November, 2006 balance amount of Rs. 3,65,000/- was agreed to be paid on 16th July, and, therefore, the Seller has rightly forfeited the earnest money of Rs. 2007 but was not paid. The copy of the orders dated 16th May, 2007, B 3,00,000/- in terms of clause 9 of the sale agreement. 31st May, 2007 and 8th August, 2007 were proved as Ex.DW1/5 to Ex.DW1/7. The power of attorney dated 8th December, 2004 and 4th 7.2 The Purchaser has failed to prove the condition of the suit January, 2007 were proved as Ex.DW1/8 and Ex.DW1/9. C property at the time of the sale agreement. The Purchaser himself did not appear in the witness box. His mother-in-law, Shashi Bali appeared as 5.5 DW-1, in cross-examination, stated that he did not receive any C PW-1 in Suit No.182/2006 and admitted that she had never visited the amount in cash after execution of the sale agreement. DW-1 stated that suit property prior to 20th September, 2005 and she could not be aware he never handed over the key of the suit property to the Purchaser. DW- of its real condition at the time of the sale agreement. She could not tell 1 stated that he had shown the suit property to the Purchaser before D when the Purchaser shifted to the suit property or visited the office of execution of the sale agreement. DW-1 denied that he had asked the Sub-Registrar for execution of the agreement. The Purchaser’s brother Purchaser to renovate the suit property. DW-1, however, admitted the D Rohtas Kumar Kansotia appeared as PW-2 in Suit No.182/2006 and receipt of Rs. 3,00,000/- at the time of execution of sale agreement and deposed that the keys of the suit property were handed over in good faith further sum of Rs. 3,00,000/- by the order of Sessions Court. E and the condition of the suit property was seen after the execution of the 6. Evidence in Suit No.219/2006 sale agreement. He, however admitted that the sale agreement was silent E about the alleged expenditure required to be incurred on the renovation 6.1. The Seller, Rajinder Prashad Rathi appeared in the witness box of the suit property and could not tell if the same was subject to adjustment as PW-1 and made the same statement as made by him in Suit No.182/ against the sale consideration amount. 2006 as DW-1 and proved on the documents Ex.DW1/1 to Ex.DW1/9 F in Suit No.182/2006 as Ex.PW1/1 to Ex.PW1/9. 7.3 The Purchaser was not entitled to deduct any amount towards the renovation, furnishing, decoration and construction in the suit property 6.2 Head Constable, Vikas Kumar, P.S. Rajinder Nagar appeared as F from the sale consideration as there was no clause in the sale agreement PW-2 and proved the FIR No.101/2007 under Sections 454/448/380/506 G dated 20th September, 2005 that the Purchaser shall be entitled to carry IPC dated 22nd February, 2007 against the Purchaser. out renovation, furnishing, decoration and construction in the suit property 6.3 The Purchaser examined two witnesses, Shashi Bali, mother-in- and to adjust the same from the sale consideration. The Purchaser has law of the Purchaser as DW-1 and Rohtas Kumar Kansotia, brother of G failed to prove any agreement with the Seller in this regard. The Purchaser Purchaser as DW-2 and they both made the same statement as made in has also failed to prove that he has incurred Rs. 4,00,000/- towards Suit No.182/2006 as PW-1 and PW-2 and they relied on the documents H renovation, furnishing, decoration and construction in the suit property. Ex.PW1 and Ex.PW1/A to Ex.PW1/S in Suit No.182/2006. 7.4 The Purchaser failed to prove the payment of Rs. 2,00,000/- in 7. Findings of the learned Trial Court in Suits No.182/2006 and H cash to the Seller in February, 2006. 192/2006 I 7.5 The Purchaser failed to prove that the keys of the suit property The learned Trial Court dismissed the Purchaser’s suit for specific were handed over by the Seller to him at the time of execution of the performance, permanent injunction and recovery and decreed the Seller’s sale agreement dated 20th September, 2005. I Parmanand Kansotia v. Seetha Lath & Anr. (J.R. Midha, J.) 503 504 Indian Law Reports (Delhi) ILR (2012) IV Delhi 7.6 The possession of the Purchaser over the suit property was A 9. Findings held to be illegal. 9.1 The Purchaser has committed the breach of the sale agreement 7.7 The Purchaser was not entitled to a decree of specific dated 20th September, 2005 by failing to make the payment of balance performance, permanent injunction as well as recovery of money. A sale consideration of Rs. 12,65,000/- to the Seller on or before the 21st November, 2005 in terms of clause 9 of the sale agreement and, therefore, 7.8 The Seller was entitled to possession, permanent injunction as B the Seller has rightly forfeited the earnest money in terms of the clause well as mesne profits @ Rs. 8,000/- per month with effect from 17th 9 and is entitled to the possession of the suit property from the Seller. March, 2006. B 9.2 The Purchaser was admittedly never ready and willing to pay 8. Grounds Rs. 2,65,000/- to the Seller. The Purchaser’s own case is that he was C The Purchaser has urged following grounds at the time of hearing ready and willing to pay Rs. 6,65,000/- after adjusting Rs. 4,00,000/- of both the appeals:- towards the cost of renovation, furnishing and decoration and cash C payment of Rs. 2,00,000/- alleged to have been made in February, 2006. 8.1 The Purchaser is entitled to decree of specific performance because the Purchaser has made the payment of earnest money of Rs. 9.3 The Purchaser has failed to prove the cash payment of Rs. 3,00,000/- to the Seller on 20th September, 2005; cash amount of Rs. D 2,00,000/- in February, 2006 to the Seller. 2,00,000/- in February, 2006; lawfully adjusted the expenditure of Rs. 9.4 The Purchaser has failed to prove that the possession of the 4,00,000/- on renovation, furnishing, decoration and construction; and D suit property was handed over by the Seller to him on 20th September, was always ready and willing to make the payment of balance sale 2005. Although the sale agreement dated 20th September, 2005 records consideration of Rs. 6,65,000/- to the Seller. A further sum of Rs. E that the Seller shall handover the vacant and peaceful possession of the 3,00,000/- out of Rs. 6,65,000/- has been paid to the Seller at the time suit property to the Purchaser at the time of the sale agreement but the of seeking the anticipatory bail from the Session Court and the Purchaser factum of actual handing over of the physical possession of the suit is ready to make the payment of balance sale consideration of Rs. 3,35,000/ E property has not been proved by the Purchaser. The Purchaser is, - to the Seller. therefore, in unlawful possession of the suit property since 17th March, 8.2 The Seller committed breach of the agreement dated 20th F 2006 and is liable to pay mesne profits from the said date. September, 2005 by failing to receive the balance sale consideration of F 9.5 There was no agreement between the parties for renovation, Rs. 3,35,000/-. furnishing, decoration and construction with modern fittings in the suit 8.3 At the time of execution of the sale agreement dated 20th property by the Purchaser and for adjustment of the amount from the September, 2005, the Seller had agreed that the Purchaser shall be entitled G sale consideration and, therefore, the Purchaser is not entitled to adjust to adjust the amount incurred on renovation, furnishing, decoration and G Rs. 4,00,000/- towards the alleged cost of renovation, furnishing, construction with modern fittings from the sale agreement. decoration and construction. There was no such clause in the sale agreement dated 20th September, 2005. No oral agreement in this regard 8.4 The Purchaser is in lawful possession of the suit property since has been proved by the Purchaser. 20th September, 2005 when the Seller handed over the vacant and peaceful H possession of the suit property to the Purchaser. 9.6 The Purchaser’s contention that at the time of the sale agreement H dated 20th September, 2005, there was an oral agreement that the 8.5 The Seller, Rajender Prasad Rathi had a limited Power of Attorney Purchaser shall spend an unspecified amount for renovation, furnishing, and could not execute the sale deed in favour of the Purchaser. decoration and construction with modern fittings and shall deduct/adjust I I Parmanand Kansotia v. Seetha Lath & Anr. (J.R. Midha, J.) 505 506 Indian Law Reports (Delhi) ILR (2012) IV Delhi the same from the sale consideration is barred by Section 29 of the A and peaceful possession of the suit property to the Purchaser at a time Indian Contract Act. Section 29 of the Indian Contract Act declares all A of receiving the balance sale consideration and not before that. However, uncertain contracts to be void. The reason is obvious. What if the in exceptional cases, the possession is handed over where substantial Purchaser would have claimed to have spent the entire balance sale payment has been made and there are special circumstances to secure consideration on renovation and sought the adjustment or would have B the balance sale consideration such as relationship between the parties. spent more than a balance sale consideration and made a claim against There are no special circumstances in the present case. It is improbable the Seller. Section 29 of the Indian Contract Act is reproduced B that the Seller would have authorized the Purchaser to carry out renovation, hereinbelow:- furnishing, decoration and construction in the suit property without even specifying the amount. “29. Agreements void for uncertainty- Agreements, the C meaning of which is not certain, or capable of being made certain, 9.10 The Purchaser’s contention that the Seller had limited Power are void.” C of Attorney was not raised before the Trial Court and no evidence was led with respect thereof. The Purchaser cannot raise a new and 9.7 The Purchaser’s contention that at the time of the sale agreement contradictory plea for the first time in appeal. The Purchaser entered into dated 20th September, 2005, there was an oral agreement that the D the sale agreement with the Seller and sought specific performance against Purchaser shall spend an unspecified amount for renovation, furnishing, him. The Purchaser is estopped from disputing the authority of the Seller decoration and construction with modern fittings and shall deduct/adjust D to sell the suit property. the same from the sale consideration is also barred by Sections 91 and 92 of the Indian Evidence Act as the terms of the sale agreement between 10. Conduct of the Purchaser the parties have been reduced into writing on 20th September, 2005 and E 10.1 In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the evidence of any oral agreement for the purpose of contradicting, varying, Supreme Court noted as under:- adding and subtracting to its terms is barred by Sections 91 and 92 of E the Indian Evidence Act. “1. For many centuries, Indian society cherished two basic values of life i.e. ‘Satya’ (truth) and ‘Ahimsa’ (non-violence). Mahavir, 9.8 This is a fit case for application of Section 114 of the Indian F Gautam Buddha and Mahatma Gandhi guided the people to ingrain Evidence Act, which provides guidance for drawing natural presumptions. these values in their daily life. Truth constituted an integral part Section 114 of the Indian Evidence Act enables the Judge to infer one F of the justice-delivery system which was in vogue in pre- fact from existence of another proved fact having regard to the common Independence era and the people used to feel proud to tell truth course of natural events or human conduct. This section provides a G in the courts irrespective of the consequences. However, post- guiding principle, namely that the Court shall be guided by its own Independence period has seen drastic changes in our value system. experience and knowledge of the common course of natural events, and The materialism has over-shadowed the old ethos and the quest public and private affairs. Section 114 of the Indian Evidence Act is G for personal gain has become so intense that those involved in reproduced hereinbelow:- H litigation do not hesitate to take shelter of falsehood, “114. Court may presume existence of certain facts - The misrepresentation and suppression of facts in the court Court may presume the existence of any fact which it thinks proceedings. In the last 40 years, a new creed of litigants has likely to have happened, regard being had to the common course H cropped up. Those who belong to this creed do not have any of natural events, human conduct and public and private business, respect for truth. They shamelessly resort to falsehood and I in their relation to the facts of the particular case.” unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, 9.9 In natural course of events, the Seller hands over the vacant I Parmanand Kansotia v. Seetha Lath & Anr. (J.R. Midha, J.) 507 508 Indian Law Reports (Delhi) ILR (2012) IV Delhi from time to time, evolved new rules and it is now well established A all those years. Thus, it becomes the duty of the Courts to that a litigant, who attempts to pollute the stream of justice or see that such wrong doers are discouraged at every step and who touches the pure fountain of justice with tainted hands, is even if they succeed in prolonging the litigation due to their not entitled to any relief, interim or final.” money power, ultimately they must suffer the costs of all A these years long litigation. Despite settled legal positions, 10.2 In Padmawati and Ors. v. Harijan Sewak Sangh, 154 (2008) B the obvious wrong doers, use one after another tier of judicial DLT 411, this Court noted as under: review mechanism as a gamble, knowing fully well that dice “6. The case at hand shows that frivolous defences and frivolous is always loaded in their favour, since even if they lose, the litigation is a calculated venture involving no risks situation. You B time gained is the real gain. This situation must be redeemed have only to engage professionals to prolong the litigation so as by the Courts.” C to deprive the rights of a person and enjoy the fruits of illegalities. (Emphasis supplied) I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has C 10.3 I agree with the findings by the learned Judge in Padmawati’s perpetuated an illegal possession, the Court must impose costs case (supra) and wish to add a few words. There is another feature on such litigants which should be equal to the benefits derived D which has been observed and it is of unscrupulous persons filing false by the litigant and harm and deprivation suffered by the rightful claims or defences with a view that the other person would get tired and person so as to check the frivolous litigation and prevent the would then agree to compromise with him by giving up some right or people from reaping a rich harvest of illegal acts through the D paying some money. If the other party is not able to continue contesting Courts. One of the aim of every judicial system has to be to the case or the Court by reason of falsehood falls into an error, the discourage unjust enrichment using Courts as a tool. The costs E wrong succeeds. Many times, the other party compromises, or at other imposed by the Courts must in all cases should be the real costs times, he may continue to fight it out. But as far as the party in the equal to deprivation suffered by the rightful person.” E wrong is concerned, as this Court noted in Padmawati’s case (supra), even if these litigants ultimately lose the lis, they become the real victors “9. Before parting with this case, I consider it necessary to and have the last laugh. pen down that one of the reasons for over-flowing of court F dockets is the frivolous litigation in which the Courts are 10.4 In the present case, the conduct of the Purchaser does not engaged by the litigants and which is dragged as long as F appear to be honest. The Purchaser has raised a dishonest plea with the possible. Even if these litigants ultimately loose the lis, hope that the Purchaser can, with the Court delays, drag the case for they become the real victors and have the last laugh. This years and the other side would succumb to buy peace. If the other side class of people who perpetuate illegal acts by obtaining stays G does not so settle in the end, they are hardly compensated and remains and injunctions from the Courts must be made to pay the G a loser. The Purchaser has set up a false, frivolous and dishonest plea sufferer not only the entire illegal gains made by them as of an oral agreement to spend unspecified amount on the renovation, costs to the person deprived of his right and also must be furnishing, decoration and construction with modern fittings of the suit burdened with exemplary costs. Faith of people in judiciary property, claim of ‘4,00,000/- towards the renovation, furnishing, can only be sustained if the persons on the right side of the H decoration and construction with modern fittings in the suit property and law do not feel that even if they keep fighting for justice in H handing over of the possession of the suit property by the Seller on 20th the Court and ultimately win, they would turn out to be a September, 2005. The Purchaser has made false statements on oath fool since winning a case after 20 or 30 years would make before the learned Trial Court and this is a fit case to direct the prosecution wrong doer as real gainer, who had reaped the benefits for of the Purchaser. However, considering that the Courts are already over- I I Kanhaiya Paswan v. State (M.L. Mehta, J.) 509 510 Indian Law Reports (Delhi) ILR (2012) IV Delhi burdened, directing prosecution of the Purchaser would further burden A place/locality/village not linked with the Complaint the system. I feel that such litigating parties should be burdened with A through kingship, business, commercial or any other heavy cost to be paid to the State which spends money on providing the vested interest—Public view means presence of one judicial infrastructure. or more persons who are neutral or impartial, even though he may be known to the complainant to attract 11. Conclusion B ingredients of offence. Petition dismissed. B 11.1. In the facts and circumstances of this case, both the appeals are dismissed with exemplary cost of ‘2,00,000/- on the Purchaser. The This Court in Daya Bhatnagar and Ors. Vs. State 109 cost shall be deposited by the Purchaser in the account of Delhi High (2004) DLT 905 held that the accused must have knowledge Court Legal Services Committee within two weeks. C or awareness that the victim belongs to Scheduled Caste or Scheduled Tribe community and if an accused does not 11.2. A copy of this judgment would be sent to the Secretary, Delhi C know that the person whom he is insulting, intimidating or High Court Legal Services Committee for his information and follow up humiliating is a member of a Scheduled Caste or Scheduled action to recover the cost imposed if not paid as afore-directed. Tribe, no offence under the section would be constituted. It D was also held that the expression ‘public view’ in section 3(1) (x) of the Act implied within view of a group of people D of the place/locality/village not linked with the complainant ILR (2012) IV DELHI 509 through any kinship, business, commercial or any other CRL. M.C E vested interest, and who are not participating members with him in any way. This High Court interpreted the expression E ‘public view’ in section 3(1)(x) of the Act as the presence of KANHAIYA PASWAN ….PETITIONER one or more persons who are neutral or impartial even though he may be known to the complainant to attract the F VERSUS ingredients of this offence. The offending expressions, STATE & ORS. ….RESPONDENTS therefore, should be uttered by the persons accused, in F view of others unconnected with the complainant. (M.L. MEHTA, J.) (Para 5) G CRL. M.C. NO. : 224/2012 & DATE OF DECISION: 20.01.2012 [An Ba] CRL. M.A. NO. : 821/2012 APPEARANCES: G FOR THE PETITIONER : Mr. Sunil Mehta. Advocate. Schedule Cast & Schedule Tribes (Prevention of H FOR THE RESPONDENT : Mr. M.N. Dudeja, APP. Atrocities) Act, 1989—Section 3(1) (X)—Petition Against non framing of charges by the L.d ASJ—Accused must CASE REFERRED TO: have knowledge or awareness that the victim belongs H 1. Daya Bhatnagar and Ors. vs. State 109 (2004) DLT 905. to Scheduled Caste or Scheduled Tribe in order to constitution offence under S. 3.(1)(x) ‘Public view’ in I RESULT: Petition dismissed. S.3(1)(x) implied within view of group of people of the

I Kanhaiya Paswan v. State (M.L. Mehta, J.) 511 512 Indian Law Reports (Delhi) ILR (2012) IV Delhi M.L. MEHTA, J. (Oral) A the accused persons. The learned ASJ records that in the entire complaint it was nowhere even whispered by the complainant that Nand Kishore or 1. The present petition is against the order dated 16.11.2011 of the any other public person was also present there on 14.07.2010. The Ld learned ASJ in SC No. 06/2011, CC No. 590/2011, P.S. Inder puri ASJ further records that a perusal of the said complaints would reveal whereby the learned ASJ was pleased to give a finding that prima facie A that the complainant did not aver even once therein that any of the no offence under section 3(1)(X) SC & ST (Prevention of Atrocities) B accused persons had uttered any caste related remark with intent to Act, 1989 (hereinafter referred to as ‘the Act’) was made out against the insult, intimidate or humiliate the complainant or his wife at the time of accused persons. alleged assault. Likewise in the statement of injured Bhagwanti Devi, 2. Brief facts necessitating the present petition are that a complaint B recorded by the police in the presence of the complainant on the date of under section 3(1)(X) SC & ST Act was filed by one Kanhaiya Pawan incident, it was nowhere alleged by the victim that the accused persons C against the accused persons alleging that on 14.07.2010 at about 4.00 pm had made any caste based remarks intending to humiliate or threaten her when his wife Shrimati Bhagwanti was alone in the house, the accused on that day. Similarly, in the complaints to the police made by the persons entered his house, assaulted his wife and damaged the movables C complainant, Kanhaiya Paswan, it is nowhere mentioned that the incident lying in the house. At that time, the accused persons also passed caste was witnessed by G.S. Pandey and Nand Kishore or any other public based derogatory remarks against Smt. Bhagwanti, a member of Scheduled D person. Caste in order to insult, intimidate and humiliate her. The incident was 5. This Court in Daya Bhatnagar and Ors. Vs. State 109 (2004) allegedly witnessed by one G.S. Pandey, a friend of the complainant and DLT 905 held that the accused must have knowledge or awareness that by Nand Kishore, the neighbour of the complainant. No action was taken D the victim belongs to Scheduled Caste or Scheduled Tribe community by the police despite various written complaints given by the complainant. and if an accused does not know that the person whom he is insulting, Consequent to the statement of the complainant, victim and other witnesses E intimidating or humiliating is a member of a Scheduled Caste or Scheduled recorded in the Court towards pre-summoning evidence, the accused Tribe, no offence under the section would be constituted. It was also persons were ordered to be summoned under section 3(X) of the Act E held that the expression ‘public view’ in section 3(1) (x) of the Act and under Section 323/341 read with section 34 IPC. Aggrieved with the implied within view of a group of people of the place/locality/village not said order, the accused persons preferred a revision petition. In the mean linked with the complainant through any kinship, business, commercial time the complaint case on compliance of section 207 Cr.P.C. was F or any other vested interest, and who are not participating members with committed to Sessions Court and learned ASJ passed the impugned order. F him in any way. This High Court interpreted the expression ‘public view’ Aggrieved with the said order, the petitioner/complainant has invoked the in section 3(1)(x) of the Act as the presence of one or more persons jurisdiction of this Court. who are neutral or impartial even though he may be known to the 3. The learned counsel for the petitioner urged that the Ld ASJ had G complainant to attract the ingredients of this offence. The offending erred in not framing charge under section 3(1)(x) of the Act against the G expressions, therefore, should be uttered by the persons accused, in view accused persons as prima facie case was made out against the accused of others unconnected with the complainant. persons. 6. After a perusal of the complaint and considering the findings of 4. The learned ASJ on consideration of the evidence available on H the learned ASJ, I do not find any illegality or infirmity in the impugned record has given a finding of fact that there is not a whisper of any caste order dated 16/11/2011 of the Ld ASJ and hence the present petition is H related remarks in the entire evidence of the complaint and hence no dismissed. prima facie case under section 3(1) (x) of the Act is made out against

I I Gulshan Rai v. Samrendra Bose Secy (Indermeet Kaur, J.) 513 514 Indian Law Reports (Delhi) ILR (2012) IV Delhi

ILR (2012) IV DELHI 513 A set aside—Eviction petition decreed. RC. REV A Contention of the landlord specifically in the eviction petition is to the effect that after he gets the tenanted portion GULSHAN RAI ….PETITIONER vacated and after taking necessary permission from the B Department, he will get the unauthorized constructions (raised VERSUS B by the tenant) removed and thereafter after obtaining SAMRENDRA BOSE SECY & ANR. ….RESPONDENTS necessary permissions will expand his business of the guest house which he is admittedly carrying out from a portion of (INDERMEET KAUR, J.) C the first floor. This is an inter se arrangement between the owner/landlord and the MCD/Government Body, the tenant R.C. REV. NO. : 100/2011 DATE OF DECISION: 23.01.2012 C cannot raise an issue that merely because the property AND CM NO. : 6814/2011 owned by the landlord is a heritage property he cannot run a guest house. If such an argument raised by the tenant is D Delhi Rent Control Act, 1958—S.14(1)(e)—Bonafide accepted then this would mean that in all such cases where necessity—Petitioner owner/landlord let out portion D the owner/landlord owns a heritage building he would never of first floor to the respondent—In remaining portions be able to get his property vacated only for the reason that guest house run by landlord—Stated in eviction it has a heritage status. This is definitely not the import of petition that he needs more space for expansion of E the Building Bye-laws which have been relied upon by the business for bonafide need—Application for leave to Trial Court holding that triable issues have arisen. Triable defend filed by tenant—Contested that premises was E issues have to be gathered from the pleadings of the parties property and house run by landlord was without which include the application for leave to defend, reply to permission—Building by laws prohibited the landlord F the said application as also the averments made in the from changing nature of heritage site—Landlord let eviction petition. As matter of routine leave to defend cannot out huge place on the ground floor to wine shop— be granted; if the defence raised is moonshine, sham, and Leave to defend granted since the property was F illusory, the leave to defend has to be refused; otherwise heritage property and guest house cannot be run the whole purpose and purport of the summary procedure G without permission which raises triable issue—Held— as prescribed under section 25B of the DRCA would be Tenant has no locus-standi to challenge the illegality defeated. In cases where no traible issue has been raised, of the landlord in running a guest house in a portion the application for leave to defend has to be declined. The G immediately adjacent to Bengali Club, the tenanted only triable issue raised by the tenant is that since it is a heritage property, a guest house cannot be run; admittedly, portion—The building bylaws do not prohibit such H activities—Leave to defend cannot be granted as a a guest house is being run from a portion of the said matter of routine. If defence raised is moonshine, property; this has not been disputed by the tenant in his application for leave to defend; it is for the landlord to take sham and illusioary—Leave to defend has to be H refused—Landlord best judge of his requirement—It the necessary permissions from the Heritage Zone of the is not open to tenant or court to dictate to the landlord I MCD to extend his business of guest house to the disputed the manner or the style in which he must live—Order portion; nothing prevents him from adding more rooms to his

I Gulshan Rai v. Samrendra Bose Secy (Indermeet Kaur, J.) 515 516 Indian Law Reports (Delhi) ILR (2012) IV Delhi

already existing guest house; this he can do only after gets A contention in the eviction petition is that he needs more space for the an eviction order. (Para 9) expansion of his business of a guest house which is being run only from a part portion of the first floor; for his bonafide need, an eviction petition The Apex Court has time and again reiterated that the under Section 14(1)(e) of the DRCA was accordingly filed. landlord is the best judge of his requirement; it is not open A to the tenant or to the court to dictate to the landlord the B 3. The averments made in the eviction petition have been perused. manner or the style in which he must live. (Para 10) They disclose that what has been let out to the tenant is a portion as depicted in red colour; contention of the petitioner is that the tin shed Important Issue Involved: (i) Tenant or the Court cannot B which was in occupation of the tenant has been converted into the pacca dictate the landlord the manner or the style in which he masonary room as identified by the letters A and B in the site plan. The must live. C premises in occupation of the landlord on the first floor has been depicted in green colour; he has admittedly been running his business of guest house from the said premises; he wants more space for the expansion [Gu Si] C of his business of guest house; further contention being that after obtaining APPEARANCES: necessary permission he will remove the unauthorized construction on D FOR THE PETITIONER : Ms. Geeta Mehrotra and Mr. Rahul the second floor (as depicted in letters A and B in the site plan); thereafter Tomar, Advocate. he will use this first floor for the expanded portion of his guest house; his bonafide need has been established. FOR THE RESPONDENT : Mr. H.C. Kapur, Advocate. D 4. The application for leave to defend filed by the tenant has been CASES REFERRED TO: E perused. The contention is that the respondent is a Begali Club which 1. Sudesh Kumar Soni & anr. vs. Prabha Khanna & Anr.,153 was founded in the year 1925 which has rich heritage values; it is the (2008) Delhi Law Times 652. E life and soul of the Bengali Community in Delhi; it is located at a historical 2. Sait Nagjee Purushotham & Co. Ltd. vs. Vimalabai site which is the present premises; further contention being that the Municipal Corporation of Delhi has to conserve and preserve the heritage Prabhulal and Others, (2005) 8 Supreme Court Cases F 252. value of the premises; premises occupied by the tenant is a heritage F property; in fact a Committee had been constituted by the MCD wherein RESULT: Petition Allowed. the premises have been ascribed the status of a heritage property. Landlord INDERMEET KAUR, J. (Oral) is merely harassing the tenant; the Building Bye-laws (specially Clause 23.1.1 (a) & (C) of the Building Bye-Laws for the Union Territory of G 1. The order impugned before this court is the order dated Delhi 1983 of the MCD) mandate that heritage buildings shall be conserved 26.02.2011 wherein the application seeking leave to defend filed by the G and preserved; further contention being that a guest house is being run tenant in a pending eviction petition under Section 14(1) (e) of the Delhi by the landlord without obtaining the necessary permissions; he has no Rent Control Act (DRCA) had been granted. sanction; building bye-laws prohibits the landlord from changing the 2. Record shows that the petitioner is the owner/landlord of the H nature of a heritage site; in these circumstances, the bonafide need of the landlord is not made out; a guest house cannot be run from the said property bearing Municipal Nos. 1418-1421 and 1424-1427, Nicholson H Road, Kashmere Gate, Delhi; a portion of the first floor has been tenanted premises; even otherwise the need of expanding his business of Guest out to the respondent i.e. Bengali Club; admittedly, remaining portion of House is not a bonafide need. All these raise triable issues. Further the first floor is a Guest House which is being run by the landlord; his contention is that the landlord has recently let out a huge place on the I I Gulshan Rai v. Samrendra Bose Secy (Indermeet Kaur, J.) 517 518 Indian Law Reports (Delhi) ILR (2012) IV Delhi ground floor to a wine shop which again reveals that landlord does not A the portion immediately adjacent to the Bengali Club. The tenant has also bonafidely require the said premises; his need is malafide. A not disputed the specific averment made by the landlord that the portions shown as letters A and B in the site plan were actually tin sheds and 5. Reply filed by the landlord to the corresponding paras of the where he has now been made an unauthorized construction. Submission leave to defend has also been perused; his contention is that there is no of the landlord is that after obtaining the possession of the disputed doubt that the property has been accorded a heritage status meaning B portion he will take the necessary permissions and after removing the thereby that the property has to be conserved and preserved as per the B unauthorized construction, he will expand his business of the guest house mandate of the bye-laws of the MCD; further contention being that since from the disputed portion. The building Bye-laws for the Union Territories admittedly the petitioner is carrying on his business of guest house from of Delhi, 1983 have also been perused. They do not prohibit such an a part portion of this premises; after the premises which are presently in C activity. Clause 23.1, 23.2 and 23.9 are relevant. A heritage building is occupation of the tenant are vacated, he will conserve and preserve the required to be conserved and preserved; this is the responsibility of the heritage status of the suit property for which nothing in writing has to C owner of the heritage building; if the owner agrees to maintain the be given. Attention has been drawn to the concerned bye-laws of the heritage building in its existing state and to preserve its heritage status MCD to support this submission. with due repairs and gives a written undertaking to that effect, he may D 6. The impugned order has granted leave to defend to the tenant; then be allowed, with the approval of the Heritage Conservation Committee this is largely on the finding arrived at in the impugned order that since D to carry out commercial use/office/hotels even from a non-commercial this property has a heritage status, a guest house cannot be run from area. This is specifically stated in clause 23.9; this is an incentive use of there without any permission and no licence or written permission has a heritage building. been filed on record by the landlord showing this fact that he has the E 9. Contention of the landlord specifically in the eviction petition is necessary permission to run such a guest house from the said building. to the effect that after he gets the tenanted portion vacated and after This raises a triable issue. E taking necessary permission from the Department, he will get the 7. This court is of the view that the Trial Court has not adverted unauthorized constructions (raised by the tenant) removed and thereafter to the pleadings in the correct perspective; contention raised by the F after obtaining necessary permissions will expand his business of the tenant as a triable issue was that a guest house cannot be run without guest house which he is admittedly carrying out from a portion of the legal sanction; his contention was not that a guest house was not being F first floor. This is an inter se arrangement between the owner/landlord run; admittedly a Guest House is being run from a part portion of the and the MCD/Government Body, the tenant cannot raise an issue that first floor of the disputed premises. Tenant has contended that such a G merely because the property owned by the landlord is a heritage property Guest House is without a licence from the MCD for which he shall be he cannot run a guest house. If such an argument raised by the tenant taking appropriate proceedings before the concerned authorities. is accepted then this would mean that in all such cases where the owner/ G landlord owns a heritage building he would never be able to get his 8. The tenant has nowhere disputed the ownership/landlordship of property vacated only for the reason that it has a heritage status. This the respondent; his only submission being that since the ‘Bengali Club’ H is definitely not the import of the Building Bye-laws which have been has a heritage status, no guest house without necessary sanction can be relied upon by the Trial Court holding that triable issues have arisen. run from the said building. Record shows that it is an admitted fact that Triable issues have to be gathered from the pleadings of the parties a guest house is being run from a part portion of the disputed premises; H which include the application for leave to defend, reply to the said whether it is legal or illegal is a matter inter se between the landlord and I application as also the averments made in the eviction petition. As matter the MCD; the tenant has no locus standi to challenge this illegality of his of routine leave to defend cannot be granted; if the defence raised is running a guest house which is admittedly being run by the landlord from moonshine, sham, and illusory, the leave to defend has to be refused; I Gulshan Rai v. Samrendra Bose Secy (Indermeet Kaur, J.) 519 520 Indian Law Reports (Delhi) ILR (2012) IV Delhi otherwise the whole purpose and purport of the summary procedure as A eviction was that in the petition the landlord had alleged that he prescribed under section 25B of the DRCA would be defeated. In cases required the premises for his son Giriraj who wanted to do where no traible issue has been raised, the application for leave to defend footwear business in the premises in question. The High Court has to be declined. The only triable issue raised by the tenant is that since has held that since Giriraj has no experience in the footwear A it is a heritage property, a guest house cannot be run; admittedly, a guest business and was only helping his father in the cloth business, house is being run from a portion of the said property; this has not been B hence there was no bonafide need. We are of the opinion that a disputed by the tenant in his application for leave to defend; it is for the person can start a new business even if he has no experience in landlord to take the necessary permissions from the Heritage Zone of the the new business. That does not mean that his claim for starting MCD to extend his business of guest house to the disputed portion; B the new business must be rejected on the ground that it is a false nothing prevents him from adding more rooms to his already existing claim. Many people start new businesses even if they do not C guest house; this he can do only after gets an eviction order. have experience in the new business, and sometimes they are successful in the new business also.” 10. The Apex Court has time and again reiterated that the landlord is the best judge of his requirement; it is not open to the tenant or to the C 13. Impugned order granting leave to defend in this scenario suffers court to dictate to the landlord the manner or the style in which he must from an illegality. It is accordingly set aside. Eviction petition is decreed. live. D 11. In Sudesh Kumar Soni & anr. Vs. Prabha Khanna & Anr.,153 (2008) Delhi Law Times 652, the Court observed as under:- D ILR (2012) IV DELHI 520 “It is not for tenant to dictate terms to landlord as to how else E MAC APP he can adjust himself without getting possession of tenanted premises-suitability has to be seen for convenience of landlord E and his family members and on the basis of circumstances NEELAM PRASHAR & ORS. ….APPELLANTS including their profession, vocation, style of living, habit and VERSUS background.” F 12. In Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai MINTOO THAKUR & ORS. ….RESPONDENTS F Prabhulal and Others, (2005) 8 Supreme Court Cases 252; the Court (G.P. MITTAL, J.) observed as under: “It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of G MAC APP. NO. : 179/2010 DATE OF DECISION: 23.01.2012 business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. G It is not the tenant who can dictate the terms to the landlord and advise Motor Vehicle Act, 1988—By these two cross Appeals, him what he should do and what he should not. It is always the privilege the parties impugn the judgment dated 19.01.2010 whereby a compensation of Rs. 1,03,68,744/- was of the landlord to choose the nature of the business and the place of H business.” 13 In 2009(2) RCR 455 titled as Ram Babu Agarwal vs. Jay awarded for the death of Atul Prashar, aged 37 years, H kishan Das, the Apex Court observed as under:- who died in a motor accident, which took place on 18.01.2008, The MAC APP. No. 179/2010 has been filed “However, as regards the question of bonafide need, we find by the legal representatives of the deceased i.e that the main ground for rejecting the landlord’s petition for I Neelam Prashar and others (hereinafter referred to as I Neelam Prashar v. Mintoo Thakur (G.P. Mittal, J.) 521 522 Indian Law Reports (Delhi) ILR (2012) IV Delhi the “Claimants”) whereas MAC. APP. No. 313/2010 has A dependency, the amount paid to the deceased by his been preferred by the National Insurance Co. Ltd. A employer by way of perks should be included in the (hereinafter referred to as “insurer”) disputing the monthly income—The Tribunal fell into error in ignoring negligence on the part of the driver of Maruti Esteem this amount of Rs. 1,250/- deduction towards income bearing Registration No. DL-2CAC-5813 and reduction B tax is liable to be made as the net income of the of the amount of compensation awarded by the Motor deceased is the starting point for calculation of loss B Accident Claims Tribunal (the Tribunal)—It is urged for of dependency. the Insurer that in order to prove negligence the Claimants examined PW- Dushyant Vasudev and PW-4 Important Issue Involved: (A) It is well settled that in a C Ashish Aggarwal. The accident took place at about claim petition negligence is required to be proved only on 6.30 AM. Both PW-2 & PW-4 were working in separate C the test of preponderance of probabilities. offices (though in the same vicinity) & their office would start at 9/ 9.30 AM. Thus, their presence at the (B) It is well settled that for determination of loss of time of the accident was highly improbable. If the D testimony of these two witnesses is taken off the dependency, he amount paid to the deceased by his employer record, there is nothing to establish the negligence D by way of perks should be included in the monthly income. on the part of the driver of Maruti Esteem Car No.DL- 2CAC-5813. It is well settled that in a claim petition [Ch Sh] negligence is required to be proved only on the test E APPEARANCES: of preponderance of probabilities, The FIR in this case was registered on the basis of the statement of E FOR THE APPELLANT : Mr. S.N. Prashar, Advocate. PW-2. The offending vehicle was seized from the spot. FOR THE RESPONDENTS : Mr. Joy Basu, Advocates for R-1 to The driver of the Esteem car No. DL. 2CAC-5813 was F R-3 not produced by the Insurer to rebut the testimony of PW-2 and PW-4-Pw-2 gave an explanation that he was CASES REFERRED TO: F called in the office because some guests were 1. National Insurance Co. Ltd. vs. Saroj & Ors., (2009) 13 scheduled to come. In the absence of examination of G SCC 508]. the driver to rebut PW-2 and PW-4’s testimonies, their 2. Sarla Verma vs. DTC, (2009) 6 SCC 121. presence at the spot at the time of accident cannot be 3. National Insurance Co. Ltd. vs. Indira Srivastava, I (2008) doubted merely on the assumption that they could not G have proceeded for the office early and that too, in ACC 162 (SC). the same vehicle. On the test of preponderance of H 4. United India Insurance Co. Ltd. etc. vs. Patricia Jean probabilities, PW-2 and PW-4’s testimonies that, the Mahajan & Ors., (2002) 6 SCC 281. accident was caused on account of rash and negligent 5. UP State Road Transport Corporation vs. Trilok Chandra driving by the driver of Car No. DL 2CAC 5813, has to H & Ors., (1996) 4 SCC 362. be accepted. It is held that the finding of fact reached I by the Tribunal on this count cannot be faulted—It is 6. Kerala State Road Transport Corporation vs. Susamma well settled that for determination of loss of Thomas, (1994) 2 SCC 176.

I Neelam Prashar v. Mintoo Thakur (G.P. Mittal, J.) 523 524 Indian Law Reports (Delhi) ILR (2012) IV Delhi RESULT: Deposed of. A the finding of fact reached by the Tribunal on this count cannot be faulted. G.P. MITTAL, J. QUANTUM OF COMPENSATION: - 1. By these two Cross Appeals, the parties impugn the judgment A dated 19.01.2010 whereby a compensation of Rs. 1,03,68,744/- was 3. For the purpose of loss of dependency the Tribunal took the awarded for the death of Atul Prashar aged 37 years, who died in a B deceased’s income to be Rs. 78,477/- after deducting the conveyance motor accident, which took place on 18.01.2008. The MAC. APP. No.179/ allowance of Rs. 800/- per month and medical pay of Rs. 1,250/- per 2010 has been filed by the legal representatives of the deceased i.e. month. It is urged by the learned counsel for the Claimants that the Neelam Prashar and others (hereinafter referred to as the “Claimants”) B medical pay was for the benefit of the deceased and his family members whereas MAC. APP. No.313/2010 has been preferred by the National and should have been taken into consideration as part of the salary. It is C Insurance Co. Ltd. (hereinafter referred to as “insurer”) disputing the submitted that the multiplier of ‘13’ selected by the Tribunal as against negligence on the part of the driver of Maruti Esteem bearing Registration ‘15’ suggested in Sarla Verma v. DTC, (2009) 6 SCC 121 is on the No.DL-2CAC-5813 and for reduction of the amount of compensation C lower side. The compensation towards loss of love and affection of Rs. awarded by the Motor Accident Claims Tribunal (the Tribunal). 10,000/- is also very low and needs enhancement. NEGLIGENCE: - D 4. Per contra learned counsel for the Insurer submits that a deduction of Rs. 4,484/- on account of payment towards provident fund should 2. It is urged by the learned counsel for the Insurer that in order have been made by the Tribunal as the said money did not come in to prove negligence the Claimants examined PW-2 Dushyant Vasudev D deceased’s hand to be spent on the family. and PW-4 Ashish Aggarwal. The accident took place at about 6:30 AM. Both PW-2 & PW-4 were working in separate offices (though in the E 5. It is contended that in high income bracket when the multiplicand same vicinity) & their offices would start at 9/ 9:30 AM. Thus, their is high a lower multiplier can be selected to award just compensation. presence at the time of the accident was highly improbable. If the testimony E Reliance is placed on United India Insurance Co. Ltd. etc. v. Patricia of these two witnesses is taken off the record there is nothing to establish Jean Mahajan & Ors., (2002) 6 SCC 281. the negligence on the part of the driver of Maruti Esteem Car No.DL- 6. It is well settled that for determination of loss of dependency, 2CAC-5813. It is well settled that in a claim petition negligence is required F the amount paid to the deceased by his employer by way of perks should to be proved only on the test of preponderance of probabilities. The FIR F be included in the monthly income [National Insurance Co. Ltd. v. in this case was registered on the basis of the statement of PW-2. The Indira Srivastava, I (2008) ACC 162 (SC); National Insurance Co. offending vehicle was seized from the spot. The driver of the Esteem Car Ltd. v. Saroj & Ors., (2009) 13 SCC 508]. The deduction of Rs. 4,484/ No.DL-2CAC-5813 was not produced by the Insurer to rebut the testimony G - as shown in the salary slip Ex. PW-1/2 was for the future benefit of of PW-2 and PW-4. PW-2 gave an explanation that he was called early the family as this amount along with interest was payable to the deceased. in the office because some guests were scheduled to come. In the G Similarly, medical pay of Rs. 1,250/- was also given for taking case of absence of examination of the driver to rebut PW-2 and PW-4’s the medical needs of the deceased and his family members. The Tribunal testimonies their presence at the spot at the time of accident cannot be fell into error in ignoring this amount of Rs. 1,250/-, of course, deduction doubted merely on the assumption that they could not have proceeded H towards income tax is liable to be made as the net income of the deceased for the office early and that too in the same vehicle. In my view, on the H is the starting point for calculation of loss of dependency. test of preponderance of probabilities, PW-2 and PW-4’s testimonies that, the accident was caused on account of rash and negligent driving 7. The deceased was working as a Senior Project Leader with M/ by the driver of Car No.DL-2CAC-5813 has to be accepted. I hold that s. Saksoft Ltd. He was a young person of 37 years and being in permanent I I Neelam Prashar v. Mintoo Thakur (G.P. Mittal, J.) 525 526 Indian Law Reports (Delhi) ILR (2012) IV Delhi employment had good future prospects. The Tribunal did not commit A deduct one-third of the gross income towards the personal living any error in adding 50% of the deceased’s income towards his future A expenses and treat the balance as the amount likely to have been prospects. spent on the members of the family and the dependents. This loss of dependency should capitalize with the appropriate 8. As far as selection of multiplier is concerned at the age of 37 multiplier. In the present case we can take about Rs. 1400 per years the appropriate multiplier would be ‘15’ whereas the Tribunal took B month or Rs. 17,000 per year as the loss of dependency and if the multiplier of ‘13’. The learned counsel for the Insurer tried to justify B capitalized on a multiplier of 12, which is appropriate to the age the lower multiplier on the ground that in case of higher multiplicand a of the deceased, the compensation would work out to (Rs. 17,000 lower multiplier can be selected. In the case of Patricia Jeam Mahajan x 12 = Rs. 2,03,000) to which is added the usual award for loss (supra) the learned Single Judge applied the multiplier of ‘10’, which was C of consortium and loss of the estate each in the conventional increased to ‘13’ on the basis of the judgment in Kerala State Road sum of Rs. 15,000. Transport Corporation v. Susamma Thomas, (1994) 2 SCC 176 and C UP State Road Transport Corporation v. Trilok Chandra & Ors., 20. We think, in all, a sum of Rs. 2,25,000 should be a fair, just (1996) 4 SCC 362 decided by a Division Bench of this Court. The and reasonable award in the circumstances of this case. The Supreme Court reduced the multiplier to ‘10’. In para 19 and 20 of the D claim made for loss of future earnings of Rs. 50,000 on the report it was observed as under: - prospects of future employment in USA was rightly negative by D the Tribunal. The award under this head is clearly unjustified in “19. In the present case the deceased was 39 years of age. His the facts of the case.” income was Rs. 1032 per month. Of course, the future prospects of advancement in life and career should also be sounded in E 9. It is important to note that in Patricia Jean Mahajan (supra) the terms of money to augment the multiplicand. While the chance dependents were parents aged 69/ 73 years and two daughters aged 17 of the multiplier is determined by two factors, namely, the rate E and 19 years. The parents were residents of India whereas the daughters of interest appropriate to a stable economy and the age of the were residents of USA. The compensation on the multiplier of ‘10’ came deceased or of the claimant whichever is higher, the ascertainment F to be Rs. 10,38,00,000/-. In the case in hand the deceased left behind of the multiplicand is a more difficult exercise. Indeed, many a minor son apart from a widow and the aged parents. The compensation factors have to be put into the scales to evaluate the contingencies awarded in this case was just above Rs. 1,00,00,000/-, which cannot be of the future. All contingencies of the future need not necessarily F said to be astronomical. In the circumstances, there is no justification to be baneful. The deceased person in this case had a more or less apply a lower multiplier than the one suggested in Sarla Verma (supra). G stable job. It will not be inappropriate to take a reasonably liberal 10. If the deceased’s father is not considered as a dependant because view of the prospects of the future and in estimating the gross there is no evidence on this aspect; the loss of dependency comes to Rs. income it will be unreasonable to estimate the loss of dependency G 80,527 – 800 + 50% x 12 – 3,79,524/- (income tax) – 1/3rd x 15 = Rs. on the present actual income of Rs. 1032 per month. We think, 1,05,55,620/-. having regard to the prospects of advancement in the future H career, respecting which there is evidence on record, we will not 11. Thus, it may be noticed that there is marginal difference in the be in error in making a higher estimate of monthly income at Rs. amount of compensation of Rs. 1,03,38,744/- awarded by the Tribunal 2000 as the gross income. From this has to be deducted his H and the compensation of Rs. 1,05,55,620/-, which comes on the application personal living expenses, the quantum of which again depends of multiplier of ‘15’. The compensation awarded by the Tribunal, therefore, I on various factors such as whether the style of living was Spartan is just and reasonable and does not call for any interference. or bohemian. In the absence of evidence it is not unusual to 12. Both the appeals are thus devoid of any merit, the same are I Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar Chaudhary (Rajiv Sahai Endlaw, J.) 527 528 Indian Law Reports (Delhi) ILR (2012) IV Delhi accordingly dismissed. No costs. A petitioner had deposed that she was in U.K. from 1993 to 1999. She has not even whispered, alleged or made out any case of any of the grounds for the foreign judgment of dissolution of her marriage with the A respondent being not conclusive. For the said foreign ILR (2012) IV DELHI 527 B judgment to be not conclusive, the petitioner was CRL. M.C required to make out a case of the same being either pronounced by a Court having no jurisdiction and /or B MEENA CHAUDHARY @ MEENA P.N. SINGH ….PETITIONER having been not given on the merits of the case or being founded on an incorrect view of international C VERSUS law or the proceedings resulting therein being opposed to natural justice or having been obtained by BASANT KUMAR CHAUDHARY & ORS. ….RESPONDENTS C fraud or sustaining a claim founded on a breach of any (A.K. SIKRI, CJ. & RAJIV SAHAI ENDLAW, J.) law in force in India. Moreover, all the grounds D specified in section 13 of the CPC and on establishment CRL M.C. NO. : 3845/2010 DATE OF DECISION: 25.01.2012 whereof a foreign judgment can be said to be not conclusive are such which can be set up only by a D Constitution of India, 1950—Article 227—Civil party not himself/herself/itself approaching the foreign Procedure Code, 1908—Section 13—Criminal Procedure Court. Here the petitioner who is challenging the Code, 1973—Section 200, 482—Indian Penal Code, E judgment, was at the relevant time resident for a fairly 1860—Section 120-B 494A, 498A—Petition against order long time within jurisdiction of the foreign Court, did of MM dismissing the complaint of the Petitioner— E not approach the foreign court under the dictates of Petitioner after obtaining decree of divorce from the respondent and made out a case before the foreign Court of obtaining the judgment-Petition foreign Court and after the subsequent marriage of F the Respondent, filed criminal complaint of bigamy dismissed. and cruelty against the Respondent alleging that foreign F We may also notice that under Section 13 of CPC a foreign decree of divorce was an invalid decree—Held:- under judgment is conclusive as to any matter thereby directly Section 13 of CPC, a foreign judgment is conclusive adjudicated upon between the same parties except in cases as to any matter thereby directly adjudicated upon G specified thereunder. However the right if any to contend between the same parties except in cases specified G that the said foreign judgment is not conclusive can be only thereunder. However, the right if any, to contend that of the party who had himself / herself / itself not initiated the the said foreign judgment is not conclusive can be process of obtaining the said judgment and cannot be of a only of the party who had himself/herself/itself not party at whose instance such foreign judgment has been initiated the process of obtaining the said judgment H obtained. No litigant can be allowed to abuse the process of and cannot be of a party at whose instance such H the Courts or to approbate and reprobate as per convenience. foreign judgment has been obtained No. litigant can Mention at this stage may also be made of the finding be allowed to abuse the process of the Courts or to recorded by the learned Metropolitan Magistrate and not approbate and reprobate as per convenience. The disputed before us that the petitioner in the disputes with I I Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar Chaudhary (Rajiv Sahai Endlaw, J.) 529 530 Indian Law Reports (Delhi) ILR (2012) IV Delhi her siblings before another Indian Court sought to justify her A of the foreign Court is not in accordance with the provisions claim by contending herself to be a divorcee by virtue of the A of the Matrimonial Law of the parties, to be valid and the said foreign judgment. (Para 5) judgment of such foreign Court to be conclusive. We, therefore, do not find any merit in this petition. Thus, whichever way we may look, we cannot find any error in the order of dismissal of the complaint aforesaid. We had B (Para 6) also called for the records of the Court of the Metropolitan B [An Ba] Magistrate and have perused the pre-summoning evidence led by the petitioner. The petitioner had deposed that she APPEARANCES: was in U.K. from 1993 to 1999. She has not even whispered, C FOR THE PETITIONER : None alleged or made out any case of any of the grounds for the FOR THE RESPONDENT : Mr. Atul Jha, Advocate foreign judgment of dissolution of her marriage with the C respondent being not conclusive. For the said foreign CASES REFERRED TO: judgment to be not conclusive, the petitioner was required to 1. Ms. Dorothy Thomas vs. Rex Arul MANU/TN/2876/2011. make out a case of the same being either pronounced by a D Court having no jurisdiction and / or having been not given 2. Y. Narasimha Rao vs. Y. Venkata Lakshmi (1991) 3 SCC D on the merits of the case or being founded on an incorrect 451. view of international law or the proceedings resulting therein 3. Smt. Satya vs. Shri Teja Singh (1975) 1 SCC 120. being opposed to natural justice or having been obtained by E 4. Asanalli Nagoor Meera vs. K.M. Madhu Meera MANU/ fraud or sustaining a claim founded on a breach of any law TN/0707/1925. in force in India. Moreover all the grounds specified in E Section 13 of the CPC and on establishment whereof a RESULT: Petition dismissed. foreign judgment can be said to be not conclusive are such F RAJIV SAHAI ENDLAW, J. which can be set up only by a party not himself/herself/itself approaching the foreign Court. The judgments cited by the 1. This petition has been preferred under Article 227 of the petitioner cannot be read as laying down and indeed do not F Constitution of India read with Section 482 of the Criminal Procedure lay down any absolute principle that a marriage under the Code (Cr.P.C.) impugning the order dated 26.08.2010 of the learned Hindu Marriage Act, 1955 cannot be dissolved by a foreign G Metropolitan Magistrate dismissing the complaint under Section 200 of Court. Here the petitioner who is challenging the judgment the Cr.P.C. filed by the petitioner of offence under Section 120-B read was at the relevant time resident for a fairly long time within with Section 494 and Section 498A of the Indian Penal Code (IPC). This the jurisdiction of the foreign Court, did not approach the G petition was listed before the learned Single Judge on 10.12.2010 when foreign Court under the dictates of the respondent and the petitioner appearing in person sought adjournment. The petitioner had made out a case before the foreign Court for obtaining the H also filed LPA No.64/2009 and contempt case No.C-386/2010. The judgment. Indeed in Y. Narasimha Rao (supra) itself the petitioner on 03.05.2011, while appearing before the Division Bench in Supreme Court held matrimonial action filed in the forum LPA No.64/2009 sought consolidation of the contempt petition as well H where the wife is domiciled or habitually and permanently this petition with the LPA and the matter was accordingly placed before resides or where the wife voluntarily and effectively submits I Hon’ble the Chief Justice who vide order dated 22.05.2011 directed that to the foreign jurisdiction or where the wife consents to the the contempt petition as well as this petition be placed before the same grant of the relief by the foreign Court although the jurisdiction I Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar Chaudhary (Rajiv Sahai Endlaw, J.) 531 532 Indian Law Reports (Delhi) ILR (2012) IV Delhi Division Bench before which the LPA was pending. It is for this reason A said to exist in this scenario. Rather the said foreign decree was at the that the matter is before us. We may also notice that though the LPA and sole initiative of the petitioner with the respondent having no role in the the contempt petition have since been disposed of but the petitioner same and having not even contested the same. The question which arises appearing in person stated that rather than sending back this petition to is, can the petitioner, who by obtaining the said decree led the respondent A the learned Single Judge, we only should hear the same. In view of the to believe that his marriage with the petitioner stood dissolved and that said request and for the reason that by doing so, the petitioner is not B he was free to remarry, can now be permitted to challenge the foreign being deprived of any remedy had the matter been considered by the decree obtained herself and charge the respondent with the offence of learned Single Judge, we proceeded to hear the petitioner. The petitioner bigamy. In our opinion, no and the complaint has been rightly dismissed sought and was granted liberty to file written arguments which have also B by the learned Metropolitan Magistrate. As far back as in Asanalli Nagoor been filed. Meera Vs. K.M. Madhu Meera MANU/TN/0707/1925, a division bench C of the Madras High Court held that a litigant cannot be allowed to deny 2. The learned Metropolitan Magistrate after recording the statements the jurisdiction which he himself invoked. The same principle was recently of the petitioner and her witnesses held no case for summoning of the applied by a Single Judge of the same Court in Ms. Dorothy Thomas accused / respondent to have been made out for the reason of the C Vs. Rex Arul MANU/TN/2876/2011 in near similar facts. petitioner herself having obtained decree of dissolution of her marriage with the respondent from the Court in U.K. and the respondent having D 5. We may also notice that under Section 13 of CPC a foreign so ceased to be the husband of the petitioner there being no question of judgment is conclusive as to any matter thereby directly adjudicated upon his being guilty of the offence of bigamy under Section 494 of the IPC D between the same parties except in cases specified thereunder. However or of causing cruelty to the petitioner as wife under Section 498-A of the the right if any to contend that the said foreign judgment is not conclusive IPC. Qua the offence under Section 498-A of the IPC, reliance was also can be only of the party who had himself / herself / itself not initiated E placed on the status report submitted by the police and on the petitioner the process of obtaining the said judgment and cannot be of a party at having failed to make out any case of cruelty. whose instance such foreign judgment has been obtained. No litigant can E be allowed to abuse the process of the Courts or to approbate and 3. The argument of the petitioner before us, orally as well as in reprobate as per convenience. Mention at this stage may also be made writing, is that the divorce decree obtained by her in U.K. being not a of the finding recorded by the learned Metropolitan Magistrate and not valid decree and hence not bringing to an end the relationship of husband F disputed before us that the petitioner in the disputes with her siblings and wife between the petitioner and the respondent. Reliance in this F before another Indian Court sought to justify her claim by contending regard is placed on Smt. Satya Vs. Shri Teja Singh (1975) 1 SCC 120 herself to be a divorcee by virtue of the said foreign judgment. and on Y. Narasimha Rao Vs. Y. Venkata Lakshmi (1991) 3 SCC 451. The Supreme Court in both Smt. Satya and Y. Narasimha Rao 6. Thus, whichever way we may look, we cannot find any error G (supra) was faced with a situation of the husband setting up a decree of in the order of dismissal of the complaint aforesaid. We had also called a foreign Court of dissolution of marriage as a defence to the claim / G for the records of the Court of the Metropolitan Magistrate and have charge of the wife in the Indian Courts for maintenance or of bigamy. perused the pre-summoning evidence led by the petitioner. The petitioner In both cases, the husband was found to have obtained the decree of had deposed that she was in U.K. from 1993 to 1999. She has not even foreign Court fraudulently. H whispered, alleged or made out any case of any of the grounds for the foreign judgment of dissolution of her marriage with the respondent 4. The situation here is however converse. It is the petitioner herself H being not conclusive. For the said foreign judgment to be not conclusive, who had obtained the decree from the foreign Court of dissolution of the petitioner was required to make out a case of the same being either marriage and who now wants our Courts to ignore the same. Obviously, pronounced by a Court having no jurisdiction and / or having been not no case of the foreign decree having been obtained fraudulently can be I I Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar Chaudhary (Rajiv Sahai Endlaw, J.) 533 534 Indian Law Reports (Delhi) ILR (2012) IV Delhi given on the merits of the case or being founded on an incorrect view A ILR (2012) IV DELHI 534 of international law or the proceedings resulting therein being opposed to A FAO (OS) natural justice or having been obtained by fraud or sustaining a claim founded on a breach of any law in force in India. Moreover all the JUGAN K. MEHTA ….APPELLANT grounds specified in Section 13 of the CPC and on establishment whereof B a foreign judgment can be said to be not conclusive are such which can VERSUS B be set up only by a party not himself/herself/itself approaching the foreign SHAM SUNDER GULATI & ORS. ….RESPONDENTS Court. The judgments cited by the petitioner cannot be read as laying down and indeed do not lay down any absolute principle that a marriage (SANJAY KISHAN KAUL & RAJIV SHAKDHER, JJ.) under the Hindu Marriage Act, 1955 cannot be dissolved by a foreign C FAO (OS) NO. : 249/2004 DATE OF DECISION: 30.01.2012 Court. Here the petitioner who is challenging the judgment was at the C relevant time resident for a fairly long time within the jurisdiction of the foreign Court, did not approach the foreign Court under the dictates of Code of Civil Procedure, 1908—Order XXXIX Rule 2A the respondent and made out a case before the foreign Court for obtaining D read with Section 151—Suit for partition and rendition the judgment. Indeed in Y. Narasimha Rao (supra) itself the Supreme of accounts by appellant against her siblings qua Court held matrimonial action filed in the forum where the wife is domiciled D estate of her deceased father—Appellant claimed that or habitually and permanently resides or where the wife voluntarily and as per the wishes of her father, soon after her effectively submits to the foreign jurisdiction or where the wife consents marriage, she came in occupation and possession of E to the grant of the relief by the foreign Court although the jurisdiction of the subject property—Appellant claims to have used the foreign Court is not in accordance with the provisions of the the said portion as the residence till year 1974— Matrimonial Law of the parties, to be valid and the judgment of such E Defendants struck a deal of settlement between foreign Court to be conclusive. We, therefore, do not find any merit in themselves—In terms of this arrangement, the parties this petition. F shifted in different portions of the property and leased 7. Before parting with the case, we may observe that though the out the entire basement for commercial use—The order of the Metropolitan Magistrate of dismissal of complaint is under F original defendants No. 1 to 5 are alleged to be in Section 203 of the Cr.P.C. and is challengeable by way of Revision possession and control of the entire estate except Petition under Section 397 read with Section 401 of the Cr.P.C. but since G the portion of the property in occupation of the the matter had remained pending before this Court, though in the appellant—Alleged that defendants No. 1 to 6 were circumstances aforesaid for considerable time, we did not deem it threatening to sell the entire property to defendant appropriate to reject this petition on the said ground. The petition is G no.7, in order to pocket the consideration including accordingly dismissed. No order as to costs. the share of the appellant—In this background, H partition is sought of the immovable property and rendition of accounts of the business apart from recovery of rent realized from the immovable H property—Along with the suit, an application under I Order XXXIX Rule 1 and 2 for interim relief filed seeking a restraint against the defendants from creating charge or transferring, selling or alienating

I Jugan K. Mehta v.Sham Sunder Gulati & Ors. (Sanjay Kishan Kaul, J.) 535 536 Indian Law Reports (Delhi) ILR (2012) IV Delhi

the aforesaid immovable property and from A High Court in Rajinder Kaur vs. Sukhbir Singh, 2002 dispossessing the appellant from the portion in her Civil CC 125 MANU/PH/1830/2001 has held that there is possession on the first floor, apart from a restraint no limitation whatsoever in the aforesaid Rule as to the nature of the order passed under this Rule—Thus, against removing the account books from the business A premises—Summons were issued in the suit as also a restrictive meaning cannot be given that an appeal B notice in the application on 02.04.2002 and ad interim would not lie if the application is dismissed—On the ex-parte orders were granted to the appellant— other hand, learned Single Judge of the Gauhati High Application under Order XXXIX Rule 2A read with Court in Shri Banamali Dey vs. Shri Satyendra Chanda B section 151 of the Code filed by the Plaintiff alleging & Ors. (1990) 2GLR 408=MANU/GH/0164/1990 has concluded that an order refusing to take action under that there has been violation of the status quo Order C dated 02.04.2002—Respondents denied commission Rule 2A on the ground that there was no disobedience of any contempt stating that the ex-parte Order granted or breach of injunction cannot be said to be an order on 02.04.2002 simply required the parties to maintain C under Rule 2A and—Thus, no appeal would be status quo qua the possession and title of the said maintainable against such an order under clause (r) of property and further restrained alienation, transfer or D Rule of Order XLIII of the said Code—Division Bench creating third party interest—In view of the Sale Deed, of this Court in The Bombay Metal Works (P) Ltd. Vs. possession is stated to have already been passed on Tara Singh & Ors., ILR (2006) I DELHI Has held that to the original defendant No. 7—There was, thus, no D appeal would be maintainable from an order dismissing restrain order against the demolition of certain walls, the application under Order XXXIX Rule 2A of the said which was carried out—This argument found favour E Code—Aforesaid two Judgments have not been with learned Singe Judge, who dismissed the contempt discussed in this cases and the perspective expressed petition—Hence:- Present appeal—Held:- Defendant E by the Gauhati High Court has also not been should have moved the Court for varying the examined—The application filed in The Bombay Metal construction even though there was a restrictive Works (P) Ltd. case (supra) was actually under Sections injunction order—However, any additional relief qua F 2(a), 11 and 12 of the Contempt of Courts Act, 1971 and the learned Single Judge absolved the these aspects was not granted to the appellant— F Defendant is not guilty of willfully violating the interim respondents from notice of contempt—An appeal was orders passed by this Court and the interest of the filed under Section 19 of the Contempt of Courts Act, which was pleaded to be by the respondents as not appellant are protected—Though styled as CCP as G CCP (OS), the petition is under Order XXXIX Rule 2A maintainable in view of the settled legal position— read with Section 151 of the said Code and even the G Appellants pleaded that the contempt application filed prayers are made accordingly—No dispute as to the for disobedience of the interim orders purported to maintainability of the appeal from an order dismissing have been filed was actually under Order XXXIX Rule an application under Order XXXIX Rule 2A of the said H 2A of the Code and a wrong provision was cited—The appeal was, thus, treated as FAO (OS) and while Code in view of the provisions of Order XLIII Rule 1 of H the said Code-However, on examination of this matter, discussing this aspect, it was observed that the appeal there appears to be a conflict of view qua this issue— would be maintainable—It is not appropriate to in A learned Single Judge of the Punjab and Haryana interfere with the dismissal order of that application I I Jugan K. Mehta v.Sham Sunder Gulati & Ors. (Sanjay Kishan Kaul, J.) 537 538 Indian Law Reports (Delhi) ILR (2012) IV Delhi for the reason recorded aforesaid and the rights and A [Sa Gh] obligations of the parties would be determined in the A APPEARANCES: suit, which has unfortunately taken large number of years—The appeal is accordingly dismissed leaving FOR THE APPELLANT : Mr. S.P. Kalra, Sr. Adv, with Ms. Kirti K. Mehta, Advocate. the parties to bear their own costs. B We find that there is something to be said about the view of B FOR THE RESPONDENTS : Mr. Sanjeev Sidhwani & Ms. Ekta the Gauhati High Court, but then a Division Bench of this Kalra, Advs, for Respondent Nos. 1 Court in The Bombay Metal Works (P) Ltd. v. Tara Singh to 3. None for R-4 & Ors., ILR (2006) I Delhi 840 has held that appeal would C CASES REFERRED TO: be maintainable from an order dismissing the application 1. The Bombay Metal Works (P) Ltd. vs. Tara Singh & under Order XXXIX Rule 2A of the said Code. We may notice C Ors., ILR (2006) I Delhi 840. that the aforesaid two judgments (of the Gauhati High Court and the Punjab and Haryana High Court) have not been 2. Midnapore Peoples. Coop. Bank Ltd. & Ors. vs. Chunilal discussed in this case and the perspective expressed by the D Nanda & Ors., (2006) 5 SCC 399. Gauhati High Court has also not been examined. The D 3. Rajinder Kaur vs. Sukhbir Singh, 2002 Civil CC 125 = application filed in The Bombay Metal Works (P) Ltd.’s MANU/PH/1830/2001. case (supra) was actually under Sections 2(a), 11 and 12 of 4. Satyabrata Biswas & Ors. vs. Kalyan Kumar Kisku & the Contempt of Courts Act, 1971 and the learned Single E Ors., AIR 1994 SC 1837. Judge absolved the respondents from notice of contempt. 5. Shri Banamali Dey vs. Shri Satyendra Chanda & Ors., An appeal was filed under Section 19 of the Contempt of E Courts Act, which was pleaded to be by the respondents as (1990) 2 GLR 408 = MANU/GH/0164/1990. not maintainable in view of the settled legal position. The 6. Bharat Coking Coal Ltd. vs. State of Bihar, 1987 Supp F appellants pleaded that the contempt application filed for SCC 394 at 398 : (AIR 1988 SC 127 at p. 129 para 5). disobedience of the interim orders purported to have been 7. Baradakanta Mishra vs. Mr. Justice Gatikrushna Misra, filed was actually under Order XXXIX Rule 2A of the said F Chief Justice of the Orissa High Court, (1975) 3 SCC Code and a wrong provision was cited. The appeal was, 535. thus, treated as FAO (OS) and while discussing this aspect, G it was observed that the appeal would be maintainable. RESULT: Appeal dismissed. (Para 17) SANJAY KISHAN KAUL, J. G Important Issue Involved: No contravention of a status 1. The appellant filed a suit, being CS (OS) No.736/2002, for H quo order result if the same restrained only further alienation partition and rendition of accounts against her siblings / their legal heirs of property if the alleged violation is regarding demolition qua the estate of her deceased father late Shri Mangal Sain Gulati. One and damage of the said property. Appeal of a dismissal of of the immovable properties forming subject matter of the partition suit H a contempt petition would lie if application styled under an is a residential double-storey house with basement constructed on a plot application under order XXXIX Rule 2A r/w Section 151 of I measuring 1300 sq. yds. bearing Municipal No. 6909/31, Bungalow Road, the CPC. Kamla Nagar, Delhi. The appellant claimed that as per the wishes of her

I Jugan K. Mehta v.Sham Sunder Gulati & Ors. (Sanjay Kishan Kaul, J.) 539 540 Indian Law Reports (Delhi) ILR (2012) IV Delhi father, soon after her marriage, she came in occupation and possession A and possession of the premises as on that date and restraining the parties of a part of the said property situated in the backyard on the first floor from alienating, selling, transferring or creating third-party interest in the consisting of two independent rooms and bathroom-cum-latrine along aforesaid immovable property. with the roof of the said portion. The appellant claims to have used the A 4. On the summons and notice being served, original defendant No. said portion as the residence till the year 1974 when she shifted her 7, Smt. Neelam Sablok moved an application, being IA No.4447/2002, residence. B under Order XXXIX Rule 4 of the said Code. The application records 2. The appellant alleged that soon after the demise of her mother that the title of the property vested with Shri Mangal Sain Gulati in on 30.03.1992, the original defendant No. 5, namely, Smt. Pushpa B pursuance to a Sale Deed dated 19.01.1973, who executed a registered Mediratta (daughter of late Shri Mangal Sain Gulati); late Shri Prakash Will dated 16.04.1981 bequeathing the said immovable property in equal Chand Gulati (son of late Shri Mangal Sain Gulati) represented by his C share to his two sons, namely, Shri Prakash Chand Gulati and Shri Sham legal heirs, i.e., original defendants No. 2 to 4, namely, Smt. Chanchal Sunder Gulati with a right of residence to his wife, Smt. Vidya Vati Gulati (wife), Shri Raj Kumar Gulati (son) and Shri Chintu Gulati (son); Gulati during her lifetime. The daughters were not bequeathed any share. and the original defendant No. 1, namely, Shri Sham Sunder Gulati (son C On the death of Shri Mangal Sain Gulati, his wife continued to reside in of late Shri Mangal Sain Gulati) struck a deal of settlement between the said property till her demise on 30.03.1992. Affidavits are stated to themselves with regard to the estate left behind by the father, namely, D have been affirmed by all the legal heirs of late Shri Mangal Sain Gulati late Shri Mangal Sain Gulati. In terms of this arrangement, the parties including the appellant giving their no objection to the Will and, thus, the shifted in different portions of the property and leased out the entire D property was mutated in the name of the two sons vide letter dated basement for commercial use. The original defendants No. 1 to 5 are 19.07.1995. The said two sons agreed to sell the property to the applicant alleged to be in possession and control of the entire estate of Shri Mangal (i.e., the original defendant No. 7 / respondent No. 4 herein) for a E Sain Gulati and her mother Smt. Vidya Vati Gulati except the portion of consideration of Rs.40 lakhs and executed the Sale Deed on 11.10.2000 the property in occupation of the appellant. It was also alleged that in respect of their undivided portions, which was duly registered. The defendants No. 1 to 6 were threatening to sell the entire property to E applicant claimed to be in physical possession of the first floor even prior defendant No. 7, namely, Smt. Neelam Sablok in order to pocket the to execution of the Sale Deed and was given symbolic, proprietary and entire consideration including the share of the appellant. This is the F constructive possession of the entire property purchased by her and background in which partition is sought of the immovable property and started collecting rent from the tenants. The property stood mutated in rendition of accounts of the business apart from recovery of rent realized F the name of the applicant. These two applications were finally disposed from the immovable property. of by a detailed Order of the learned Single Judge dated 25.08.2003 confirming the Order passed on 02.04.2002 with a modification that in 3. The appellant along with the suit filed an application under Order G case original defendant No. 7 wanted to transfer the title or possession XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (for short, of the property further as claimed by her, she would seek prior permission ‘the said Code’) for interim relief being IA No. 3171/2002 seeking a G from the Court. We are informed that an appeal was preferred against restraint against the defendants from creating any charge or transferring, this Order by defendant No. 7 being FAO (OS) No. 366/2003, but was selling or alienating the aforesaid immovable property and from withdrawn on 29.08.2006. dispossessing the appellant from the portion in her possession on the first H floor apart from a restraint against removing the account books from the 5. Insofar as the controversy in the present appeal is concerned, business premises. Summons were issued in the suit as also notice in the H the same arises out of an Order passed on 27.09.2004 in CCP (OS) No. application on 02.04.2002 and ad interim ex-parte orders were granted to 90/2004 filed by the appellant. The allegation in this application is that the appellant directing the parties to maintain status quo in respect of title there has been violation of the status quo Order dated 02.04.2002 as I I Jugan K. Mehta v.Sham Sunder Gulati & Ors. (Sanjay Kishan Kaul, J.) 541 542 Indian Law Reports (Delhi) ILR (2012) IV Delhi confirmed on 25.08.2003. It may be noticed that though the contempt A of an Order dated 16.02.2005 passed on IA No. 1181/2005 in CCP (OS) petition was styled as such, in the heading, it is stated to be an application A No. 90/2004. The Order dated 16.02.2005 was passed post-dismissal of under Order XXXIX Rule 2A read with Section 151 of the said Code. the contempt petition restraining the defendants from carrying on any construction in the suit property. The appellant also claimed at that stage 6. The husband of the appellant, namely, Shri Kirti K. Mehta claims of time that IA No. 4283/2004 seeking sealing of the property and the to have visited the suit premises on 09.07.2004 at about 4 p.m. when he B contempt petition was pending, which also required orders to be passed. found that the entire roof of the first and ground floors barring the outer B Learned Single Judge noticed that the Order dated 25.08.2003 clearly walls of the suit premises were demolished causing extensive damage to held that whether the appellant was in possession of the property or not the suit premises. On enquiry, it was found that the demolition had could not be decided without recording evidence and only restrained commenced on 25.06.2004 during the summer vacations of the High C further transfer by the original defendant No. 7 without permission of Court and was carried out under instructions of the respondents / court. The dismissal of the contempt petition (which is assailed in the contemnors, i.e., Shri Sham Sunder Gulati (son), Shri Raj Kumar Gulati C present appeal) was also noticed. Learned Single Judge concluded that (grandson), Shri Chintu Gulati (grandson) and Smt. Neelam Sablok to while dismissing the contempt petition on 25.08.2003, it had been noticed facilitate construction of a multi-storey commercial complex, which was that no specific order has been passed against the original defendant No. funded by the husband of Smt. Neelam Sablok. D 7 restraining carrying out any further construction. In view of dismissal 7. The respondents denied commission of any contempt alleging D of the contempt petition, the interim applications filed in that contempt that the appellant had raised a frivolous claim after 20 years of the demise petition were also dismissed. Learned Single Judge after discussing the of her father; 10 years after the demise of her mother; and two years provisions of Section 44 of The Transfer of Property Act, 1881 and after the property was sold to the original defendant No. 7 (respondent E Section 4 of The Partition Act, 1893 qua the issue of keeping away No. 4 in the contempt petition as also herein) by a registered Sale Deed. strangers, who may purchase undivided shares of co-sharers, found Insofar as the Orders dated 02.04.2002 and 25.08.2003 are concerned, E against the appellant as the entire house had been sold to the original it was stated that the ex-parte Order granted on 02.04.2002 simply defendant No. 7. The house was not even a dwelling house in the sense required the parties to maintain status quo qua the possession and title of F that a part of it was sold to some other persons by an earlier Sale Deed the said property and further restrained alienation, transfer or creating dated 16.06.1997. Various applications filed by the appellant were dismissed third-party interest. In view of the Sale Deed, possession is stated to and the original defendant No. 7 was permitted to construct. have already been passed on to the original defendant No. 7 and the F 9. This Order was assailed in FAO (OS) No. 211/2006. The appeal Order dated 25.08.2003 had declined to go into the issue of the claim of G was disposed of on 25.07.2006 specifically permitting the original defendant possession of the appellant without recording evidence. There was, thus, No. 7 to continue construction with the direction that in case the appellant no restraint order against the demolition of certain walls, which was succeeds in the suit, the entire construction made by the original defendant carried out. This argument found favour with learned Single Judge, who G No. 7 would abide by the directions in the decree to be passed in the suit dismissed the contempt petition by the impugned Order dated 27.09.2004. and the construction would not give any right or special equity in favour 8. A further development, which has taken place, is that another set H of the original defendant No. 7. We are informed by learned counsel for of interim applications was decided by learned Single Judge on 17.01.2006 respondents No. 1 to 3 (no counsel appeared for respondent No. 4, who by a detailed Order. This included IA No. 4283/2004 filed in CCP (OS) was the original defendant No. 7) that the construction has been completed No. 90/2004 (which had already been dismissed by then) as also another H and the property is occupied by the original defendant No. 7 / respondent application filed by the appellant under Order XXXIX Rules 1 and 2 of I No. 4 herein. the said Code being IA No. 9942/2003. One further application considered 10. We set out these detailed facts pre and post contempt petition was filed by the original defendant No. 7 seeking vacation and modification I Jugan K. Mehta v.Sham Sunder Gulati & Ors. (Sanjay Kishan Kaul, J.) 543 544 Indian Law Reports (Delhi) ILR (2012) IV Delhi as well as the appeal as they are material for determining the controversy A “According to the ordinary legal connotation, the term in question. “status quo’ implies the existing state of things at any given point of time.”” It is, thus, the plea of learned 11. On consideration of the matter, we find that the Orders passed counsel for the appellant that the existent state of affairs by the learned Single Judge on 25.08.2003 confirming the injunction A had to continue till a given point of time, which would order was restrictive in its nature only qua a further transfer / sale by B encompass not tampering with the construction. the original defendant No. 7. In fact, the original defendant No. 7 was permitted to transfer title and possession of the property with prior 13. We find some merit in this plea of learned counsel for the permission of the Court. The subsequent endeavours by the appellant to B appellant and it would have been advisable for the original defendant No. prevent construction by the original defendant No. 7 also failed right up 7 to move the Court for varying the construction thereon even though to the Division Bench. What weighed with learned Single Judge while C there was a restrictive injunction order. However, we cannot simultaneously passing the impugned Order dated 27.09.2004 was that no status quo lose sight of the fact that any additional relief qua these aspects was not order had been passed qua construction on the property, but only granted to the appellant while confirming the Order on 25.08.2003 and maintenance of status quo in respect of the title and possession of the C the incident which has led to contempt proceedings is post that date. premises was directed. Such an order was also passed without the Court Despite the incident, on a conspectus of the overall facts, learned Single being informed of the registered Sale Deed already entered into two D Judge found that the original defendant No. 7 should not be restrained years. prior to the suit transferring title to the original defendant No. 7. from carrying out further construction and that Order dated 17.01.2006 received the imprimatur of the Division Bench on 25.07.2006. We are, 12. Leaned counsel for the appellant strongly relied upon the D thus, not inclined to hold that the original defendant No. 7 (i.e., respondent observations of the Supreme Court in Satyabrata Biswas & Ors. v. No. 4 in the contempt petition as also herein) is guilty of willfully violating Kalyan Kumar Kisku & Ors., AIR 1994 SC 1837 while analyzing what E the interim Orders passed by this Court and the interest of the appellant was meant by a status quo order. We reproduce the relevant paras as are protected in terms of the Orders of the Division Bench dated 25.07.2006 under: E passed in FAO (OS) No. 211/2006. We may notice that during the “25. In Wharton’s Law Lexicon 14th Edition at page 951 Status course of arguments, learned counsel for the appellant stated that he was Quo has been defined as meaning: F really pressing the appeal only against respondent No. 4 herein. “The existing state of things at any given date; e.g., Status 14. In the end, we may also notice one additional fact arising from F quo ante bellum, the state of things before the war.” the mis-description of the application of the appellant as CCP (OS) even though he describes it as an application under Order XXXIX Rule 2A 26. According to Black’s Law Dictionary 6th Edition the relevant read with Section 151 of the said Code. This has some ramification as, passage occurs: G if the contempt petition is dismissed, no appeal would be maintainable “The existing state of things at any given date. Status quo G before this Court in view of the judgment of the Supreme Court in ante bellum the state of things before the law. “Status Baradakanta Mishra v. Mr. Justice Gatikrushna Misra, Chief Justice quo” to be preserved by a preliminary injunction is the last of the Orissa High Court, (1975) 3 SCC 535 and Midnapore Peoples. actual, peaceable, uncontested status which preceded the H Coop. Bank Ltd. & Ors. v. Chunilal Nanda & Ors., (2006) 5 SCC pending controversy.” 399. However, learned counsel for the appellant submitted that the H 27. This Court in Bharat Coking Coal Ltd. v. State of Bihar, application was filed under Order XXXIX Rule 2A read with Section 151 1987 Supp SCC 394 at 398 : (AIR 1988 SC 127 at p. 129 para of the said Code and not as a contempt petition as per the description 5) stated thus: and an Order passed on an application under Order XXXIX Rule 2A read I I Jugan K. Mehta v.Sham Sunder Gulati & Ors. (Sanjay Kishan Kaul, J.) 545 546 Indian Law Reports (Delhi) ILR (2012) IV Delhi with Section 151 of the said Code is appealable in view of the provisions A the question of passing an order under Rule 2A will arise only of Order XLIII Rule 1(r) of the said Code. Thus, he claims that a mis- A in a case where on consideration of the information received by description should not block the remedy for the appellant. it, the Court is satisfied that there is disobedience or breach of injunction granted by it. The learned Judge concluded that an 15. We may only notice that it is the appellant, who herself styled order refusing to take action under Rule 2A on the ground that the application as CCP (OS), though the heading showed that it was an B there was no disobedience or breach of injunction cannot be said application made under Order XXXIX Rule 2A read with Section 151 of B to be an order under Rule 2A and, thus, no appeal would be the said Code. The fault lay at the door of the appellant. However, we maintainable against such an order under clause (r) of Rule 1 of are not inclined to take a technical view of the matter as though styled Order XLIII of the said Code. as CCP (OS), the petition is under Order XXXIX Rule 2A read with C Section 151 of the said Code and even the prayers are made accordingly. 17. We find that there is something to be said about the view of Thus, we have considered the appeal on merits. C the Gauhati High Court, but then a Division Bench of this Court in The Bombay Metal Works (P) Ltd. v. Tara Singh & Ors., ILR (2006) I 16. We may add in the aforesaid context that learned counsel for Delhi 840 has held that appeal would be maintainable from an order either of the parties did not dispute the maintainability of the appeal from D dismissing the application under Order XXXIX Rule 2A of the said Code. an order dismissing an application under Order XXXIX Rule 2A of the We may notice that the aforesaid two judgments (of the Gauhati High said Code in view of the provisions of Order XLIII Rule 1(r) of the said D Court and the Punjab and Haryana High Court) have not been discussed Code, which reads as under: in this case and the perspective expressed by the Gauhati High Court has “ORDER XLIII. APPEALS FROM ORDERS E also not been examined. The application filed in The Bombay Metal Works (P) Ltd.’s case (supra) was actually under Sections 2(a), 11 and 1. Appeals from orders E 12 of the Contempt of Courts Act, 1971 and the learned Single Judge ...... absolved the respondents from notice of contempt. An appeal was filed under Section 19 of the Contempt of Courts Act, which was pleaded to (r) an order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 F be by the respondents as not maintainable in view of the settled legal of Order XXXIX;” position. The appellants pleaded that the contempt application filed for However, on examination of this matter ourselves, we find that F disobedience of the interim orders purported to have been filed was there appears to be a conflict of view qua this issue. A learned actually under Order XXXIX Rule 2A of the said Code and a wrong Single Judge of the Punjab and Haryana High Court in Rajinder G provision was cited. The appeal was, thus, treated as FAO (OS) and Kaur v. Sukhbir Singh, 2002 Civil CC 125 = MANU/PH/1830/ while discussing this aspect, it was observed that the appeal would be 2001 has held that there is no limitation whatsoever in the aforesaid maintainable. Rule as to the nature of the order passed under this Rule. Thus, G 18. However, since neither of the counsels canvassed or assisted a restrictive meaning cannot be given that an appeal would not us in this behalf, we are not inclined to go into this question any further lie if the application is dismissed. On the other hand, learned H leaving the question at large. Single Judge of the Gauhati High Court in Shri Banamali Dey v. Shri Satyendra Chanda & Ors., (1990) 2 GLR 408 = 19. We, thus, do not completely agree with the basis of the conclusion MANU/GH/0164/1990 has held that an order passed by the Court H of learned Single Judge in the impugned Order dated 27.09.2004, but do holding there was no disobedience or breach of injunction granted I not deem it appropriate to interfere with the dismissal order of that by it is not an order within the meaning of Rule 2A and, thus, application for the reasons recorded aforesaid and the rights and obligations of the parties would be determined in the suit, which has unfortunately I Royal Sundaram Alliance Ins. Co Ltd. v. Master Manmeet Singh (G.P. Mittal, J.) 547 548 Indian Law Reports (Delhi) ILR (2012) IV Delhi taken large number of years, issues having been framed on 14.11.2003 A 6000/- per month arbitrary—Held:- Addition of 25% in and the first witness of the plaintiff PW–1 having entered the witness the salary of non matriculate, multiplier of 16 applicable, box in 2004. The suit is at the stage of rebuttal evidence fixed on Total compensation Works out to be Rs. 9,95,040/-—No 31.1.2012 before the Ld. Joint Registrar. A cross appeal—Compensation is less that what works out on the principles laid down—Appeal dismissed. 20. The appeal is accordingly dismissed leaving the parties to bear B their own costs. MAC. APP. 563/2010 B Death of lady aged about 31 years—Taking care of five C children—Doing tailoring work-value of gratuitous ILR (2012) IV DELHI 547 service taken @ Rs. 6000/- per month—Multiplier of 15 MAC. APP. applied-compensation of Rs. 11,65,000/- awarded— C Respondent/Insurance Company preferred appeal— Held-no evidence of educational qualification;—Taken ROYAL SUNDARAM ALLIANCE ….APPELLANT D to be a non matriculate; multiplier of 16 applicable— INSURANCE CO LTD. Total compensation reduced to Rs.10,35,040/-—Appeal VERSUS disposed of with directions. D MASTER MANMEET SINGH & ORS. ….RESPONDENTS MAC. APP. No. 753/2011 E (G.P. MITTAL, J.) Death of a lady about 40 years—Claimed to be earning MAC. APP. NO. : 590/2011, DATE OF DECISION: 30.01.2012 E Rs.4000/- per month from sewing work-compensation 563/2010,7 53/2011, 772/2011, of Rs. 4,10,000/- awarded—Aggrieved claimants/ 857/2011, 289/2010 F appellant preferred appeal—Held:- No evidence of earnings or qualification-taken to be a non Motor Vehicle Act, 1988—Section 163A and 168— F matriculate—Multiplier of 15 applicable—Overall Second Schedule Clause 6(b)—Compensation— compensation comes toRs.9,63,575/-—Appeal allowed- Accident took place on 04.11.2009—Parents of the Compensation enhanced. claimants/respondent no. 1 to 3 died in the accident- G Mother was a non-matriculate, Aged about 34 years G MAC. APP. No. 772/2011 Rendering gratuitous service to Husband and three children—Tribunal assessed the value of gratuitous Death of a lady-left behind her husband, four sons service rendered by the deceased mother at Rs. 6000/ and a daughter—Tribunal valued gratuitous services H - per month—Awarded compensation of Rs. 8,50,000/- @ Rs. 3000/-per month—Awarded compensation of Aggrieved, appellant/respondent Insurance Company H Rs.6,41,00/- Aggrieved claimants/App. Preferred the preferred appeal seeking reduction of Compensation— appeal—Held:- No evidence of her educational Alleged assessment for gratuitous services @ Rs. qualification—Taken to be a non matriculate-Age of I I Royal Sundaram Alliance Ins. Co Ltd. v. Master Manmeet Singh (G.P. Mittal, J.) 549 550 Indian Law Reports (Delhi) ILR (2012) IV Delhi deceased taken to be between 35 to 40 years-Multiplier A (B) The value of services rendered by a home maker should of 15 applicable—Total compensation comes to Rs. A be taken as minimum salary of a non matriculate, matriculate 13,56,250/-—Appeal allowed—Compensation enhanced. or a Graduate (in the absence of any evidence to the contrary). In case of a young mother and wife there should MAC. APP. No. 857/2011 B be an addition 25% of the minimum salary/wages as per the B educational qualification i.e graduate, matriculate or non- Death of lady aged about 40 years—Died on 19.05.2010— matriculate, addition of 15% in case of middle aged mother Left behind husband and five children out of which and wife and nil in case of a wife beyond the age of years three were minors—Compensation of Rs. 4,68,300/- C as the children become independent by the that time. The awarded by the Tribunal—Aggrieved claimants/app. value of gratuitous services rendered should be gradually Preferred appeal seeking enhancement of C reduced after the age of 55 years, even though mothers compensation—No cross appeal by Insurance take care of their children and even when they are married. Company—No evidence as to educational qualification—Held:- Taken to be a non matriculate— D [Vi Ku] Multiplier of 15 applicable—Over all compensation comes to Rs. 13,56,250/-—Appeal allowed- D APPEARANCES: Compensation enhanced. FOR THE APPELLANT : Ms. Suman Bagga, Advocate, s. E Manjusha Wadhwa, Advocate, Mr. MAC. APP. No. 289/2010 Sanjeev Srivastava, Advocate, Mr. Navneet Goayal, Advocate with Ms. E Accident took place on 17.11.2007—Death of a lady Suman N. Rawat , Advocate., Mr. aged 31 years-Claimed to be working as computer O.P. Mannie, Advocate, Mr. Kanwal editor earning Rs. 4600/- per month—Held:- Taken to F Chaudhary, Advocate be housewife-Gratuitous services rendered valued at FOR THE RESPONDENT : Mr. Gurmit Singh Hans, Advocate, Rs. 3000/- per month—Multiplier of 16 applied— F Ms. Manjeet Chawla, Advocate, Ms. Awarded compensation of Rs. 11,97,000/- Aggrieved Suman Bagga, Advocate for R-3, Insurance Company preferred appeal seeking G Mr. K.L. Nandwani, Advocate for reduction of compensation—Held:- Educational R-3/UIICL, Mr. S.N. Parashar, qualification considered to be as a matriculate—Aged Advocate. 31 years—Multiplier of 16 applicable—Overall G compensation Rs. 9,80,320/-—Appeal Allowed— CASES REFERRED TO: compensation reduced. H 1. National Insurance Company Limited vs. Deepika & Ors., 2010 (4) ACJ 2221. Important Issue Involved: (A) A readymade formula given 2. Arun Kumar Agrawal & Anr. vs. National Insurance in Clause 6(b) of the Second Schedule cannot be adopted H Company Limited., (2010) 9 SCC 218. to award just and fair compensation which is the very basis I of an award passed under Section 168 of the MV Act. 3. Lata Wadhwa & Ors. vs. State of Bihar & Ors., (2001) 8 SCC 197. I Royal Sundaram Alliance Ins. Co Ltd. v. Master Manmeet Singh (G.P. Mittal, J.) 551 552 Indian Law Reports (Delhi) ILR (2012) IV Delhi 4. M.S. Grewal vs. Deep Chand Sood, (2001) 8 SCC 151. A 4. To assess the value of services rendered by a homemaker so as 5. Lata Wadhwa & Ors. vs. State of Bihar & Ors., (2001) to calculate the loss of dependency in case of her death in a road 8 SCC 197. accident is an uphill task. Sometimes the Claims Tribunals have taken the salary of a skilled worker and sometimes have taken 50% wages of a 6. Helen C. Rebello vs. Maharashtra SRTC, 1999 (1) SCC A skilled worker. Clause 6 (b) of the Second Schedule to Section 163-A 90. B of the Motor Vehicles Act, 1988 (M.V.Act) lays down that the income 7. General Manager, Kerala State Road Transport of a non-earning spouse shall be considered to be one-third of the income Corporation, Trivandrum vs. Susamma Thomas (Mrs.) and of the surviving spouse. There seems to be no logic behind this. If I may Ors. (1994) 2 SCC 176. B say so, it is totally arbitrary and, therefore, can only be restricted to the grant of compensation as per the structured formula in petitions filed 8. A. Rajam vs. M. Manikya Reddy & Anr., MANU/AP/ C 0303/1988. under Section 163-A of the M.V. Act. 9. Mehmet vs. Perry 1978 ACJ 112 (QBD, England). 5. The Claims Tribunal (in MAC APP.590/2011) referred to the C 10. Mehmet vs. Perry, (1977) 2 All ER 529 (DC). judgment of Lata Wadhwa & Ors. v. State of Bihar & Ors., (2001) 8 SCC 197; M.S. Grewal v. Deep Chand Sood, (2001) 8 SCC 151; 11. Regan vs. Williamson 1977 ACJ 331 (QBD England). D some English decisions and it heavily relied upon the judgment in Arun 12. Morris vs. Rigby (1966) 110 Sol Jo 834. Kumar Agrawal & Anr. v. National Insurance Company Limited., 13. Gobald Motor Service Ltd. & Anr. vs. R.M.K. Veluswami D (2010) 9 SCC 218 to hold that it is difficult to value the services rendered & Ors., AIR 1962 SC 1. by a wife and a mother. It did not follow Clause 6 (b) of the second Schedule to the M.V. Act to take one-third of the surviving spouse’s 14. Berry vs. Humm & Co., (1915) 1 KB 627. E income as taken in Arun Kumar Agrawal (supra) as the Hon’le Supreme RESULT: Applications disposed of. Court in the aforesaid decision had lamented that taking one-third of the E surviving spouse’s income was not based on any sound principle. G.P. MITTAL, J. 6. The Tribunal relied on Lata Wadhwa whereby value of the services MAC.APP. 590/2011 F rendered by a housewife aged upto 59 years was taken as Rs.3,000/-. 1. The Appellant Royal Sundaram Alliance Insurance Company The Tribunal doubled it to Rs. 6,000/- on account of inflation as Lata F Limited seeks reduction of compensation of ‘8,50,000/- awarded in favour Wadhwa (supra) was decided in the year 2001 selected a multiplier of of the Respondents (Claimants) by the Motor Accident Claims Tribunal, ‘15’ and after deduction of one-third towards the personal living expenses, (the Claims Tribunal) by judgment dated 05.04.2011 for the death of computed the loss of dependency as Rs.7,20,000/-. The Tribunal further G their mother Jasvinder Kaur who died in an accident which took place awarded a sum of Rs.1,00,000/- towards loss of love and affection, on 04.11.2009. G Rs.25,000/- towards funeral charges and Rs. 5,000/- towards loss to estate to compute the overall compensation as Rs.8,50,000/-. There is no 2. In fact, Respondents No. 1 to 3’s father Harvinder Singh also Appeal by the Claimants. lost his life in this very accident. H 7. Section 168 of the Act enjoins the Claims Tribunal to hold an 3. The contention raised on behalf of the Appellant is that the inquiry into the claim to make an award determining the amount of Tribunal arbitrarily took the value of the gratuitous services rendered by H compensation which appears to it to be just and reasonable. It has to be the deceased as Rs.6,000/- per month which is against the law laid down borne in mind that the compensation is not expected to be a windfall or by the Supreme Court. a bonanza nor it should be niggardly. In Helen C. Rebello v. Maharashtra I I Royal Sundaram Alliance Ins. Co Ltd. v. Master Manmeet Singh (G.P. Mittal, J.) 553 554 Indian Law Reports (Delhi) ILR (2012) IV Delhi SRTC, 1999 (1) SCC 90, the Supreme Court held that “the Court and A grant of compensation in respect of the death of their spouse, the Tribunals have a duty to weigh the various factors and quantify the A compensation awarded for loss of services rendered by a housewife of amount of compensation, which should be just. What would be “just” a husband in a very high bracket based on this principle may be unjust compensation is a vexed question. There can be no golden rule applicable enrichment. Again there may be cases where if the husband is having a to all cases for measuring the value of human life or a limb. Measure B very high income his wife really might not be contributing so much of damages cannot be arrived at by precise mathematical calculations. towards the home making. Thus, I am of the view that a readymade It would depend upon the particular facts and circumstances, and attending B formula given in Clause 6 (b) of the second Schedule cannot be adopted peculiar or special features, if any.” to award just and fair compensation which is the very basis of an award passed under Section 168 of the M.V. Act. 8. First of all, I would deal with Clause 6 (b) of the second C Schedule to the M.V. Act (under Section 163A) which provides that the 12. In the case of General Manager, Kerala State Road Transport income of a non-earning spouse, who has died, may be taken as one- C Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) third of the income of the surviving spouse. It goes without saying that 2 SCC 176, it was held as under:- similar kind of services is rendered by a home maker whether in the “5...... The determination of the quantum must answer what middle or in the low income group. Is there any justification to relate the D contemporary society “would deem to be a fair sum such as income of the housewife to that of her husband? D would allow the wrongdoer to hold up his head among his 9. To give an example there is a senior Clerk ‘A’, a Junior level neighbours and say with their approval that he has done the fair Officer ‘B’ and a middle level Officer ‘C’ working with the Govt.; A,B thing”. The amount awarded must not be niggardly since the law and C draw a salary of Rs. 15,000/-, Rs.30,000/- and Rs. 60,000/- E values life and limb in a free society in generous scales’. All this respectively. The wives of all the three are looking after their respective means that the sum awarded must be fair and reasonable by homes and caring for the children. All of them are Graduates. If we E accepted legal standards.” apply the criterion as laid down in the second Schedule, the value of 13. In Arun Kumar Agrawal the Supreme Court referred to Kemp services rendered in case of ‘A’, ‘B’ and ‘C’ would be Rs.5,000/-, F and Kemp on Quantum of Damages, (Special Edn., 1986), Berry v. Rs.10,000/- and Rs.20,000/- per month respectively. The husband and Humm & Co., (1915) 1 KB 627 and Mehmet v. Perry, (1977) 2 All the children would be entitled to compensation on the assumed loss of ER 529 (DC). Paras 22, 23, 25 and 26 of the report are extracted dependency as mentioned above. There would be wide disparity in the F hereunder:- award of compensation. G “22. We may now deal with the question formulated in the 10. In the three examples quoted above, although the deceased’s opening paragraph of this judgment. In Kemp and Kemp on spouse might be rendering the same services for the husband and the Quantum of Damages, (Special Edition - 1986), the authors have children, i.e. to cook food, to buy clothes, wash and iron them, to work G identified various heads under which the husband can claim as a tutor for the children, to give necessary instructions to the children compensation on the death of his wife. These include loss of the as to their upbringing, and so on. The compensation awarded in the case H wife’s contribution to the household from her earnings, the of ‘A’ would be X amount; in case of ‘B’ would be 2X amount and in additional expenses incurred or likely to be incurred by having case of ‘C’ would be 4X amount. H the household run by a house-keeper or servant, instead of the 11. Similarly, take an example of X,Y and Z who are in their wife, the expenses incurred in buying clothes for the children I respective enterprises and earning Rs. 5 lacs, Rs. 10 lacs and Rs. 15 lacs instead of having them made by the wife, and similarly having per annum respectively. Not only there would be wide disparity in the his own clothes mended or stitched elsewhere than by his wife,

I Royal Sundaram Alliance Ins. Co Ltd. v. Master Manmeet Singh (G.P. Mittal, J.) 555 556 Indian Law Reports (Delhi) ILR (2012) IV Delhi and the loss of that element of security provided to the husband A is required to attend the employer’s work for particular hours. where his employment was insecure or his health was bad and She takes care of all the requirements of husband and children where the wife could go out and work for a living. including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their 23. In England the courts used to award damages solely on the A future life. A housekeeper or maidservant can do the household basis of pecuniary loss to family due to the demise of the wife. B work, such as cooking food, washing clothes and utensils, keeping A departure from this rule came to be made in Berry v. Humm the house clean etc., but she can never be a substitute for a and Co. (1915) 1 K.B. 627 where the plaintiff claimed damages wife/mother who renders selfless service to her husband and for the death of his wife caused due to the negligence of the B children.” defendant’s servants. After taking cognizance of some precedents, the learned Judge observed: C 14. The Supreme Court observed that in view of the multifarious I can see no reason in principle why such pecuniary loss services rendered by the housewife, it is difficult to value those services in terms of money. But then some estimate has to be made in terms of should be limited to the value of money lost, or the money C value of things lost, as contributions of food or clothing, money to award compensation. In Para 27 of the report, the Supreme Court said as under:- and why I should be bound to exclude the monetary loss D incurred by replacing services rendered gratuitously by a “27. It is not possible to quantify any amount in lieu of the relative, if there was a reasonable prospect of their being services rendered by the wife/mother to the family i.e. husband rendered freely in the future but for the death. D and children. However, for the purpose of award of compensation x x x x x x x x x x x x to the dependents, some pecuniary estimate has to be made of E the services of housewife/mother. In that context, the term 25. In Mehmet v. Perry, the pecuniary value of a wife’s services ‘services’ is required to be given a broad meaning and must be were assessed and granted under the following heads: E construed by taking into account the loss of personal care and (a) Loss to the family of the wife’s housekeeping services. attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate (b) Loss suffered by the children of the personal attention F compensation in lieu of the loss of gratuitous services rendered of their mother, apart from housekeeping services rendered by the deceased. The amount payable to the dependants cannot by her. F be diminished on the ground that some close relation like a (c) Loss of the wife’s personal care and attention, which grandmother may volunteer to render some of the services to the the husband had suffered, in addition to the loss of her family which the deceased was giving earlier.” housekeeping services. G G 15. The Supreme Court referred to the judgment passed by the 26. In India the Courts have recognised that the contribution Madras High Court in National Insurance Company Limited v. Deepika made by the wife to the house is invaluable and cannot be & Ors., 2010 (4) ACJ 2221. Para 54 to 57 of the judgment in Arun computed in terms of money. The gratuitous services rendered Kumar Agrawal are extracted hereunder:- by wife with true love and affection to the children and her H “54. India is a signatory to the said Convention and ratified the husband and managing the household affairs cannot be equated H with the services rendered by others. A wife/mother does not CEDAW Convention on 9.7.1993. But even then no law has been work by the clock. She is in the constant attendance of the made for proper evaluation of the household work by women as family throughout the day and night unless she is employed and homemakers. I I Royal Sundaram Alliance Ins. Co Ltd. v. Master Manmeet Singh (G.P. Mittal, J.) 557 558 Indian Law Reports (Delhi) ILR (2012) IV Delhi 55. The Madras High Court in Deepika (supra) has observed A of the housewife as, Value of housewife = husband’s very pertinently: A income - wife’s income + value of husband’s household “9. The UNICEF in 2000, noted that ‘unpaid care work services, which means the wife’s value will increase is the foundation of human experience’. The care work is inversely proportionate to the extent of participation by that which is done by a woman as a mother and definitely B the husband in the household duties. The Australian Family Property Law provides that while distributing properties in India, the woman herself will be the last person to give B this role an economic value, given the social concept of in matrimonial matters, for instance, one has to factor in the role of a mother. But when we are evaluating the loss ‘the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the suffered by the child because her mother died in an C accident, we think we must give a monetary value to the marriage and any children of the marriage, including any work of a caregiver, for afterall, the home is the basic C contribution made in the capacity of a homemaker or unit on which our civilised society rests.” parent..” 56. The Madras High Court in its very illuminating judgment in In para 13, the Division Bench of the High Court has observed Deepika (supra) has further referred to various methods by D and, in my view very rightly, that time has come to scientifically assess the value of the unpaid homemaker both in accident claims which the assessment of work of a homemaker can be made and D the relevant portion from para 10 of the said judgment is extracted and in matters of division of matrimonial properties.” below: 16. In Deepika the value of the services rendered by the housewife “10...... that there have been efforts to understand the value E was again related to that of the husband. In that case the husband’s of a homemaker’s unpaid labour by different methods. income was found to be Rs. 5,500/- per month, its 50% i.e. Rs. 2750/ One is, the opportunity cost which evaluates her wages E - was taken towards domestic services in addition to Rs. 750/- as income by assessing what she would have earned had she not from the work carried out by the wife. remained at home, viz., the opportunity lost. The second F 17. Earlier in some cases the High Courts took 50% wages of the is, the partnership method which assumes that a marriage unskilled / skilled workers and in some cases the entire wages of a skilled is an equal economic partnership and in this method, the F worker was taken to make an attempt to arrive at a figure to compute homemaker’s salary is valued at half her husband’s salary. the dependency. The Delhi High Court in Amar Singh Thukral v. Yet another method is to evaluate homemaking by G Sandeed Chhatwal, ILR (2004) 2 Del 1, very reluctantly took the salary determining how much it would cost to replace the of a skilled worker as per the minimum wages applied in Delhi, while homemaker with paid workers. This is called the observing as under:- Replacement Method.” G “....Since there is no scientific method of assessing the contribution 57. Various aspects of the nature of homemaker’s job have been H of a housewife to her household, in cases such as the present, described in para 11 which are very relevant and are extracted resort should be had to the wages of a skilled worker as per the below:- Minimum Rates of Wages in Delhi. Although, this may sound “11. The role of a housewife includes managing budgets, H uncharitable, if not demeaning to a housewife, there is hardly co-ordinating activities, balancing accounts, helping children any other option available in the absence of any statutory with education, managing help at home, nursing care etc. I guidelines.” One formula that has been arrived at determines the value

I Royal Sundaram Alliance Ins. Co Ltd. v. Master Manmeet Singh (G.P. Mittal, J.) 559 560 Indian Law Reports (Delhi) ILR (2012) IV Delhi 18. The Supreme Court in Arun Kumar Agrawal did not approve A compute the loss of dependency. The Tribunal further deducted one- the adoption of the salary of a skilled worker to compute the loss of third of the assumed income towards the personal living expenses and dependency. In this case, Hon’ble Mr. Justice A.K. Ganguly while penning computed the loss of dependency on the income of Rs.4,000/- per month a separate concurrent judgment expressed hope that the legislature would which according to the Appellant is exorbitant and excessive. No deduction A come with some better method to arrive at the value of the services of was made by the Supreme Court in the assumed value of services rendered the housewife. In para 65 of the report it was observed:- B at Rs.3,000/- per month while computing the loss of dependency. “65. For the reasons aforesaid, while agreeing with the views of 21. The services rendered by a housewife cannot be counted; Brother Singhvi, J., I would humbly add, that time has come for B cooking, washing, ironing clothes and stitching clothes (in some cases) the Parliament to have a rethinking for properly assessing the for the husband and children, teaching and guiding children, working as value of homemakers and householders, work and suitably C a nurse whenever the husband or the child/children are sick, are some amending the provisions of Motor Vehicles Act and other related of the major activities of a housewife. She has no fixed hours of work; laws for giving compensation when the victim is a woman and she is always in attendance to take care of each and every need of the a homemaker. Amendments in matrimonial laws may also be C whole family at the cost of her personal comfort and health. The services made in order to give effect to the mandate of Article 15(1) in rendered by a housewife may differ from case to case considering her the Constitution.” D qualification, financial strata and the social status of the family to which she belongs. 19. In Lata Wadhwa (supra) a number of persons including women and children died; the Supreme Court assessed the compensation while D 22. The Claimants, therefore, must lead evidence to prove the services taking the value of the services rendered by a housewife between the age rendered by a non working female. In the absence of any evidence to the group of 22-59 as Rs. 3,000/- per month and in the case of women aged E contrary, the value of the services, if I may say so, has to have some 62 years and above at Rs.21,00/- per annum. relation to the educational qualification of the deceased. 20. The minimum wages of a Graduate at the time of the fire E 23. Thus, the value of services rendered by a home maker should accident in Lata Wadhwa (supra) as notified in the State of Delhi were be taken as the minimum salary of a non-matriculate, matriculate or a just Rs.898/-. The compensation was awarded in the year 2001 when the F Graduate, (in the absence of any evidence to the contrary). In case of minimum wages of a Graduate were Rs.3339/-, of a matriculate were a young mother and a wife there should be an addition of 25% of the Rs.3027/- and that of a skilled worker were Rs. 3003/-. It is important F minimum salary/wages as per the educational qualification i.e. Graduate, to note that no interest on the compensation was awarded from the date matriculate or non-matriculate. There should be addition of 15% in the of the accident till the date of the payment in Lata Wadhwa (supra). case of a middle aged mother and a wife and ‘NIL’ in case of a wife Many Tribunals and High Courts have adopted the compensation granted G and a mother beyond the age of 50 years as the children become in case of Lata Wadhwa (supra) to be just and fair in motor accident G independent by that time. The value of gratuitous services rendered should cases, where the deceased was a house wife. But, the compensation in be gradually reduced after the age of 55 years, even though mothers take Lata Wadhwa was awarded because there was loss of life of so many care of their children (irrespective of their ages) and even when they (the women and children when a fire broke out while they were participating children) are married. in a function organized by Tata Iron & Steel Company. It was not a H 24. The next question that falls for consideration is whether there statutory compensation under the Motor Vehicles Act. Moreover, difficulty H should be any deduction towards the personal living expenses of the also arises as on account of inflation, the wages and salaries have increased deceased (Home maker). While awarding damages there is balancing of manifold. In this case, the Tribunal held that the compensation in Lata the loss to the Claimants of the pecuniary benefits with the gain of the Wadhwa was awarded in the year 2001 and doubled it to Rs. 6,000/- to I I Royal Sundaram Alliance Ins. Co Ltd. v. Master Manmeet Singh (G.P. Mittal, J.) 561 562 Indian Law Reports (Delhi) ILR (2012) IV Delhi pecuniary advantages which comes to them by reason of death. In Gobald A for those hours when she is, if that is a fact, at work. During Motor Service Ltd. & Anr. v. R.M.K. Veluswami & Ors., AIR 1962 A some of those hours she may well give the children instructions SC 1, it was observed as under:- on essential matters to do with their upbringing and, possibly, with such things as their home work. This sort of attention “.... The general rule which has always prevailed in regard to the seems to be as much a service, and probably more valuable to assessment of damages under the Fatal Accidents Acts is well B them, than the other kinds of service conventionally so regarded.” settled, namely, that any benefit accruing to a dependant by B reason of the relevant death must be taken into account. Under .. and hastened to add:- “am aware that there are good mothers and those Acts the balance of loss and gain to a dependant by the bad mothers. It so happens that I am concerned in the present case with death must be ascertained, the position of each dependant being C a woman who was a good wife and mother”. On the basis, the figure considered separately.” for dependency was raised from £ 12.50 (£ 22.50 -10.0) per week to C £ 20 per week and a further sum of £ 1.50 was added for the deceased’s 25. In A. Rajam v. M. Manikya Reddy & Anr., MANU/AP/0303/ financial contribution to the home, had she eventually gone out to work 1988, the Hon’ble Mr. Justice M.J. Rao (as he then was) referred to a again. A multiplier of 11 was applied as the Plaintiff was 43 years. The number of English decisions. D award under the Fatal Accidents Act, was £ 1238. 26. In Morris v. Rigby (1966) 110 Sol Jo 834, the husband who 28. Learned Judge further referred to Mehmet v. Perry 1978 ACJ was a medical officer, earning £ 2,820 a year, claimed damages for the D 112 (QBD, England), wherein the husband had to look after five children death of his wife. He had five children aged two to fifteen years. He got aged 14, 11, 7, 6 and 3 years respectively. The two youngest children his wife’s sister to come and take care of them and do the domestic E suffered from a serious hereditary blood disease requiring medication and duties, paying her a gross wage of £ 20 a week. The judge awarded £ frequent visits to the hospital. Consequently, the husband had to give up 8,000 and the award was confirmed. E his employment after his wife’s death and devoted his full time to care 27. The Learned Judge further referred to Regan v. Williamson for the family. Between September, 1973 when his wife was killed and 1977 ACJ 331 (QBD England) where the housekeeper employed was a F the trial that was conducted in October, 1976, his net average loss of relative. There, the wife was 37 years when she died and she left behind earnings were £ 1,500 a year. His future net loss would be at the rate her husband and four sons aged 13, 10, 7 and 2 years respectively. A of £ 2,000 a year. It was held by Brain Neill, QC (sitting as a deputy relative came daily (except weekends) to provide meals and to look after F Judge) that, in view of the medical evidence concerning the health of the children his giving up of his job was proper and that damages should be the boys. She was paid £ 16 per week and it cost the Plaintiff further G £ 6.50 per week for her food, journeys to and from her home and for assessed not at the cost of employing a housekeeper but by reference to national insurance stamp. The Plaintiff estimated that his wife’s loss had the Plaintiff’s loss of wages, since the loss of wages represented the cost cost him £ 10 per week to cloth and feed his children and himself. G of providing the services of a full time housekeeper in substitution for his Watkins, J. held that though, according to precedents, - 22.50 (£ 16+6.50) wife. In addition, the children were entitled, on the basis of Regan v. per week minus £ 10 per week, would be sufficient as justice required H Williamson 1977 ACJ 331 (QBD, England), to get £ 1,500 as part of that the term ‘services’ should be widely construed. Watkins, J. observed:- their damages, a sum of £ 1,000 for the loss of ‘personal attention’ to them by a ‘mother’ which is distinct from her services as a housekeeper “I am, with due respect to the other Judges to whom I have but, that sum must be kept within modest limits as the Plaintiff was at been referred, of the view that the word ‘services’ has been too H home all the time. The Plaintiff as a husband was also held to be entitled narrowly construed. It should, at least, include an I to some damages for his loss of the ‘personal care and attention of the acknowledgement that a wife and mother does not work to set wife’ but that sum should be quite small to avoid any overlap with the hours and, still less, to rule. She is in constant attendance, save I Royal Sundaram Alliance Ins. Co Ltd. v. Master Manmeet Singh (G.P. Mittal, J.) 563 564 Indian Law Reports (Delhi) ILR (2012) IV Delhi damages awarded for housekeeping services. The last two children require A services rendered by a housewife shall be:- to support for 12 years, as per medical advice. A multiplier of 8 was (i) Minimum salary of a Graduate where she is a Graduate. adopted for the family as a unit and 12 for the Plaintiff and a sum of £ 19,000 was arrived at. (ii) Minimum salary of a Matriculate where she is a A Matriculate. 29. While awarding compensation for loss of gratuitous services B (iii) Minimum salary of a non-Matriculate in other cases. rendered by a homemaker the Claims Tribunals or the Court simply value the services. It goes without saying that the husband looks after the wife (iv) There will be an addition of 25% in the assumed income in (i), (ii) and (iii) where the age of the homemaker is and some amount is definitely spent on her maintenance. But, whether B that amount is liable to be deducted from the value of the gratuitous upto 40 years; the increase will be restricted to 15% services rendered by her? C where her age is above 40 years but less than 50 years; there will not be any addition in the assumed salary where 30. As held in Gobald Motor Service Ltd. and Helen C. Rebello the age is more than 50 years. that while estimating damages, the pecuniary loss has to be arrived at by C (v) When the deceased home maker is above 55 years but balancing on the one hand the loss to the Claimants of the future pecuniary less than 60 years; there will be deduction of 25%; and benefits that would have accrued to him with the gain of the pecuniary D when the deceased home maker is above 60 years there advantages which comes to him from whatever sources by reason of the will be deduction of 50% in the assumed income as the death. D services rendered decrease substantially. Normally, the 31. In, Regan v. Williamson, the learned Judge found that the value of gratuitous services rendered will be NIL (unless expenditure on the deceased housewife was - 10 per week. While the there is evidence to the contrary) when the home maker E value of gratuitous services rendered by her was £ 22.50 per week. The is above 65 years. figure on dependency of £ 12.50 (£ 22.50 - £ 10.0) was taken as - 21.50 E (vi) If a housewife dies issueless, the contribution towards the per week. Thus, the amount spent on personal living expenditure was not gratuitous services is much less, as there are greater really deducted in Regan v. Williamson. chances of the husband’s re-marriage. In such cases, the 32. Even on the basis of Gobald Motor Service Ltd. and Helen C. F loss of dependency shall be 50% of the income as per the Rebello, the pecuniary advantages which the Claimant gets on account of qualification stated in (i), (ii) and (iii) above and addition F accidental death is only liable to be deducted. The amount of money paid and deduction thereon as per (iv) and (v) above. on account of death by the Life Insurance Corporation was held to be (vii) There shall not be any deduction towards the personal not deductable in Helen C. Rebello. G and living expenses. 33. Thus, if a deceased housewife who lost her life in a motor G (viii) As an attempt has been made to compensate the loss of accident would have died a natural death, the pecuniary advantage on dependency, only a notional sum which may be upto Rs. account of savings made of the expenditure required for her maintenance 25,000/- (on present scale of the money value) towards would have otherwise also accrued to the benefit of the Claimants. Since loss of love and affection and Rs. 10,000/- towards loss this pecuniary advantage does not become receivable only on account of H of consortium, if the husband is alive, may be awarded. accidental death, in my view, the portion of the husband’s income (spent H (ix) Since a homemaker is not working and thus not earning, on the deceased’s maintenance) cannot be deducted. no amount should be awarded towards loss of estate. 34. To sum up, the loss of dependency on account of gratuitous 35. Turning to the facts of this case; the accident took place on I I Royal Sundaram Alliance Ins. Co Ltd. v. Master Manmeet Singh (G.P. Mittal, J.) 565 566 Indian Law Reports (Delhi) ILR (2012) IV Delhi 04.11.2009. As per the certificate proved during the inquiry before the A were Rs. 4146/- per month on the date of the accident. Tribunal, the deceased Jasvinder Kaur was a non-matriculate. The A 43. On the principles culled out in the earlier portion of this judgment, minimum wages of a non-matriculate on the date of the accident were the loss of dependency works out as Rs.9,95,040/- (Rs. 4146/- + 25% ‘4146/-. She was about 34 years of age. She was rendering gratuitous x 12 x 16). After adding notional sums of Rs. 25,000/- towards loss of services towards her husband and three children. The husband also lost B love and affection, Rs.10,000/- towards loss of consortium, and Rs. his life in this very accident. B 5,000/- towards funeral expenses, the overall compensation comes to Rs. 36. On the basis of the principles laid down earlier, after an addition 10,35,040/-. of 25% in the wages/salary of a non-Matriculate and on applying the 44. The overall compensation is reduced from Rs.11,65,000/- to multiplier of ‘16’, the loss of dependency works out as Rs. 9,95,040/- C Rs. 10,35,040/-, which shall be paid to the Respondents No.1 to 6 in . After adding notional sums of Rs.25,000/- towards loss of love and terms of the Tribunal’s award alongwith the interest @ 7.5% per annum affection; and Rs.5,000/- towards funeral expenses, the overall C to be paid from the date of the filing of the petition till the date of compensation comes to Rs. 10,25,040/-. payment. 37. Although the compensation of Rs.8,50,000/- awarded by the D 45. MAC.APP. 563/2010 is allowed in above terms. No costs. Tribunal is less than the compensation which works out based on the principles carved out above, in the absence of any Cross Objections or D 46. Pending applications also stand disposed of. Cross Appeal by the Respondents Claimants, the award of Rs. 8,50,000/ MAC.APP. 753/2011 - needs no interference. E 47. This Appeal relates to the death of Ramwati, who was aged 38. MAC APP. 590/2011 is accordingly dismissed. No costs. about 40 years at the time of the accident. It was claimed that the 39. Pending applications also stand disposed of. E deceased apart from doing household work was doing sewing work at her home and earned Rs. 4,000/- per month. MAC.APP. 563/2010 F 48. In the absence of any reliable evidence, the Tribunal took guidance 40. In this Appeal the Appellant Oriental Insurance Company Limited from the judgment of the Supreme Court in Lata Wadhwa (supra) and challenges the award of compensation of Rs. 11,65,000/- for the death F computed the loss of dependency as Rs.3,60,000/-. The overall of deceased Urmila @ Dulari. She was aged about 31 years. The compensation of Rs.4,10,000/- was awarded. Respondents Claimants claimed that apart from household work and G taking care of her five children, she was also doing tailoring work. 49. The Appellants did not produce any documentary evidence either with regard to the deceased doing any work of sewing or tailoring 41. In the absence of any reliable evidence with regard to the or with respect to her qualification. The compensation has to be computed tailoring work which was being carried on by the deceased, the value of G on the basis of salary of a non-Matriculate according to the principles the gratuitous services rendered by the deceased was taken as Rs.6,000/ culled out in the earlier part of the judgment. The minimum wages of a - per month and on applying the multiplier of ‘15’, the loss of dependency H non-matriculate on the date of the accident were Rs.4127/-. was worked out as Rs.10,80,000/-. After adding notional sums under pecuniary and non-pecuniary heads, an overall compensation of Rs. 50. The loss of dependency is re-assessed as Rs. 9,28,575/- (4127/ H 11,65,000/- was awarded. - + 25% x 12 x 15). After adding notional sums of Rs.25,000/- towards I loss of love and affection, instead of Rs.30,000/- (as granted by the 42. No evidence was produced as to the qualification of the deceased. Tribunal), and Rs. 10,000/- towards funeral expenses, the overall Therefore, the minimum wages of a non-Matriculate will be taken which compensation comes to Rs. 9,63,575/-. I Royal Sundaram Alliance Ins. Co Ltd. v. Master Manmeet Singh (G.P. Mittal, J.) 567 568 Indian Law Reports (Delhi) ILR (2012) IV Delhi 51. The overall compensation is thus enhanced from Rs.4,10,000/ A Rs. 13,56,250/-. Respondent No.3 United India Insurance Company - to Rs.9,63,575/-. Respondent No.3 United India Insurance Company Limited is directed to deposit the enhanced amount within 30 days along Limited is directed to deposit the enhanced amount within 30 days. with the interest. 52. The compensation awarded shall carry interest @ 7.5% per A 61. The compensation awarded shall carry interest @ 7.5% per annum from the date of the filing of the petition till the date of payment B annum from the date of the order of the Tribunal till the date of payment. and shall be paid to the Appellants No.1 to 3 in the same proportion as 62. The compensation awarded shall be paid to the Appellants No.1 given by the Tribunal. to 6 in terms of the Tribunal’s award. 53. MAC.APP. 753/2011 is allowed in above terms. No costs. B 63. MAC APP. 772/2011 is allowed in above terms. No costs. 54. Pending applications also stand disposed of. C MAC.APP. 857/2011 MAC.APP. 772/2011 64. This Appeal is for enhancement of compensation of Rs. 4,68,300/ C 55. In this Appeal, deceased Sabita Devi died leaving behind, her - awarded by the Claims Tribunal for the death of Dayawati who was husband, one major son, three minor sons and one minor daughter. aged about 40 years (as per the Ration Card Ex.PW-1/2) on the date of D the death on 19.05.2010. She left behind, her husband and five children. 56. On the basis of Lata Wadhwa (supra), the Tribunal took the Out of the five children, three were minor. There is no Cross Appeal by value of gratuitous services as Rs. 3000/- per month and awarded a sum the Insurance Company. of Rs.5,76,000/- towards the loss of dependency. After adding notional D sums under various conventional heads, an overall compensation of Rs. 65. There is no documentary evidence with regard to the deceased’s 6,41,000/- was granted. (There is a clerical mistake in mentioning the E educational qualification. Her age as per the Ration Card, as stated earlier, total sum of Rs. 6,86,000/- by the Tribunal). was 40 years on the date of the accident. 57. There is no documentary evidence with regard to the deceased’s E 66. On the basis of the principles laid down earlier, after an addition educational qualification. Her age as per the Identity Card issued by the of 25% in the wages/salary of a non-Matriculate, which were Rs.5850/ Election Commission of India was 33+ years on the date of the accident. F - on the date of the accident and on applying the multiplier of ‘15’, the loss of dependency works out as Rs. 13,16,250/-. (5850/- + 25% X 12 58. The Insurance Company represented the deceased’s age to be F X 15). After adding notional sums of Rs.25,000/- towards loss of love 37 years. Since deceased left behind a major son, I am not inclined to and affection, Rs.10,000/- towards loss of consortium and Rs.5,000/- take her age as 33+ years. I would assume her age to be between 35 to towards funeral expenses, the overall compensation comes to Rs. 40 years (at least 35 years) for the purpose of selection of the multiplier. G 13,56,250/-. 59. On the basis of the principles laid down earlier, after an addition G 67. The overall compensation is enhanced from Rs.4,68,300/- to of 25% in the wages/salary of a non-Matriculate, which were Rs.5850/ Rs. 13,56,250/-. Respondent No.3 ICICI Lombard Insurance Company - on the date of the accident and on applying the multiplier of ‘15’, the Limited is directed to deposit the enhanced amount within 30 days along loss of dependency works out as Rs. 13,16,250/-. After adding notional with the interest. sums of Rs.25,000/- towards loss of love and affection, Rs.10,000/- H towards loss of consortium and Rs. 5,000/- towards funeral expenses, H 68. The compensation awarded shall carry interest @ 7.5% per the overall compensation comes to Rs. 13,56,250/-. annum from the date of the order of the Tribunal till the date of payment. 60. The overall compensation is enhanced from Rs. 6,41,000/- to 69. The compensation awarded shall be paid to the Appellants No.1 I I Royal Sundaram Alliance Ins. Co Ltd. v. Master Manmeet Singh (G.P. Mittal, J.) 569 570 Indian Law Reports (Delhi) ILR (2012) IV Delhi to 6 in the proportion as awarded by the Tribunal. A 77. The overall compensation is reduced from Rs. 11,97,000/- to A Rs. 9,80,320/-. The excess amount deposited by the Appellant Insurance 70. MAC APP. 857/2011 is allowed in above terms. No costs. Company shall be refunded along with interest earned, if any, during the MAC.APP. 289/2010 pendency of the Appeal. Statutory amount of Rs. 25,000/- shall also be refunded to the Appellant. 71. The Appellant New India Assurance Company Limited seeks B reduction of the compensation of Rs. 11,97,000/- awarded for the death B 78. 50% of the award amount was ordered to be released in favour of Madhu who was aged about 31 years on the date of the accident, of the Respondents Claimants by order dated 26.11.2000. Rest of the which took place on 17.11.2007. amount payable shall be released/held in fixed deposit in terms of the Tribunal’s award. 72. During inquiry before the Claims Tribunal it was claimed that C the deceased was working as a Computer Editor in Ash Films, Plot C 79. MAC.APP. 289/2010 is allowed in above terms. No costs. No.54, First Floor, Sector-2, Rohini and was drawing a salary of ‘ 80. Pending applications also stand disposed of. 4,600/- per month. 73. In the absence of any cogent evidence, the same was disbelieved D by the Claims Tribunal. On the basis of the judgment in Lata Wadhwa D & Ors. v. State of Bihar & Ors., (2001) 8 SCC 197, where the income of the housewife for gratuitous services was estimated to be Rs. ILR (2012) IV DELHI 570 3,000/- per month. The Claims Tribunal increased it by 100% on the E W.P. (C) ground of inflation as Lata Wadhwa (supra) was decided in the year 2001; selected a multiplier of ‘16’, computed the loss of dependency as E Rs. 11,52,000/-. The Tribunal further awarded a sum of Rs.20,000/- FEDERATION OF PUBLIC SCHOOLS ….PETITIONER towards loss of love and affection, Rs.10,000/- towards loss of F consortium, Rs. 10,000/- towards loss of estate and Rs. 5,000/- towards VERSUS funeral charges to compute the overall compensation as Rs. GOVERNMENT OF NCT OF DELHI ….RESPONDENT 11,97,000/-. There is no Appeal by the Claimants. F (A.K. SIKRI, CJ. & RAJIV SAHAI ENDLAW, J.) 74. The deceased shall be considered as a Matriculate as she got G a compartment in Senior Secondary School Examination. Her age was W.P. (C). NO. : 636/2012 DATE OF DECISION: 31.01.2012 established to be 31 years as per the Marksheet Ex.PW-1/1. G 75. On the basis of the principles laid down earlier, after addition Right of Children to Free and Compulsory Education of 25% in the wages of a Matriculate and on applying the multiplier of H Act, 2009—Petitioner impugned Rule 10(3) Delhi RTE ‘16’, the loss of dependency works out as Rs. 9,40,320/- (3918/- + 25% Rules and alternatively claimed that the Court should x 12 x 16). frame guidelines for exercise of powers under Rule 76. After adding a notional sum of Rs. 10,000/- towards loss of H 10(3) for extending the limits of “neighbourhood” as defined under the Act and the Rules—Although the consortium, Rs.5,000/- towards funeral expenses and Rs. 25,000/- towards I loss of love and affection, the overall compensation is reassessed as Rs. Act uses the term “neighbourhood”, but does not 9,80,320/-. define the same-However, the definition is found in

I Federation of Public Schools v. Govt. of NCT of Delhi (A.K. Sikri, CJ.)571 572 Indian Law Reports (Delhi) ILR (2012) IV Delhi the Rules, which prescribe the limits of neighbourhood A and disadvantaged groups is limited to those children only, in respect of children of Classes-I to V as within who are residing within a distance of 1 Km. from the school, walking distance of 1Km and in respect of Children of the same may result in a large number of such children Classes-IV to VIII as within 3km—Private unaided even though willing for the sake of acquiring education to A schools are required to admit children belonging to travel more than 1 Km. being deprived thereof for the EWS and disadvantaged groups in Class-I to the extent B reason of there being no seats in the school within their of 25% of strength and resident of within the limits of neighbourhood. It may also result in several of the private neighbourhood—While admitting general category unaided schools who do not have sufficient number of such children, the private unaided schools do not follow B children within their defined neighbourhood allocating the the prescribed limits of neighbourhood—However, the seats so remaining unfilled to the general category students. C respondent issued order directing that all schools (Para 10) shall ensure that no child under EWS and We are of the opinion that the criteria aforesaid can be disadvantaged groups is denied admission on C neighbourhood basis, so long as the locality of the adopted for the purpose of admission under the RTE Act and the Rules aforesaid. The petitioner also, as aforesaid in child's residence falls within the distance criteria D devised by the schools for the general category— the alternative has sought guidelines from this Court. We Challenged—Held, Petitioner has no cause of action are also of the view that the RTE Act being comparatively as it should not matter to the School whether the D recent, and hiccups being faced in implementation thereof, children of EWS and disadvantaged groups are residing considering the laudable objective thereof, it becomes the within 1km or more and the grievance, if any should E bounden duty of this Court to ensure that such hiccups do be of the children for inability of government to not defeat the purpose of its enactment. After hearing the counsel for the respondent GNCTD, we direct as under: provide schools within the neighbourhood—Further E held, the paramount purpose is to provide access to (i) Admission shall first be offered to eligible students education and distance to be travelled by the child is belonging to EWS and disadvantaged group residing F secondary—Directed, admission shall first be offered within 1 Km. of the specific schools; to eligible students of EWS and disadvantaged groups F residing within 1Km; in case vacancies remain unfilled, (ii) In case the vacancies remain unfilled, students students residing within 3km shall be admitted; if still residing within 3 kms. of the schools shall be admitted; vacancies remain, students residing within 6km shall G be admitted; and even thereafter if vacancies remain, (iii) If there are still vacancies, then the admission students residing beyond 6km shall be considered. G shall be offered to other students residing within 6 kms. of the institutions; We are however of the view that the paramount purpose is to provide access to education. Whether for that access, the (iv) Students residing beyond 6 kms. shall be admitted child is to travel within 1 Km. or more is secondary. It is H only in case vacancies remain unfilled even after apparent from the executive order of the Director of Education H considering all the students within 6 kms. area. and the Notification aforesaid that if the obligation on the (Para 13) private unaided schools to admit children belonging to EWS I I Federation of Public Schools v. Govt. of NCT of Delhi (A.K. Sikri, CJ.)573 574 Indian Law Reports (Delhi) ILR (2012) IV Delhi schools, some of which in Delhi are represented by the petitioner to Important Issue Involved: Paramount purpose of RTE A A admit in Class-I , to the extent of at least 25% of the strength of that Act is to provide access to education and distance to be class, children belonging to Economically Weaker Sections (EWS) and travelled by the child is secondary. disadvantaged groups in the neighbourhood and provide free and compulsory elementary education till its completion. Such Schools, under APPEARANCES: B Section 12(2) of the RTE Act shall be reimbursed expenditure so incurred FOR THE PETITIONER : Mr. N.K. Kaul, Sr. Advocate with B by them to the extent of per child expenditure incurred by the State or Mr. P.D. Gupta, Advocate & Mr. the actual amount charged from the child whichever is less. Since some Kamal Gupta, Advocates. Schools were already under obligation (as per the term of allotment of C land to them) to provide free education to a specified number of children, FOR THE RESPONDENT : Ms. Purnima Maheshwari, Advocate the second proviso to Section 12 (2) provides that the Schools shall be for GNCTD. Mr. Ashok Agarwal, C not entitled to reimburse to the extent of the said obligation. Advocate as Intervener. 3. Though the RTE Act in Section 12 (supra) and also elsewhere CASE REFERRED TO: D uses the word “neighbourhood” but does not define the same. Such 1. Social Jurist vs. Govt. of NCT of Delhi W.P.(C) No.3156/ definition is however to be found in the Right of Children to Free and 2002. D Compulsory Education Rules, 2010 (RTE Rules) which prescribe the RESULT: Petition Disposed of. limit of neighbourhood in respect of children in Classes-I to V as within E walking distance of 1 Km. and in respect of children in Classes VI to A.K. SIKRI, THE ACTING CHIEF JUSTICE VIII as within 3 Kms. The Delhi RTE Rules also similarly prescribe the 1. W.P.(C) No.636/2012 is preferred on behalf of approximately E limits of neighbourhood as radial distance of 1 Km. from the residence 326 private unaided recognized schools functioning in Delhi impugning of child in Classes I to V and radial distance of 3 Kms. from the residence of the child in Classes VI to VIII. Thus the private unaided the Notification No.F.15(172)/DE/ACT/2011/7290-7304 dated 27.01.2012 F issued by the Lieutenant Governor of Delhi in exercise of powers conferred schools members of the petitioner under the Act and the Rules aforesaid under Section 35 and 38 of the Right of Children to Free and Compulsory are required to admit children belonging to the EWS and disadvantaged Education Act, 2009 (RTE Act) read with Sub-Rule 3 of Rule 10 of Delhi F groups in Class I to the extent of 25% of the strength and resident of Right of Children to Free and Compulsory Education Rules, 2011 within the limits of neighbourhood aforesaid. G (hereinafter called Delhi RTE Rules). The petition also impugns Rule 4. The respondent through Director of Education, however vide 10(3) of the Delhi RTE Rules. The petitioner alternatively has claimed order dated 16.12.2011 directed as follows: that this Court should lay down Guidelines and pre-conditions for exercise of power under Rule 10(3) of the Delhi RTE Rules for extending the G “All schools shall ensure that no child under economically weaker limits / area of “neighbourhood” as defined under the RTE Act and the sections and disadvantaged group is denied admission on H Delhi RTE Rules. neighbourhood / distance basis so long as the locality of the child’s residence falls within the distance criteria devised by the 2. The RTE Act was enacted in implementation of the mandate and schools for the general category children.” spirit of Article 21A of the Constitution of India inserted vide 86th H It being a common ground that the private unaided schools while admitting Amendment Act, 2002. Article 21A provides for free and compulsory I education of all children in the age group of 6 to 14 years as a Fundamental general category children does not follow the limits of neighbourhood as Right. To achieve this goal, Section 12(1)(c) requires private unaided prescribed for the children from EWS and disadvantaged groups, the I Federation of Public Schools v. Govt. of NCT of Delhi (A.K. Sikri, CJ.)575 576 Indian Law Reports (Delhi) ILR (2012) IV Delhi aforesaid order mandated extending the limits of neighbourhood for the A neighbourhood school. children belonging to EWS and disadvantaged groups. 8. We have at the outset enquired as to what is the cause of action 5. The petitioner filed W.P.(C) 40/2012 impugning the said order or the reason for the private unaided schools to be aggrieved from the and the learned Single Judge of this Court while issuing notice of the said A Notification aforesaid or the extension of the limits of neighbourhood; it writ petition, on the contention of the petitioner that the Director of B is not in dispute that the said private unaided schools under the Act and Education could not have vide order aforesaid extended the limits of the Rules aforesaid are obliged to fill up 25% of the seats in Class I and neighbourhood as prescribed in the Rules, as an ad interim measure / or at the entry level if below Class I from children belonging to EWS stayed the operation of the same. The said writ petition is listed next B and disadvantaged groups – it should not matter to the School whether before the learned Single Judge on 10.02.2012. such children are residing within a distance of one kilometer or more. C The grievance if any should be of the children and/ or their parents for 6. However, now the Notification dated 27.01.2012 (impugned in the inability of the Government, inspite of legislation, being unable to this petition) has been issued extending the limit of neighbourhood. provide schools within the neighbourhood as defined. Apparently, the said Notification has been issued to get over the challenge C in W.P.(C) No.40/2012 on the ground of the Director of Education being 9. Though the senior counsel for the petitioner has been unable to not entitled to extend the limits of neighbourhood by an executive order. D show as to how the private unaided schools are affected, he has contended that being a stakeholder, they are interested in compliance of the laws. 7. Mr. N.K. Kaul, Senior counsel for the petitioner has contended It is argued that the Notification and the exercise of power under Rule that once the definition of neighourhood is to be understood in the same D 10(3) of the Delhi RTE Rules to the extent of doing away rather than manner as applicable to students of general category, it would mean that extending the limits of neighbourhood is bad. there is no distance prescribed at all and even the children belonging to E the EWS and disadvantaged group who are residing at far away places 10. We are however of the view that the paramount purpose is to would have to be admitted by the private unaided schools. He contends provide access to education. Whether for that access, the child is to that the same is not only violative of the Rules aforesaid but also goes E travel within 1 Km. or more is secondary. It is apparent from the executive against the very scheme of the Act. Our attention is drawn to the report order of the Director of Education and the Notification aforesaid that if of April, 2010 of the Committee on Implementation of the RTE Act and F the obligation on the private unaided schools to admit children belonging to the 213th Report on the RTE Bill of the department related Parliament to EWS and disadvantaged groups is limited to those children only, who Standing Committee of Human Resource Development and which report F are residing within a distance of 1 Km. from the school, the same may was presented to the Rajya Sabha. Therefrom, it is pointed out that result in a large number of such children even though willing for the sake concerns and apprehensions were expressed about the distance / time for of acquiring education to travel more than 1 Km. being deprived thereof commutation and need was felt to define neighbourhood appropriately to G for the reason of there being no seats in the school within their also ensure access to education within reasonable reach of children. It G neighbourhood. It may also result in several of the private unaided schools is also contended that admission in far way schools may lead to high who do not have sufficient number of such children within their defined dropout rate. The senior counsel for the petitioner contends that the neighbourhood allocating the seats so remaining unfilled to the general Notification aforesaid and Rule 10(3) of the Delhi RTE Rules (which category students. enables the Government to for the purposes of filling up the requisite H 11. In the circumstances, we at the instance of the private unaided percentage of seats reserved for children of EWS and disadvantaged H schools who are not found to be aggrieved from the Notification aforesaid groups extend the limits of neighbourhood from time to time) in exercise not inclined to entertain W.P.(C) No.636/2012 challenging the same. of powers whereunder the same has been issued are ulra vires the RTE Act, the RTE Rules as well as the Delhi RTE Rules and the spirit of 12. We also find that the problem already stands answered by a I I Federation of Public Schools v. Govt. of NCT of Delhi (A.K. Sikri, CJ.) 577 578 Indian Law Reports (Delhi) ILR (2012) IV Delhi formula devised by the Division Bench of this Court in its judgment dated A 14. The senior counsel for the petitioner has stated that as per the A 30.05.2007 in W.P.(C) No.3156/2002 titled Social Jurist Vs. Govt. of Schedule for admission announced earlier, the admission process is to NCT of Delhi. No doubt that writ petition was filed before the RTE Act close soon. He seeks extension thereof, to enable the private unaided had been enacted. However, the issue was almost identical in nature. The schools to make admission in accordance with the guidelines aforesaid. said judgment was rendered in a public interest litigation mandating the B Schools who had been allotted land on concessional rates to give admission 15. We find merit in the aforesaid contention. Since the clarification to children belonging to EWS. The issue of distance / neighbourhood had B / guidelines aforesaid has been issued now we are confident that further also arisen for consideration while dealing with the said aspect and the two weeks time shall be allowed to the schools to complete the admission following solution was devised: process. C “Admission shall be first offered to eligible students from poorer 16. However, finding that the executive order dated 16.12.2011 sections residing within 3 kilometers of the institutions. In case C earlier issued and which has been stayed in W.P.(C) No.40/2012, we vacancies remain unfilled, students residing within 6 kilometers have with the consent of the counsels taken that writ petition also on our of the institutions shall be admitted. Students residing beyond 6 board today. The counsel for the petitioner admits that upon issuance of kilometers shall be offered admission only in case the vacancies D the Notification challenged in W.P.(C) No.636/2012, W.P.(C) No.40/ remain unfilled even after considering all students within 6 2012 has become infructuous. D kilometers area.” 17. Accordingly, W.P.(C) No.636/2012 is disposed of in terms of 13. We are of the opinion that the criteria aforesaid can be adopted above and W.P.(C) No.40/2012 is disposed of as infructuous. for the purpose of admission under the RTE Act and the Rules aforesaid. E The petitioner also, as aforesaid in the alternative has sought guidelines from this Court. We are also of the view that the RTE Act being E comparatively recent, and hiccups being faced in implementation thereof, ILR (2012) IV DELHI 578 considering the laudable objective thereof, it becomes the bounden duty F RFA of this Court to ensure that such hiccups do not defeat the purpose of its enactment. After hearing the counsel for the respondent GNCTD, we direct as under: F MUKHINDER SINGH (DECEASED) ….APPELLANTS (i) Admission shall first be offered to eligible students G THROUGH LRs. & ORS. belonging to EWS and disadvantaged group residing within VERSUS 1 Km. of the specific schools; GURBUX SINGH & ORS. ….RESPONDENTS (ii) In case the vacancies remain unfilled, students residing G within 3 kms. of the schools shall be admitted; H (VALMIKI J. MEHTA, J.) (iii) If there are still vacancies, then the admission shall be offered to other students residing within 6 kms. of the RFA NO. : 377/2010 DATE OF DECISION: 02.02.2012 institutions; H (iv) Students residing beyond 6 kms. shall be admitted only in I (A) Code of Civil Procedure, 1908—Suit for possession case vacancies remain unfilled even after considering all and mesne profit—The predecessor in interest late the students within 6 kms. area. Sardar Sohan Singh, the father of plaintiff Nos. 1 and I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 579 580 Indian Law Reports (Delhi) ILR (2012) IV Delhi 2 as also the defendant Nos. 2 to 5 was a member of A since then—On the basis of aforesaid facts, claiming a Cooperative Society—On 14.01.1952 Sardar Sohan that the cause of action had arisen either in January, Singh was allotted the suit plot admeasuring 4132 sq. 1964 or on 25.05.1963, the subject suit for possession yds and an agreement was entered into by Sardar and mesne profits come to be filed—Suit was A Sohan Singh with the Society—Pleaded that Sardar contested—Contended that Sardar Sohan Singh after Sohan Singh paid the entire consideration with respect B making initial payment of the cost of the plot, was not to the plot—Sardar Sohan Singh was stated to have in a position to make construction on the plot which friendly relations with Sir Sobha Singh, the father of was a necessary requirement of the terms of allotment defendant no.1/respondent no.1—Both of them were B that construction must be completed within a specified also partners in a partnership firm plans for period of time—On account of inability of Sardar Sohan C construction were got sanctioned from appropriate Singh to complete the construction there was authorities on an application made on behalf of Sardar consequently a threat of cancellation of the allotment Sohan Singh and the task of constructing the building C and forfeiture of the money paid—On account of such was entrusted by Sardar Sohan Singh to Sir Sobha threat of cancellation of the allotment and forfeiture Singh—Further, pleaded that the construction material D of the amounts which were paid by Sardar Sohan from which the residential house on the suit plot was Singh to the Society, Sardar Sohan Singh agreed to made was utilized out of the material of the partnership mutation of the plot in the name of the defendant firm—After construction, the property was entrusted D no.1/respondent no.1 the son of Sir Sobha Singh— by Sardar Sohan Singh to Sir Sobha Singh for managing Sardar Sohan Singh wrote his letter dated 4.10.1954 to the property—Further pleaded that Sardar Sohan Singh E the Society to transfer the membership and the plot in continued to remain the owner of the plot in the the name of the defendant no.1/respondent no.1-By a records of the Society—Further pleaded in the plaint E resolution number 3-C passed in the meeting held on that the Society wrongly transferred the Suit plot by a 13.10.1954, the Society agreed to transfer the suit plot sale deed in the name of defendant no.1/respondent in the name of defendant no.1/respondent. No.1 no.1 on account of fraud and collusion—Execution of F pursuant to the letter dated 4.10.1954 written by Sardar the sale deed in favour of defendant no.1/respondent Sohan Singh to the Society—Sir Sobha Singh never F no.1 was contrary to the rules and regulations of the acted as an attorney or an agent of Sardar Sohan Cooperative Society—When Sardar Sohan Singh Singh and, the fact of the matter was that Sir Sobha approached the Society for executing the sale deed Singh was acting only for and on behalf of his son, the G of the suit plot in his name, the Society informed defendant no./respondent no. 1 with the Society—The Sardar Sohan Singh that the sale deed with respect to G written statement also denied the alleged plea of the suit plot had already been executed in favour of fraud and collusion as alleged by the plaintiffs in the defendant no.1/respondent no.1 and thus, the plaint—It was further pleaded that as the sale deed existence of the sale deed come to the Knowledge of H was executed in the year 1960, and that right from the Sardar Sohan Singh and the plaintiffs—Defendant No. year 1960 the plaintiffs were aware of the sale deed 1/respondent No. 1 after retiring from Indian Army in H having been executed in the name of defendant no.1/ about 1964, came into the possession of the house respondent no.1 and also of the defendant no.1/ constructed on the suit plot and has been living there respondent no.1 being the owner of the suit property, I I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 581 582 Indian Law Reports (Delhi) ILR (2012) IV Delhi the suit filed in the year 1975 was hence, time barred- A Sardar Sohan Singh by Sir Sobha Singh by using/ Suit dismissed—Hence, present appeal—Held:- In the A spending any alleged monies of Sardar Sohan Singh— present case, there is admittedly an agreement in Undisputed position which has come record is that writing, dated 14.01.1952 by which the plot was agreed there has not been shown any actual transfer of funds to be transferred/sold to Sardar Sohan Singh and B by Sardar Sohan Singh either to Sir Sobha Singh or to which contained the terms of the transfer. Possession anybody else for raising of construction on the suit of the plot under this agreement was given to Sardar B plot Sardar Sohan Singh in his lifetime never filed any Sohan Singh. Sardar Sohan Singh paid the suit to claim any right in the Suit property whether by consideration as was them payable under this seeking cancellation of the sale deed dated 3.12.1960 agreement dated 14.01.1952—However the basic C or seeking possession of the building thereon—Sardar requirement of being ready and willing to perform his C Sohan Singh also in his lifetime, never revoked the part of the contract by Sardar Sohan Singh was that he letter dated 4.10.1954 seeking transfer of the had to make construction on this plot allotted by the membership and transfer of allotment of the suit plot Society within the Specific period of time—The to the defendant No.1. Building was constructed during D construction on the plot was made by Sir Sobha Singh— the years 1957 to 1959 and the sale deed was executed Therefore, the requirement of Section 53-A to Transfer D on 3.12.1960 whereas Sardar Sohan Singh expired of property Act, 1882 of readiness to perform his part much later in the year 1974—Thus, it is only the legal of the contract was not complied with by Sardar Sohan heirs of Sardar Sohan Singh who have suddenly woken Singh—No benefit can be derived by Sardar Sohan E up after his death hoping that by speculation in Singh or now his legal heirs by claiming that Sardar litigation, they may be successful and be able to get Sohan Singh had effective ownership rights in the E some benefits. suit plot by virtue of the agreement dated 14.01.1952— Sardar Sohan Singh in addition to the fact that he was F (B) Transfer of Property Act, 1882—Section 54—An not ready and willing to perform his part of contract (a ownership of a property is transferred by means of a necessary requirement of Section 53A) in fact registered sale deed as per Section 54—Every sale F voluntarily gave up his rights in the suit plot and the deed has an effect of divesting the transferor of the membership of the Society inasmuch as he stated that G ownership of the property and the vesting of the he could not make the construction on the suit plot ownership in the transferee—A Sale deed by which and therefore, gave up his rights in favour of the the ownership rights in an immovable property are defendant no.1/respondent no.1 vide letter dated G transferred can be ignored only under two 4.10.1954-By the specific language of section 53-A, circumstances—First, it the sale deed is a nominal rights which are reserved by the seller under the H transaction or a paper transaction because the parties agreement, are not given to the proposed buyer and intended it to be so or secondly, if the document the Society, having reserved certain rights by requiring being the sale deed is void ab initio. It is in these two constructions to be completed by allottees in a H circumstances that it is not necessary to have the specified time, was fully competent under such sale deed set aside inasmuch as the sale cannot have I reserved right to transfer the plot Construction of the he effect of transferring ownership—However, in all building on the plot was not made for and on behalf of other cases where it is pleaded that deed is a voidable

I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 583 584 Indian Law Reports (Delhi) ILR (2012) IV Delhi

document because it ought not to have been executed A construction on the plot—Sir Sobha Singh was entitled or there is a fraudulent transfer of title by means of to have an impression that it was the defendant no.1/ the particular sale deed or for any reason which respondent no.1 who is the owner of the plot inasmuch as there was a letter dated 4.10.1954 by Sardar Sohan makes the transfer voidable (and not void), it is A necessary that a suit has to be filed for cancellation of Singh to the society for transfer of the plot and B such a sale deed within a period of three of years membership and which letter was never revoked— from the date a person comes to know of execution Defendant no.1/respondent no.1 is also the owner of and existence of the sale deed which goes against the suit property on the basis of the principal of B the interest of such person-This is the mandate of estoppel enshrined in section 115 of the Evidence Act, 1872. Article 59 of the Limitation Act, 1963—In the facts of C the present case, the Knowledge of the appellants/ plaintiff and their predecessor in interest, Sardar Sohan (D) Limitation Act, 1993—Section 27—As per Section 27 Singh of the existence of the sale deed dated C once the limitation for claiming a relief/right with 03.12.1950, is actually from 1960 itself-On registration respect to an immovable property expired, the right in of the sale deed dated 3.12.1960, the appellants/ D the property itself is lost—This provision of Section 27 plaintiffs and Sardar Sohan Singh in accordance with of the Limitation Act, 1963 is a departure from the Section 3 of Transfer of property Act, 1882 were deemed normal law of limitation, and as per which normal law to have notice of the fact that the sale deed was D of limitation on expiry of limitation, right is not lost but actually executed—Suit of the appellants/plaintiffs, only the entitlement to approach the Court is lost— even if the present suit was one for cancellation of E Once it was clear to the plaintiff/appellants that from the sale deed dated 3.12.1960, would have become the year 1960 ownership in the suit property was barred by 1963, or at best 1965/1966 even if we take E being claimed by defendant no.1/respondent no.1 the the knowledge from the year 1963, as pleaded by the period of 12 years for the appellants/plaintiffs to have appellants/plaintiff. Once, there cannot be cancellation filed a suit for possession with respect to this property of the sale deed, the ownership of the defendant F under Article 65 commenced in 1960 itself—Once the no.1/respondent no.1 become final and also the F limitation commenced in the year 1960, by the year disentitlement of the appellants/plaintiff to the reliefs 1972, the right to approach the Court by means of a claimed in the suit of possession and mesne profits. suit for possession governed by Article 65 of the Limitation Act, 1963 was lost—Once the right is lost in G (C) Indian Evidence Act, 1872—Section 115—Appellants/ the year 1972, the subject suit having been filed in the G plaintiff are estopped from filing the subject suit—As year 1975, the ownership of the defendant no.1/ per the provision of Section 115 of a person has a respondent no.1 becomes absolute by virtue of law of belief that he is the owner of a plot, and such person prescription contained in Section 27 of the Limitation thereafter builds on the plot having the impression H Act, 1963—In view of the above, no. merit in the appeal, which is accordingly dismissed. that he is the owner of the plot, and the real owner H stands by and allows him to construct on the plot, the Now, on the aspect as to who incurred the construction cost real owner is then estopped in law from claiming any for making the building on the suit plot between the years rights on the plot once the third person has made I I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 585 586 Indian Law Reports (Delhi) ILR (2012) IV Delhi 1957 to 1959 i.e. whether the construction was made by Sir A [Sa Gh] Sobha Singh for and on behalf of Sardar Sohan Singh or it A APPEARANCES: was made by Sir Sobha Singh for and on behalf of his son- the defendant no.1/respondent no.1. Before proceeding FOR THE APPELLANTS : Mr. Rajiv Sawhney. Senior Advocate with Mr. Gourav Duggal, Advocate further, I may at this stage itself mention that the undisputed B position which has come on record is that actually no and Mr. Vineet Jhanji, Advocate. B moneys were paid specifically with respect to construction of FOR THE RESPONDENT : Mr. Amit S. Chadha, Senior Advocate the building on the plot by Sardar Sohan Singh to Sir Sobha with Mr. Kunal Sinha. Advocate for Singh. The case as put up on behalf of the plaintiffs/ respondent No.1. appellants was that construction was made on the suit plot C CASES REFERRED TO: by Sir Sobha Singh out of the funds of Sardar Sohan Singh C lying to the latter’s credit in the partnership firm. There is 1. Ramrameshwari Devi and Others vs. Nirmala Devi and also a related aspect that the construction is stated to have Others, (2011) 8 SCC 249. been made out of the materials of the partnership firm. Let D 2. Prem Singh vs. Birbal 2006 (5) SCC 353. us examine these aspects. (Para 8) D 3. Salem Advocate Bar Association vs. Union of India (2005)6 SCC 344. Important Issue Involved: A Civil case is decided on 4. Balavant N. Viswamitra and Ors. vs. Yadav Sadashiv balance of probabilities-The balance of probabilities in the E Mule (deceased by L.Rs.) and others, AIR 2004 SC 4377. present case shows that it is the defendant no.1/respondent 5. D. N. Venkatarayappa and Anr. vs. State of Karnataka no.1 who was the owner of the property-The defendant E no.1/respondent no.1 and his father-Sir Sobha Singh have & Ors. (1997) 7 SCC 567. represented themselves to the world at large as the owners 6. Harbans Kaur & Ors. vs. Bhola Nath & Anr. 57(1995) F from the year 1960 and which aspect was never challenged DLT 101. by the appellants or their predecessor-In-interest within the RESULT: Appeal dismissed. period of limitation-Any alleged rights/ownership claims are F thereby destroyed-Also even assuming there is a fraud which VALMIKI J. MEHTA, J. (ORAL) is played upon a person, even with respect to such fraud, G the necessary action. In law has to take place within three 1. This Regular First Appeal (RFA), filed under Section 96 of Code years under Article 113 of the Limitation Act, 1963 and if of Civil Procedure, 1908 (CPC), impugns the judgment of the trial Court such an action is not taken, a person cannot interminably G dated 14.1.2010 dismissing the suit of the plaintiffs (late plaintiff No.1- seek disentitlement to the ownership of another person on Shri Mukhinder Singh and others) who are legal heirs of late Sardar the ground of fraud when there is a proper registered sale H Sohan Singh. By the suit the plaintiffs claimed possession of the suit deed, which is in this case is of the year 1960 i.e. about 52 property being plot No. 8, Friends Colony, New Delhi measuring 4132 years back. Also as already observed above, this litigation sq. yds. alongwith the building constructed thereon. Besides praying for has been initiated after the death of Sardar Sohan Singh, H the relief of possession, mesne profits were also claimed. The suit was and who in his lifetime did not file a suit claiming rights in I filed against the defendant no.1/respondent no.1-Sh. Gurbux Singh who the suit property. was a resident of the suit property and was claiming ownership rights therein. The defendant Nos.2 to 5 are the other legal heirs of late Sardar

I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 587 588 Indian Law Reports (Delhi) ILR (2012) IV Delhi Sohan Singh. For the sake of convenience, reference in this judgment to A Singh continued to remain the owner of the plot in the records of the the appellants would mean reference to the original plaintiffs. This I am society. It is further pleaded in the plaint that the society wrongly stating because one of the plaintiffs i.e. plaintiff No. 1-Sh. Mukhinder transferred the suit plot by a sale deed dated 3.12.1960 in the name of Singh expired during the pendency of the suit and whose legal heirs were defendant no.1/respondent no.1 on account of fraud and collusion and A consequently brought on record. hence this action of the Society was not binding on Sardar Sohan Singh. B It was also alleged that the execution of the sale deed in favour of 2. The case of the plaintiffs as set out in the plaint was that their defendant no.1/respondent no.1 was contrary to the rules and regulations predecessor-in-interest late Sardar Sohan Singh, the father of plaintiff of the cooperative society. It was then pleaded that on or about 14.5.1963 Nos.1 and 2 as also the defendant Nos.2 to 5 (defendant No. 2 being one B when Sardar Sohan Singh approached the society for executing the sale other son and defendant Nos.3 to 5 being the daughters, plaintiff Nos.3 deed of the suit plot in his name, the society by its letter dated 23.5.1963 and 4 are the sons of plaintiff No.1-Sh. Mukhinder Singh and plaintiff C informed Sardar Sohan Singh that the sale deed with respect to the suit No.5 is the son of plaintiff No.2-Sh. Sukhinder Singh), was a member plot had already been executed in favour of defendant no.1/respondent of a Cooperative Society known as Nathu Ram Friends Colony Co- no.1 on 3.12.1960, and that thus only on 23.5.1963/25.5.1963 the operative House Building Society. Sardar Sohan Singh became a member C existence of the sale deed dated 3.12.1960 came to the knowledge of of this Cooperative society on 16.1.1950. On 14.1.1952 Sardar Sohan Sardar Sohan Singh and the plaintiffs. It was pleaded that defendant No. Singh was allotted the suit plot admeasuring 4132 sq. yds and an agreement D 1/respondent No.1 after retiring from Indian Army in about 1964 came was entered into by Sardar Sohan Singh with the society. It was pleaded into the possession of the house constructed on the suit plot (the plot and that the said Sardar Sohan Singh paid the entire consideration with respect D the building hereinafter referred to together as the ‘suit property’) and to the plot being the amount of Rs. 11,824/-. Sardar Sohan Singh was has been living there since then. There was further reference in the suit stated to have friendly relations with Sir Sobha Singh, who was the E of certain litigation initiated by the society against the parties to the father of defendant no.1/respondent no.1 and both of them were also present suit, however, the same is not material for the disposal of the partners in a partnership firm which was engaged in construction (the present appeal. Suffice to say that the said suit filed by the society has name of this firm has not come either in the pleadings or in the evidence E been dismissed in default and for non-prosecution. In the said suit, the of the parties). It was further pleaded that Sir Sobha Singh was entrusted society had however supported the present defendant No. 1/respondent by late Sardar Sohan Singh the task to correspond and deal with the F No.1-Sh. Gurbux Singh. While referring to this suit filed by the society society in all matters pertaining to the suit plot and the physical possession it will be necessary to mention that all the parties to the present suit were of the plot was also accordingly with Sir Sobha Singh. The plans for F the defendants in the suit filed by the society and the exhibit marks of construction were got sanctioned from appropriate authorities on an the documents and the depositions of the witnesses referred to in the application made on behalf of Sardar Sohan Singh and the task of present suit and in this appeal are those in the society’s suit as the constructing the building was entrusted by Sardar Sohan Singh to Sir G society’s suit was consolidated with the subject suit and evidence was Sobha Singh. It was further pleaded that the construction material from G led in the suit which was filed by the society. The numbering of the which the residential house on the suit plot was made was utilized out exhibited documents which will be thus referred to would be a bit of the material of the partnership firm in which Sir Sobha Singh and incongruous initially in view of the said position. On the basis of the Sardar Sohan Singh were partners alongwith one G.S. Banga. It was aforesaid facts, claiming that the cause of action had arisen either in further averred that on the basis of the aforesaid understanding Sir Sobha H January, 1964 or on 25.5.1963, the subject suit for possession and Singh started construction of the house for and on behalf of Sardar H mesne profits came to be filed. Sohan Singh and after construction, the property was entrusted by Sardar Sohan Singh to Sir Sobha Singh for managing the property in the best 3. The suit was contested by the defendant no.1/respondent No.1. interest of Sardar Sohan Singh. It is further pleaded that Sardar Sohan There were various defences, however, the golden thread which runs I I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 589 590 Indian Law Reports (Delhi) ILR (2012) IV Delhi through the defence on merits was that Sardar Sohan Singh after making A Singh for construction, much less from the alleged partnership in which initial payment of the cost of the plot, was not in a position to make A Sardar Sohan Singh and Sir Sobha Singh were the partners. It is further construction on the plot, and which was a necessary requirement of the pleaded that the payments made by Sardar Sohan Singh totaling to ‘50,000/ terms of the allotment that construction must be completed within a - towards his capital in the partnership firm was an issue of the partnership specified period of time, and on account of inability of Sardar Sohan B firm and the same had no co-relation with the ownership of the suit plot Singh to complete the construction there was consequently a threat of or the construction made thereon. It was further pleaded that the society cancellation of the allotment and forfeiture of the moneys paid. It was B by means of a proper resolution transferred the membership of the pleaded that on account of such threat of cancellation of the allotment society to defendant no.1/respondent no.1, issued a membership certificate, and forfeiture of the amounts which were paid by Sardar Sohan Singh and thereafter executed a sale deed dated 3.12.1960 in favour of defendant to the society, Sardar Sohan Singh agreed to mutation of the plot in the C no.1/respondent no.1 which was duly registered with the concerned name of the defendant no.1/respondent no.1, the son of Sir Sobha Singh, C Sub-Registrar. The resolution of the General Body of the society a close friend of Sardar Sohan Singh. In furtherance of the intention/ confirming the transfer of the suit property to defendant No. 1/respondent desire of Sardar Sohan Singh for mutation, he wrote his letter dated No.1 was stated to be dated 13.12.1959. It was further pleaded that the 4.10.1954 to the society to transfer the membership and the plot in the entire construction was made between the years 1957 to 1959 by late Sir D name of the defendant no.1/respondent no.1. The further case of defendant Sobha Singh out of his own funds, for and on behalf of his son-defendant no.1/respondent no.1 in the written statement was that by a resolution D no.1/respondent no.1/Sh. Gurbux Singh. The written statement also denied number 3-C passed in the meeting held on 13.10.1954, the society agreed the alleged plea of fraud and collusion as alleged by the plaintiffs in the to transfer the suit plot in the name of defendant no.1/respondent no.1 plaint. It was further pleaded that as the sale deed was executed in the pursuant to the letter dated 4.10.1954 written by Sardar Sohan Singh to E year 1960, and that right from the year 1960 the plaintiffs were aware the society. This letter dated 4.10.1954 stated that defendant no.1/ of the sale deed having been executed in the name of defendant no.1/ respondent no.1/Gurbux Singh was the ‘nephew’ of Sardar Sohan Singh E respondent no.1 and also of the defendant no.1/respondent no.1 being the and which relationship was stated inasmuch as, as per the then existing owner of the suit property, the suit filed in the year 1975 was hence time rules of the society (which were subsequently amended to include transfer F barred. to a non-blood relation) the plot allotted to a member could only be 4. After completion of pleadings, the trial Court framed issues on transferred to a close relation. The defendant no.1/respondent no.1 vide 10.12.1976. Additional issues were framed on 20.9.1984. These issues its letter dated 20.10.1954 sent the complete arrears due to the society F read as under:- payable as on that date, being the amount of Rs. 1180/-, and requested G the society to transfer the plot in his name. The society by its letter dated “1. Whether the court fee has been properly paid? 22.11.1954 informed Sardar Sohan Singh about payment of dues by the 2. Whether the suit is not maintainable in the present form? defendant no.1/respondent no.1 and also of payment of the membership G fee with the cost of the share. It was pleaded that by this letter dated 3. Whether this court has no jurisdiction to try the suit? 22.11.1954, Sardar Sohan Singh was informed by the society that defendant H 4. Whether the suit is bad for non-joinder or mis-joinder or no.1/respondent no.1 was allotted the suit plot. It was thereafter pleaded multifariousness of parties, as alleged by the contesting defendant? in the written statement that Sir Sobha Singh never acted as an attorney or an agent of Sardar Sohan Singh and, the fact of the matter was that H 5. Whether the plaintiffs constitute a joint Hindu Family as alleged Sir Sobha Singh was acting only for and on behalf of his son, the in the plaint? defendant no.1/respondent no.1, with the society. The defendant no.1/ I respondent no.1 also denied that any funds were spent by Sardar Sohan 6. Whether the suit is liable to be stayed under section 10 of the

I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 591 592 Indian Law Reports (Delhi) ILR (2012) IV Delhi C.P.C. as alleged by the contesting defendant? A for the plot no.8, Friends Colony, New Delhi as alleged in paragraph 3 of the plaint?” 7. Whether the suit is within limitation? 5. Before this Court, the arguments were addressed by learned 8. Whether the plaintiffs are stopped from filing this suit on the A Senior counsel for both the parties under the following basic heads:- grounds alleged by defendant no.1? B (i) Whether Sardar Sohan Singh had become the owner of the suit 9. Whether late S. Sohan Singh was allotted plot no.8, Friends plot by virtue of Section 53A of Transfer of Property Act, 1882 as then Colony, New Delhi by the Society and was given possession applicable? This aspect would also cover various other related aspects thereof, as alleged? B with respect to actual physical possession or constructive possession or whether the possession of Sir Sobha Singh was as a trustee for and on 10. Was the plot in question transferred to defendant no.1 by the C society, as alleged by the contesting defendant? behalf of Sardar Sohan Singh or for the defendant no.1/respondent no.1, also as to whether the membership of the society was validly transferred 11. Whether the sale deed of the plot in dispute was fraudulently C to the defendant no.1/respondent no.1 and whether the society passed executed by the Society in favour of defendant no.1, as alleged the necessary resolutions for transferring of membership of the society in the plaint? If so, its effect. D and the suit plot to defendant no.1/respondent no.1. Included in this head 12. Whether the plot in question was allotted to defendant no.1 will be whether Sir Sobha Singh acted as an attorney for and on behalf on 22/11/1954 as alleged in para 25 of the written statement? of Sardar Sohan Singh or that he acted only for and on behalf of his son- D defendant no.1/respondent no.1/Sh. Gurbux Singh. 13. If the preceding issue is decided in the affirmative, whether (ii) Whether and if the sale deed dated 3.12.1960 was executed by defendant no.1is in open possession of the same and had E constructed the house thereon? the society in favour of defendant no.1/respondent no.1 on account of fraud and collusion, if so its effect? 14. Whether the plaintiffs are entitled to claim mesne profits? If E so, for which period and what amount? (iii) Whether defendant no.1/respondent no.1 was the owner of the property by virtue of principle of estoppel and also by adverse possession. 15. Relief. F (iv) Whether the suit of the plaintiffs was barred by time inasmuch Additional issues framed on 20/09/84:- F as actual notice/knowledge or deemed notice/knowledge of the existence 1. Whether the house in question was constructed by S. Sobha of the sale deed was there of the plaintiffs from 1960 and admittedly Singh for and on behalf of S. Sohan Singh from the material left since 1963, and the suit which was filed for possession without seeking over available with the partnership firm and whether the plaintiff G cancellation of the sale deed dated 3.12.1960 filed in the year 1975 was S. Sohan Singh also gave Rs. 30,000/- to S. Sobha Singh towards G barred by Article 59 of the Limitation Act, 1963. the construction of the super-structure, as alleged, thus becoming 6. The first aspect is the aspect with respect to Section 53A of the owner of the house? Transfer of Property Act, 1882 and which section deals with the doctrine 2. If the plaintiffs are entitled to possession of the property in H of part performance and the rights created thereby in an immovable property. Before proceeding I must state that there is no pleading or any dispute, is defendant no.1 entitled to any compensation? If so, to H what amount would the defendant be entitled? issue framed in the suit on the aspect of Sardar Sohan Singh having rights under Section 53-A however the appellants/plaintiffs in the interest 3. Whether the plaintiff, S. Sohan Singh, paid full consideration of justice have been allowed to argue on this basis. Under Section 53A, I I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 593 594 Indian Law Reports (Delhi) ILR (2012) IV Delhi once there is an agreement in writing signed by the parties containing the A respect to the agreement dated 14.1.1952 by claiming that Sardar Sohan terms on which the immovable property has to be transferred, and pursuant A Singh had effective ownership rights in the suit plot by virtue of the to such agreement, the proposed seller receives consideration and transfers agreement dated 14.1.1952. Sardar Sohan Singh admittedly did not make possession of the property to the proposed buyer, then notwithstanding any construction on the suit property till 1957. Even after 1957 when that no sale deed has been executed and registered yet the seller of the B construction started on the suit plot and which was completed till 1959 suit property cannot claim any right, title or interest in such property as the same was made by Sir Sobha Singh. In fact, a particular amount of against the proposed buyer except the rights reserved under the agreement. B arrears was also not paid by Sardar Sohan Singh and which amount of In the present case, there is admittedly an agreement in writing, dated ‘ 1180/- was paid by the defendant no.1/respondent no.1 and even to this 14.1.1952 by which the plot was agreed to be transferred/sold to Sardar extent there is a breach of non-performance by Sardar Sohan Singh of Sohan Singh and which contained the terms of the transfer. Possession C the terms of the agreement dated 14.1.1952. of the plot under this agreement was given to Sardar Sohan Singh. C 7. There is, in my opinion, one other very important reason for Sardar Sohan Singh paid the consideration as was then payable under this holding that Sardar Sohan Singh cannot have the benefit of Section 53A agreement dated 14.1.1952. of the Transfer of Property Act, 1882. This reason is that rights which The issue, however, is whether Sardar Sohan Singh had performed D are claimed by a proposed buyer under Section 53A; and I am assuming and was always ready and willing and continued to be ready and willing at this stage that all the requirement of Section 53A were complied with to perform all the terms of the contract as contained in the agreement D by Sardar Sohan Singh; are such rights which till the actual sale deed in dated 14.1.1952. To this, I must say that the answer has to be in terms of Section 54 of Transfer of Property Act, 1882, is executed, can negative. This I say so because the basic requirement of being ready and E surely be given up by the person in whose favour the agreement to sell willing to perform his part of the contract by Sardar Sohan Singh was which creates rights under Section 53A is entered into. In the present that he had to make construction on this plot allotted by the society E case, by virtue of letter, Ex.P-28 dated 4.10.1954 Sardar Sohan Singh within the specific period of time. The construction on the plot was voluntarily gave up his rights under the agreement dated 14.1.1952 with made by Sir Sobha Singh. The issue as to whether this construction was respect to suit property and unfortunately on which agreement a claim made by Sir Sobha Singh out of the funds of Sardar Sohan Singh and F is now being made to have rights under the doctrine of part performance as a trustee of Sardar Sohan Singh is an aspect which will be discussed enshrined in Section 53A. Surely, a proposed buyer after complying with by me later, however, it is important to note that on account of his F the requirement of Section 53A, and by which he could have rights in inability to make the constructions, Sardar Sohan Singh vide letter dated an immovable property, can voluntarily give up such rights. This legal 4.10.1954 (Ex.P-28) wrote to the society that the plot and the membership G position cannot be doubted. In the facts of the case, Sardar Sohan Singh on account of his aforestated inability, be transferred to the defendant in addition to the fact that he was not ready and willing to perform his no.1/respondent no.1. This letter, Ex.P-28 specifically stated that Sardar part of contract (a necessary requirement of Section 53A) in fact Sohan Singh was not in a position to construct the house. Of course, this G voluntarily gave up his rights in the suit plot and the membership of the letter also stated that defendant no.1/respondent no.1 was the nephew of society inasmuch as he stated that he could not make the construction Sardar Sohan Singh and which is factually incorrect, however, the effect H on the suit plot and therefore gave up his rights in favour of the defendant of this factually incorrect statement made by the Sardar Sohan Singh has no.1/respondent no.1 vide letter dated 4.10.1954. I may also additionally no effect as will be dealt with by me hereafter. Therefore the requirement and independently mention here that by the specific language of Section of Section 53-A of Transfer of Property Act, 1882 of readiness to H 53-A, rights which are reserved by the seller under the agreement are not perform his part of the contract was not complied with by Sardar Sohan I given to the proposed buyer and the society, having reserved certain Singh and therefore in my opinion no benefit can be derived by Sardar rights by requiring constructions to be completed by allottees in a specified Sohan Singh or now his legal heirs being the appellants/plaintiffs with time, was fully competent under such reserved right to transfer the plot I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.)595 596 Indian Law Reports (Delhi) ILR (2012) IV Delhi to the defendant No.1/respondent No.1. A My dear Sardar Sahib, 8. Now, on the aspect as to who incurred the construction cost for S.B. Sir Sobha Singh has shown me your letter of the 4th making the building on the suit plot between the years 1957 to 1959 i.e. January, 1960, in which you have mentioned that the house in whether the construction was made by Sir Sobha Singh for and on A Friends. Colony on Mathura Road was built with the material and behalf of Sardar Sohan Singh or it was made by Sir Sobha Singh for and B labour provided by the partnership business. on behalf of his son- the defendant no.1/respondent no.1. Before proceeding further, I may at this stage itself mention that the undisputed It gave me a rude shock to see these remarks. I have done work in your partnership for the past ten years or so. These position which has come on record is that actually no moneys were paid B specifically with respect to construction of the building on the plot by remarks reflect on my honesty. I can assure you that not a Sardar Sohan Singh to Sir Sobha Singh. The case as put up on behalf C single brick or a bag of cement or a pound of steel was used in of the plaintiffs/appellants was that construction was made on the suit building this house, from the partnership business. All the material plot by Sir Sobha Singh out of the funds of Sardar Sohan Singh lying used for the construction of the house was purchased and the to the latter’s credit in the partnership firm. There is also a related aspect C scaffolding material was received from Sujan Singh Park. that the construction is stated to have been made out of the materials of Supervision and other necessities were provided directly by Sardar the partnership firm. Let us examine these aspects. D Bahadur Sir Sobha Singh. The partnership accounts have nothing to do with the construction of the house. All the payments are 9. In this case, when it is pleaded that Sardar Sohan Singh had made directly by Sardar Sahib and debited to Brigadier Gurbux moneys to his credit in a partnership firm having one other partner as Sir D Singh’s account. Any service that I have done in checking up Sobha Singh and one Mr. G.S. Banga, the onus to so prove was on the the measurements or rates from time to time that Sardar Sahib plaintiffs who had to establish that: (i) there was in fact credit amount E asked me, I have done that in my personal capacity as I have of Sardar Sohan Singh in the partnership firm, and (ii) such amounts been doing in your case also. I hope you will kindly realize the were in fact spent and utilized for construction of the building on the suit E difficult position that you have mentioned to me in your letter. plot. In this regard, there is absolutely no documentary evidence in the I am sending a copy of this letter to S.B. Sir Sobha Singh also suit as to Sardar Sohan Singh having any credit/amounts lying in the to clear my position. partnership firm or that such credit/amounts were in fact used for F construction on the building on the suit plot. On the contrary, when With regard to the partnership account, I am sorry they were F Sardar Sohan Singh wrote his letter dated 11.2.1960, Ex.D2W3/7, to Sh. delayed as there were some disputes about the sales-tax as well G.S. Banga, the other partner in the partnership firm, Sardar Sohan Singh as the final measurements of the work and I could not get in this letter expressed his apology for making a statement that the payment also to know the actual position. The accounts are now G construction material belonging to the firm or the funds of the firm were ready and I will be sending to you a copy of the same within this utilized for making construction of a building on the suit plot. This letter G week. dated 11.2.1960, Ex.D2W3/7, was written by Sardar Sohan Singh in With best wishes and kind regards, response to the letter dated 8.1.1960, Ex.D2W3/3, of Sh. G.S. Banga to Yours sincerely, Sardar Sohan Singh. These two letters are most crucial and therefore I H am reproducing the entire contents of the two letters and which read as (G.S. Banga) under:- H Sardar Sohan Singh, “Ref. No.______Date 8th Rais-i-Azam of Rawalpindi, January, 1960 C/o Sir Buta Singh, I I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 597 598 Indian Law Reports (Delhi) ILR (2012) IV Delhi Nowshera House, A New Delhi.” (underlining added) Amritsar.” A The aforesaid letters, in my opinion, leave no manner of doubt that “Ex.D-2 W3/7 not a single rupee of Sardar Sohan Singh was spent towards the Regd.A.D. Dated: 11.2.1960 construction of the building on the plot. It is thus clear that the construction From: Sohan Singh B of the building on the plot was not made for and on behalf of Sardar Sohan Singh by Sir Sobha Singh by using/spending any alleged moneys Dear Mr. Bagga, B of Sardar Sohan Singh. Obviously, this was an outright false stand of the Reference your letter of 8.1.60, I am sorry for the plaintiffs and therefore it has been rightly disbelieved by the trial Court. misunderstanding, I have never meant any reflection on you C At the cost of repetition I would seek to reiterate that the undisputed when I had written the letter regarding the building of the house position which has come on record is that there has not been shown any in the Friends Colony. That was the impression given to me and C actual transfer of funds by Sardar Sohan Singh either to Sir Sobha Singh besides my funds in this firm. I was naturally under the or to anybody else for raising of construction on the suit plot. Further, impression that the same was utilized for building on my plot. if really the construction was made by Sir Sobha Singh for and on behalf May I request you to please send me if possible a copy of the D of Sardar Sohan Singh on the suit plot, then, surely original documents building account that you have sent to Brig Sardar Gurbux Singh with respect to construction would have been taken by Sardar Sohan Ji. D Singh from Sir Sobha Singh, however, no original documents whatsoever of construction i.e. the purchase vouchers or bills or any such original Regarding the balance sheet of the firm, I am going through documents were filed by the appellants/plaintiffs and therefore such it, and will return the same after reconciling with my banking E documents would only have been in the power and possession of Sir account. In this connection I will ask you to please send me a Sobha Singh as he had spent his moneys for and on behalf of his son- copy of the Income Tax returns submitted to the Income Tax E defendant no.1/respondent no.1. A very important aspect which has to Department as well as the balance sheets for the period that the be noted is that Sardar Sohan Singh in his lifetime never filed any suit firm has been in existence as I had not got those copies. F to claim any right in the suit property whether by seeking cancellation of The balance sheet that you have sent now is upto 31.3.58 the sale deed dated 3.12.1960 or seeking possession of the building when there were incomplete works in hand which had to be F thereon. Sardar Sohan Singh also in his lifetime never revoked the letter completed, and were completed later on, the dissolution of the dated 4.10.1954 seeking transfer of the membership and transfer of firm can only be completed after all the assets have been collected G allotment of the suit plot to the defendant No.1. As already stated above, in hand and disposed and liabilities met. building was constructed during the years 1957 to 1959 and the sale deed was executed on 3.12.1960 whereas Sardar Sohan Singh expired much You will therefore please send me a final account as it is G later in the year 1974. Thus, it is only the legal heirs of Sardar Sohan almost a year after the closing. Sorry for the delay in Singh who have suddenly woken up after his death hoping that by acknowledging your letter as I have been on the move. H speculation in litigation they may be successful and be able to get some Tries to hear in good time. benefits. However, the trial Court has rightly on various counts, including the aspect which is being discussed, rejected the case of the appellants/ Yours sincerely, H plaintiffs and dismissed the suit. Sd/- Sohan Singh. I 10. The next related aspect in this regard is of certain letters which Sh. G.S.Banga, M.A., were written by Sir Sobha Singh to the society, by Sardar Sohan Singh K-52, Jangpura, I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 599 600 Indian Law Reports (Delhi) ILR (2012) IV Delhi to Sir Sobha Singh and by the society to Sardar Sohan Singh and on A transfer of the membership and the plot to the defendant no.1/respondent which correspondence lot of emphasis was laid by the counsel for the no.1, however, it was necessary as per that resolution to be enquired and appellants/plaintiffs to contend that Sir Sobha Singh was acting only as found out if the defendant no.1/respondent no.1 was the blood relation an attorney or an agent of Sardar Sohan Singh i.e. he was acting only A of Sardar Sohan Singh. Obviously, till there was an actual transfer of for and on behalf of Sardar Sohan Singh and not on behalf of Gurbux membership, and the consequent execution of the sale deed by the society B Singh/defendant No.1/son of Sir Sobha Singh. in favour of the defendant no.1/respondent no.1, the letters which were 11. Learned senior counsel for the appellants, in this regard, laid to be written to the society either by Sir Sobha Singh or by Sardar Sohan Singh had to be worded which would in effect have two subject matters. great stress and emphasis on the following letters:- Ex.P-30 being a letter B dated 16.10.1954 written by the society to Sardar Sohan Singh, Ex.P-34 One subject matter was that in the record, Sardar Sohan Singh continued letter dated 22.11.1954 from the society to Sardar Sohan Singh, Ex.P- C to be the nominal owner, however, the second subject matter was that 43 letter dated 8.11.1956 from Sir Sobha Singh to the society, Ex.P-44 there was also an existential fact of the letter dated 4.10.1954 (and which letter dated 10.11.1956 from the society to Sardar Sohan Singh, Ex.D- admittedly was never revoked) under which the membership was to be 7 letter dated 13.10.1956 from Sardar Sohan Singh to the society, Ex.D2/ C transferred to the defendant no.1/respondent no.1 by Sardar Sohan Singh 12 by the society to Sardar Sohan Singh, Ex.D2W1/X4 letter dated himself. It is therefore in this context that if either Sir Sobha Singh or 21.2.1957 from Sardar Sohan Singh to the society and so on. D the society or even Sardar Sohan Singh refers to the house to be of Sardar Sohan Singh or Sir Sobha Singh acting as the attorney, cannot There are some other letters also, however, in my opinion, the really make too much difference because in reality there was an existing aforesaid letters are the letters which are really important. In fact, even D intent to transfer the plot and membership to the defendant no.1/respondent out of the aforesaid letters the most important letters on which great no.1, and which process had not achieved finality and was taking some stress was sought to be laid by the learned senior counsel for the appellants E time. It is in this interregnum period that this correspondence existed were Ex.D2W1/X4 (dated 21.2.1957), Ex.D-7(dated 13.10.1956), Ex.P- when there was no actual transfer of the suit plot to the defendant no.1/ 44 (dated 10.11.1956) and Ex.P-43(dated 8.11.1956). The reason why E respondent no.1 by means of execution of the sale deed but a request great stress has been laid on these letters is that in Ex.D2W1/X4 (dated was pending. Therefore, merely because in some of the aforesaid letters, 21.2.1957) being a letter by Sir Sobha Singh, he has described himself Sir Sobha Singh has referred to himself as acting as an attorney for as an attorney for Sardar Sohan Singh, Ex.P-43 (dated 8.11.1956) contains F Sardar Sohan Singh (and which was bound to be till actual execution of a statement that Sir Sobha Singh mentions the house to be of Sardar F the sale deed in favour of defendant no.1/respondent no.1), will not take Sohan Singh and in Ex.D-7 (dated 13.10.1956) Sardar Sohan Singh the case of the appellants much further, keeping in view the contextual speaks of Sir Sobha Singh doing needful on behalf of Sardar Sohan position between the period from 1954 till 3.12.1960 when ultimately the Singh. G sale deed was executed. I am therefore of the opinion that the letters which have been relied upon on behalf of the appellants, cannot have the 12. In my opinion, the entire chain of correspondence whether they G be from the society to Sardar Sohan Singh, Sardar Sohan Singh to the effect of reverting the position away from the letter dated 4.10.1954 society, Sardar Sohan Singh to Sir Sobha Singh and Sir Sobha Singh to inasmuch as there has never been written any specific letter by Sardar Sardar Sohan Singh or Sir Sobha Singh to the society and vice versa, has Sohan Singh to the society or to Sir Sobha Singh withdrawing the letter to be read in context that by an existing earlier letter dated 4.10.1954 of H dated 4.10.1954. Also, during this relevant period it is only because of Sardar Sohan Singh to the Society, there was already a request made to H the partial limbo position as stated above prevailing that the sanctioning transfer the membership and the plot to the defendant no.1/respondent of the plans was done in the name of Sardar Sohan Singh, however, as no.1, and finality of which proceeding was seemingly in a partial limbo already stated, that cannot in any manner mean that there was any inasmuch as though there was a Resolution 3-C making reference of revocation of the position prevailing as per the letter dated 4.10.1954 sent I I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 601 602 Indian Law Reports (Delhi) ILR (2012) IV Delhi by Sardar Sohan Singh to the society for transfer of the membership and A continued validity and non-withdrawal of the letter dated 4.10.1954 by the allotment of the plot to defendant no.1/respondent no.1. A Sardar Sohan Singh, by writing any letter to the society stating that his letter dated 4.10.1954 stands revoked and that there should not be transfer 13. With respect to the issue that the society has wrongly and of the membership and the allotment of the plot to the defendant no.1/ illegally transferred the membership as also ownership of the plot to the respondent no.1. defendant no.1/respondent no.1 under the sale deed dated 3.12.1960, I B am of the opinion that a society is an entity which is governed by rules B 15. The next main issue which was argued before this Court was which are in the nature of contractual terms between its members, and with respect to whether the suit was barred by time. Related to this issue even if there was violation of some contractual rules of the society (such is the issue as to whether a suit for possession could be filed in the year rules not being statutory in character) unless and until the general body C 1975 without first seeking cancellation of the sale deed executed way of the society specifically passed a resolution cancelling the sale deed back on 3.12.1960 by the society in favour of the defendant no.1/ dated 3.12.1960, it cannot be argued on behalf of the appellants that sale C respondent no.1. This subject will also cover the issue of whether there deed cannot confer the ownership rights on the defendant no.1/respondent is any fraud or collusion in getting the sale deed dated 3.12.1960 executed no.1, and that the ownership rights continued to vest with Sardar Sohan by the society in favour of defendant no.1/respondent no.1. Singh. While on this aspect, I must also state that prior o the execution D An ownership of a property is transferred by means of a registered of the sale deed dated 3.12.1960 in favour of the defendant no.1/ sale deed as per Section 54 of the Transfer of Property Act, 1882. Every respondent no.1 by the society, a resolution dated 28.11.1954 (which is D sale deed has an effect of divesting the transferor of the ownership of attached to the letter Ex.P-38 dated 24.12.1954) exhibited as Ex.P-38A, the property and the vesting of the ownership in the transferee. A sale was already passed by the society that transfer can take place not only E deed by which the ownership rights in an immovable property are to a close blood relation but also to a friend of the member of the society. transferred can be ignored only under two circumstances. Firstly, if the The contents of the said resolution dated 28.11.1954 thus expanded the E sale deed is a nominal transaction or a paper transaction because the list of proposed transferees from the members to a non-blood relation. parties intended it to be so or secondly, if the document being the sale Therefore, the strict requirement of the transfer only to a blood relation deed is void ab initio. It is in these two circumstances that it is not having been done away by the society, surely, therefore the transfer of F necessary to have the sale deed set aside inasmuch as the sale deed membership and execution of the sale deed by the society in favour of cannot have the effect of transferring ownership. However, in all other the defendant no.1/respondent no.1 cannot be said to be void and illegal F cases where it is pleaded that sale deed is a voidable document because as is being contended on behalf of the appellants inasmuch as the society it ought not to have been executed or there is a fraudulent transfer of title would be alive to its resolution dated 28.11.1954 at the time of execution G by means of the particular sale deed or for any reason which makes the of the sale deed dated 3.12.1960. transfer voidable (and not void), it is necessary that a suit has to be filed 14. A summary of the above stated position till now shows that the G for cancellation of such a sale deed within a period of three years from appellants cannot claim the benefit of Section 53A, there was an inchoate the date a person comes to know of execution and existence of the sale situation of a partial limbo from 1954 till 1960 resulting in the particular H deed which goes against the interest of such person. This is the mandate correspondence as also sanctioning of the plans in the name of Sardar of Article 59 of the Limitation Act, 1963. Sohan Singh, and finally the fact that the society ultimately allowed 16. In the facts of the present case, in my opinion, the knowledge transfer of membership not only to blood relations but also to friends and H of the appellants/plaintiffs and their predecessor-in-interest, Sardar Sohan a sale deed dated 3.12.1960 was executed and registered in favour of the I Singh of the existence of the sale deed dated 3.12.1960 is actually from respondent No.1 which was never challenged by Sardar Sohan Singh in 1960 itself. This knowledge of the appellants/plaintiffs and their his lifetime. All the aforesaid aspects are to be read with the factum of predecessor-in-interest Sardar Sohan Singh is from the year 1960 itself I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 603 604 Indian Law Reports (Delhi) ILR (2012) IV Delhi is a knowledge which is both actual/factual knowledge as also deemed A disentitlement of the appellants/plaintiff to the reliefs claimed in the suit knowledge. of possession and mesne profits. The knowledge is an actual knowledge inasmuch as in the cross 17. The Supreme Court in the judgment reported as Prem Singh examination of the late plaintiff no.1 conducted on 8.8.1990, the plaintiff A vs. Birbal 2006 (5) SCC 353 has held that Article 59 applies to voidable No.1 specifically admitted that the appellants/plaintiffs and Sardar Sohan B transactions and not void transactions. Therefore, the allegedly voidable Singh came to know of the fraud in the year 1960 itself. In my opinion, sale deed dated 3.12.1960 (having been executed by the society, and not this is a vital admission showing knowledge and existence of sale deed being challenged by the society) has the conclusive effect of transfer of dated 3.12.1960 from the year 1960 itself. Besides this categorical B title in favour of defendant No.1/respondent No.1 since the same was not admission, I would like to refer to Section 3 of the Transfer of Property challenged within a period of 3 years under Article 59. The effect therefore Act, 1882 and which provides that when “a person is said to have C is of barring the plaintiffs from challenging the sale deed 3 years after notice”. As per this definitional clause in Section 3 of the Transfer of the knowledge was derived by the appellants/plaintiffs of the sale deed. Property Act, 1882, a person is said to have a notice of a fact when he Though, the defendant no.1/respondent no.1 claims that the appellants actually knows that fact, or when, but for wilful abstention from an C came to know of the sale deed in the year 1960 itself, however, even if enquiry or search which he ought to have made, or gross negligence, he we take the knowledge of the appellants of the sale deed in the year 1963 would have known it. Explanation 1 to this definitional clause provides D as per the admitted case, the challenge to the sale deed for the same to that where there is a transaction related to immovable property by a be cancelled becomes barred by limitation at the end of the year 1965 or registered instrument, then acquiring of interest in such property shall be D at best in the year 1966. The subject suit was filed in the year 1975 and known to the world at large by means of a deemed notice on the registration even in the subject suit no relief was sought for cancellation of the sale of such instrument before the sub-Registrar. In my opinion, if the deed dated 3.12.1960. If no challenge is laid, and no relief is claimed, E appellants/plaintiffs have only conveniently contended that they came to surely, the Court cannot grant such relief which legally is barred, and know of the sale deed in the year 1963, because if knowledge of the sale once no such relief can be claimed or granted, and thus the sale deed deed of 1960 is only conveniently alleged of 1963 then, why not in 1964 E dated 3.12.1960 stands, surely title/ownership of the suit property would or why not in 1965 or why not in 1966 and so on. Obviously, the date be of the defendant no.1/respondent no.1. This is because it cannot be given of the year 1963 is a conjured date and was thus shown to be false F that a sale deed of a property can exist by which title is of the defendant by the admission made by Sh. Mukhinder Singh/plaintiff no.1 in his no.1/respondent no.1 in law (and hence he is the owner), yet, someone cross-examination dated 8.8.1990. Also, on registration of the sale deed F else can claim an ownership and claim possession of the property. Since dated 3.12.1960, the appellants/plaintiffs and Sardar Sohan Singh in the appellants/plaintiffs were in fact well-aware that a challenge if laid by accordance with Section 3 of Transfer of Property Act, 1882 were the subject suit to the sale deed then the same would be held to be barred deemed to have notice of the fact that the sale deed was actually executed. G under Article 59 of the Limitation Act, 1963, therefore they filed a The plaintiffs or Sardar Sohan Singh but for wilful abstention of making G simplicitor suit seeking only the reliefs of possession and mesne profits an enquiry, they ought to have made, would have come to know of the without asking for cancellation of the sale deed dated 3.12.1960 on the execution of the sale deed within at best a few months or a year thereafter. grounds/facts which were pleaded in the plaint itself. When we read the I therefore hold that in fact, the suit of the appellants/plaintiffs, even if plaint, no manner of doubt is left that in fact, the sale deed is also being the present suit was one for cancellation of the sale deed dated 3.12.1960, H challenged as being fraud and collusive. Since no specific prayer seeking would have become barred by 1963, or at best by 1965/1966 even if we H cancellation of the sale deed is asked for, ownership will continue in law take the knowledge from the year 1963 as pleaded by the appellants/ to be vested with the defendant no.1/respondent no.1, and if ownership plaintiffs. Once, there cannot be cancellation of the sale deed, the ownership continues to be vested with defendant no.1/respondent no.1, surely the of the defendant no.1/respondent no.1 becomes final and also the right to possession fails. I therefore hold that the subject suit for possession I I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 605 606 Indian Law Reports (Delhi) ILR (2012) IV Delhi was not maintainable because the right to seek cancellation of the sale A the prayer of the defendant no.1/respondent no.1 to summon the income deed had become barred by time at the maximum in around the year A tax records of the appellants/plaintiffs and Sardar Sohan Singh, however, 1965/1966, and therefore, no relief can be granted in a suit filed in the the order of this Court was set aside by the Hon’ble Supreme Court and year 1975 for cancellation of the sale deed. At the cost of repetition it the defendant no.1/respondent no.1 was allowed to summon the income is stated that if the sale deed stands, ownership of the defendant no.1/ B tax records of the appellants/plaintiffs and Sardar Sohan Singh. By that respondent no.1 stands, and if the ownership of the defendant no.1/ stage it was however too late, and the necessary records in the income B respondent no.1 stands, appellants/plaintiffs are not entitled to the reliefs tax department were no longer available, possibly having been weeded of possession and mesne profits as claimed with respect to the suit out. But, that cannot mean that the appellants/plaintiffs who are bound property. to have possession of such records, ought not to have filed such records C and therefore, I draw an adverse inference against the appellants/plaintiffs 18. In my opinion, the trial Court has also rightly decided issue no.8 for concealing the income tax and wealth tax returns of the appellants/ by holding that the appellants/plaintiffs are estopped from filing the subject C plaintiffs as also of late Sardar Sohan Singh. The defendant no. 1/respondent suit. Though, the Trial Court has not given a very detailed reasoning, in No.1 has on the contrary filed his tax returns showing that he had my opinion, really the reasoning of the Trial Court is based upon Section claimed ownership of the suit property and represented himself to be the 115 of the Evidence Act, 1872. As per the provision of Section 115 of D owner of the suit property in the tax records. These income tax and the Evidence Act, if a person has a belief that he is the owner of a plot, wealth tax returns have been filed and exhibited before the Trial Court and such person thereafter builds on the plot having the impression that D as Ex.PW4/1 to Ex.PW4/12. he is the owner of the plot, and the real owner stands by and allows him to construct on the plot, the real owner is then estopped in law from E 19. Accordingly, I am of the opinion that the defendant no.1/ claiming any rights on the plot once the third person has made the respondent no.1 is also the owner of the suit property on the basis of construction on the plot. While giving these observations, I reiterate the E the principle of estoppel enshrined in Section 115 of the Evidence Act, finding that the defendant no.1/respondent no.1 and Sir Sobha Singh 1872 and I uphold the finding of the Trial Court on issue no.8 with were entitled to have an impression that it was the defendant no.1/ respect to estoppel against the plaintiffs/appellants. respondent no.1 who is the owner of the plot inasmuch as there was a F 20. That finally leaves this Court for deciding the issue with regard letter dated 4.10.1954 by Sardar Sohan Singh to the society for transfer to the claim of ownership of the suit property by the defendant no.1/ of the plot and membership and which letter was never revoked, taken F respondent no.1 on the ground of adverse possession. Related to this with the fact that pursuant to such letter there was a resolution of the aspect is also whether the suit of the appellants/plaintiffs is barred by society 3-C (Ex.P8) by which there was a transfer, though conditional G time as per Article 65 of the Limitation Act, 1963. on defendant no.1/respondent no.1 being a blood relation and that in 1954 itself transfer was made permissible to a person who was not a close I have already while discussing the issue of suit being barred by relation. Further, and as already discussed above, no amount whatsoever G time for cancellation of sale deed by virtue of Article 59 held that Sardar was paid by Sardar Sohan Singh to Sir Sobha Singh for construction on Sohan Singh and the appellants/plaintiffs had both actual and deemed the plot. Also never any income tax returns were filed, which have been H knowledge of execution of the sale deed dated 3.12.1960 in the year proved on record, to show that Sardar Sohan Singh during his lifetime 1960 itself. There cannot be a more clear-cut proof of the claim of ever claimed ownership of the suit plot. ownership of the property by the defendant no.1/respondent no.1 and the H consequent challenge to the ownership rights of Sardar Sohan Singh than I may note that there was an earlier round of litigation with respect I by a duly registered sale deed. Of course, calling the right claimed by the to production of income tax records of the appellants/plaintiffs as also defendant no.1/respondent no.1 as one of adverse possession is a Sardar Sohan Singh, and a learned single Judge of this Court had rejected

I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 607 608 Indian Law Reports (Delhi) ILR (2012) IV Delhi misnomer, inasmuch as what is really claimed is the ownership of the A aspect of claiming ownership by title from the year 1954 and also defendant no.1/respondent no.1 by virtue of law of prescription contained simultaneously by adverse possession from the year 1954 itself. Further in Section 27 of the Limitation Act, 1963 as the suit for possession on contradictions were pleaded to exist on the basis of the sale deed of the the basis of the claim of ownership rights was not filed as per Article year 1960 and in fact also claiming ownership by title from the year 1954 A 65 within 12 years of the knowledge that defendant no.1/respondent no.1 itself by virtue of the letter dated 4.10.1954. It was further argued that is claiming the ownership rights. A heading of a claim is not material but B fraud should be held to be established on account of closeness of relations it is the substance of the claim which has to be seen. As per Section 27 between Sir Nathu Ram, who was the Secretary of the society, with the of the Limitation act, 1963, once the limitation for claiming a relief/right family of the defendant no.1/respondent no.1 and Sir Sobha Singh. with respect to an immovable property expires, the right in the property B In my opinion, even assuming that these contradictions exist, they itself is lost. This provision of Section 27 of the Limitation Act, 1963 is C cannot take away the finality to the factual position and the legal position a departure from the normal law of limitation, and as per which normal which I have discussed in detail above that defendant no.1/respondent law of limitation on expiry of limitation, right is not lost but only the no.1 was the owner of the plot under the sale deed dated 3.12.1960 and entitlement to approach the Court is lost. Merely because the defendant C the building was constructed by the moneys only of Sir Sobha Singh and no.1/respondent no.1 has ill advisedly claimed ownership of the property not of Sardar Sohan Singh, besides the aspects of the suit being time- by adverse possession, cannot have the effect of extinguishing finality to D barred and not maintainable as framed. Also, in India the doctrine of the ownership of the defendant no.1/respondent no.1 by law of prescription falsus in uno, falsus in omnibus has no application, i.e. merely because contained in Section 27 of the Limitation Act, 1963 read with Article 65 a person is said to be lying or should not be believed on one point, does of the Limitation Act, 1963. Once it was clear to the plaintiffs/appellants D not mean that he should be necessarily treated for not being believed on that from the year 1960 ownership in the suit property was being claimed all other aspects of his case. This doctrine is rightly not applied in India by the defendant no.1/respondent no.1( and surely, there cannot be a E inasmuch as in every case, every person in his favour seeks to speak more blatant act of claiming ownership of a property than by a sale some untruths by manipulating facts and it is almost a non-existent case deed), the period of 12 years for the appellants/plaintiffs to have filed a E that each and every averment of fact; each and every issue; each and suit for possession with respect to this property under Article 65 every legal argument and each and every document, is only and only in commenced in 1960 itself. Once the limitation commenced in the year favour of one party and which party does not speak even a single lie or 1960, by the year 1972, the right to approach the Court by means of a F does not make a single false statement. Therefore, in my opinion, the so suit for possession governed by Article 65 of the Limitation Act, 1963 F called contradictions cannot in any manner take the case of the appellants/ was lost. Once the right is lost in the year 1972, the subject suit having plaintiffs forward for entitling them to the relief of possession and mesne been filed in the year 1975, the ownership of the defendant no.1/respondent profits in view of the other detailed findings and conclusions which have no.1 becomes absolute by virtue of law of prescription contained in G been arrived at as stated above. Section 27 of the Limitation Act, 1963. I, in view of the aforesaid, also find no weight in the submission made on behalf of the appellants/ G 22. Learned senior counsel for the appellants/plaintiffs firstly has plaintiffs that defendant no.1/respondent no.1 has to fail because the relied upon judgments being a judgment of learned single Judge of this claim of title and adverse possession cannot be concurrently set up. Court in the case of Harbans Kaur & Ors. vs. Bhola Nath & Anr. 57(1995) DLT 101 and the judgment of the Supreme Court in the case 21. Learned senior counsel for the appellants/plaintiffs had also H of D. N. Venkatarayappa and Anr. vs. State of Karnataka & Ors. during the course of his arguments sought to lay great emphasis on H (1997) 7 SCC 567 in support of his arguments. The judgment in the case certain contradictions between the pleadings of the defendant no.1/ of Harbans Kaur (supra) is relied upon for the proposition that if a respondent no.1 and the evidence led by him and on his behalf on the trespasser makes construction on somebody else’s property, the trespasser I I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 609 610 Indian Law Reports (Delhi) ILR (2012) IV Delhi will not become owner of the property. The judgment in the case of A somebody else and who is also shown and declared as owner in the Harbans Kaur (supra) is also relied upon in support of the argument that A income tax and wealth tax records. mere payment of house tax will not make a person an owner. The There is no dispute to the legal proposition laid down in the case judgment in the case of D. N. Venkatarayappa (supra) is relied upon of D. N. Venkatarayappa and Anr. (supra) that adverse possession has in support of the proposition that the plea of adverse possession has to B to be very strictly proved, however in this case the strictness of onus be very strictly proved. B is very much discharged because of the claim of ownership by a sale In my opinion, both the judgments which the learned senior counsel deed (read with the doctrine of prescription contained in Section 27 of for the appellants wanted to rely upon have no application to the facts the Limitation Act, 1963) and also of having filed tax returns, both with of the present case. The judgment of Harbans Kaur (supra) does not C the income tax and the wealth tax authorities. For the sake of arguments, apply inasmuch as I have already held above that the defendant no.1/ assuming a case of adverse possession had to be proved (issue is actually respondent no.1 was under a bonafide belief that he is the owner of the C of suit for possession being time barred under Article 65), then surely a plot and therefore raised construction under such bonafide belief entitling registered sale deed of the year 1960 taken with the income tax/wealth him the rights under Section 115 of the Evidence Act, 1872. The present tax records are strict evidence required in law for proving adverse case is not one where defendant no.1/respondent no.1 was a rank D possession i.e. a possession claiming ownership which is open, hostile trespasser inasmuch as the letter dated 4.10.1954 clearly showed the and continuous. However, I need not delve on this aspect further inasmuch D intention of Sardar Sohan Singh to transfer the membership and the suit as I have already held above that the issue is not of adverse possession plot to the defendant no.1/respondent no.1 and the respondent no1/ but of the suit for possession having become time barred under Article defendant no.1 had also paid the arrears then due of Rs. 1180/-. Sir E 65 and of ownership vesting absolutely in defendant no.1/respondent Sobha Singh and defendant no.1/respondent no.1, in the detailed facts of no.1 by virtue of law of prescription contained in Section 27 of the this case noted above, were rightly under the impression that defendant E Limitation Act, 1963. no.1/respondent no.1 would formally become the owner of the plot and The learned Senior counsel for the appellants secondly relied upon were thus entitled to construct on the plot on the basis of their belief in F the judgment in the case of Balavant N. Viswamitra and Ors. Vs. their ownership rights in the plot. Similarly mere payment of property tax Yadav Sadashiv Mule (deceased by L.Rs.) and others, AIR 2004 SC cannot by itself make a person an owner as held in the case of Harbans 4377 for the proposition that once the physical possession of the suit plot Kaur (supra), however, in the present case the claim of ownership is F was given to Sardar Sohan Singh, then, the possession which was with based in addition to payment of house tax, on the grounds of ownership Sir Sobha Singh could be only as a trustee and for and on behalf of G of the plot under the sale deed dated 3.12.1960 and also of the ownership Sardar Sohan Singh. It was also argued that once construction is made of the building by incurring the entire cost of construction thereof. on a plot which was given in trust to Sir Sobha Singh by Sardar Sohan Merely because in the house tax records the property may have been till G Singh, neither Sir Sobha Singh nor the defendant No.1/respondent No.1 about 1969 or so in the name of Sardar Sohan Singh, however, that can claim any right in the plot or the construction made thereon. To the aspect has to be considered alongwith the counter balance of not only H legal proposition, there cannot be dispute, however, in my opinion, in the the sale deed dated 3.12.1960 being in the name of defendant no.1/ present case physical possession which was transferred by Sardar Sohan respondent no.1 (and which is in law final on the issue of ownership of Singh to Sir Sobha Singh after the letter dated 4.10.1954 was written ( the plot) but also that in the income tax and wealth tax records the suit H and as per which the membership as also allotment of the plot had to be property is shown to be of the ownership of the defendant no.1/respondent transferred to the defendant no.1/respondent no.1), the possession of Sir I no.1. Also, it is settled law that mutation in the house tax records cannot Sobha Singh cannot in any manner be said to be thereafter in trust for make such person, in whose name mutation is there, an owner once a and on behalf of Sardar Sohan Singh but possession stood transferred to title document being a sale deed of the property is in the name of I Mukhinder Singh (Deceased) Through LRs. v. Gurbux Singh (Valmiki J. Mehta, J.) 611 612 Indian Law Reports (Delhi) ILR (2012) IV Delhi him for and on behalf of the defendant No.1/respondent No.1-his son. A during his lifetime to claim rights in the suit property. Supreme Court I need not repeat here the arguments which have already been dealt with recently in the case of Ramrameshwari Devi and Others v. Nirmala by me above with respect to the contextual position existing from the Devi and Others, (2011) 8 SCC 249 has held that it is high time that year 1954 to 1960 when the sale deed was executed by the society in A actual costs be imposed. The Supreme Court has also stated that favour of defendant no.1/respondent no.1. B unnecessary delays in litigation leads to huge costs upon the person who 23. Finally suo moto, on the issue of equities in the case on the is ultimately successful, and unless actual costs are awarded dishonesty ground that Sardar Sohan Singh had paid a sum of Rs. 11,824/- for the of unnecessary litigation will never come to an end. The Supreme Court plot and therefore it can be argued that it is unfair and inequitable for the B has in an earlier Division Bench judgment of three Judges in the case of defendant no.1/respondent no.1 to claim ownership of the plot. However, Salem Advocate Bar Association Vs. Union of India (2005)6 SCC the defendant no.1/respondent no.1 in around the year 1960 itself when C 344 has also held (in para 37) that it is high time that actual costs be the sale deed was executed had sought to repay back this amount by awarded. I am also empowered to impose actual costs by virtue of crediting this amount in the bank account of Sardar Sohan Singh, however, Volume V of the Punjab High Court Rules and Orders (as applicable it has come on record that this amount which was credited in the C to Delhi) Chapter VI Part I Rule 15. account of Sardar Sohan Singh was transferred back by Sardar Sohan Before commencement of arguments in the appeal I had made it Singh. Therefore, neither in law, nor in equity, the appellants/plaintiffs D known to both the parties that costs in this case will follow the final can be said to have any claim with respect to the suit property. decision. I, therefore, while dismissing the appeal direct that the defendant 24. A civil case is decided on balance of probabilities. The balance D no.1/respondent no.1 file in this Court an affidavit by way of the costs of probabilities in the present case shows that it is the defendant no.1/ incurred by him for the lawyers. fees for defending this appeal. This respondent no.1 who was the owner of the property. The defendant E affidavit of the costs incurred will be supported by the necessary no.1/respondent no.1 and his father-Sir Sobha Singh have represented certificates of the lawyers of having received the fees with respect to this themselves to the world at large as the owners from the year 1960 and E appeal. This affidavit alongwith certificates of lawyers be filed within a which aspect was never challenged by the appellants or their predecessor- period of four weeks from today. The costs as stated in such affidavits in-interest within the period of limitation. Any alleged rights/ownership supported by the certificates of lawyers will be the costs in favour of the claims are thereby destroyed. Also even assuming there is a fraud which F defendant no.1/respondent no.1 and against the appellants. is played upon a person, even with respect to such fraud, the necessary F 26. The appeal is dismissed with costs as stated above. Trial Court action in law has to take place within three years under Article 113 of record be sent back. the Limitation Act, 1963 and if such an action is not taken, a person cannot interminably seek disentitlement to the ownership of another person C.M. No.18265/2011 G on the ground of fraud, when there is a proper registered sale deed, These cross-objections filed on behalf of defendant no.1/respondent which is in this case is of the year 1960 i.e. about 52 years back. Also G no.1 will stand decided in terms of the aforesaid judgment. as already observed above, this litigation has been initiated after the death of Sardar Sohan Singh, and who in his lifetime did not file a suit claiming Application stands disposed of accordingly. rights in the suit property. H 25. In view of the above, I do not find any merit in the appeal, H which is accordingly dismissed. In my opinion, the appellants/plaintiffs are wholly ill-advised in trying to speculate in litigation for claiming rights in the suit property, since Sardar Sohan Singh himself never filed any suit I I Maheshwar Dayal (DECED) v. Shanti Devi (Indermeet Kaur, J.) 613 614 Indian Law Reports (Delhi) ILR (2012) IV Delhi ILR (2012) IV DELHI 613 A of the eviction proceedings, the premises being CM (M) A commercial premises and Anand Parkash being the son and legal heir of deceased Mohan Lal had inherited this tenancy from his father;—The Judgment of Gain MAHESHWAR DAYAL (DECED) ….PETITIONER B Devi vs. Jiwan Kaur, AIR 1985 SC 796 was relied upon VERSUS to give a finding that such a tenant i.e. Anand Prakash B being in possession of the premises in the capacity as SHANTI DEVI & ORS. RESPONDENTS legal representative of deceased father Mohan Lal, he could be evicted from the suit premises—Petition (INDERMEET KAUR, J.) C of the landlord accordingly stood dismissed—It is well settled that to make out a case for sub-letting or CM(M) NO. : 642/2010 & DATE OF DECISION: 06.02.2012 C parting with possession, it means giving of possession CM NOS. 941/2009, 28/2001 to persons other than those to whom the possession & 7629/2009 had been given by the original lessor and that parting D with possession must have been made by the tenant Delhi Rent Control Act, 1958—Section 14 (1)(b) D —Article 66 of the Limitation Act, 1963 was held Constitution of India, 1950—Article 227—Stand of the applicable i.e period of 12 years was available to the tenant was that the premises in question had been landlord to seek eviction of his tenant-In this factual taken on rent by Mohan Lal only for his son Anand E scenario, the impugned judgment suffers from no Parkash and this was with the consent of the landlord infirmity. who was living in the same premises and who was E fully aware of the fact that Anand Parkash is carrying Important Issue Involved: It is well settled that to make on the business from the said premises; there was no F out a case for sub-letting or parting with possession, it subletting—The ARC on the basis of the oral and means giving of possession to persons other than those to documentary evidence had returned a finding that it whom the possession had been given by the original lessor F was the deceased Mohan Lal who was the tenant in and that parting with possession must been made by the the premises but since Anand Parkash was carrying G tenant. on business in these premises from the very beginning which was also admitted by the landlord, no inference [Ch Sh] of parting with possession/subletting/assignment by G Mohan Lal favour of Anand Parkash could be made;— APPEARANCES: An appeal was preferred before the ARCT. The ARCT H FOR THE PETITIONER : Mr. Sanjay Jain, Sr. Advocate, with drew a conclusion that the tenant was Mohan Lal; he Mr. Atul Jain and Ms. Ruchi Jain, had parted with possession of the premises in favour Advocate. of his son Anand Parkash who was carrying on H business in the same premises; ground of subletting FOR THE RESPONDENTS : Mr. Vijay Kishan Jetly, Mr. B.B. under Section 14(1)(b) stood confirmed in favour of I Gupta and Mr. Vikram Jetly, the landlord. Mohan Lal had died during the pendency Advocates.

I Maheshwar Dayal (DECED) v. Shanti Devi (Indermeet Kaur, J.) 615 616 Indian Law Reports (Delhi) ILR (2012) IV Delhi CASES REFERRED TO: A a manifest injustice which has been caused to one party qua the other, 1. Shyam Sunder Dawa vs. J.D. Kapoor & another, 136 interference under the powers of superintendence are not called for. This (2007) DLT 219. legal position is undisputed. 2. Imdad Ali vs. Keshav Chand and Others AIR 2003 A 3. It is in this background that this petition shall be viewed. Supreme Court 1863. B 4. Record shows that the landlord had filed an earlier eviction 3. Surya Dev Rai vs. Ram Chander Rai & Ors. (2003) 6 petition on 20.06.1963 (Suit No. 560/1963); this was on the ground of SCC 675. subletting; it was directed against Mohan Lal; contention was that Mohan B 4. Corporation Bank & Anr. vs. Navin J. Shah, JT 2000 (1) Lal had sublet these premises to Anand Parkash; this petition was dismissed on 11.06.1966 by the ARC primarily on the ground that notice prior to SC 317. C the filing of the eviction petition had not been sent to the tenant. Appeal 5. Mukri Gopalan vs. Cheppilat Puthanpurayil Aboobacker; preferred against this order was dismissed on 19.07.1970 by the ARCT. JT 1995 (5) S.C. 296. C The view of the ARC that requirement of notice not having been complied 6. Ganpat Ram Sharma and Others vs. Smt. Gayatri Devi, with was endorsed; eviction petition of the landlord stood dismissed. AIR 1987 SC 2016. D 5. On 01.02.1971, legal notice under Section 14 (1)(b) of the 7. Kashi Ram vs. Rakesh Arora AIR 1987 SC 2230. DRCA was served by the landlord upon the tenant (Ex.PW-7/2); contention 8. Gian Devi vs. Jiwan Kaur, AIR 1985 SC 796. D was that the tenant Mohan Lal has sublet these premises to Anand RESULT: Dismissed. Parkash and others including ‘Parkash Trading Corporation’ through Ram Parkash; eviction was accordingly prayed for. Reply to this legal E INDERMEET KAUR, J. notice was sent by the tenant on 25.02.1971 (Ex.PW-7/5); this contention was denied; stand of the tenant was that the premises in question had 1. The order impugned before this Court is the judgment and decree E dated 31.05.1989 passed by the Additional Rent Control Tribunal (ARCT) been taken on rent by Mohan Lal only for his son Anand Parkash and endorsing the finding of the Additional Rent Controller (ARC) dated this was with the consent of the landlord who was living in the same 15.02.1986 whereby the eviction petition filed by the landlord Maheshwar F premises and who was fully aware of the fact that Anand Parkash is Dayal (through legal representatives) seeking eviction of the tenant Shanti carrying on the business from the said premises; there was no subletting. F Devi (legal heirs of the original tenant) under Section 14 (1)(b) of the 6. Present eviction petition was thereafter filed on 03.04.1973. Delhi Rent Control Act (DRCA) had been dismissed. The reasoning of Premises in dispute is one Baithak in property bearing No. 1876, Haveli, the ARCT was however a reasoning different from that adopted by the Jugal Kishore, Gali Ghantewali, Chandni Chowk, Delhi which had been G ARC. Both the two Courts below had dismissed the eviction petition filed rented out to the tenant at a rent of Rs. 75/- per month excluding house- by the landlord. G tax and other charges. Averments made in the legal notice were reiterated 2. The aggrieved party is the landlord. He has filed this petition in the eviction petition; it was contended that Mohan Lal has sublet these under Article 227 of the Constitution of India. At the outset, learned premises to Anand Parkash and others including ‘Parkash Trading counsel for the respondent has pointed out that the right of second appeal H Corporation’ through Ram Parkash and also to ‘Mohan Lal Anand Parkash’ without the knowledge and consent of the petitioner. Needless to state as contained in Section 39 of the DRCA has since been abrogated and H the powers of superintendence as contained under Article 227 of the that these averments were disputed. Constitution are not the powers of an appellate forum; fact findings 7. Oral and documentary evidence was led by the respective parties cannot be interfered with; unless and until there is a patent illegality or which included five witnesses examined on behalf of the landlord and six I I Maheshwar Dayal (DECED) v. Shanti Devi (Indermeet Kaur, J.) 617 618 Indian Law Reports (Delhi) ILR (2012) IV Delhi witnesses examined on behalf of the tenant. AW-4 had proved the electricity A confirmed in favour of the landlord. Mohan Lal had died during the connection in the name of Mohan Lal; rent receipt was also in favour of A pendency of the eviction proceedings and the premises being commercial Mohan Lal. AW-5 had proved the telephone record to show that M/s premises and Anand Parkash being the son and legal heir of deceased Parkash Trading Corporation had a telephone installed in the disputed Mohan Lal had inherited this tenancy from his father; the judgment of premises up to 21.05.1963 whereafter the firm was dissolved and the B Gian Devi Vs. Jiwan Kaur, AIR 1985 SC 796 was relied upon to return telephone was thereafter shifted from the said premises. Attention has a finding that such a tenant i.e. Anand Parkash being in possession of the been drawn to that part of the testimony of AW-5 wherein he has stated B premises in the capacity as legal representative of deceased father Mohan that the premises had been taken on rent by Mohan Lal for the business Lal, he could not be evicted from the suit premises. Petition of the of his son. The tenant had produced six witnesses. Anand Parkash, the landlord accordingly stood dismissed. son of Mohan Lal was examined RW-5. He was a partner in the firm M/ C 10. s Anand Parkash Ganga Prasad; prior thereto he was the sole proprietor C This judgment is the subject matter of present proceedings of ‘Mohan Lal Anand Parkash’ which business was closed in 1952; before this Court. On behalf of the petitioner, vehement arguments had further deposition being to the effect that the landlord was living in the been addressed; his contention is that ARCT has returned a finding in same premises and he very well knew that Anand Praksh was carrying favour of the landlord holding that a ground of subletting is made out; D on his business from the disputed premises; counter-foils of rent receipts once that stood established the protective umbrella of inheritable tenancy Ex. AW-7/11 to Ex. AW-7/19 were proved showing the same to be D could not be granted to the tenant as the tenant at best could only step either in the name of Mohan Lal or by Anand Parkash on behalf of into the shoes of his deceased father; once the father has been found Mohan Lal. Partnership deed of M/s Parkash Trading Corporation Ex. guilty of having contravened the provisions of Section 14 (1)(b) of the RW-5/X13 was proved substantiating the averment that Anand Parkash E DRCA and a right had accrued in favour of the landlord, no better right was a partner in the said firm; thereafter this firm was dissolved and could accrue in favour of the legal representative/son of tenant and as another partnership deed was executed Ex.RW-5/X15. E such Anand Parkash is liable to be evicted forthwith. Reliance has been placed upon a judgment of the Apex Court reported as AIR 2003 Supreme 8. The ARC on the basis of the oral and documentary evidence had Court 1863 Imdad Ali Vs Keshav Chand and Others to support this returned a finding that it was the deceased Mohan Lal who was the F argument; contention being that the heirs of deceased tenant could only tenant in the premises but since Anand Parkash was carrying on business step into the shoes of deceased tenant and all rights and obligations of in these premises from the very beginning which was also admitted by F the deceased tenant devolved upon such a tenant; the original tenant the landlord, no inference of parting with possession/subletting/assignment admittedly having been contravened the provisions of Section 14 (1)(b) by Mohan Lal in favour of Anand Parkash could be made; the landlord G of the DRCA, no better right could accrue in favour of his legal was well aware of the fact that Anand Parkash was carrying on his representative. Learned counsel for the petitioner has pointed out that the business from the disputed premises as he used to see Anand Parkash judgment relied upon by the RCT in Civil Revision No. 1877/1987 Ram in the premises as he himself was living in the same premises; the ground G Sarup (deceased) represented by Harish Kumar & Another VS. Lal of subletting was not made out in favour of the landlord. This eviction Chand & Others is a half page judgment which judgment was at best petition was dismissed. H per-incuriam; it is not a ratio which can per-se be made applicable to the 9. An appeal was preferred before the ARCT. The ARCT had present case. examined oral and documentary evidence and drew a conclusion that the H 11. Per contra, the respondent submits that the evidence recorded tenant was Mohan Lal; he had parted with possession of the premises in I in the court below both oral and documentary has in fact established that favour of his son Anand Parkash who was carrying on business in the a case of sub-letting was not made out and the findings of the ARC on same premises; ground of subletting under Section 14 (1)(b) stood

I Maheshwar Dayal (DECED) v. Shanti Devi (Indermeet Kaur, J.) 619 620 Indian Law Reports (Delhi) ILR (2012) IV Delhi this ground which was the first fact finding returned on reasoned grounds A building as the tenant and he very well knew that from the beginning that could not be interfered with by the RCT which has to hear an appeal Anand Parkash was running his business from the premises in dispute under Section 38 of the DRCA only on a substantial question of law. The showing that the landlord was well aware that the premises had been taken by Mohan Lal for the business of his son Anand Parkash. This is submission of the respondent being that ground under Section 14 (1)(b) A was not established; further submission being that the present petition the conclusion of the ARC in para 29. Thereafter in para 30, the ARC B has even otherwise been filed in the year 1973 when admittedly even as had noted that in view of judgment of Gian Devi (supra) since the per the case of the petitioner, the sub-tenancy was created in the year original tenant had expired, his son i.e. Anand Parkash has stepped into 1950; bar of limitation is also applicable. To support this submission his shoes and the commercial tenancy being an inheritable asset, he has B reliance has been placed upon AIR 1987 SC 2016 Ganpat Ram Sharma inherited this tenancy and as such the ground of subletting is even otherwise not made out. The ARC had dismissed the eviction petition on and Others VS. Smt. Gayatri Devi, AIR 1987 SC 2230 Kashi Ram C Vs. Rakesh Arora and JT 1995 (5) S.C. 296 Mukri Gopalan Vs. the aforenoted reasons. Cheppilat Puthanpurayil Aboobacker; submission being that Article 13. This reasoning arrived at by the ARC was a sound reasoning 66 of the Limitation Act, 1963 contemplates a period of 12 years for C based on the facts deduced from the evidence both oral and documentary. filing of a suit for possession by a landlord against his tenant which An appeal under Section 38 of the DRCA is an appeal which lies only period has long since expired; subletting as per the case of the landlord D on a question of law. In a judgment of this Court reported as 136 (2007) is of the year 1950 and the present petition having been filed on 03.04.1973 DLT 219, Shyam Sunder Dawa Vs. J.D. Kapoor & another, a Bench i.e. 23 years later suffers from delay and latches as well. The judgment D of this Court had noted that where the reasoning of the ARC is based of the RCT on no count calls for no interference. on the appreciation of evidence and no question of law has been raised, the Tribunal should not interfere with the finding of the Rent Controller. 12. Record has been perused. The landlord Maheshwar Dayal had E been examined as AW-7 wherein in his cross-examination he has admitted 14. Oral and documentary evidence was re-appreciated by the that Mohan Lal had taken the premises for the business of his son Anand E Tribunal; in para 5, the RCT after examination of the documentary evidence Parkash; further that Anand Parkash right from the inception of the which included the partnership deeds Ex. RW-5/1, Ex. RW-5/3 & Ex. tenancy was using these premises. The ARC had returned a finding that RW-5/15 had returned a finding that Mohan Lal, the original tenant had Mohan Lal was a tenant; in para 25, it has been noted that there was no F no concern with the business being run in the premises; it was Anand evidence on record to suggest that Anand Parkash or for that matter M/ Parkash who was carrying on the business under the name of M/s F s Mohan Lal Anand Parkash or Parkash Trading Corporation ever paid Mohan Lal Anand Parkash and this was right from 1953; in the same any rent to Mohan Lal; there was nothing to show that there was any paragraph, the RCT has recorded that he has no reason to disagree with transfer of any interest in the estate of Mohan Lal in favour of Anand the finding recorded by the ARC that the tenancy had not been created G Parkash or Parkash Trading Corporation; there was also nothing to show in the name of Mohan Lal but in the name of Anand Parkash; this finding that Mohan Lal had divested himself of all rights as a tenant. In para 26, G in fact appears to be contrary to the earlier discussion noted by the RCT the ARC had noted that premises in dispute were being used by Anand which was that merely because Anand Parkash had signed on the counter Parkash for carrying on his business as a sole proprietor of M/s Mohan foils would not confer tenancy rights upon him; further part of the RCT Lal Anand Parkash. From his version (examined as RW-5), it is clear that H judgment has recorded a finding that it was the case of the landlord this business was being carried out by Anand Prakash from the very himself that it was Anand Parkash who had been carrying out the business beginning; after discussing the case law in para 27, the ARC had returned H in the suit premises and has been paying rent from the beginning; Mohan a finding that no inference could be drawn that there has been any Lal has never claimed any right or interest in the demised premises; subletting or parting with possession of the premises by Mohan Lal in however in the later part of this paragraph, the RCT had observed that favour of Anand Parkash; the landlord was in fact living in the same I I Maheshwar Dayal (DECED) v. Shanti Devi (Indermeet Kaur, J.) 621 622 Indian Law Reports (Delhi) ILR (2012) IV Delhi

A and that parted with possession must have been made by the tenant. In obvious conclusion in view of the discussion is that the tenancy right has A been assigned and the possession of the premises has been parted with this factual scenario this had not been made out. 17 Section 14 (1)(b) by Mohan Lal in favour of his son Anand Prakash and the case squarely of the DRCA reads as follows:- falls within the ambit of Section 14 (1)(b) of the Act. This finding of the 14. Protection of tenant against eviction. - RCT is not only contrary to his own observation and finding returned in B the earlier part of the paragraph but is also contrary to the record; it is B (1) Notwithstanding anything to the contrary contained in any clearly perverse. other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or 15. The ARC was the first fact finding court. It has on balance of Controller in favour of the landlord against a tenet: Provided that probabilities after weighing the evidence both oral and documentary rightly C the Controller may, on an application made to him in the noted that the tenancy although was in the name of Mohan Lal but right C prescribed manner, make an order for the recovery of possession from the inception Mohan Lal had taken these premises for the business of the premises on one or more of the following grounds only, purpose of his son Anand Parkash and this had in fact been admitted by namely:- the landlord (AW-7) himself in his cross-examination (as noted supra); D the landlord was living in the same premises as the tenanted premises; (a) xxxxxxxxxxx he was well aware of the fact that right from the beginning it was Anand D (b) That the tenant has, on or after the 9th day of June, 1952, Parkash who was carrying on the business from the demised premises; sublet, assigned or otherwise without obtaining the consent in the ARC had returned a correct and cogent finding that the premises had writing of the landlord; been taken on rent by Mohan Lal for the business of his son Anand E Parkash and as such the question of parting with possession/assigning/ 18. Although admittedly no cross-objections have been filed by the subletting by Mohan Lal in favour of his son Anand Parkash in this E respondent/landlord in the present proceedings yet this Court in its power factual scenario did not arise. The RCT has reversed this finding for no of superintendence has the power to cure all injustice, manifest errors plausible reason; in fact the discussion (as noted supra) of the RCT is F and illegalities committed by the Tribunal and are the subject matter of contrary to the conclusion drawn by him; in one breath, the RCT was power of superintendence of this Court. of the view that the premises had been taken on rent by Mohan Lal for 19. In (2003) 6 SCC 675 Surya Dev Rai Vs. Ram Chander Rai the business purpose of his son Anand Parkash which fact was well F & Ors. in the context of the power of superintendence available to the known to the landlord who was living in the same premises; the RCT had G High Court has noted herein as under: also noted the cross-examination of the landlord (AW-7) wherein he had admitted this fact that the premises had been taken on rent by Mohan Lal “On the other hand, supervisory jurisdiction under Article 227 of from the very inception for the business purpose of his son Anand the Constitution is exercised for keeping the subordinate court G Parkash; yet after this discussion, he had returned a contrary conclusion has assumed a jurisdiction which it does not have or has failed holding that the ground under Section 14 (1)(b) of the DRCA has been H to exercise a jurisdiction which it does have or the jurisdiction made out in favour of the landlord. In this scenario this finding returned though available is being exercised by the court in a manner not by the RCT is a gross illegality bordering on perversity; it has to be set permitted by law and failure of justice or grave injustice has aside. H occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.” 16. It is well settled that to make out a case for sub-letting or I parting with possession, it means giving of possession to persons other 20. The contrary conclusion arrived at by the RCT which is wholly than those to whom the possession had been given by the original lessor opposed to the discussion noted by him in his preceding paras is a I Maheshwar Dayal (DECED) v. Shanti Devi (Indermeet Kaur, J.) 623 624 Indian Law Reports (Delhi) ILR (2012) IV Delhi manifest perversity which is borne out from the record and has to be A death of such tenant is a creation of the Act for the benefit of cured. This is clearly one such case. The premises had been taken on the tenants, it is open to the Legislature which provides for such rent by Mohan Lal for the business of his son Anand Parkash who was protection to make appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be in fact running this business right from the inception. Rent receipts were A also signed either by Mohan Lal or by Anand Parkash on behalf of enjoyed and the manner in which the same is to be enjoyed. If B Mohan Lal. Although Mohan Lal was himself not carrying on any business the Legislature makes any provision in the Act limiting or restricting from the said premises yet it is apparent that he had complete supervisory the benefit and the nature of the protection to be enjoyed in a control over this business which was being run by Anand Parkash for specified manner by any particular class of heirs of the deceased B which purpose premises had been taken on rent by Mohan Lal. Ground tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of under Section 14(1)(b) of the DRCA was clearly not established C the condition in the manner and to the extent stipulated in the 21. The Apex Court in the case of Gian Devi (supra) had examined Act. The Legislature which by the Rent Act seeks to confer the the question of inheritance of statutory tenancies; this constitutional Bench C benefit on the tenants and to afford protection against eviction, judgment had inter-alia noted as follows:- is perfectly competent to make appropriate provision regulating “It is not in dispute that so long as the contractual tenancy D the nature of protection and the manner and extent of enjoyment remains subsisting, the contractual tenancy creates heritable rights; of such tenancy rights after the termination of contractual tenancy and, on the death of a contractual tenant, the heirs and legal of the tenant including the rights and the nature of protection of representatives step into the position of the contractual tenant; D the heirs on the death of the tenant. Such appropriate provision and, the same way on the death of a landlord the heirs and legal may be made by the Legislature both with regard to the residential of a representatives of a landlord become entitled to all the rights E tenancy and commercial tenancy. It is, however, entirely for the and privileges of the contractual tenancy and also come under all Legislature to decide whether the Legislature will make such the obligations under the contractual tenancy.” E provision or not. In the absence of any provision regulating the right of inheritance, and the manner and extent thereof and inthe xxxxxxxxxxxxx absence of any condition being stipulated with regard to the F “Accordingly, we hold that if the Rent Act in question defines a devolution of tenancy rights on the heirs on the death of the tenant, the devolution of tenancy rights must necessarily be in tenant in substance to mean a tenant who continues to remain in F possession even after the termination of the contractual tenancy accordance with the ordinary law of succession.” till a decree for eviction against him is passed’, the tenant even 22. The Punjab & Haryana High Court in similar facts in the case after the determination of the tenancy continues to have an estate G Ram Sarup (supra) applying the ratio of Gian Devi, while dealing with or interest in the tenanted premises and the tenancy rights both G an eviction petition under Section 14 (1)(b) of the DRCA had noted that in respect of residential promises and commercial premises are since the original tenant during the pendency of the eviction petition has heritable. The heirs of the deceased tenant in the absence of any died, his son having inherited the tenancy was entitled to the protective provision in the Rent Act to the contrary will step into the umbrella of the DRCA he being a tenant within the meaning of Section position of the decreased tenant and all the rights and obligations H 2 (l) of the DRCA; grounds of subletting under Section 14 (1)(b) which of the deceased tenant including the protection afforded to the H although stood established initially had to be given a go-bye because of deceased tenant under the Act will devolve on the heirs of the this supervening event. The submission of the learned counsel for the deceased tenant. As the protection afforded by the Rent Act to petitioner before this Court is that the argument propounded by the a tenant after determination of the tenancy and to his heirs on the petitioner has not been taken care of in this judgment which is only a half I I Maheshwar Dayal (DECED) v. Shanti Devi (Indermeet Kaur, J.) 625 626 Indian Law Reports (Delhi) ILR (2012) IV Delhi page judgment; his submission is that the protective umbrella of the A we shall briefly refer is that the landlord must be quick in taking DRCA is not available to such a sinful tenant; contention being that this A his action after the accrual of the cause of action, and if by his tenant i.e. Anand Prakash has no better rights than that of his deceased inaction the tenant allows the premises to go out of his hands father namely Mohan Lal; since it has been held by the RCT that Mohan then it is the landlord who is to be blamed and not the tenant. Lal has contravened the provisions of Section 14 (1)(b) and has sublet B xxxxxxxxxxx the premises in favour of Anand Parkash, Anand Parkash cannot stand B on a better footing than that of Mohan Lal and as such Anand Prakash The next aspect of the matter is which article of the Limitation is liable to be evicted forthwith; similar submission being reiterated that Act would be applicable. Reference was made to Article 66 and the legal heir tenant inherits both the rights and obligations of the original Article 67 of the Limitation Act, 1963 (hereinafter called the tenant. C Limitation Act) which stipulates that for possession of immovable property the cause of action arises or accrues when the plaintiff 23. This submission of the petitioner is without force. Beside the C has become entitled to possession by reason of any forfeiture or fact that this Court has affirmed the finding of the ARC holding that the breach of condition. Article 67 stipulates a period of twelve ground under Section 14 (1)(b) has not been established; even otherwise years when the tenancy is determined. Article 113 deals with suit this submission of the petitioner has been dealt with in para 2 of the D for which no period of limitation is provided elsewhere in this judgment which reads inter-alia as follows:- D Schedule. On the facts of this case it is clear that Article 66 “2. Shri R.L. Sarin vehemently contends that once a ground of would apply because no determination in this case is necessary eviction is established in favour of the landlord no supervening and that is well-settled now. Determination by notice under section facts can take away that right of the landlord. This broad-based E 106 of the Transfer of Property Act is no longer necessary.” argument to my mind, is not applicable on the peculiar facts of 25. Article 66 of the Limitation Act, 1963 was held applicable i.e. this case. The alleged sub-tenant has become, a tenant in his E period of 12 years was available to the landlord to seek eviction of his own right during the pendency of the proceedings. Now he tenant. In the judgment of Mukri Gopalan (Supra), the Apex Court cannot be held to be a sub-tenant. Otherwise the rule laid down F while dealing with the powers of the Appellate Authority under the Kerala by the Supreme Court in Gian Devi’s case (supra) would become Buildings (Lease and Rent Control) Act, 1965 had in this context noted meaningless. Accordingly, I am of the view that the decision of as follows:- the Appellate Authority is perfectly just and legal this revision is F dismissed.” G 22. As a result of the aforesaid discussion it must be held that appellate authority constituted under Section 18 of the Kerala Thus this contention has no merit. Rent Act, 1965 functions as a court and the period of limitation 24. Eviction petition has been filed on 03.04.1973. Even as per the G prescribed therein under Section 18 governing appeals by aggrieved case of the landlord (as is evident from the grounds of appeal in the parties will be computed keeping in view the provisions of eviction petition) it has been contended that Mohan Lal has illegally sublet H Sections 4 to 24 of the Limitation Act, 1963 such proceedings these premises to Anand Parkash after 09.06.1952; this is the specific will attract Section 29(2) of the Limitation Act and consequently averment made in this eviction petition which was filed almost 21 years Section 5 of the Limitation Act would also be applicable to such later. The Apex Court in Ganpat Ram Sharma (Supra) while dealing H proceedings” with a petition under Section 14 (1)(h) of the DRCA had inter-alia noted I 26. In JT 2000 (1) SC 317 Corporation Bank & Anr. Vs. Navin as follows:- J. Shah, the Apex Court while examining the question as to whether the “The other aspect apart from the question of limitation to which I National Insurance Company Ltd. v. Ram Rati Devi (G.P. Mittal, J.) 627 628 Indian Law Reports (Delhi) ILR (2012) IV Delhi law of limitation is applicable to the Consumer Courts has held that A erred in taking deceased's age to be 68 years—Held— although there is no limitation period prescribed under the Consumer No effort was made by insurer to summon record from Protection Act; a claim petition nevertheless has to be preferred within RTO with regard to renewed license produced by a reasonable time and ‘reasonable time’ would be a period of three years driver to show that license was not valid on date of A as is prescribed under the Limitation Act for a claim of that nature; the accident—Investigation Officer not examined to rebut principle being that the grievance has to be addressed within a reasonable B driver's contention that he had a valid driving license time. Even on this count, the claim of the petitioner must fail. on date of accident which was seized by Investigating Officer-Mere filing of chargesheet under Section 3 of 27. In this factual scenario, the impugned judgment suffers from B Act is not sufficient to hold that driver did not possess no infirmity. Dismissed. a valid driving license at time of accident—Since C claimant’s testimony that deceased was 50 years, was not challenged in cross examination and in view of C contradictory documentary evidence, age favourable ILR (2012) IV DELHI 627 to claimants has to be considered for grant of MAC APP D compensation as provision of Section 166 is a piece of social legislation—Compensation enhanced.

NATIONAL INSURANCE COMPANY LTD. ….APPELLANT D My attention was drawn to the report under Section 173 Cr.P.C. filed against the driver and owner who were VERSUS E prosecuted under Section 3 and 5 read with Section 181 of RAM RATI DEVI & ORS. ….RESPONDENTS the Motor Vehicles Act. The Appellant did not produce the IO of the case to rebut the driver’s contention that he had E (G.P. MITTAL, J.) a valid driving licence on the date of the accident which was seized by the IO. Mere filing of the charge sheet under MAC APP. NO. : 676/2007 DATE OF DECISION: 08.02.2012 F Section 3 of the Act is not sufficient to hold that the driver & 98/2012 did not possess a valid driving licence at the time of the F accident. Thus, merely on filing of the charge sheet, it would Motor Vehicle Act, 1988—Section 3, 5, 149 (2) (a) (ii), be difficult to show that the driver did not possess a valid 166 and 181—Code of Criminal Procedure, 1973— driving licence on the date of the accident. (Para 8) Section 173—Cross appeals filed by Insurance G Now coming to the Cross Appeal for enhancement of Company claiming recovery rights against owner of G compensation. It would be relevant to refer to the Affidavit of offending vehicle and cross objections filed by Ram Rati Devi (the Claimant). She gave her age to be 50 claimants for enhancement of compensation—Plea years and deposed that her son was earning Rs. 6,000/- taken, driver did not possess a valid driving license H per month and sent her Rs.5,000/- per month. The Claims on date of accident and Insurer was entitled to avoid Tribunal’s finding of taking the deceased’s income to be Rs. liability—Per Contra Plea taken, insurer failed to H 5,000/- per month has not been challenged. The Claimant establish breach of policy condition—Deceased was produced on record her Identity Card issued by the Mukhia aged 50 years on date of accident—Claims Tribunal of Gram Champaran, Dumria, which showed the age of the I I National Insurance Company Ltd. v. Ram Rati Devi (G.P. Mittal, J.) 629 630 Indian Law Reports (Delhi) ILR (2012) IV Delhi First Respondent (the Claimant) to be 50 years on A the Claimants to seek enhancement of compensation of Rs. 1,85,000/- 11.09.2004. There is another document i.e. Voter Identity A for the death of Awadh Kumar, who was aged about 28 years on the Card issued on 24.09.2005 which shows her age to be 68 date of the accident which took place on 24.06.2004. years as on 01.01.2005. Since the Claimant’s testimony that 3. For the sake of convenience, National Insurance Company which she was 50 years was not challenged in cross-examination. B is Appellant in MAC APP. 676/2007 shall be referred to as the Appellant. In view of the contradictory documentary evidence, the age First and Second Respondents who are the deceased’s parents shall be favourable to the Claimants has to be considered for grant B referred to as the Claimants. Third and Fourth Respondents who are of compensation as the provision of Section 166 is a piece owner and driver of the offending vehicle shall be referred to as owner of social legislation. (Para 12) C and driver respectively. Important Issue Involved: (A) Mere filing of the charge C 4. Since the owner and the driver did not assail the judgment dated sheet under Section 3 of the Motor Vehicles Act, 1988 is 16.10.2007 impugned herein and the Insurance Company does not not sufficient to hold that the driver did not possess a valid challenge the finding on negligence, I am not required to go into the question of proving negligence. driving license at the time of accident. D 5. The contention raised on behalf of the Appellant is that it was D (B) where there is contradictory documentary evidence, the established during inquiry before the Claims Tribunal that the driver did age favourable to the claimants has to be considered for not possess a valid driving licence on the date of the accident. The grant of compensation as the provision of Section 166 in a E Appellant was entitled to avoid liability under Section 149 (2)(a)(ii) of the piece of Social legislation. Motor Vehicles Act. The Appellant was at least entitled to be granted the E recovery rights. [Ar Bh] 6. It is urged on behalf of the Claimants that the Insurance Company F failed to establish the breach of the policy condition and thus, the Claims APPEARANCES: Tribunal rightly held that the Appellant could not avoid its liability to pay FOR THE APPELLANT : Mr. Manoj Ranjan Sinha, Advocate the compensation. It is submitted that the deceased was aged about 50 Mr. Vivekanana Rana, Advocate for F years on the date of the accident; the Claims Tribunal erred in taking the R-1 & R-2. G deceased’s age to be 68 years on the basis of Voter Identity Card issued FOR THE RESPONDENT : Mr. A.K. Chaudhary, Advocate for by the Election Commission of India when there was other evidence on R-1 & R-2. record to show that the deceased was aged only 50 years. G RESULT: Appeal of insurance company dismissed and appeal of claimants 7. First of all, I would deal with the issue of liability of the Insurance allowed. Company. Driver of the offending vehicle entered the witness box as H RW2. It is true that he denied that the accident was caused by him. As G.P. MITTAL, J. stated earlier, I am not to go into this finding as the owner and the driver have not appealed on the factum of accident caused by the driver due 1. These are two Cross Appeals filed by the National Insurance H Company Limited claiming recovery rights against the owner of the to his negligence. The driver Mohd. Zameer testified that he was taken offending vehicle i.e. Maruti Car No.DL-2CL-8035. I to the Police Station on 27.04.2004 by the owner of the vehicle. His driving licence was seized by the IO. He made a complaint Ex.RW2/1 2. Cross Objections registered as MAC APP. 98/2012 are filed by regarding his implication to the Vigilance Department. In cross-examination, I National Insurance Company Ltd. v. Ram Rati Devi (G.P. Mittal, J.) 631 632 Indian Law Reports (Delhi) ILR (2012) IV Delhi the witness deposed that the receipt regarding the seizure of the driving A when he had gone to recollect the driving license after 3-4 days. licence is not traceable. He testified that he had brought his renewed Though, it is a fact that R2, the driver of the offending vehicle driving licence. Copy of the said driving licence is proved as Ex.RW2/ has failed to produce the receipt given by the IO of the case 1. The licence was valid for the period 05.07.2004 to 04.07.2004. The when his driving license as alleged was seized but after copy of A date of issue of this licence was 18.10.2000. No effort was made by the the driving license was placed on record by R2, R3/Insurance Appellant (the Insurer) to summon the record from the RTO with regard B Company had the opportunity to summon a witness form to this licence to show that this driving licence was not valid on the date Licensing Authority by whom the driving license, Ex.RW2/1 was of the accident. It was argued on behalf of the Appellant that the driving issued to prove the fact whether driving license was a renewed licence issued on 18.10.2000 must have been valid for three years. But, B license or not and whether R2 was having a driving license at the this would only be a speculation as Appellant had an opportunity to time of accident, but no evidence to that effect has been produced. C summon the record from the RTO and to prove that the driving licence R3/Insurance Company has failed to discharge the onus to prove was not valid on the date of the accident. that offending vehicle was being driven in violation of terms and condition of the insurance policy at the time of accident and as 8. My attention was drawn to the report under Section 173 Cr.P.C. C such, R3/Insurance Company cannot avoid its liability to indemnify filed against the driver and owner who were prosecuted under Section R1, the owner of the offending vehicle for any liability he may 3 and 5 read with Section 181 of the Motor Vehicles Act. The Appellant D incur because of the death caused due to rash and negligent did not produce the IO of the case to rebut the driver’s contention that driving of his vehicle.” he had a valid driving licence on the date of the accident which was D seized by the IO. Mere filing of the charge sheet under Section 3 of the 10. The findings of the Claims Tribunal that the Insurance Company Act is not sufficient to hold that the driver did not possess a valid driving failed to discharge the onus to prove the breach of the policy condition E licence at the time of the accident. Thus, merely on filing of the charge cannot be faulted. The Appellant was thus not entitled to avoid the sheet, it would be difficult to show that the driver did not possess a valid liability. driving licence on the date of the accident. E 11. MAC APP. 676/2007 filed by the Appellant Insurance Company 9. The Claims Tribunal dealt with the contention raised on behalf is devoid of any merit; the same is accordingly dismissed. No costs. of the Appellant Insurance Company as under:- F MAC APP.98/2012 “9..... The facts in the present case to an extent are different F 12. Now coming to the Cross Appeal for enhancement of from the facts in the case being relied upon by R3/Insurance compensation. It would be relevant to refer to the Affidavit of Ram Rati Company in as much as that copy of the driving license has been Devi (the Claimant). She gave her age to be 50 years and deposed that placed on record by R2, which is Ex.RW2/1, though R2 also G her son was earning Rs. 6,000/- per month and sent her Rs.5,000/- per appeared as a witness and testified that his driving license was G month. The Claims Tribunal’s finding of taking the deceased’s income seized by the police and Ex.RW2/1 is the copy of the renewed to be Rs. 5,000/- per month has not been challenged. The Claimant driving license. In answer to a suggestion on behalf of R3/ produced on record her Identity Card issued by the Mukhia of Gram Insurance Company, R2 has denied that driving license, Ex.RW2/ Champaran, Dumria, which showed the age of the First Respondent (the 1 was not a renewed license but only a fresh license. In his H Claimant) to be 50 years on 11.09.2004. There is another document i.e. evidence, R2 has also proved the copy of the complaint made to H Voter Identity Card issued on 24.09.2005 which shows her age to be 68 the Vigilance Department, which is also Ex.RW2/1 and in the years as on 01.01.2005. Since the Claimant’s testimony that she was 50 complaint to Vigilance Department, R2 has claimed that his driving years was not challenged in cross-examination. In view of the license was seized by the IO of the case and was not returned I I National Insurance Company Ltd. v. Ram Rati Devi (G.P. Mittal, J.) 633 634 Indian Law Reports (Delhi) ILR (2012) IV Delhi contradictory documentary evidence, the age favourable to the Claimants A ILR (2012) IV DELHI 634 has to be considered for grant of compensation as the provision of A CRL. M.C Section 166 is a piece of social legislation.

13. The loss of dependency taking the multiplier of ‘13’ would YAHOO INDIA PVT. LTD. ….PETITIONER come to Rs. 3,90,000/- (Rs. 5,000/- - 50% x 12 x 13). On further B addition of sums of Rs.25,000/- towards loss of love and affection, Rs. B VERSUS 10,000/- towards funeral expenses and ‘ 10,000/- towards loss to estate, STATE & ANR. ….RESPONDENTS the overall compensation comes of Rs. 4,35,000/-. 14. Thus, the compensation awarded stands enhanced from Rs. C (SURESH KAIT, J.) 1,85,000/- to Rs. 4,35,000/-. The Claims Tribunal granted interest @ 9% C CRL. M.C. NO. : 205/2012 DATE OF DECISION: 02.03.2012 per annum from the date of the filing of the petition till the date of award. & CRL. M.A. NO. : 771/2012 Considering that the accident took place in the year 2007, I would reduce the interest on the amount awarded by the Claims Tribunal to 7.5% per D annum. The enhanced amount of Rs. 2,50,000/- shall also carry interest Constitution of India, 1950—Article 226, 227—Criminal @ 7.5% per annum from the date of petition till the date of payment. D Procedure Code, 1974—Section 204—Petition challenging the order passed by LD.M.M summoning 15. The Appellant National Insurance Company is directed to deposit the petitioner—Complaint filed alleging that main social the enhanced amount along with the upto date interest within 30 days E networking websites are knowingly allowing contents with UCO Bank, Delhi High Court Branch, New Delhi. and material which is dangerous to communal harmony, 16. On deposit of the amount, 25% of the enhanced amount along E with common and malafide intentions and have failed with the proportionate interest shall be released immediately to the First to remove the objectionable content for their wrongful Respondent Smt. Ram Rati Devi, the mother of the deceased. Rest 75% F gain-Ld. M.M passed the summoning order-Challenged- shall be held in three equal fixed deposits for a period of one year, two There is no averment against the petitioner in the years, and three years respectively in the name of the First Respondent complaint-No evidence produced against him- in UCO Bank, Delhi High Court Branch, New Delhi. F Respondent contends- complainant has missed the opportunity to make proper averments in the complaint 17. MAC APP. 98/2012 is allowed in above terms. G and adduce evidence, in that situation he has a right 18. No costs. to amend the same and lead the evidence thereafter- Held-There is no iota of evidence deposed qua the G 19. Pending applications also stand disposed of. petitioner-Nor proved even by the complainant when H he was examined as PW1—There should have been specific averments about the nature of act or omission and law violated and in the absence of the same, H summons issued against the petitioner are not sustainable in law—There is no provision in Code of I Criminal Procedure to amend the complaint or produce the documents after issuing of the summons—

I Yahoo India Pvt. Ltd. v. State & Anr. (Suresh Kait, J.) 635 636 Indian Law Reports (Delhi) ILR (2012) IV Delhi Magistrate has to carefully scrutinize the evidence A Supp(1) SCC 335. brought on record and may even put questions to the RESULT: Petition allowed. complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise SURESH KAIT, J. (Oral) A and then examine if any offence is prima-facie 1. Vide the instant petition, the petitioner has assailed the impugned committed by all or any of the accused—The corrective B order dated 23.12.2004 passed by learned Metropolitan Magistrate, measure of amending the complaint, cannot be whereby the petitioner has been summoned. accepted, being not tenable under law. B 2. Mr.Arvind Nigam, learned Senior Advocate appearing on behalf There is no iota of evidence has been deposed qua the of petitioner submits that the order dated 23.12.2011 passed by learned C petitioner. Nor proved even by the complainant when he was Metropolitan Magistrate, New Delhi is without application of mind because examined as PW1. There should have been specific of the fact that neither averments were made against the petitioner in the averments about the nature of act or omission and law C complaint nor any evidence produced against him. violated and in the absence of the same, summons issued against the petitioner are not sustainable in law. 3. Learned counsel has drawn the attention of this Court to the (Para 26) D complaint being filed by respondent No.2 vide complaint case No.136/11 wherein the petitioner has been impleaded as respondent/ accused No.11. There is no provision in Cr.P.C. to amend the complaint or D produce the documents after issuing the summons. 4. Learned counsel has submitted that respondent No.2 in para (Para 27) No.11 of the complaint does not contain any allegation against the petitioner E and same reads as under:- Important Issue Involved: There is no provision in Cr. “11. That the main social networking websites are Google, P.C to amend the complaint or produce the documents after E Facebook, Youtube, Orkut, Broadreader, Mylot, Zomei Time, issuing of the summons. Shyni Blog, Blogspot, Exbii.com, IMC India. These accused F persons knowingly well these facts that these contents and [Vi Ba] materials are most dangerous for the community and peace of F the harmony, but with common and malafide intention and hands APPEARANCES: under glove with each other failed to remove the same for the FOR THE PETITIONER : Mr. Arvind Nigam, Senior Advocate wrongful gain.” with Mr. Sanjay Kumar, Adv. G 5. Learned Senior counsel has further drawn the attention of this FOR THE RESPONDENTS : Mr. Navin Sharma, APP for G Court to the impugned order wherein it is observed that the complainant respondent No.1. Mr. S.P.M. has alleged that the main social networking websites are Google, Facebook, Tripathi, Adv for R-2. Youtube, Orkut, Broadreader, Mylot, Zombi Time, Shyni Blog, Blogsopt, Exbii.com, IMC India. It is further alleged that the accused persons CASES REFERRED TO: H knowingly, allowed these contents and material to be hosted in the websites H 1. Pepsi Foods Ltd. & Ors. vs. Special Judicial Magistrate which is dangerous to communal harmony with common and malafide and Others AIR 1998 SC 128. intentions and have failed to remove the objectionable content for their 2. State of Haryana & Ors. vs. Bhajan Lal & Ors. 1992 wrongful gain. I I Yahoo India Pvt. Ltd. v. State & Anr. (Suresh Kait, J.) 637 638 Indian Law Reports (Delhi) ILR (2012) IV Delhi

6. Learned Senior Advocate further referred to the deposition of A that there is specific averment against the petitioner in para No.7 of the complainant as CW1 made before learned Trial Court, who produced A complaint filed before learned Trial Court, which reads as under:- documents Ex.CW1/A-1 to Ex.CW1/A-16 which have been down loaded from website namely www.Zombietime.com. He further deposed that “7. That such content, if allowed to be hosted on these websites would seriously damage the secular fabric of India and would Ex.CW1/A-17 has been down loaded from Orkut which is arrayed as B accused Nos.4 & 10. He also proved on record that Ex.CW1/A-18 severely hurt the sentiment of general public following different downloaded from website mylot.com which is per se defamatory to all B religions. Following are the websites which host the said politicians. It is further deposed that Ex.CW1/A-19 to Ex.CW1/A-22 objectionable content as provided to the Hon’ble Court in a sealed were downloaded from the post of topix.com as the contents are envelope:- C dangerous for social structure and community. He further deposed that 1. Facebook, Ex.CW1/A-23 to Ex.CW1/A-36 which are posted by the service provider C 2. Youtube, youtube.com without any sensor or prohibitory or disclaimer which is also dangerous for communal harmony and peace. It is further deposed 3. Google, that Ex.CW1/A-37 to Ex. CW1/A-48 are taken from website Facebook, D 4. Yahoo, and has also proved on record that Ex.CW1/A-49 to Ex.CW1/A-52 as 5. Orkut, provided by the blogspot.com which is arrayed as accused No.6 & 9 in D the complaint and these documents are obscene and against the culture 6. Broadreader, of this country. 7. Mylot, E 7. Respondent No.2/complainant has also deposed that document 8. Zombie Time, Ex.CW1/A-53 has been taken from the website exbii.com which provides E 9. Shyni Blog, service through google.com and the document Ex.CW1/A/54 has been 10. Blogsopt taken from the website indimedia.org and has been shown as an article posted by imcindia.com, which is against Hinduism and defamatory to F 11. Exbii.com, the religion. He further deposed that Ex.CW1/A-55 provided by 12. IMC India” broadreader.com which is defamatory to Indian politicians and document F 11. Mr. Naveen Sharma, ld. APP appearing for State / R-1, has Ex.CW1/A-56 and Ex.CW1/A-57 have been taken from the service submitted that in para No.7 of the complaint, as mentioned above, there provider blogsopt.com which have been provided by the websites. G are allegations against the petitioner, however, has fairly conceded that 8. Learned counsel for petitioner submits that firstly there is no the contents of the same have not been proved / exhibited by any of averment against the petitioner in the complaint; and secondly, there is G witnesses, appeared in the witness box at the time of pre-summoning on evidence adduced on record by the complainant or other witnesses, evidence. which is relatable to the petitioner. H 12. He further submitted that at the time of summoning of respondent, 9. He further submitted that petitioner is not a social networking learned Trial Court has to see only prima facie case against the petitioner site and he is only email provider, therefore, under Section 79 of the IT and it is not necessary to exhibit the evidence against him. Moreso, in Act being intermediary, petitioner is exempted. Therefore, the impugned H status report filed by the SHO, police station Tuglaq Road, New Delhi summoning order deserves to be set aside qua the petitioner. I clearly mentions that during the course of inquiry it is revealed that the documents are available on various websites and copies can be down 10. On the other hand, ld. counsel for respondent No.2 submits

I Yahoo India Pvt. Ltd. v. State & Anr. (Suresh Kait, J.) 639 640 Indian Law Reports (Delhi) ILR (2012) IV Delhi loaded from there. A 18. The settled law is that at the time of summoning, the magistrate should not be casual while issuing the summoning order because it led 13. Learned counsel for respondent No.2/complainant has submitted to the complete trial for the person; therefore, before issuing the summons, that CW3 Dr.Aziz Ahmad Khan, has been examined on behalf of the concerned magistrate has to apply its mind while going through the complainant before learned Trial Court. The status report filed, as A complaint and evidence adduced on record. mentioned above, allegations are there against the petitioners also, therefore, B the summoning order issued by learned Trial Court is just and proper. 19. Learned counsel has relied upon State of Haryana & Ors v. Ld. Trial Court in the order dated 16.12.2011 observed that complainant Bhajan Lal & Ors 1992 Supp(1) SCC 335 wherein the Apex Court has examined four witnesses on oath in the Court in support of the complaint B formulated seven points on the subject, which are as under:- as CW1 to CW4. The documents are supplied are prima facie and palpably “(1) where the allegations made in the First Information Report indecent and likely to spread communal violence and hence these C or the complaint, even if they are taken at their face value and documents may be kept under sealed cover. accepted in their entirety do not prima facie constitute any offence 14. Learned counsel for respondent No.2 further submitted that in C or make out a case against the accused; the order of learned Trial Court, as mentioned above, after considering (2) where the allegations in the First Information Report and the submissions made and material produced on record, found it fit to D other materials, if any, accompanying the F.I.R. do not disclose hold an inquiry through the SHO concerned regarding the authenticity of a cognizable offence, justifying an investigation by police officers the documents, as filed. D under Section 156(1) of the Code except under an order of a 15. Mr. Arvind Nigam, learned Senior Advocate appearing on behalf Magistrate within the purview of Section 155(2) of the Code; of petitioner, in rejoinder has argued that in the report dated 17.12.2011 E (3) where the uncontroverted allegations made in the FIR or filed by SHO, police station Tuglaq Road, New Delhi clearly mentioned ‘complaint and the evidence collected in support of the same do the documents received with it containing indecent documents. However, not disclose the commission of any offence and make out a case no documents against the act or omission of the petitioner neither proved E against the accused; in the Court nor provided to the SHO concerned, nor the SHO filed the said document against the petitioner along with its report dated 17.12.2011. F (4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no 16. He further submitted that the documents Ex.CW1/A-1 to Ex.CW1/ F investigation is permitted by a police officer without an order of 57 are the documents qua other parties; nor a single document has been a Magistrate as contemplated under Section 155(2) of the Code; filed with the complaint against the petitioner. In the complaint, there is no averment for the act or omission of the petitioner and even in the (5) where the allegations made in the FIR or complaint are so G testimony of four witnesses examined on oath on behalf of complaint, absurd and inherently improbable on the basis of which no prudent not a single iota of evidence has been deposed qua the petitioner or G person can ever reach a just conclusion that there is sufficient proved when the complainant examined himself as CW1. ground for proceeding against the accused; 17. Learned counsel further submits that at least in the complaint, (6) where there is an express legal bar engrafted in any of the there should have been specific averments that what the petitioner has H provisions of the Code or the concerned Act (under which a done which law has been violatied and what kind of act or omission he H criminal proceeding is instituted) to the institution and continuance has committed thereto. In the absence of aforesaid averments or evidence, of the proceedings and/or where there is a specific provision in the summoning order against the petitioner could not have been issued the Code or the concerned Act, providing efficacious redress for against the petitioner. I I Yahoo India Pvt. Ltd. v. State & Anr. (Suresh Kait, J.) 641 642 Indian Law Reports (Delhi) ILR (2012) IV Delhi the grievance of the aggrieved party; A (a) If a public servant acting or purporting to act in the discharge A of his official duties or a court has made the complaint; or (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an (b) If the Magistrate makes over the case for inquiry, or trial to ulterior motive for wreaking vengeance on the accused and with another Magistrate under section 192: a view to spite him due to private and personal grudge.” B Provided further that if the Magistrate makes over the case to B 20. Ld. Counsel submitted that the case of the petitioner is squarely another Magistrate under section 192 after examining the covered under very 1st Principle of the case of Bhajan Lal (Supra) complainant and the witnesses, the latter Magistrate need not re- examine them. 21. Learned counsel for has relied upon the provisions contained in C Section 190, 200 and 204 of the Cr. P.C. For convenience same are 204. Issue of process:- reproduced as under:- C (1) If in the opinion of a Magistrate taking cognizance of an “190. Congnizance of offences by Magistrate:- (1) Subject to offence there is sufficient ground for proceeding, and the case the provisions of this Chapter, any Magistrate of the first class, D appears to be- specially empowered in this behalf under sub- section (2), may (a) A summons-case, he shall issue his summons for the take cognizance of any offence- D attendance of the accused, or (a) Upon receiving a complaint of facts which constitute such (b) A warrant-case, he may issue a warrant, or, if he thinks fit, offence; E a summons, for causing the accused to be brought or to appear (b) Upon it police report of such facts; at a certain time before such Magistrate or (if he has no E jurisdiction himself) some other Magistrate having jurisdiction. (c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence (2) No summons or warrant shall be issued against the accused F has been committed. under sub-section (1) until a list of the prosecution witnesses has been filed. (2) The Chief Judicial Magistrate may empower any Magistrate F of the second class to take cognizance under sub-section (1) of (3) In a proceeding instituted upon a complaint made in writing, such offences as are within his competence to inquire into or G every summons or warrant issued under sub-section (1) shall be try. accompanied by a copy of such complaint. 200. Examination of Complainant:- (4) When by any law for the time being in force any process- G fees or other fees are payable, no process shall be issued until A Magistrate taking cognizance of an offence on complaint shall the fees are paid and, if such fees are not paid within a reasonable examine upon oath the complainant and the witnesses present, if H time, the Magistrate may dismiss the complaint. any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, (5) Nothing in this section shall be deemed to affect the provisions and also by the Magistrate: H of section 87.” Provided that, when the complaint is made in writing, the I 22. He further submitted that under Criminal Procedure Code, step Magistrate need not examine the complainant and the witnesses- to step procedure is prescribed, and the Magistrate is bound by the

I Yahoo India Pvt. Ltd. v. State & Anr. (Suresh Kait, J.) 643 644 Indian Law Reports (Delhi) ILR (2012) IV Delhi procedure mentioned above. If sufficient material is on record, then he A mind to the facts of the case and the law applicable thereto. He has to may issue summons against the person. But in the present case, there is examine the nature of allegations made in the complaint and the evidence no material against the petitioner; despite learned Trial Court while passing both oral and documentary as well in support thereof and would that be the impugned order has observed that there is prima facie material on sufficient for the complainant to succeed in brining charge home to the A record against the accused persons for committing offences under Section accused. It is not that the Magistrate is a silent spectator at the time of 292/293/120 Indian Penal Code, 1860 and they are liable to be summoned B recording of preliminary evidence before summoning of accused. for facing trial for the same. 23. Learned counsel for respondent No.2 29. Magistrate has to carefully scrutinize the evidence brought on has further submitted that if respondent No.2/complainant has missed the record and may even put questions to the complainant and his witnesses opportunity to make proper averments in the complaint and adduced B to elicit answers to find out the truthfulness of the allegations or otherwise evidence, in that situation he has a right to amend the same and lead the C and then examine if any offence is prima facie committed by all or any evidence thereafter. of the accused. 24. Mr.Nigam, learned Senior Advocate submits that in Cr. P.C. 30. Considering the above facts and circumstances of the case in there is no provision to amend the complaint. Therefore, since, there are C hand, and in the light of law discussed above I find force in the submission no allegations against the petitioner in the complaint and there is no of learned counsel for petitioner. The corrective measure of amending evidence on record, in that situation the impugned order dated 23.12.2011 D the complaint, as put forth by learned counsel for respondent No.2, has to be set aside qua the petitioners. cannot be accepted, being not tenable under law. 25. I am of the considered opinion that neither allegations are against D 31. Accordingly, the impugned order dated 23.12.2011 passed by petitioner nor evidence thereto. Even report filed by SHO does not prove learned Metropolitan Magistrate, New Delhi in complaint case No.136/11 anything against the petitioner. No averments for the act or omission of E titled ‘Vinay Rai v. Facebook India & Ors’ qua petitioner is accordingly the petitioner are made in the complaint nor has been brought by the set aside. testimony of 4 witnesses examined on oath on behalf of the complainant. E 32. Therefore, Crl.M.C.No.205/2012 is allowed with no order as to 26. There is no iota of evidence has been deposed qua the petitioner. costs. Nor proved even by the complainant when he was examined as PW1. F There should have been specific averments about the nature of act or 33. Before parting with present order, I make it clear that whatever omission and law violated and in the absence of the same, summons F observed herein shall not be construed as finding on merit of the case, issued against the petitioner are not sustainable in law. which is pending trial qua other accused persons and the proceedings. 27. There is no provision in Cr.P.C. to amend the complaint or 34. In view of above, Crl.M.A.No.771/2012 does not require further G produce the documents after issuing the summons. adjudication and stands disposed of. G 28. Law is settled in case of Pepsi Foods Ltd. & Ors. v. Special Judicial Magistrate and Others AIR 1998 SC 128 wherein it is held that summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. It is not H that the complainant has to bring only witnesses to support his allegations H in the complaint to have the criminal law set into motion. The order of Magistrate summoning the accused must reflect that he has applied his I I O.P. Aggarwal & Anr. v. Akshay Lal & Ors. (Valmiki J. Mehta, J.) 645 646 Indian Law Reports (Delhi) ILR (2012) IV Delhi ILR (2012) IV DELHI 645 A rights in an immovable property entitling the persons RFA A who have such documents to claim possession of the suit property—At least the right to the suit property O.P. AGGARWAL & ANR. ….APPELLANTS would stand transferred to the person in whose favour VERSUS B such documents have been executed—Ownership rights can be construed as entitling persons who AKSHAY LAL & ORS. ….RESPONDENTS B have documents to claim possession of the suit (VALMIKI J. MEHTA, J.) property inasmuch as at least the right to the suit property would stand transferred to the person in RFA NO. : 127/2004 DATE OF DECISION: 15.03.2012 C whose favour such documents have been executed— C Appeal accepted suit decreed. Code of Civil Procedure, 1908—Section 96—Appellants/ No doubt, documents such as Agreement to Sell, Power of plaintiff purchased the rights in the suit property by Attorney, Will etc do not strictly confer ownership rights as means of Agreement to Sell, Power of Attorney and D a sale deed, however, such documents create certain rights will from previous owner through a chain of similar in an immovable property, though which are strictly not D documents—Appellants/plaintiffs filed suit for ownership rights but definitely the same can be construed possession and mesne profit claiming the as entitling the persons who have such documents to claim Respondents to be illegal occupants/trespassers in E possession of the suit property inasmuch as at least the suit property-Respondents prayed for dismissal of the right to the suit property would stand transferred to the suit the ground that the appellants were not owners E person in whose favour such documents have been of the suit property and documents relied upon by executed. The Supreme Court in the recent judgment of appellant cannot confer any ownership rights in suit Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana F property-Trial Court dismissed the suit holding that and Anr. 183 (2011) DLT 1(SC) has reiterated the rights they cannot be said to be the owners on the basis of created by virtue of Section 53A of Transfer of Property Act, the documents which do not confer ownership-Hence, F 1882 and Section 202 of the Contract Act, 1872 in paras 12, present appeal—Held:- Once documents being original 13 and 16 of the said judgment. (Para 11) and registered documents, are filed and proved on G record, the onus of proof that such documents are Important Issue Involved: Documents such as Agreement not genuine documents, in fact shifts to the opposite to sell, Power of attorney, Will etc do not strictly confer party—Ownership of the original owner cannot be G ownership rights as a sale deed-Such documents create disputed and the same is a strong proof of the certain rights in an immovable property entitling the persons H ownership of the suit property of the appellants proved who have such documents to claim possession of the suit by means of chain of the title documents—All earlier property-At least the right to the suit property would stand owners are not required to be summoned—Original transferred to the person in whose favour such documents H documents filed by Respondents not proved— have been executed. Documents such as Agreement to sell, Power of I Attorney, Will etc do not strictly confer ownership rights as a sale deed—Such documents create certain [Sa Gh] I O.P. Aggarwal & Anr. v. Akshay Lal & Ors. (Valmiki J. Mehta, J.) 647 648 Indian Law Reports (Delhi) ILR (2012) IV Delhi APPEARANCES: A them to notice of their illegal occupation, the subject suit was filed. FOR THE APPELLANTS : Mr. O.P. Aggarwal, Advocate. 4. The respondents/defendants appeared and contested the suit and FOR THE RESPONDENT : Mr. Atar Singh Tokas, Advocate. prayed for dismissal of the suit on the ground that the appellants/plaintiffs A were not the owners of the suit property. It was also pleaded that the CASE REFERRED TO: B documents relied upon by the appellants/plaintiffs cannot confer any 1. Suraj Lamp Industries Pvt. Ltd. vs. State of Haryana and ownership rights in the suit property. It was also pleaded that the earlier Anr. 183 (2011) DLT 1(SC). chain of title deeds as relied upon by the appellants/plaintiffs were fabricated B documents. The respondents/defendants claimed that the suit property RESULT: Appeal allowed. was transferred by one Smt. Sakeena Begum in favour of Mohd. Saleem VALMIKI J. MEHTA, J. (ORAL) C by means of documents dated 22.5.1989. Mohd. Saleem is thereafter said to have transferred the suit property by means of documents dated 1. The appellant No.1, who is an Advocate, states that he has 14.6.1991 to one Sh. Vijay Gupta and whereafter by means of the informed Mr. Atar Singh Tokas, counsel for the respondents, and Mr. C documents dated 23.10.1996, the defendant No.4 had purchased the Tokas informed him that the respondents have taken back the file from rights in the suit property. him. I am not inclined to adjourn this old appeal any further as this matter D is on the Regular Board of this Court since 2.2.2012. 5. After completion of pleadings, the trial Court framed the following issues:- 2. The challenge by means of this Regular First Appeal(RFA) filed D under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the “1. Whether the suit of the Plaintiff is not maintainable and liable to be dismissed as alleged in P.O. No.1 to 7? impugned judgment and decree of the trial Court dated 13.12.2003 E dismissing the suit filed by the appellants/plaintiffs for possession and 2. Whether the Plaintiff is entitled to the declaration as prayed? mesne profits with respect to the suit property bearing MCD No.500/23, E 3. Whether the Plaintiff is entitled to the possession as prayed? Plot No.29, Gali No.10, Bhikam Singh Colony, Behind Masjid, Shahdara, 4. Whether the Plaintiff is entitled to the injunction as prayed? Delhi. F 5. Whether the Plaitiff is entitled to the damages? If so, at 3. The facts of this case are that the appellants/plaintiffs by means what rate and for what period? of usual documents being the Agreement to Sell, Power of Attorney, Will F etc all dated 11.2.2002(Power of Attorney and Will being duly registered 6. Relief.” with the sub-Registrar, Delhi) purchased the rights in the suit property 6. The trial Court has dismissed the suit by arriving at the findings from one Sh. Sadat Ali Khan. Sh. Sadat Ali Khan had purchased the suit G and conclusions under issue Nos.2 to 4 that the appellants/plaintiffs property from Smt. Jasbeer Kaur by means of similar set of documents cannot be said to be owners of the property inasmuch as the documents G dated 18.12.1998, and some of which documents are registered such as the Agreement to Sell, Power of Attorney etc do not confer documents. Smt. Jasbeer Kaur had purchased the property from Sh. ownership rights in the suit property. The trial Court also held that the Chanan Singh vide similar set of documents dated 3.12.1997. Sh. Chanan documents which have been proved and exhibited by the appellants cannot Singh was the son of Sardar Dasondha Singh, who had purchased the H be looked into in the absence of the persons, who executed such suit property from the original owner, namely, Shree Ram Sarvaria and H documents, having not been summoned to prove these documents. Sons Ltd. by means of a registered sale deed dated 16.3.1955. The appellants/plaintiffs claimed that the respondents were illegal occupants/ 7. In my opinion, the impugned judgment is illegal, and the appeal trespassers in possession of the suit property and therefore after putting deserves to be allowed by setting aside the impugned judgment by decreeing I I O.P. Aggarwal & Anr. v. Akshay Lal & Ors. (Valmiki J. Mehta, J.) 649 650 Indian Law Reports (Delhi) ILR (2012) IV Delhi the suit of the appellants/plaintiffs. The jamabandi which has been filed A stepped into the witness box either to prove the case as set up in the and proved on record by the defendants themselves as Ex.DW2/1 shows A written statement or the so called chain of title documents of the suit that the ownership of the first/original owner-M/s. Shree Ram Sarwaria property. The only evidence which was led on behalf of the respondents/ & Sons Limited is duly shown in this record as one of the co-owners defendants was of two witnesses, DW1 and DW2, and which official of the khasra No.259 of Vishwasnagar Colony, village Karkardooma, B witnesses proved the jamabandi and the alleged Award of the Government Shahdara. The ownership of the original owner-Shree Ram Sarwaria & acquiring the suit land. A party to a case who does not have the courage Sons Limited therefore cannot be disputed. Shree Ram Sarwaria & Sons B to step into the witness box to prove his case and is not willing to be Limited had executed a registered sale deed in favour of Sardar Dasondha cross-examined cannot be allowed to succeed. Singh and which registered sale deed in original has been proved and 9. The trial Court has rightly held that mere filing of the Award exhibited in the trial Court as Ex.PW1/8. The possession of this original C cannot mean that the Government became the owner inasmuch as the title deed, with the appellants/plaintiffs is a very strong proof of the C Government becomes the owner of the land only after possession of the ownership of the suit property being of the appellants/plaintiffs by means land is taken under Section 16 of the Land Acquisition Act, 1894 and of chain of title documents which have also been referred to above. The which is not so proved on record and nor is the Government claiming appellants/plaintiffs has also filed, proved and exhibited the various title D any rights in the suit property. So far as the jamabandi, Ex.DW2/1 is documents in a chain as Ex.PW1/1 to Ex.PW1/15. I do not agree with concerned, I have already held that the same shows the ownership of the the trial Court that it was necessary that the executants of such documents D suit property originally in the name of Shree Ram Sarwaria & Sons had necessarily to be summoned to prove these documents inasmuch as Limited. if what the trial Court holds is accepted, it will be necessary that to prove the chain of title deeds running into decades all earlier owners have to E 10. A civil case is decided on balance of probabilities. The be summoned. This is not required to be done. Once documents pertaining preponderance of probabilities in the present case shows that the to rights in the property, and such documents being original documents E respondents/defendants had no right, title and interest in the suit property. and also registered documents, are filed and proved on record, the onus Whereas on the one hand, appellants/plaintiffs proved the entire chain of of proof that such documents are not genuine documents, in fact, shifts F title documents including the registered sale deed dated 16.3.1955 in to the opposite party. Further, the fact that the defendants/respondents favour of Sh. Dasondha Singh by Shree Ram Sarwaria & Sons Limited, are not owners becomes clear from the fact that the earlier owner who the respondents/defendants failed to even prove the so called documents is claimed to be the owner of the property on behalf of the respondents/ F by which they derived title, and which in any case did not confer title defendants is stated to be one Smt. Sakeena Begum, but how Smt. upon them as it is not shown as to how the so called owner Smt. G Sakeena Begum is the owner of this property is not shown on record. Sakeena Begum had become owner of the suit property by purchasing It was necessary for the respondents/defendants to show that Smt. the same from original owner Shree Ram Sarwaria & Sons Limited. As Sakeena Begum had purchased from the original owner Shree Ram G already stated above, the respondents/defendants did not have the courage Sarvaria and Sons Ltd, however, there is no document to connect Smt. to step into the witness box and be subjected to cross-examination. Sakeena Begum with Shree Ram Sarvaria and Sons Ltd. Therefore, once H 11. No doubt, documents such as Agreement to Sell, Power of Smt. Sakeena Begum herself never had title, no rights in the property Attorney, Will etc do not strictly confer ownership rights as a sale deed, flow to the so called subsequent purchasers, namely, Mohd. Saleem, Sh. however, such documents create certain rights in an immovable property, Vijay Gupta and defendant No.4-Smt. Sundra Devi. H though which are strictly not ownership rights but definitely the same 8. I must at this stage itself mention that the defendants/respondents I can be construed as entitling the persons who have such documents to though filed certain original documents, however the said documents claim possession of the suit property inasmuch as at least the right to the were not proved as no one on behalf of the respondents/defendants suit property would stand transferred to the person in whose favour such I O.P. Aggarwal & Anr. v. Akshay Lal & Ors. (Valmiki J. Mehta, J.) 651 652 Indian Law Reports (Delhi) ILR (2012) IV Delhi documents have been executed. The Supreme Court in the recent judgment A ILR (2012) IV DELHI 652 of Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana and Anr. CRL APPEAL 183 (2011) DLT 1(SC) has reiterated the rights created by virtue of Section 53A of Transfer of Property Act, 1882 and Section 202 of the A Contract Act, 1872 in paras 12, 13 and 16 of the said judgment. D.D.A. ….APPELLANT B 12. The appellant No.1/plaintiff No.1 in the affidavit by way of VERSUS evidence has stated in the examination-in-chief that the suit property can VIP MARBLE EMPORIUM & ORS. ….RESPONDENTS easily earn Rs. 2,000/- per month and which amount should be awarded B in favour of the appellants/plaintiffs. There is no cross-examination to (V.K. SHALI, J.) this aspect by the respondents/defendants. Also, considering that the suit C property is of 200 sq. yds, an amount of Rs. 2,000/- per month cannot, CRL. APPEAL. NO. : 940/2011 DATE OF DECISION: 19.03.2012 in any manner, be said to be unreasonable. C 13. In view of the above, appeal is accepted. Suit of the appellants/ Delhi Development Act, 1957—Sections 14 & 29 (2)— plaintiffs is decreed for possession with respect to property admeasuring D Accused persons running marble shop in an area of 200 sq. yds. bearing MCD No.500/23, Plot No.29, Gali No.10, Bhikam 500 sq. ft. which as per Master Plan, could be used Singh Colony, Behind Masjid, Shahdara, Delhi. The appellants/plaintiffs only for agricultural purposes or water body— are also granted mesne profits @ Rs. 2000/- per month from the date D Magistrate acquitted accused persons—Held:- of filing of the suit till the appellants/plaintiffs receive actual physical Magistrate committed error in appreciating evidence vacant possession from the respondents/defendants. Decree sheet with E by not believing CW1 Junior Engineer and giving respect to mesne profits be prepared after the appellants/plaintiffs pays/ more weightage to testimony of CW2 as compared to files the Court fees with respect to mesne profits. Appellants are also E DW1 who was a junior officer—CWI testified about entitled to costs of this appeal. Trial Court record be sent back. conducting inspection and finding marble shop of the accused functioning—Testimony of CW1 unshaken- 14. At this stage, counsel for the respondents/defendants appears F Magistrate wrongly observed that testimony of CW2 and states that in fact he has duly issued legal notice to the respondent Sales Tax Officers should be given more weightage as No.1 for discharge, and which notice has been filed alongwith the list of F compared to DW1 who was officer of Junior Rank- documents dated 6.3.2012 in this Court. Accordingly, it is observed that Credence to testimony should not be based on post, the Advocate, Mr. Atar Singh Tokas has duly notified the respondent but should be assessed by reading entire testimony— No.1, and who shall accordingly bear the consequences of the appeal G Testimony of CW1 cannot be disbelieved just because having been heard and disposed of ex parte. G there was no independent corroboration—Judgment acquitting accused persons set aside and they held guilty of offence u/s 14 r/w Section 29 (2) of DDA Act— Respondents sentenced to be released after H admonition—Accused company fined Rs. 100—Appeal H allowed. [Ad Ch]

I I D.D.A. v. VIP Marble Emporium & Ors. (V.K. Shali, J.) 653 654 Indian Law Reports (Delhi) ILR (2012) IV Delhi APPEARANCES: A STO was examined and he proved his earlier statement and verification A FOR THE APPELLANT : Mr. Rajesh, Mahajan, Advocate. report dated 11.05.2004 Exhibit CW-3/DY. The inspection was done on 11.05.2004 by the officials of the DDA whereupon it was found that no FOR THE RESPONDENT : Mr. Vikram Singh, Advocate. business was being run at 372, Sultanpur, Main Mehrauli Gurgaon Road, RESULT: Appeal Allowed. B Village Ghitorni, New Delhi. The statement of the accused was recorded and thereafter the respondent-accused examined two witnesses DW1/ V.K. SHALI, J. B Kamaludin who stated that the shop of the respondent/accused no. 1 was 1. This is an appeal filed by the appellant against the judgment dated also at 372, Sultanpur, Main Mehrauli Gurgaon Road, Village Ghitorni, New Delhi and the said shop was functioning till about 3-4 months ago 07.04.2007 passed by Sh. A. K. Chaturvedi, the learned Metropolitan C Magistrate, New Delhi in complaint case titled M/s DDA Vs. VIP Marble and it had been lying sealed for the last four months. The witness was Emporium & Ors. acquitting the accused company and its partners for C examined on 05.02.2007. Similarly, DW-2/Fayaz Ahmed was also examined an offence under Section 14 read with Section 29(2) of the Delhi by the accused persons to prove their defence that they were not Development Act, 1957 for misusing the premises contrary to the Master functioning from 372, Sultanpur, Main Mehrauli Gurgaon Road, Village Ghitorni, New Delhi. Plan/Zonal Development Plan. D 4. After hearing the arguments, the learned Magistrate acquitted the 2. Briefly stated the facts of the case are that on 02.08.2001, an D inspection was conducted by Mr. S. C. Saxena, Junior Engineer, DDA respondents/accused persons by observing that the petitioner has failed whereupon accused Fayaz Ahmed and Shahdat Ali, allegedly partners, to prove the guilt of the respondents/accused beyond reasonable doubt. were found putting to use the premises no. 372, Sultanpur, Main Mehrauli E In this regard, it referred to the testimony of CW-3/Mr. M. L. Ahuja, Gurgaon Road, Village Ghitorni, New Delhi, for running a shop of marble STO who proved verification report as Exhibit CW-3/DY, which was an emporium at the ground floor under the name and style of M/s VIP E inspection report by the DDA conducted on 11.05.2004 indicating that Marble Emporium in an area of about 500 sq. ft. The said premises no marble shop was functioning on that date at 372, Sultanpur, Main Mehrauli Gurgaon Road, Village Ghitorni, New Delhi. The learned according to the appellant could have been used only for agricultural F purpose or as water body as per the Master Plan or Zonal Development Magistrate observed that CW-2 was only a clerk while as CW-3 was a Plan. The appellant, in support of his case had examined two witness, Sales Tax Officer, and thus, a person of much higher rank, and namely, Sh. S. C. Saxena, Junior Engineer, DDA as CW1, who proved F accordingly, his testimony carries more weight so as to make him believe the Zonal Map as Exhibit CW1/B, Lay Out Plan as Exhibit CW1/C, Show that no marble shop was functioning at the address given in question. G Cause Notice as Exhibit CW1/D, Sanctioned Plan as Exhibit CW1/E, and 5. I have heard the learned counsel for the appellant as well as the Complaint as Exhibit CW 1/F, copy of the Resolution as Exhibit CW1/ learned counsel for the respondent-accused and have also gone through G-F1 and Gazette Notification as Exhibit CW1/H-H1. G the record. 3. The second witness examined on behalf of the appellant was Mr. 6. Mr. Rajesh Mahajan, the learned counsel for the appellant has S. K. Sharma, UDC, Sales Tax Department, New Delhi who testified that H stated that the learned Magistrate has failed to appreciate the fact that the the application dated 11.06.1999 for change of address from 428/3, verification report Exhibit as CW-3/DY approved by CW-3 was a report Swatantar Senani Market, Ghitorni to 372, Sultanpur, Main Mehrauli with reference to the inspection dated 11.05.2004, while as the inspection, Gurgaon Road, Village Ghitorni, New Delhi was applied for by the H on the basis of which, the respondents/accused were prosecuted was respondent. Documents proved in this regard are Exhibit as CW2/A and I dated 02.08.2001. It was also contended by him that the learned Magistrate copy of assessment order as Exhibit CW 2/B-D. Thereafter, the appellant has grossly erred by observing that since CW-3 is a Sales Tax Officer moved an application under Section 311 Cr.P.C., CW-3 Sh. M.L. Ahuja, is much superior in rank than that of DW-2, therefore, his testimony I D.D.A. v. VIP Marble Emporium & Ors. (V.K. Shali, J.) 655 656 Indian Law Reports (Delhi) ILR (2012) IV Delhi carries more weightage. The learned counsel for the respondents/accused A into conjecture and surmises in this regard. It was also inappropriate on could not refute this contention in any manner, except it was contended the part of the learned Magistrate to observe that there is no independent that as on date no marble shop is functioning at the address in question. corroboration to the testimony of CW-1, and therefore, his testimony cannot be relied upon. Admittedly, CW-1, is an official of a public body 7. I have considered the submissions, made by the learned counsel A and there was no reason to disbelieve the testimony of this person and for the appellant and have gone through the record. B although having an independent corroboration would always have been 8. The learned Magistrate seems to have fallen into an error in better, but in the absence of the same, it could not be said that the appreciating the evidence by observing that the verification report exhibit testimony of CW-1 cannot be relied upon. I do not subscribe to this kind as CW-3/DY was an inspection report conducted on 11.05.2004 on B of conclusion arrived at by the learned Magistrate, and therefore, I feel which date admittedly no marble shop was functioning at the address in that it is not in dispute that the area in question can be used only for C question. That cannot make any reasonable person to conclude that the agricultural purpose or for water body. In this regard, the appellant has shop was not in existence on 02.08.2001. CW-1 is the Junior Engineer proved necessary plans to which the area can be put to use, therefore, who has specifically stated that on 02.08.2001, he had conducted the C the judgment acquitting the respondents/accused, in my view, is liable to inspection along with his team, of the premises in question and a marble be set aside being erroneous. shop was found to be functioning from the said address. This testimony D 9. I, accordingly, set aside the judgment dated 07.04.2007 and hold has remained unshaken and there is absolutely no reason as to why the the respondents/accused guilty of having violated Section 14 read with government servant would testify falsely against the respondent/accused. Section 29(2) of the Delhi Development Act, 1957. Now comes the It has also not been the case of the respondent/accused that CW-1 had D question of imposing sentence, I feel that the matter is old one and the any enmity to testify against them. The learned Magistrate seems to have respondents/accused, admittedly, have closed the marble shop w.e.f. fallen into an error by observing that the testimony of CW-3 is that of E 11.05.2005 which is proved by the documents, exhibited as CW-3/DY a Sales Tax Officer (hereinafter referred to as ‘STO’) while as the by the appellant themselves and a lenient view deserves to be taken to testimony of DW-1 is a junior level officer and much below in rank to E release all the respondents/accused persons except the company after STO, and therefore, credence could not be given to the same. The admonition. So far as the company is concerned, though it cannot be credence to the testimony of a witness is not to be based on the post admonished, it is visited with a token fine of Rs.100/- which shall be which he holds, a poor person may be truthful as compared to a rich F deposited with the learned Trial Court within 15 days failing which, it person or holder of a higher post. There cannot be a generalization in this F shall be realized by resorting to processes of law. Accordingly, the appeal regard. The reasoning adopted by the learned Magistrate is totally stands allowed as herein above. erroneous. The truthfulness and the credence of the witness has to be assessed by reading the entire testimony and the examination-in-chief as G well as the cross-examination of the witness and then arrive at a conclusion as to whether his testimony inspires confidence so as to believe in what G he says. In the instant case, I have gone through the testimony of CW- 1 and I do not find any infirmity which will make me disbelieve that he is deposing falsely against the respondents/accused that they were running H a marble shop. It is a different thing that in that area, there may have been other marble shops, but only one marble shop has been booked for H the purpose of being prosecuted. But even then, this is not brought about in the cross-examination, and consequently, the Court cannot venture I I Anand Bhushan v. R.A. Haritash (Rajiv Sahai Endlaw, J.) 657 658 Indian Law Reports (Delhi) ILR (2012) IV Delhi

ILR (2012) IV DELHI 657 A proceedings would dilute the sprit of the Act—The LPA A role of CIC is of an adjudicator—Held—A reading of Section 20 shows that while the opinion, as to a default having been committed by the Information ANAND BHUSHAN ….APPELLANT B Officer, is to be formed ‘at the time of deciding any complaint or appeal’, the hearing to be given to such VERSUS B Information Officer, is to be held after the decision on R.A. HARITASH ….RESPONDENT the Complaint or the appeal. The proceedings before the CIC, of hearing the Information Officer qua whom (A.K. SIKRI, CJ. & RAJIV SAHAI ENDLAW, J.) C opinion of having committed a default has been formed LPA NO. : 777/2010 DATE OF DECISION: 29.03.2012 C and of imposition of penalty, in the exercise of supervisory powers of CIC and not in the exercise of adjudicatory Powers. (A) Constitution of India, 1950—Article 226 & 227—Right to D Information Act, 2005—Section 20(1)—Delhi High Court The power of the CIC, under Section 20, of imposing penalty Act, 1966—Section 10—Central Information Commission D is to be seen in this light and context. A reading of Section (CIC) imposed maximum penalty of Rs. 25,000/- on the 20 shows (as also held by us in Ankur Mutreja) that while respondent under section 20(1) of the Act for the the opinion, as to a default having been committed by the delay of over 100 days in furnishing the information to E Information Officer, is to be formed ‘at the time of deciding the appellant—Chief Secretary, Govt. of Delhi was any complaint or appeal’, the hearing to be given to such directed to recover the said amount from the salary of E Information Officer, is to be held after the decision on the the respondent @ Rs. 5,000/- per month-Respondent complaint or the appeal. The proceedings before the CIC, of preferred writ petition—Learned Single Judge allowed F hearing the Information Officer qua whom opinion of having the writ petition—Reduced the penalty amount to Rs. committed a default has been formed and of imposition of 2,500/- recoverable from the salary of the respondent penalty, are in our opinion, in the exercise of supervisory in ten equal monthly installments of Rs. 250/- per F powers of CIC and not in the exercise of adjudicatory month—Reason—The question of penalty is essentially powers. As already held by us in Ankur Mutreja, there is no G between the Court and the respondent and did not provision, for payment of penalty or any part thereof, to the really concern the appellant who has been provided information seeker. The information seeker has no locus in with information—Respondent took the charge of the the penalty proceedings, beyond the decision of the G post 14 days after the subject RTI application of the complaint/appeal and while taking which decision opinion of default having been committed is to be formed, and at which appellant had been filed—Appellant filed the Intra H Court Appeal—Contention—Use of word 'shall' in stage the complainant/information seeker is heard. section 20(1) is indicative of the imposition of penalty (Para 9) mandatory—Presence of information seeker is essential H not only for computing the penalty but also for (B) Constitution of India, 1950—Article 226 & 227—Right to establishing the default of the information officer- I Information Act, 2005—Section 20(1)—Central Exclusion of the information seeker from penalty Information Commission (CIC) imposed maximum

I Anand Bhushan v. R.A. Haritash (Rajiv Sahai Endlaw, J.) 659 660 Indian Law Reports (Delhi) ILR (2012) IV Delhi penalty of Rs. 25,000/- on the respondent under section A information seeker has no right of participation in 20(1) of the Act for the delay of over 100 days in penalty proceedings, the question of right of being furnishing the Information to the appellant-Chief heard in opposition to writ petition challenging Secretary, Govt. of Delhi was directed to recover the imposition of penalty dose not arise-Error was A said amount from the salary of the respondent @ Rs. committed by the learned Single Judge in reducing 5,000/- per month—Respondent preferred Writ B the penalty without hearing the appellant. petition—Learned Single Judge allowed the writ petition—Reduced the penalty amount to Rs. 2,500/- We may reiterate that the complainant/information seeker recoverable from the salary of the respondent in ten B has the remedy of seeking costs and compensation and equal monthly installments of Rs. 250/- per month— thus the argument of ‘being left remediless’ is misconceived. C Reason—The question of penalty is essentially between However ‘penalty’ is not to be mixed with costs and the Court and the respondent and did not really compensation. (Para 11) concern the appellant who has been provided with C We are also of the view that the participation of the information information—Respondent took the charge of the post seeker in the penalty proceeding has nothing to do with the 14 days after the subject RTI application of the D principle of accountability. (Para 12) appellant had been filed—Appellant filed the Intra Court Appeal—Contention—Use of word ‘shall’ in Needless to say that if the information seeker has no right section 20(1) is indicative of the imposition of penalty D of participation in penalty proceedings, as held by us, the mandatory—Presence of information seeker is essential question of right of being heard in opposition to writ petition not only for computing the penalty but also for E challenging imposition of penalty does not arise. We therefore establishing the default of the information officer- hold that no error was committed by the learned Single Exclusion of the information seeker from penalty E Judge in reducing the penalty without hearing the appellant. proceedings would dilute the spirit of the Act—No (Para 13) notice of the petition was given to the appellant before reducing the penalty—The role of the CIC is of F (C) Constitution of India, 1950—Article 226 & 227—Right to an adjudicator—Held—In the context of RTI Act, merely F Information Act, 2005—Section 20(1)—Central because the CIC, while deciding the complaints/ Information Commission (CIC) imposed maximum appeals is required to hear the complainant/ penalty of Rs. 25,000/- the respondent under section information seeker, would not require the CIC to hear 20(1) of the Act for delay of over 100 days in furnishing G them while punishing the erring Information Officer, in the information to the appellant—Chief Secretary, Govt. exercise of its Supervisory Powers—We may reiterate G of Delhi was directed to recover the said amount from that the complainant/information seeker has the remedy the salary of the respondent @ Rs. 5,000/- per month of seeking costs and compensation and thus the Respondent preferred writ petition—Learned Single argument of ‘being left remediless’ is misconceived- H Judge allowed the writ petition—Reduced the penalty However, ‘penalty’ is not to be mixed with costs and amount to Rs. 2,500/- recoverable from the salary of H compensation—The participation of the information the respondent in ten equal monthly installments of seeker in the penalty proceeding has nothing to do Rs. 250/- per month—Reason—The question of penalty with the principal of accountability—Since the is essentially between the Court and the respondent I I Anand Bhushan v. R.A. Haritash (Rajiv Sahai Endlaw, J.) 661 662 Indian Law Reports (Delhi) ILR (2012) IV Delhi and did not really concern the appellant who has been A Posts, inspite of the argument raised that that Single Judge provided with information—Respondent took the A ought not to have reduced the penalty imposed by the CIC charge of the post 14 days after the subject RTI but finding sufficient explanation for the delay in supplying application of the appellant had been filed—Appellant information, upheld the order of the Single Judge, reducing filed the Intra Court Appeal—Contention—Use of word B the penalty. Though Section 20(1) uses the word ‘shall’, ‘shall’ in section 20(1) is indicative of the imposition of before the words ‘impose a penalty of Rs. two hundred and penalty mandatory—Presence of information seeker is B fifty rupees’ but in juxtaposition with the words ‘without essential not for computing the penalty but also for reasonable cause, malafidely or knowingly or obstructed’. establishing the default of the information officer— The second proviso thereto further uses the words, Exclusion of the information seeker from penalty C ‘reasonably and diligently’. The question which arises is proceedings would dilute the sprit of the Act—The C when the imposition of penalty is dependent on such role of the CIC is of an adjudicator—Held—Though variables, can it be said to be mandatory or possible of Section 20(1) uses the word ‘shall’, before the words calculation with mathematical precision. All the expressions ‘impose a penalty of Rs. Two hundred and fifty rupees used are relative in nature and there may be degrees of, D but in juxtaposition with the words ‘without reasonable without reasonable cause, malafide, knowing or cause, malafidely of knowingly or obstructed’—The D reasonableness, diligence etc. We are unable to bring second proviso thereto further uses the words, ourselves to hold that the aforesaid provision intends ‘reasonably and diligently’—The question which arises punishment on the same scale for all degrees of neglect in is when the imposition of penalty is dependent on E action, diligence etc. The very fact that imposition of penalty such variables, can it be said to be mandatory or is made dependent on such variables is indicative of the possible of calculation with mathematical precision— E discretion vested in the authority imposing the punishment. All the expressions used are relative in nature and The Supreme Court in Carpenter Classic Exim P. Ltd. V. there may be degrees of, without reasonable cause, F Commnr. of Customs (Imports) (2009) 11 SCC 293 was malafide, knowing or reasonableness, diligence etc.— concerned with Section 114 A, Customs Act, 1962 which The very fact that imposition of penalty is made also used the word ‘shall’ in conjunction with expression dependent on such variables is indicative of the F ‘willful mis- statement or suppression of facts’; it was held direction vested in the authority imposing the that provision of penalty was not mandatory since discretion G punishment—Once it is held that the quantum of fine had been vested in the penalty imposing authority. Similarly is discretionary, there can be no challenge to the in Superintendent and Remembrancer of Legal Affairs judicial review under Article 226 of the Constitution, to Government of West Bengal V. Abani Maity (1979) 4 G of exercise of such discretion, of course within the SCC 85, the words ‘shall be liable for confiscation’ in section well recognized limits—If this Court finds discretion to H 63 (1) of Bengal Excise Act, 1909, were held to be not have been not appropriately exercised by the CIC, conveying an absolute imperative but merely a possibility of this Court can, in exercise of its power vary the attracting such penalty inspite of use of the word ‘shall’. It penalty—Appeal dismissed. H was held that discretion is vested in the court in that case, to impose or not to impose the penalty. (Para 15) We may at the outset notice that a Division Bench of this I Court in judgment dated 6th January. 2011 in LPA 782/2010 Once it is held that the quantum of fine is discretionary, titled Central Information Commission v. Department of I Anand Bhushan v. R.A. Haritash (Rajiv Sahai Endlaw, J.) 663 664 Indian Law Reports (Delhi) ILR (2012) IV Delhi there can be no challenge to the judicial review under Article A 5. Carpenter Classic Exim P. Ltd. vs. Commnr. of Customs 226 of the Constitution, of exercise of such discretion, of (Imports) (2009) 11 SCC 293. course within the well recognized limits. If this Court finds 6. Bhagat Singh vs. Chief Information Commissioner discretion to have been not appropriately exercised by the A 146(2008) DLT 385. CIC, this Court can in exercise of its powers vary the 7. Nathi Devi vs. Radha Devi Gupta (2005) 2 SCC 271. penalty. In the facts of the present case, we find the learned B Single Judge to have for valid reasons with which we have 8. Surya Dev Rai vs. Ram Chander Rai (2003) 6 SCC 675. no reason to differ, reduced the penalty. We, therefore do 9. Superintendent and Remembrancer of Legal Affairs to not find any merits in this appeal and dismiss the same. No B Government of West Bengal vs. Abani Maity (1979) 4 order as to costs. (Para 16) C SCC 85. 10. The State of U.P. vs. Raj Narain (1975) 4 SCC 428. Important Issue Involved: (A) Information seeker has no right of participation in penalty proceedings. C RESULT: Appeal Dismissed. RAJIV SAHAI ENDLAW, J. D (B) The word ‘shall’ appearing in Section 20 (1) does not 1. This Intra Court appeal impugns the order dated 26th May, 2010 make it mandatory to impose the maximum penalty in each of the learned Single Judge allowing W.P.(C) No.3670/2010 preferred by case; discretion is vested in the authority in imposition of D the respondent. The respondent, at the relevant time was the Dy. Director cost. of Education and Public Information Officer of the Directorate of E Education, Govt. of NCT of Delhi. The respondent had filed the writ [Vi Ba] petition impugning the order dated 14th April, 2010 of the Central E Information Commission (CIC) imposing maximum penalty of Rs.25,000/ APPEARANCES: - on the respondent, under Section 20(1) of the Right to Information Act, FOR THE APPELLANT : Ms. Girija Krishan Varma, Advocate. 2005 for the delay of over 100 days in furnishing the information to the F appellant. The Chief Secretary, Govt. of Delhi was directed to recover FOR THE RESPONDENT : Mr. P.S. Parma, Advocate for Mr. the said amount from the salary of the respondent @ Rs. 5,000/- per A.S. Chandhiok, ASG/Amicus F month. Curiae. 2. The learned Single Judge, vide order impugned in this appeal, CASES REFERRED TO: G reduced the penalty amount to Rs. 2,500/- recoverable from the salary 1. Ankur Mutreja vs. Delhi University 9th January, 2012 in G of the respondent in ten equal monthly installments of Rs. 250/- per LPA 764/2011. month. The learned Single Judge held that the question of penalty is 2. Sree Narayana College vs. State of Kerala MANU/KE/ essentially between the Court and the respondent and did not really 0238/2010. concern the appellant who has been provided with the information. Yet H another reason given for so reducing the penalty was that the respondent 3. Competition Commission of India vs. Steel Authority of had taken charge of the said post 14 days after the subject RTI application India Ltd. (2010) 10 SCC 744. H of the appellant had been filed. 4. Central Information Commission vs. Department of Posts, 2011 in LPA 782/2010. 3. Notice of this appeal was issued primarily on the ground, that the I I Anand Bhushan v. R.A. Haritash (Rajiv Sahai Endlaw, J.) 665 666 Indian Law Reports (Delhi) ILR (2012) IV Delhi learned Single Judge, being of the view aforesaid, had decided the writ A finding with regard to reasonable explanation as recorded by the petition even without issuing notice to the appellant, though the appellant A Commission is reversed. had been impleaded as respondent in the writ petition. Hearing in this appeal was commenced on 11th March, 2011 when the following order (d) If the Court in exercise of power of judicial review is allowed was passed:- to reduce the penalty that would frustrate the purpose of the Act B which is a progressive legislation to introduce transparency in “Heard Ms. Girija Krishan Varma, learned counsel for the B democracy for the purpose of good governance. In view of the appellant and the respondent in person. In course of hearing of issues raised, we would like to have the assistance of the learned this appeal, Ms. Verma has raised the following contentions:- Solicitor General in the matter. Let the matter be listed on 3rd (a) The learned single Judge has disposed of the writ petition C May, 2011 at 2.15 pm. Ms. Zubeda Begum, learned counsel for without notice to the appellant, who had sought the information the State undertakes to apprise the learned Solicitor General about C under the Right to Information Act, 2005 on the ground that the the order passed today. A copy of the order be given dasti under question of penalty is essentially between the Court and the signature of the Court Master to Ms. Zubeda Begum.” petitioner and does not really concern the respondents which 4. The matter was thereafter adjourned from time to time. makes the order vulnerable as the exposition of law in the said D manner is contrary to the spirit of the 2005 Act. 5. We have however recently vide our judgment dated 9th January, D 2012 in LPA 764/2011 titled Ankur Mutreja v. Delhi University held (b) If, the language employed under Section 20 of the 2005 Act, that; which deals with penalties, is appropriately read it would clearly E a) the Act does not provide for the CIC to, in the penalty convey that every day’s delay shall invite penalty of Rs.250/- proceedings, hear the information seeker, though there is with the rider that the said penalty shall not exceed Rs.25,000/ E no bar also thereagainst if the CIC so desires; - and the first proviso deals with grant of reasonable opportunity to bring the concept of natural justice and the second proviso b) that the information seeker cannot as a matter of right requires reasonable diligence but if reasonable diligence is not F claim audience in the penalty proceedings which are shown, discharging regard being had to the onus of proof as between the CIC and the erring information officer; engrafted in the said proviso, it is obligatory on the part of the F c) there is no provision in the Act for payment of penalty or Commission to impose penalty of Rs.250/- per day. Elaborating any part thereof imposed/recovered from the erring the said submission, it is contended by her that certain days, G information officer to the information seeker; delay may be explained and some days, delay, if not explained, d) the penalty proceedings are akin to contempt proceedings, would invite the penalty which is mandatory because of the the settled position wherein is that after bringing the facts words used in Section 20 of the Act viz., “shall impose penalty” G to the notice of the Court, it becomes a matter between (c) If there is penalty provision in the Act, the High Court in H the Court and the contemnor and the informant or the exercise of power of judicial review cannot reduce the said relator does not become a complainant or petitioner in penalty unless a categorical finding is recorded that reasonable contempt proceedings. explanation has been proffered/offered for certain days. H 6. The aforesaid judgment was brought to the attention of the Pyramiding the said contention, it is put forth by Ms. Verma that counsel for the appellant. The counsel for the appellant has however the discretion by the Court is not attracted in exercise of power I besides orally arguing the matter also submitted written submissions. Her under Articles 226 or 227 of the Constitution of India unless the arguments may be summarized as under:-

I Anand Bhushan v. R.A. Haritash (Rajiv Sahai Endlaw, J.) 667 668 Indian Law Reports (Delhi) ILR (2012) IV Delhi i) that the use of the word “shall” in Section 20(1) is A (i) Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC indicative of, the imposition of penalty being mandatory, 675; where the information officer has refused to or delays in (ii) Nathi Devi v. Radha Devi Gupta (2005) 2 SCC 271; receiving the RTI application or when does not give or A (iii) The State of U.P. v. Raj Narain (1975) 4 SCC 428; delays in giving the information sought; ii). that the presence of the information seeker is essential not only B (iv) Bhagat Singh v. Chief Information Commissioner for computing the penalty but also for establishing the 146(2008) DLT 385 & default of the information officer; (v) Sree Narayana College v. State of Kerala MANU/KE/ B iii) that the penalty proceedings under Section 20(1) are 0238/2010. adversarial in nature; C and of certain Articles, Parliamentary debates etc. on the Act. iv) that the position of the information seeker, in penalty 8. We have in Ankur Mutreja (supra) given detailed reasons for proceedings, is akin to that of public prosecutor; C the conclusions aforesaid reached therein and which cover contentions v) that since Section 20(1) provides for a hearing to be given 6(ii) to (viii) & (x) aforesaid of the counsel for the appellant herein and to the information officer, there can be no hearing without D we do not feel the need to reiterate the same. We may only add that the the information seeker; vi). the second proviso to Section role of the CIC, under the Act, is not confined to that of an Adjudicator. 20(1), putting the burden of proving that he acted The CIC under the RTI Act enjoys a dual position. The CIC, established reasonably and diligently, on the information officer is D under Section 12 of the Act, has been, a) under Section 18 vested with also indicative of the penalty proceedings being adversarial the duty to receive and enquire into complaints of non-performance and in nature; if the information seeker was not to be a party E non-compliance of provisions of the Act and relating to access to records to the said proceedings, the question of onus/burden would under the Act; b) empowered under Section 19(3) to hear second appeals not have arisen; the question of shifting the burden arises E against decision of Information Officer and the First Appellate Authority; only in an adversarial situation; vii). that the role of CIC c) empowered under Section 19(8) to, while deciding such appeals, to is only that of an Adjudicator; viii). that exclusion of the require any public authority to take such steps as may be necessary for information seeker from penalty proceedings would dilute F compliance of provisions of the Act; and, d) and is to, under Section 25 the spirit of the Act; ix). that the Act is not only about of the Act prepare annual report on the implementation of the provisions sharing of information and promoting transparency but is F of the Act. The CIC thus, besides the adjudicatory role also has a also intended to bring about accountability and taking away supervisory role in the implementation of the Act. the right of the information seeker to participate in the 9. The power of the CIC, under Section 20, of imposing penalty penalty proceedings is against the principle of G is to be seen in this light and context. A reading of Section 20 shows accountability; G (as also held by us in Ankur Mutreja) that while the opinion, as to a x) Section 23 of the Act bars the jurisdiction of Courts; the default having been committed by the Information Officer, is to be information seeker thus has no other remedy against the formed ‘at the time of deciding any complaint or appeal’, the hearing to erring information officer. H be given to such Information Officer, is to be held after the decision on 7. The counsel for the appellant has also handed over a compilation H the complaint or the appeal. The proceedings before the CIC, of hearing of the following judgments:- the Information Officer qua whom opinion of having committed a default has been formed and of imposition of penalty, are in our opinion, in the exercise of supervisory powers of CIC and not in the exercise of I I Anand Bhushan v. R.A. Haritash (Rajiv Sahai Endlaw, J.) 669 670 Indian Law Reports (Delhi) ILR (2012) IV Delhi adjudicatory powers. As already held by us in Ankur Mutreja, there is no A in judgment dated 6th January. 2011 in LPA 782/2010 titled Central provision, for payment of penalty or any part thereof, to the information A Information Commission v. Department of Posts, inspite of the seeker. The information seeker has no locus in the penalty proceedings, argument raised that that Single Judge ought not to have reduced the beyond the decision of the complaint/appeal and while taking which penalty imposed by the CIC but finding sufficient explanation for the decision opinion of default having been committed is to be formed, and B delay in supplying information, upheld the order of the Single Judge, at which stage the complainant/information seeker is heard. reducing the penalty. Though Section 20(1) uses the word ‘shall’, before B the words ‘impose a penalty of Rs. two hundred and fifty rupees’ but 10. The Supreme Court in Competition Commission of India vs. in juxtaposition with the words ‘without reasonable cause, malafidely or Steel Authority of India Ltd. (2010) 10 SCC 744 held that the knowingly or obstructed’. The second proviso thereto further uses the Competition Commission constituted under the Competition Act, 2002 C words, ‘reasonably and diligently’. The question which arises is when discharges different functions under different provisions of the Act and the imposition of penalty is dependent on such variables, can it be said the procedure to be followed in its inquisitorial and regulatory powers/ C to be mandatory or possible of calculation with mathematical precision. functions is not to be influenced by the procedure prescribed to be All the expressions used are relative in nature and there may be degrees followed in exercise of its adjudicatory powers. In the context of the RTI of, without reasonable cause, malafide, knowing or reasonableness, Act also, merely because the CIC, while deciding the complaints/appeals D diligence etc. We are unable to bring ourselves to hold that the aforesaid is required to hear the complainant/information seeker, would not require provision intends punishment on the same scale for all degrees of neglect the CIC to hear them while punishing the erring Information Officer, in D in action, diligence etc. The very fact that imposition of penalty is made exercise of its supervisory powers. dependent on such variables is indicative of the discretion vested in the 11. We may reiterate that the complainant/information seeker has E authority imposing the punishment. The Supreme Court in Carpenter the remedy of seeking costs and compensation and thus the argument of Classic Exim P. Ltd. V. Commnr. of Customs (Imports) (2009) 11 ‘being left remediless’ is misconceived. However ‘penalty’ is not to be E SCC 293 was concerned with Section 114 A, Customs Act, 1962 which mixed with costs and compensation. also used the word ‘shall’ in conjunction with expression ‘willful mis- statement or suppression of facts’; it was held that provision of penalty 12. We are also of the view that the participation of the information F was not mandatory since discretion had been vested in the penalty imposing seeker in the penalty proceeding has nothing to do with the principle of authority. Similarly in Superintendent and Remembrancer of Legal accountability. F Affairs to Government of West Bengal V. Abani Maity (1979) 4 SCC 85, the words ‘shall be liable for confiscation’ in section 63 (1) of 13. Needless to say that if the information seeker has no right of G participation in penalty proceedings, as held by us, the question of right Bengal Excise Act, 1909, were held to be not conveying an absolute of being heard in opposition to writ petition challenging imposition of imperative but merely a possibility of attracting such penalty inspite of use of the word ‘shall.. It was held that discretion is vested in the court penalty does not arise. We therefore hold that no error was committed G by the learned Single Judge in reducing the penalty without hearing the in that case, to impose or not to impose the penalty. appellant. H 16. Once it is held that the quantum of fine is discretionary, there 14. That brings us to the question, whether the penalty prescribed can be no challenge to the judicial review under Article 226 of the in Section 20 of the Act is mandatory and the scope of interference with Constitution, of exercise of such discretion, of course within the well such penalty in exercise of powers of judicial review under Article 226 H recognized limits. If this Court finds discretion to have been not of Constitution of India. I appropriately exercised by the CIC, this Court can in exercise of its powers vary the penalty. In the facts of the present case, we find the 15. We may at the outset notice that a Division Bench of this Court learned Single Judge to have for valid reasons with which we have no I Prashant Dutta v. National Insurance Co. Ltd. (J.R. Midha, J.) 671 672 Indian Law Reports (Delhi) ILR (2012) IV Delhi reason to differ, reduced the penalty. We, therefore do not find any A claimants—Learned counsel for the appellants submit merits in this appeal and dismiss the same. No order as to costs. that the deceased, employed as a conductor, was validly covered under the insurance policy and therefore, respondent No.1 alone is responsible to A pay the insurance amount—The liability of the insurance B company in respect of the Workmen’s Compensation ILR (2012) IV DELHI 671 in respect of the driver and conductor of the offending MAC. APP. vehicle under Section 147(1) of the Motor Vehicles B Act is statutory and therefore, respondent No.1 would PRASHANT DUTTA & ANR. ….APPELLANTS be liable to pay the Workmen’s Compensation. The C insurance policy of the offending vehicle has been VERSUS placed on record as Annexure-F (colly.) with the appeal in which respondent No.1 has charged the premium NATIONAL INSURANCE CO. LTD. & ORS. ….RESPONDENTS C for Workmen’s Compensation to the employee. Under (J.R. MIDHA, J.) D Section 147(1) of the Motor Vehicle Act, 1988, the insurance company is required to compulsorily cover MAC. APP. NO. : 556/2007 DATE OF DECISION: 30.03.2012 the liability in respect of the death or bodily injury of D the driver and conductor in the case of public service vehicle. The contention of Respondent No. 1 that they Motor Vehicle Act, 1988—The accident dated 4th June, have charged for premium for one employee is 2006 resulted in death of Om Prakash. The deceased E untenable in view of the statutory requirement of was survived by his widow, mother and four children Section 147 (1) of the Motor Vehicle Act to cover the who filed the claim petition before the Claim Tribunal- E driver and the conductor. Even if the contention of The deceased was aged 27 years at the time of the respondent NO.1 that the policy covered one employee accident and was working as a conductor on the F is accepted, the policy should be construed to cover offending bus bearing No. Dl-IP-5998. The claims the deceased. In that view of the matter, this Court is Tribunal took the minimum wages of Rs. 3,271/- into F of the view that respondent No.1 is liable to pay consideration, deducted 1/4th towards personal Workmen’s Compensation in respect of death of the expenses, applied the multiplier of 18, added Rs. deceased and the remaining amount of compensation 60,00/- towards loss of love and affection and Rs. G is liable to be paid by the appellants.-The appeal is 20,000/- towards funeral expenses. The total G partly allowed to the extent that out of the award compensation awarded is Rs. 6,09,902/- The Claims amount of Rs. 6,09,902/-, respondent No.1 shall be Tribunal exonerated the insurance company and held liable to pay Rs. 3,49,294/- along with interest @ 7.5% the driver and owner liable to pay the award amount— per annum from the date of filling of the claim petition The appellants are the owner and driver of the H till realization to respondent Nos. 2 to 7. The remaining offending vehicle and have challenged the impugned H amount of Rs. 2,60,608/- (Rs. 6,09,902/- Rs. 3,49,294) award on the limited ground that the offending vehicle along with interest @ 7.5% per annum for the date of was validly insured and, therefore, respondent No.1 filing of the claim petition till realization shall be paid alone is liable to pay the entire award amount to the I I Prashant Dutta v. National Insurance Co. Ltd. (J.R. Midha, J.) 673 674 Indian Law Reports (Delhi) ILR (2012) IV Delhi by the appellants. A 3. The widow of the deceased appeared in the witness box as PW- A 1 and deposed that her husband was on duty on the vehicle as a conductor Important Issue Involved: Under Section 147(1) of the at the time of the accident. She reiterated the same in her cross- Motor Vehicle Act, 1988 the insurance company is required examination. The learned Trial Court has taken the deceased to be helper to compulsorily cover the liability in respect of the death of B on the basis of the statement of respondent No.1 who appeared in the bodily injury of the driver and conductor in the case of witness box as RW-1. However, respondent No.1 did not produce any B public service vehicle. document to show that the deceased was a helper. Respondent No.1 did not lead any evidence to rebut the evidence of PW-1 that the deceased [Ch Sh] was a conductor. The term conductor has been defined in Section 2(5) C of the Motor Vehicles Act as a person engaged in collecting fares from APPEARANCES: C passengers, regulating their entrance into and exit from the vehicle and FOR THE APPELLANT : Mr. Amit Sethi, Advocate. performing such other functions as may be prescribed. The offending vehicle involved in the present case is a chartered bus which is a contract FOR THE RESPONDENT : Ms. Shantha Devi Raman and Mr. carriage as defined in Section 2(7) of the Motor Vehicles Act. Since there D Sunil Kumar Tiwari, Advocates. For is no requirement of ticketing in a chartered bus, the person who regulates R-1. D the entrance/exit of the passengers and other functions is a conductor RESULT: Disposed of. within the meaning of Section 2(5) of the Act even if he has been named as a helper. In the present case, this Court is of the view that the J.R. MIDHA, J. E deceased was a conductor on the offending vehicle as per the testimony 1. The accident dated 4th June, 2006 resulted in the death of Om of PW- 1. However, even assuming that the deceased was a helper as Prakash. The deceased was survived by his widow, mother and four E contended by respondent No.1, he falls within the meaning of conductor children who filed the claim petition before the Claims Tribunal. The under Section 2(5) of the Motor Vehicles Act as he was performing the deceased was aged 27 years at the time of the accident and was working F work of a conductor and there was no other conductor on the chartered as a conductor on the offending bus bearing No.DL-1P-5998. The Claims bus. Tribunal took the minimum wages of Rs. 3,271/- into consideration, F 4. The liability of the insurance company in respect of the deducted 1/4th towards personal expenses, applied the multiplier of 18, Workmen’s Compensation in respect of the driver and conductor of the added Rs. 60,000/- towards loss of love and affection and Rs. 20,000/ G offending vehicle under Section 147(1) of the Motor Vehicles Act is - towards funeral expenses. The total compensation awarded is Rs. statutory and, therefore, respondent No.1 would be liable to pay the 6,09,902/-. The Claims Tribunal exonerated the insurance company and Workmen’s Compensation. The insurance policy of the offending vehicle held the driver and owner liable to pay the award amount. G has been placed on record as Annexure-F (colly.) with the appeal in 2. The appellants are the owner and driver of the offending vehicle which respondent No.1 has charged the premium for Workmen’s H and have challenged the impugned award on the limited ground that the Compensation to the employee. Under Section 147(1) of the Motor Vehicles offending vehicle was validly insured and, therefore, respondent No.1 Act, 1988, the insurance company is required to compulsorily cover the alone is liable to pay the entire award amount to the claimants. Learned liability in respect of the death or bodily injury of the driver and conductor H counsel for the appellants submit that the deceased, employed as a in the case of public service vehicle. The contention of respondent No.1 conductor, was validly covered under the insurance policy and, therefore, I that they have charged for premium for one employee is untenable in respondent No.1 alone is responsible to pay the insurance amount. view of the statutory requirement of Section 147 (1) of the Motor Vehicles Act to cover the driver and the conductor. Even if the contention I Prashant Dutta v. National Insurance Co. Ltd. (J.R. Midha, J.) 675 676 Indian Law Reports (Delhi) ILR (2012) IV Delhi of respondent No.1 that the policy covered one employee is accepted, the A deposit till further orders. policy should be construed to cover the deceased. In that view of the 8. The order of disbursement of the said amount shall be passed matter, this Court is of the view that respondent No.1 is liable to pay after examining the claimants on 27th April, 2012. Let the Court notice Workmen’s Compensation in respect of death of the deceased and the A be issued to respondent Nos.2 to 7 as well as their counsel, returnable remaining amount of compensation is liable to be paid by the appellants. B on 27th April, 2012. The Court notice shall indicate that the claimants 5. The liability of respondent No.1 under the Workmen’s shall remain present in Court on the next date of hearing. Copy of the Compensation Act, 1923 is computed to be Rs. 3,49,294/- (Rs. 3,271/ judgment be sent to respondents No.2 to 7. 2 x Rs. 213.57) taking the minimum wages of Rs. 3,271/- per month as B 9. The statutory amount of Rs. 25,000/- deposited by the appellants the income of the deceased. along with these appeals be refunded back to the appellants through C 6. The appeal is partly allowed to the extent that out of the award counsel within four weeks. amount of Rs. 6,09,902/-, respondent No.1 shall be liable to pay Rs. 3,49,294/- along with interest @ 7.5% per annum from the date of filing C of the claim petition till realization to respondent Nos.2 to 7. The remaining amount of Rs. 2,60,608/- (Rs. 6,09,902 - Rs. 3,49,294) along with D ILR (2012) IV DELHI 676 interest @ 7.5% per annum for the date of filing of the claim petition till W.P. (C) realization shall be paid by the appellants. D 7. The appellants deposited a sum of Rs. 3,31,650/- with the Registrar General of this Court in terms of the order dated 12th September, 2007. GUNJAN SINHA JAIN ….PETITIONER E The aforesaid amount was initially kept in fixed deposit. Vide order dated VERSUS 10th March, 2008, the aforesaid amount along with interest thereon was directed to be remitted to the Claims Tribunal and the Claims Tribunal E REGISTRAR GENERAL ....RESPONDENT was directed to disburse the said amount to the claimants in terms of the HIGH COURT OF DELHI award. Accordingly, a sum of Rs. 3,41,344/- was sent to the Claims F Tribunal on 16th May, 2008. The liability of the appellants in terms of (BADRAR DURREZ AHMAD, J,) this judgment as on 16th May, 2008 was Rs. 2,96,442/- (Rs. 2,60,608 F W.P. (C) NO. : 449/2012 DATE OF DECISION: 09.04.2012 +’ interest of Rs. 35,834/- for the period 17th July, 2006 to 16th May, 2008) which has been paid to the claimants. The appellants are thus entitled to refund of Rs. 44,902/- (Rs. 3,41,344 – Rs. 2,96,442) from G Constitution of India, 1950—Article 226—Writ Petition quashing of notice issued by the High Court of Delhi respondent No.1. Respondent No.1 is directed to make the payment of G the aforesaid amount of Rs. 44,902/- along with interest @7.5% per provisionally short listing candidates on the basis of annum with effect from 16th May, 2008 up to the date of realization to performance in the Delhi Judicial Service (Preliminary) appellant No.1 within 30 days. Respondent No.1 is also directed to Examination as there were faults in the question paper deposit Rs. 3,49,294/- along with interest @7.5% per annum from the H and the answer key seeking re-evaluation after date of filing of the claim petition (17th July, 2006) till realization with H corrections/ deletions/ amendments to the questions UCO Bank, Delhi High Court Branch by means of a cheque drawn in the and answer keys—Further, seeking restraint on Main name of UCO Bank A/c Lokesh within 30 days. Upon the aforesaid examination till re-evaluation of the Preliminary amount being deposited, UCO Bank shall keep the said amount in fixed Examination—HELD:- The questions would fall into three I I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 677 678 Indian Law Reports (Delhi) ILR (2012) IV Delhi categories—The first being those questions where A three categories. The first being those questions where the the answers reflected in the Answer Key are correct. A answers reflected in the Answer Key are correct. This The second category comprises of those questions in category would include all those questions which have not respect of which the option shown to be correct in been discussed above (i.e., questions in respect of which the Answer Key is incorrect and instead another option B there was no challenge at the hearing) and those questions as determined above is correct. The third category of in respect of which the answers shown in the Answer Key questions covers (1) questions out of syllabus; (2) B have been found to be correct by us. The second category questions in respect of which the answer in the comprises of those questions in respect of which the option Answer Key is debatable; (3) questions in respect of shown to be correct in the Answer Key is incorrect and which there are more than one correct option; (4) C instead another option as determined above is correct. The questions in respect of which none of the options is C third category of questions covers (1) questions out of correct; and (5) questions which are confusing or do syllabus; (2) questions in respect of which the answer in the not supply complete information for a clear answer. As Answer Key is debatable; (3) questions in respect of which regards the first category, no change in the Answer there are more than one correct option; (4) questions in D Key is required. The Answer Key in respect of the respect of which none of the options is correct; and (5) second category of questions would have to be D questions which are confusing or do not supply complete corrected and the OMR answer sheets would have to information for a clear answer. (Para 75) be re-evaluated. In case of the third category and when the table of the disputed questions is taken into E As regards the first category, no change in the Answer Key considerations it is inferred that 12 questions need to is required. The Answer Key in respect of the second be removed/delete from the purview of the said Delhi E category of questions would have to be corrected and the Judicial Service Exams and 7 questions need to be OMR answer sheets would have to be re-evaluated. Insofar as the third category is concerned, questions falling in this corrected—The status of the qualified students stands F unaffected as it would be unfair on behalf of the court category would have to be removed from the purview of the to tamper with the status of the student already examination. A summary of all the disputed questions is selected. Coming on to the second condition stipulating F given in tabular form below: that the number of candidates to be admitted to the G main examination (written) should not be more than Question Answer as Correct Out of Action ten times the total number of vacancies of each No. per the Answer(s) Syllabus category advertised This condition proved to be invalid Answer Key G as the general vacancies advertised were 23 and ten 60 (2) (1) No Correct the times 23 is 230 whereas the general candidates which H Answer Key have already been declared as qualified for taking the 61 (3) (3), (4) No Remove Main Examination (Written) is 235, therefore, it would 69 (3) (3) No No change be unfair to shut out such candidates on the basis of H the second condition. 71 (3) (3) No No change I 80 (2) none No Remove In view of the above discussion, the questions would fall into 84 (4) none No Remove

I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 679 680 Indian Law Reports (Delhi) ILR (2012) IV Delhi A questions would require corrections in the Answer Key as 90 (2) (2) No No change indicated above and 7 questions (alongwith the 174 other 97 (4) (2) No Correct the questions not disputed in the course of arguments) require Answer Key no change in the Answer Key. (Para 77) 99 (2) none No Remove A Now, the point for consideration at this stage is how is this 100 (2) (1) or (2), No Remove B re-evaluation to be done? We must make it clear that the debatable 276 candidates who have been declared as qualified for the 105 —— Yes Remove B DJS Main Examination (Written) are not before us and, 112 —— Yes Remove therefore, it would not be fair to disturb their status as 140 (4) (3), (4) No Remove C qualified candidates. At the same time, insofar as the others 150 —— Yes Remove are concerned, we must also keep in mind the following twin criteria of qualification in the said DJS exam: 165 (2) (1) No Correct the C Answer Key (1) Minimum qualifying marks in the preliminary 166 (1) (1) or (3), No Remove D examination of 60% for general and 55% for reserved debatable categories (i.e, Scheduled Castes, Scheduled Tribes and Physically Handicapped [Blind/ low vision], 170 (1) (1) No No change D [orthopaedic]); 172 (3) (3) No No change 175 (1) (1) No No change E (2) The number of candidates to be admitted to the 177 (2) (2) No No change main examination should not be more than ten (10) times the total number of vacancies of each category 182 (4) (1) or (4) No Remove E advertised. (Para 78) 187 —— Yes Remove 188 (1) (3) No Correct the F Let us first consider the condition with regard to minimum Answer Key qualifying marks. When there were 200 questions, the F maximum possible marks were 200 on the basis of one mark 191 (2) (3) No Correct the for each correct answer. Consequently, the minimum Answer Key qualifying marks for general candidates was 120 (60% of 195 (4) (1) No Correct the G 200) and for reserved candidates it was (55% of 200). Answer Key G Because we have directed that 12 questions be removed 197 (4) (1) No Correct the from the purview of consideration for the purposes of re- Answer Key evaluation, the minimum qualifying marks would also change. It would become 112.8 (60% of 188) for general candidates (Para 76) H and 103.4 (55% of 188) for the reserved categories. From the above table, with respect to the questions discussed H (Para 79) above, it is evident that 12 questions would have to be We now come to the second condition which stipulates that removed/ deleted from the purview of the said DJS Exam, 7 the number of candidates to be admitted to the main I I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 681 682 Indian Law Reports (Delhi) ILR (2012) IV Delhi examination (written) should not be more than ten times the A a place in the top 230 candidates after re-evaluation. total number of vacancies of each category advertised. Let A us take the case of general vacancies which were advertised In this manner, all persons who could legitimately as 23 in number. Ten times 23 would mean that up to 230 claim to be in the top 230 would be included and all those who were earlier declared as having qualified general candidates could qualify. But, as mentioned above, B 235 general candidates have already been declared as would also retain their declared status. Although, the qualified for taking the Main Examination (Written). We are, B final number of qualified candidates may exceed the therefore, faced with a problem. If we strictly follow this figure of 230, this is the only way, according to us, to condition then there is no scope for any other candidates harmonize the rules with the competing claims of the (other than the 235 who have been declared qualified) to C candidates in a just and fair manner. A similar exercise would also have to be conducted in respect of each qualify. But, that would be unfair to them as the question C paper itself, as we have seen above, was not free from of the reserved categories. The entire exercise be faults. Hypothetically speaking, a candidate may have left completed by the respondents within a period of two the 12 questions, which are now to be removed, and, weeks. Consequently, the Main Examination (Written) D therefore, he would have scored a zero for those questions. would also have to be re-scheduled and, to give enough time for preparation, we feel that it should not What is worse, he may have answered all those 12 questions D wrongly (in terms of the Answer Key) and, therefore, he be earlier than the 26.05.2012. would have received minus (-) 3 marks because of 25% We hope that these observations are kept in mind for future E negative marking. And, all this, for no fault on his part as the examinations conducted by the respondents. (Para 84) 12 questions ought not to have been there in the question paper. Therefore, it would be unfair to shut out such E With these observations, the writ petitions are allowed to the candidates on the basis of the second condition.(Para 80) extent indicated above. In the circumstances, the parties are F left to bear their own costs. (Para 85) We must harmonize the requirement of the second condition with the requirement of not disturbing the candidates who Important Issue Involved: The questions in an Examination have been declared as qualified as also with the requirement F must be clear and provide all the necessary information of justice, fairness and equity insofar as the other candidates leading to the appropriate answer. Questions which have are concerned. We feel that this would be possible: G doubtful or debatable answer should be excluded. Questions (1) by re-evaluating the OMR answer sheets of all the requiring detailed analysis should be best left for an essay general category candidates on the lines summarized G type examination and are not suited to multiple choice tests. in the table set out above; H [An Ba] (2) by selecting the top 230 candidates in order of merit subject to the minimum qualifying marks of APPEARANCES: 112.8; and H FOR THE PETITIONER : Mr. R.K. Handoo with Mr. Akhilesh Arora (3) by adding the names of those candidates, if any, I who were earlier declared as qualified but do not find FOR THE RESPONDENT : Mr. Vijay R. Datar with Mr. Chetan Lokur. I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 683 684 Indian Law Reports (Delhi) ILR (2012) IV Delhi CASES REFERRED TO: A notice dated 23.12.2011 issued by the High Court of Delhi (hereinafter 1. Anil Verman vs. Raheja Developers Private Limited: referred to as ‘the DHC’) whereby, on the basis of performance in the FAO(OS) No. 96/1999 decided on 22.09.2011. Delhi Judicial Service (Preliminary) Examination (hereinafter referred to as ‘the said DJS Exam’) held on 18.12.2011, 276 candidates have been A 2. Maharashtra State Electricity Distribution Co. Ltd. vs. short-listed for being provisionally admitted to the Delhi Judicial Service Datar Switchgear Ltd.: (2010) 10 SCC 479. B Examination (Written), subject to verification of their eligibility. The 3. Virendra Singh vs. State of Madhya Pradesh: (2010) 8 petitioners also seek a writ directing the DHC to evaluate the marks SCC 407. afresh of all the candidates who appeared for the said DJS Exam based B 4. Adcon Electronics Private Limited vs. Daulat: (2001) 7 on the corrections/ deletions/ amendments to the questions and answer keys. The petitioners also pray that the DHC be restrained from conducting SCC 698. C the Delhi Judicial Service Examination (Main) till the entire results of the 5. Malay Kumar Ganguly vs. Dr Sukumar Mukherjee: (2009) said DJS Exam are processed afresh. 9 SCC 221. C 6. Pooja Gambhir vs. Parveen Jain Arb.P. No. 191/2009 2. The DHC had, in September 2011, issued a public notice in decided on 22.09.2009. respect of 50 vacancies in the Delhi Judicial Service [23-general, 6 – SC, D 15 – ST, 5 – Physically handicapped (blind/ low vision), 1 – Physically 7. Vipul Infrastructure Developers vs. Rohit Kochhar: 2008 handicapped (orthopaedic)], indicating that for filling up those vacancies IV AD (Delhi) 63. D it would hold an examination in two successive stages:– 8. Mrs Bhawna Seth vs. DLF Universal Limited: AIR 2007 (1) Delhi Judicial Service Preliminary Examination (objective Del 189. E type with 25% negative marking) for selection for the 9. Harshad Chiman Lal Modi vs. DLF Universal Ltd: (2005) main examination, and 7 SCC 791. E (2) Delhi Judicial Service Main Examination (Written) for 10. Peerless General Finance and Investment Co. Ltd vs. selection of candidates for calling for Viva Voce test. Jitendra Kumar Khan: 2004 (4) CHN 255. F 3. In these petitions we are concerned with the Preliminary 11. Union of India vs. Karam Chand Thapar & Bros (Coal Examination (viz. the said DJS Exam) which was held on 18.12.2011 in Sales) Ltd: (2004) 3 SCC 504. F which a total of 7250 candidates (including the petitioners herein) appeared. 12. Narayan Prasad Lohia vs. Nikunj Kumar Lohia: (2002) According to the syllabus for the said DJS Exam, the candidates were 3 SCC 572. to be tested for their general knowledge and aptitude, their power of 13. Nirmal Pasi vs. State of Bihar: JT 2002 (6) SC 28. G expression and flair in English, their knowledge of objective type legal problems and their solutions covering the Constitution of India, Code of 14. State Aided Bank of Travancore vs. Dhrit Ram: AIR G Civil Procedure, Code of Criminal Procedure, Indian Penal Code, Contract 1942 PC 6. Act, Partnership Act, principles governing arbitration law, Evidence Act, 15. Scarf vs. Jardine: (1882) 7 App.Cas. 345. the Specific Relief Act and the Limitation Act. H RESULT: Writ petition allowed. 4. The said DJS Exam was of the duration of 2 hours and 30 H BADAR DURREZ AHMED, J. minutes and comprised of 200 objective type questions carrying multiple choices. Candidates were supplied with different booklet series -‘E’, ‘H’, 1. In this batch of petitions, the petitioners seek the quashing of the ‘K’ and ‘P’ and corresponding OMR (Optical Mark Recognition) answer I I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 685 686 Indian Law Reports (Delhi) ILR (2012) IV Delhi sheets. In each of the series, the said 200 questions were common but A a list of 276 candidates (in alphabetical order), who had been short-listed had been placed at different serial numbers. The OMR answer sheets A for being provisionally admitted to the Delhi Judicial Service main were similarly prepared. For the purposes of convenience we shall be examination (written) [i.e., the second stage of the examination process], referring to booklet series ‘E’ and to the answer key in respect thereof. was notified by the DHC through a notice dated 23.12.2011 which is B impugned before us. The break-up of the 276 qualified candidates was 5. The instructions for candidates, inter alia, stipulated as under:“ – 235 -General, 27 -SC, 7 -ST, 03 -Physically handicapped (blind/low B 5. The duration of the test is 2 hours 30 minutes. vision), 04 -Physically handicapped (Orthopaedic). The mark obtained by the last qualified candidate of the ‘General’ category was 123.50. 6. There are 200 questions. Each question has four answer options marked (1), (2), (3) and (4). C 7. The petitioners claim that the question paper contained many 7. Answers are to be marked on the OMR Answer Sheet, questions which were not properly phrased or were outside the syllabus. which is provided separately. C It is also contended on behalf of the petitioners that many of the answers as provided in the Answer Keys are clearly wrong and there are others 8. Choose the most appropriate answer option and darken where the answers are not free from doubt. Furthermore, several questions the oval completely, corresponding to (1), (2), (3) or (4) D have more than one correct answer whereas the answer key shows only against the relevant question number. one of them to be correct. The petitioners contend that questions which 9. Use only HB pencil to darken the oval for answering. D are outside the syllabus and questions where the answers are doubtful or 10. Do not darken more than one oval against any question, have more than one correct answer have to deleted from consideration. as the scanner will read such marking as wrong answer. E Those questions for which the answer key shows an incorrect answer 11. If you wish to change any answer, erase completely the should be re-evaluated after correcting the answer key. Then, the answer one already marked and darken the fresh oval with an HB E sheets of all the candidates be re-processed and the corrected list of pencil. qualified candidates be published. An argument had also been raised on behalf of the petitioners that the question paper itself was too long. In 12. Each question carries equal mark (s). There is Negative F this connection it was submitted that as the candidates were required to Marking and 25% marks will be deducted for every wrong answer 200 questions in 2 hours and 30 minutes (150 minutes), they answer. F had, on an average, only 45 seconds to read the question, understand it xxxx xxxx xxxx xxxx xxxx and mark the answer in the OMR answer sheet. Some of the questions, 16. The right to exclude any question(s) from final evaluation G according to the petitioners, were so long that they would take much rests with the testing authority.” more than 45 seconds even to read. Such questions, as submitted on behalf of the petitioners, ought not to have even been included in an 6. As per the appendix read with Rule 15 of the Delhi Judicial G objective type multiple choice test. Anyhow, we are not required to go Services Rules, the minimum qualifying marks in the preliminary exam into the aspect of the length of the question paper inasmuch as it was is 60% for general and 55% for the reserved categories i.e., Scheduled H equally long or short for all the candidates and would not hurt their Castes, Scheduled Tribes and Physically Handicapped. However, there is relative chances. Though, that is one aspect which the paper setters must another limitation prescribed in the said Appendix and that is that the keep in mind for future examinations. number of the candidates to be admitted to the main examination (written) H 8. The learned counsel for the DHC conceded that some of the should not be more than ten times the total number of vacancies of each I category advertised. After the conduct of the said DJS Exam on 18.12.2011 questions / answers were incorrect but, with regard to most, he, on and on evaluation of the OMR Answer Sheets submitted by the candidates, instructions, maintained that the questions and answers were correct.

I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 687 688 Indian Law Reports (Delhi) ILR (2012) IV Delhi Our task would have been easy if the respondent had itself undertaken A road being narrow and the truck driver sensing that the the responsibility of self-correction. Unfortunately, that was not to be cyclist was peddling negligently, maneuvers his truck on and both sides have cast upon us the burden to adjudicate upon the the opposite lane and simultaneously the cyclist suddenly correctness or otherwise of several questions and answers. We think that moves to his lane and as a result the truck over-runs the A it is appropriate to point out that the petitioners had, in their petitions, cyclist, causing the death of the cyclist. The truck driver pointed to many questions and answers which, according to them, either B is not guilty of the offence of causing death by rash and required deletion or correction but, we are only limiting discussion to negligent act because: those that were seriously pressed before us during arguments. (1) He did not have the necessary mens rea. B Question No. 60 (2) He acted bona fide. 60. Ram aged 25 years, tells Shyam who is aged 17 years and C (3) The truck driver upon seeing the risk tried to avoid on account at the death of his father is sad, that if Shyam the risk. dies by jumping in a burning pyre of a woman he i.e. C (4) Was justified in driving the truck on to the opposite Shyam would meet his father in heaven and would find lane. bliss. Shyam, aged 17 years, knows that by doing so he D would be committing suicide, but on account of instigation 10. On behalf of the petitioners, it was argued that although option by Ram suffers death by jumping in the burning pyre of (3) [The truck driver upon seeing the risk tried to avoid the risk] is a a woman. Ram is guilty of: D correct answer as shown in the Answer Key, even option (4) [Was justified in driving the truck on to the opposite lane] would not be wrong. We (1) Abetment for the suicide committed by Shyam. E agree. Section 304A IPC deals with ‘causing death by negligence’. The (2) Murder of Shyam. ingredients of section 304A, inter alia, require that the person who caused (3) No offence. the death of another must have done so by a ‘rash or negligent act’. E Clearly, if the truck driver upon seeing the risk tried to avoid the risk, (4) Both (1) & (2) above. he cannot be regarded as having acted rashly or negligently. Furthermore, 9. As per the Answer Key, answer (2) [Murder of Shyam] has been F if the truck driver was ‘justified’ in driving the truck on to the opposite shown as the correct answer. It was rightly conceded by the learned lane, it cannot be said that he did a ‘rash or negligent act’. So, both counsel for the DHC that the correct answer is (1) [Abetment for the F options (3) and (4) are correct. Consequently, this question would have suicide committed by Shyam]. At this juncture it would be appropriate to to be removed for the purpose of marking. examine the fall-out of this mistake. Those candidates who had correctly answered (1) would have been negatively marked minus (-) 0.25 because G Question No. 69 the answer key, albeit wrongly, showed (2) to be the correct answer. G 69. When examined under Section 313 Cr.P.C., a circumstance And, what is more, those candidates who wrongly answered (2) would incriminating the accused is not put to the accused for his have been given 1 mark each! This is double injustice in action. explanation. The said circumstance cannot be used against the accused because: Question No. 61 H (1) It is inadmissible in evidence. 61. The accused driver of a truck while driving on the left H side i.e. his side of the road, sees a cyclist coming from (2) It becomes irrelevant for purposes of evidence. the opposite direction, but on the wrong side of the road (3) Law mandates that it cannot-be taken into consideration. i.e. in the lane on which the truck was being driven; the I I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 689 690 Indian Law Reports (Delhi) ILR (2012) IV Delhi (4) All of the above. A Criminal A On behalf of the petitioners it was contended that option (1) [ 11. It was contended by the learned counsel for the petitioners that breach of trust] ought to be regarded as the correct answer. Let us, option (4) is the correct answer. However, as per the Answer Key, the straightaway, examine the contention of the petitioners. For this purpose correct answer is option (3). The contention of the petitioners is not we would have to look at section 405 of the Indian Penal Code, 1860, tenable. The question is not of admissibility or relevance of evidence. It B which deals with criminal breach of trust. The relevant portion of the is simply that a circumstance not put to the accused when he is examined B said section 405 is as follows: under section 313 CrPC cannot be used against the accused. This position “Section 405. Criminal breach of trust is clear from the observations of the Supreme Court in the case of Nirmal Pasi v. State of Bihar: JT 2002 (6) SC 28 to the following C Whoever, being in any manner entrusted with property, or with effect: any dominion over property, dishonestly misappropriates or C converts to his own use that property, or dishonestly uses or “The purpose of recording statement under Section 313 of the disposes of that property in violation of any direction of law Cr.P.C. is to enable the accused person to explain any prescribing the mode in which such trust is to be discharged, or circumstances appearing in the evidence against him. A piece of D of any legal contract, express or implied, which he has made incriminating evidence relied on by the prosecution and found touching the discharge of such trust, or willfully suffers any proved by the court so as to rest the conviction of the accused D other person so to do, commits “criminal breach of trust”. thereon must be put to the accused in his statement under Section 313 of the Cr.P.C. enabling him to offer such explanation as he xxxx xxxx xxxx xxxx xxxx” may choose to do. Unless that is done, the piece of incriminating E 13. It is clear upon a plain reading of the above provision that, in evidence cannot be relied on for finding a verdict of guilty.” E order to constitute the offence of criminal breach of trust, “entrustment” Consequently, the answer indicated in the Answer Key is correct. is an essential ingredient. If there is no entrustment there cannot be any criminal breach of trust. The entrustment may be in any manner but, Question No. 71 F there must be entrustment. In the facts given in the question at hand, 71. The employer has told the employee in the morning that there is no entrustment. The employer has not handed over the sum of when the employee leaves the office in the evening to go F Rs 50,000/-to the employee. The employer has merely informed the to his house, he should pick up Rs 50,000/-lying in the employee that a sum of Rs 50,000/-is lying in the drawer. His specific drawer of the employer and WP(C) No. 449/12 & ORS. G instructions being that when the employee leaves the office in the evening Page 13 of 64 deliver the same to ‘X’, to whom the to go to his house he should pick up the said sum lying in the drawer employer owes Rs 50,000/-. At 12.00 noon, in the absence for delivery to X. The entrustment, if at all, would come into operation of the employer, the employee picks up the money and G only if the specific instructions are followed, that is, when the employee absconds. The employee is liable to be charged for: leaves the office “in the evening to go his house” he should pick up the (1) Criminal breach of trust H money for delivery to X. But, that is not what the employee did. He took the money at 12 noon itself (not in the evening when he was to go home) (2) Cheating and absconded. There was no entrustment to him at 12 noon. He also (3) Theft H did not have dominion over the said sum at 12 noon. Therefore, this (4) Criminal misappropriation I cannot be regarded as a case of criminal breach of trust. 12. The Answer Key shows option (3) [Theft] as the correct answer. 14. On the other hand, it is a clear case of theft. A look at section

I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 691 692 Indian Law Reports (Delhi) ILR (2012) IV Delhi 378 of the Indian Penal Code, 1860 would immediately make this clear: A drew our attention to the provisions of section 220(1) of the Code of Criminal Procedure, 1973 to support the fact that the Answer Key shows “Section 378. Theft option (2) [He shall be charged with every such offence and tried at one trial for all the offences] as the right answer. Whoever, intending to take dishonestly any moveable property A out of the possession of any person without that person’s consent, 17. Section 220 of the Code of Criminal Procedure, 1973, so much moves that property in order to such taking, is said to commit B as is relevant, reads as under:“ theft. 220. Trial for more than one offence. xxxx xxxx xxxx xxxx xxxx” B (1) If, in one series of acts so connected together as to form the The employee, intending to take dishonestly the said sum of Rs C same transaction, more offences than one are committed by the 50,000/out of the possession of the employer, without his consent, same person, he may be charged with, and tried at one trial for, moved the said cash from the drawer into his hands for the every such offence. purpose of such taking. As such, he committed theft. As long C as the money remained in the employer’s drawer, it has to be xxxx xxxx xxxx xxxx xxxx” regarded as being in the employer’s possession. The employer D A simple reading of the said provision reveals that the word used is had not given his consent to the employee to remove the money “may”, whereas option (2) uses the word “shall”. Consequently, the from the drawer at 12 noon. Therefore, it was removed from the question itself has been styled incorrectly. As such, it would have to be possession of the employer without his consent and obviously D deleted from consideration. the intent was dishonest, as suggested by the given facts, because the employee disappeared with the money. E Question No. 84 15. Thus, option (3) as shown in the Answer Key is the correct 84. Which of the following charges cannot be compounded answer. E without permission of the court before which the prosecution is pending? Question No. 80 F (1) Section 298 of the IPC. 80. If a series of acts are so connected together as to form the (2) Section 426 of the IPC. same transaction, and more than one offence is committed by F the same person: (3) Section 491 of the IPC. (1) He shall be charged and tried separately for every such (4) Section 388 of the IPC. G offence. 18. According to the Answer Key, answer (4) is the correct answer. G (2) He shall be charged with every such offence and tried at However, the petitioners contend that the question itself is wrong as none one trial for all the offences. of the four options are correct. To decide this, we have to look at section 320 of the Code of Criminal Procedure, 1973 which deals with (3) Some of the offences may he clubbed and tried at one ‘compounding of offences’. Sub-section (1) gives the list of offences trial. H which do not require the permission of the court before which the H (4) All of the above. prosecution is pending. Sections 298, 426 and 491 IPC (ie., options (1), 16. It was contended on behalf of the petitioners that none of the (2) and (3)) are listed therein. In other words, these offences may be options is correct. On the other hand, the learned counsel for the DHC compounded without the permission of the court. Now, sub-section (2) I I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 693 694 Indian Law Reports (Delhi) ILR (2012) IV Delhi of section 320 CrPC lists those offences under the Indian Penal Code A “42. Under the Indian Penal Code, a person is responsible for his which are compoundable but, only with the permission of the Court A own act. A person can also be vicariously responsible for the before which any prosecution for such an offence is pending. Section acts of others if he had a common intention to commit the acts 388 IPC, which is the fourth option in the question at hand, does not find or if the offence is committed by any member of the unlawful any mention in this list also. Meaning thereby that, the offence punishable B assembly in prosecution of the common object of that assembly, under section 388 IPC is not compoundable at all! B then also he can be vicariously responsible. Under the Indian 19. The manner in which question No. 84 has been put indicates Penal Code, two sections, namely, Sections 34 and 149, deal that at least one of the four offences mentioned therein ‘cannot be with the circumstances when a person is vicariously compounded without permission of the court’. Or, in other words, at C responsible for the acts of others. least one of the four offences can be compounded only with the permission 43. The vicarious or constructive liability under Section 34 of the court. But, none of the given options provides an answer to the C IPC can arise only when two conditions stand fulfilled, i.e., the question. This is so because the first three options are all compoundable mental element or the intention to commit the criminal act without the permission of the court and the fourth option (section 388 conjointly with another or others; and the other is the actual IPC) is not compoundable at all, with or without the permission of the D participation in one form or the other in the commission of the court. We, therefore, have to agree with the contention of the petitioners crime.” (emphasis supplied) that none of the suggested answers to Question No.84 are correct. D Hence, Question No. 84 would have to be deleted for the purposes of 21. We may also refer to the Supreme Court decision in Maharashtra evaluating the candidates. E State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd.: (2010) 10 SCC 479 wherein it observed: Question No. 90 E “It is trite that Section 34 IPC does not constitute a substantive 90. Which of the following statement is correct ? offence, and is merely in the nature of a rule of evidence, and (1) Section 34 IPC creates a substantive offence. F liability is fastened on a person who may have not been directly (2) Section 34 IPC introduces the principle of vicarious liability involved in the commission of the offence on the basis of a pre- for an offence committed by the co-accused. arranged plan between that person and the persons who actually F committed the offence.” (3) Section 34 IPC recognizes that the co-participant in a crime must be made liable for his act in the commission G (emphasis supplied) of the crime by the co-accused. It is obvious, therefore, that option (2), as indicated in the Answer Key, (4) Both (2) & (3) above. G is correct. 20. It was submitted on behalf of the petitioners that none of the Question No. 97 options (1) to (4) are correct. The Answer Key shows option (2) [Section H 34 IPC introduces the principle of vicarious liability for an offence 97. Under Section 200 Cr.P.C. recording of pre-summoning committed by the co-accused] as the correct answer. There are several evidence may be dispensed with if: Supreme Court decisions which support the contention that section 34 H (1) The complaint is supported by an affidavit of the of the Indian Penal Code involves vicarious liability. For example, in I complainant. Virendra Singh v. State of Madhya Pradesh: (2010) 8 SCC 407, the (2) The complaint is made in writing by a public servant. Supreme Court, after referring to many earlier decisions, held as under:

I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 695 696 Indian Law Reports (Delhi) ILR (2012) IV Delhi

(3) The Magistrate feels that ends of justice require pre- A (6) The word ‘gross’ has not been used in Section 304A of IPC, summoning evidence to be dispensed with. (4) None of yet it is settled that in criminal law negligence or recklessness, the above. to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 22. The Answer Key shows option (4) as the correct answer. A 304A of the IPC has to be read as qualified by the word ‘grossly’.” According to the petitioners, it is option (2) [The complaint is made in B writing by a public servant] which is the correct answer. The learned (underlining added) counsel for the DHC conceded that option (2) is the correct answer and A similar view was taken in a subsequent decision in Malay Kumar that the mistake in the Answer Key, which shows option (4) as the B Ganguly v. Dr Sukumar Mukherjee: (2009) 9 SCC 221. correct answer, needs to be rectified and the OMR answer sheets need to be reevaluated. C 24. Clearly, option (2) is not the correct answer. In fact, none of the options is correct. As a result, this question would have to be deleted Question No. 99 for the purposes of evaluating the candidates. 99. Which of the following statements is/are correct? C Question No.100 (1) Mens rea is not an essential ingredient of an offence punishable under Section 107 IPC. D 100. Perjury resulting in the conviction of a person for an offence punishable with death, attracts the maximum (2) Mens rea is not an essential ingredient of an offence penalty of: punishable under Section 304-A IPC. D (1) Death. (2) Imprisonment for life (3) Mens rea is not an essential ingredient of an offence punishable under Section 364-A IPC. E (3) RI for 10 years. (4) RI for 10 years and fine. (4) Both (1) & (2) above. 25. It was submitted on behalf of the petitioners that option (1) E [Death] is the correct answer but the Answer Key indicates option (2) 23. According to the Answer Key, option (2) [Mens rea is not an [Imprisonment for life] as being correct. The learned counsel for the essential ingredient of an offence punishable under Section 304-A IPC DHC referred to the provisions of the first part of section 194 IPC to ] is the correct answer. The learned counsel for the DHC fairly conceded F support the contention that option (2) [Imprisonment for life] is the that this is not right in view of the Supreme Court decision in Jacob F correct answer. Section 194 IPC is as under: Mathew v. State of Punjab: (2005) 6 SCC 1 wherein the Court observed as under: “194. Giving or fabricating false evidence with intent to procure conviction of capital offence “(5) The jurisprudential concept of negligence differs in civil and G criminal law. What may be negligence in civil law may not G Whoever gives or fabricates false evidence, intending thereby to necessarily be negligence in criminal law. For negligence to cause, or knowing it to be likely that he will thereby cause, any amount to an offence, the element of mens rea must be shown person to be convicted of an offence which is capital by the law to exist. For an act to amount to criminal negligence, the degree for the time being in force in India shall be punished with of negligence should be much higher i.e. gross or of a very high H imprisonment for life, or with rigorous imprisonment for a term degree. Negligence which is neither gross nor of a higher degree H which may extend to ten years, and shall also be liable to fine; may provide a ground for action in civil law but cannot form the if innocent person be thereby convicted and executed. - and basis for prosecution. if an innocent person be convicted and executed in consequence I I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 697 698 Indian Law Reports (Delhi) ILR (2012) IV Delhi of such false evidence, the person who gives such false evidence A (1) Ganga A shall be punished either with death or the punishment hereinbefore (2) Yamuna described.” (3) Sutlej 26. The section has two parts. The first part deals with the intention (4) Narmada or knowledge of the person fabricating or giving false evidence, that by B giving or fabricating false evidence he intends to cause or has the B 29. As per the Answer Key, option (4) [Narmada] is the correct knowledge that it is likely to cause, any person to be convicted of a answer. The learned counsel for the DHC conceded that option (3) capital offence. It does not deal with a situation where the targeted [Sutlej] would also be correct as the Sutlej flows west and south-west person is actually convicted. The first part would apply irrespective of C for the most part. Therefore, it would a river which ‘does not flow west whether the targeted person is convicted or not. But, the second part will to east’. Consequently, both options (3) and (4) are correct. C apply only if the targeted person, though innocent, is convicted and Question No. 165 executed in consequence of the false evidence. The maximum penalty under the first part is imprisonment for life and the maximum penalty 165. Which of the following statements is incorrect: under the second part is Death. D (1) Temporary injunction may be granted only at the time of institution of a suit. 27. Thus, we have to see as to whether, given the information in D question No.100, the penalty falls under the first or the second part of (2) Temporary injunction may be granted at any stage of a section 194 IPC. The penalty of death under the second part of section suit. 194 IPC requires two conditions to be fulfilled. The first being that an E (3) Temporary injunctions are regulated by the Code of Civil innocent person must be convicted as a consequence the false evidence Procedure, 1908. E and the second being that such person should also have been executed. (4) Temporary injunctions are a form of preventive relief. The question, however, only speaks of conviction. Vital information, as to whether the person in question has been executed or not, has not been F 30. The Answer Key shows option (2) as the correct answer. supplied. In order to answer the question, a candidate would have to According to the petitioners, it is option (1) [Temporary injunction may presume either that the convicted person has also been executed or that be granted only at the time of institution of a suit] which is the correct he has not been executed. Either presumption would alter the answer. If F answer. The learned counsel for the DHC conceded that option (1) is the it is presumed that the convicted person has been executed, then the correct answer and that the mistake in the Answer Key, which shows G second part would apply and, consequently, option (1) [Death] would be option (2) as the correct answer, needs to be rectified and the OMR the correct answer. On the other hand, if it is presumed that the convicted answer sheets need to be re-evaluated. person has not been executed, then, the first part would apply and option G Question No. 166 (2) [Imprisonment for life] would be the correct answer. 166. As per the Civil Procedure Code as applicable to Delhi, a H 28. Therefore, since a candidate cannot be expected to answer a suit for specific performance of a contract of sale of multiple choice question on a presumption made by him, we feel that that immovable property can be filed: this question ought to be removed from consideration. H (1) Only in the Court within whose jurisdiction the property Question No. 140 is situated. I 140. Which of the following rivers does not flow west to east? (2) Either in the Court where the immovable property is situated or also in the Court where the defendant resides. I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 699 700 Indian Law Reports (Delhi) ILR (2012) IV Delhi (3) Besides the Courts mentioned in (2) above, also in the A located in view of Section 16 of the said Code, the judgment in Court within those jurisdiction the Contract was entered Harshad Chiman Lal Modi case (AIR 2005 SC 4461) (supra) into. clearly lays down the said proposition. However, what cannot be lost sight of is that the judgment is in the facts of the case where (4) Only in the High Court of Delhi. A the relief of possession was specifically claimed. The question as 31. The Answer Key shows option (1) [Only in the Court within B to what would happen where the relief for possession is not whose jurisdiction the property is situated] to be the correct answer. claimed does not form subject-matter of a relief in Harshad However, on behalf of the petitioners it was contended that, in the case Chiman Lal Modi case (supra). of a suit where specific performance of a contract of sale of immovable B property simpliciter is prayed for, option (3) [Besides the Courts mentioned 22. M/s. Adcon Electronics Pvt. Ltd. case (supra) deals with in (2) above, also in the Court within those jurisdiction the Contract was C the distinction in a case simpliciter for specific performance as entered into] would be the correct answer. According to them, option against a case where possession is also prayed. This issue is not discussed in Harshad Chiman Lal Modi case (supra) nor has (1) would be the correct answer where a prayer in respect of title or C possession is made in addition to the relief of specific performance. the judgment in Adcon Electronics Pvt. Ltd. case (supra) been Since the question as framed indicates that the suit is for specific apparently cited in the proceedings in Harshad Chiman Lal D performance simpliciter, it is option (3) and not option (1) which is the Modi case (supra). Thus, both the judgments would operate in correct answer. In support, they relied upon Adcon Electronics Private their respective areas. M/s. Adcon Electronics Pvt. Ltd. case Limited v Daulat: (2001) 7 SCC 698 and Mrs Bhawna Seth v. DLF D (supra) clearly sets down that in a suit for simpliciter specific Universal Limited: AIR 2007 Del 189. In Adcon Electronics (supra), performance the same does not amount to a suit for land. If it is a simpliciter suit for specific performance, i.e. for enforcement the question before the Supreme Court was – ‘whether a suit simpliciter E for specific performance of contract for sale of immovable property is of Contract for Sale and for execution of sale, in that event there a “suit for land” within clause 12 of the Letters Patent of the High Court can be no good ground for holding that such a suit is for E of Judicature at Bombay?’ After referring, inter alia, to the provisions of determination of title to the land or that the decree in it would section 22 of the Specific Relief Act, 1963, the Supreme Court held: operate on the land. The observations made in the judgment in F M/s. Moolji Jaitha and Co. v. The Khandesh Spinning and “In its true sense, a suit simpliciter for specific performance of Weaving Mills Co. Ltd. referred to in the said judgment being contract for sale of land is a suit for enforcement of terms of F a judgment of the Federal Court was approved by the Supreme contract. The title to the land as such is not the subject-matter Court, as noted in paragraph 15 of the Adcon Electronics Pvt. of the suit.” Ltd. case (supra). Thus a distinction has been carved out in 32. Bhawna Seth (supra) is a decision of a learned single judge of G respect of a suit where no possession had been claimed of the this court. In that case, a distinction was drawn between the Supreme G land in question.” Court decisions in Harshad Chiman Lal Modi v. DLF Universal Ltd: 33. We may point out that in Bhawna Seth (supra) another decision (2005) 7 SCC 791 and Adcon Electronics (supra) in the following of a learned single judge of this court in the case of Rohit Kochhar v. manner: H Vipul Infrastructure Developers Limited: 2005 (122) DLT 480 was referred to. “20. On consideration of the aforesaid judgments, I am of the H view, that there can be no doubt that where in a suit for specific “28. I need not, therefore, deal with the various decisions of this performance possession is also claimed as a relief, the competent Court and other High Courts relied upon by Counsel for the Court to deal with the matter is the Court where the property is defendants for the reason that the decision of the Supreme Court I I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 701 702 Indian Law Reports (Delhi) ILR (2012) IV Delhi in Adcon Electronic’s case (supra) holds the field. The said A ordinate Bench of this Court had taken a different view without decision has taken into account Section 22 of the Specific Relief A specifically discussing this aspect. The matter is little more Act. Decision categorically holds that a suit seeking specific complicated arising out of the pendency of the SLP against that performance of an agreement to sell simplicitor even if it relates Order of the Division Bench where interim orders are operating.” to immovable property is not a suit in which the relief claimed B (underlining added) relates to title or to land. The suit is for enforcement of terms B of contract. Decision categorically holds that it is at the option 35. While on law the Division Bench in Anil Verman (supra) took of the plaintiff to seek delivery of possession. Decision a view different from the one in Vipul Infrastructure (supra), it chose categorically holds that unless possession of immovable property not to refer the issue to a larger Bench or to await the judgment of the is specifically prayed for, suit could be instituted within the local C Supreme Court because it came to the conclusion that the suit, in the limits of the Court having jurisdiction where the defendant resides, C case before it, was not a suit for specific performance simpliciter without carries on business or personally works for gain.” the relief of possession. It held as under : 34. However, in appeal [Vipul Infrastructure Developers v. Rohit “17. We, however, do not consider it necessary to refer this Kochhar: 2008 IV AD (Delhi) 63], a Division Bench of this court, set D issue to a larger Bench or await the judgment of the Supreme aside the decision of the learned single judge in Rohit Kochhar (supra) Court for the reasons set out hereinafter. by holding that the Adcon Electronics decision was distinguishable as it D 18. It is our view that the plaint as framed in the present case had been rendered in the context of the expression “suit for land” in is not a suit filed simplicitor for specific performance without clause 12 of the Letters Patent of the High Court of Judicature at Bombay. E any relief of possession. The relief of possession has, in fact, But, as observed in a subsequent Division Bench decision of this court been claimed albeit by not stating so in so many words. Thus, in [Anil Verman v Raheja Developers Private Limited: FAO(OS) E the appellant cannot avail of the benefit of the principles set out No. 96/1999 decided on 22.09.2011], the Division Bench decision in in Adcon Electronics Pvt. Ltd.’s case (supra) to file the suit in Vipul Infrastructure (supra) is the subject matter of a Special Leave Delhi by claiming that it is merely a suit for specific performance Petition [SLP(civil) Nos.10169-10171/2008] which is pending before the F and the reliefs as claimed can be enforced by the personal Supreme Court. Interestingly, in Anil Verman (supra), the Division obedience of the defendant.” Bench observed that the legal position with regard to the plea of a F distinction between a suit for specific performance simpliciter and a suit 36. All this shows that the question at hand does not have a definite where the relief for possession is also claimed, was ‘fluid’. The exact G answer. In the view of a Division Bench of this court in Anil Verman words used are: (supra) the position in law is “fluid”. In this backdrop, in our view, the issue as to whether option (1) or option (3) is the correct answer, is “16. We are in a legally fluid situation on the basic plea of a G debatable. Hence it would be best if the question itself is removed from distinction between a suit for specific performance simplicitor the purview of marking. and a suit where the relief for possession is also claimed. It is H our view that the principles set out in Adcon Electronics Pvt. Question No. 170 Ltd.’s case (supra) would come into play where no relief of 170. An arbitration agreement providing for arbitration of four possession was claimed. The field of the factual matrix would be H arbitrators is, under the Arbitration & Conciliation Act, material to determine whether the principles of Adcon Electronics I 1996, to be construed as an agreement for arbitration by: Pvt. Ltd.’s case (supra) would come into play or not. But then in Vipul Infrastructure Developers Ltd.’s case (supra), a co- (1) Sole arbitrator.

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(2) Five arbitrators. A observed that the provisions of Section 10(2) of the said Act were not (3) Three arbitrators. directly in issue and that the Supreme Court was not faced with a situation such as when the Chief Justice or his designate has to decide (4) Four arbitrators only. under Section 11 as to whether the arbitral tribunal ought to consist of A 37. On the strength of the Supreme Court decision in Narayan two Arbitrators (as agreed upon by the parties) or to a Sole Arbitrator Prasad Lohia v. Nikunj Kumar Lohia: (2002) 3 SCC 572, it has been B (in view of section 10(2)). Consequently, the learned single judge was of contended on behalf of the petitioners that option (4) [Four arbitrators the view that the Supreme Court decision in Narayan Prasad Lohia only] is the correct answer and not option (1) [Sole arbitrator], as (supra) was not a judgment on the issue raised in the case before him. shown in the Answer Key. Section 10 of the Arbitration and Conciliation B 39. A similar decision was rendered by the learned single judge in Act, 1996 provides for the number of arbitrators. It reads as under: C Pooja Gambhir v. Parveen Jain: Arb.P. No. 191/2009 decided on “10. Number of arbitrators.ù (1) The parties are free to determine 22.09.2009. the number of arbitrators, provided that such number shall not C 40. So, the decisions of learned single judges of this court on the be an even number. aspect of interplay of the provisions of sub-sections (1) and (2) of (2) Failing the determination referred to in sub-section (1), the D section 10 of the Arbitration and Conciliation Act, 1996 point in the arbitral tribunal shall consist of a sole arbitrator.” direction that, where parties agree to an even number of arbitrators, such an agreement would not be an agreement within the meaning of section 38. A simple reading of the said section makes it clear that while D 10(1) of the Act and consequently section 10(2) would come into play the parties are free to determine the number of arbitrators, that number and the arbitral tribunal would have to comprise of a sole arbitrator. shall not be an even number. If a determination of the number of arbitrators E is not made at all or is not made in terms of sub-section (1) of section 41. No Division Bench decision on this point has been brought to 10, the statutory stipulation in sub-section (2) is that the arbitral tribunal our notice. We should also make it clear that we are not expressing any shall consist of a sole arbitrator. Thus, where the parties determine an E opinion as to the correctness of the Single Bench decisions of this court. even number of arbitrators, it would not be construed as a determination That is left open for consideration in an appropriate case in a dispute inter in terms of section 10(1). The obvious corollary of which is that, in such F partes. However, from the standpoint of a candidate in the said DJS a case, the arbitral tribunal shall consist of a sole arbitrator. This is exam, he/she is to guided by the law as it stands. Consequently, option exactly what has been held by a learned single judge of this court in Dr F (1) [Sole arbitrator], as shown in the Answer Key, would have to be Deepashree v. Sultan Chand and sons: AIR 2009 Delhi 85, wherein regarded as correct. In fine, no change is called for insofar as this the learned single judge noted the Supreme Court decision in Narayan question is concerned. Prasad Lohia (supra) and distinguished the same by holding that the G Question No. 172 latter was a post award matter where the two arbitrators had given an G award which was challenged on the ground of being contrary to the 172. An arbitration award under the Arbitration and Conciliation statutory provisions and was, therefore, void. The learned single judge Act,1996: further held that the question which was under the consideration of the (1) Has the status of a decree immediately on publication / Supreme Court was as to whether the mandatory provisions of the H pronouncement thereof. Arbitration and Conciliation Act, 1996 could be waived by the parties and H (2) Does not have the status of a decree. that it was in that context that the Supreme Court held that section 10 of the said Act was derogable. The learned single judge specifically (3) Has the status of a decree only after the time of three months for making an application to set aside the same I I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 705 706 Indian Law Reports (Delhi) ILR (2012) IV Delhi has expired or such application having been made has A date. This is provided in section 34(3). However, the proviso thereto been refused. A permits the court to entertain such an application within a further period (4) Has the status of a decree only after time of three months of thirty days if it is satisfied that the applicant was prevented by sufficient and a further period of 30 days for making an application cause from making the application within the said period of three months. to set aside the same has expired or such application B But, this does not mean that the expression – ‘the time for making an having been made has been refused. application to set aside the arbitral award under section 34’– refers to a B period of three months and thirty days. The moment the period of three 42. According to the petitioners, option (4) is the correct answer. months expires, the award becomes enforceable as a decree. The person However, as per the Answer Key, it is option (3) which is the correct seeking enforcement of the award cannot be expected to assume that, answer. The relevant provisions are sections 34(3) and 36 of the C after the three-month period is over, the unsuccessful party would be Arbitration and Conciliation Act, 1996, which are reproduced below: C filing such an application by invoking the proviso to section 34(3). “34. Application for setting aside arbitral award. - 44. Consequently, the answer as per the Answer Key is correct. (1) xxxx xxxx xxxx xxxx Question No. 175 D (2) xxxx xxxx xxxx xxxx 175. In an arbitration between two parties before an arbitrator (3) An application for setting aside may not be made after D appointed by the Chief Justice of the High Court (in three months have elapsed from the date on which the exercise of powers under Section 11 of the Arbitration & party making that application had received the arbitral E Conciliation Act, 1996), the rival parties have filed claims award or, if a request had been made under section 33, against each other. When the arbitration was at an from the date on which that request had been disposed of advanced stage, the parties are of the opinion that the E by the arbitral tribunal: Provided that if the Court is satisfied arbitrator is likely to reject the claims / counter claims of that the applicant was prevented by sufficient cause from both the parties. The parties jointly inform the arbitrator making the application within the said period of three F that they are not willing for arbitration before him and months it may entertain the application within a further stop appearing before him. The parties thereafter: period of thirty days, but not thereafter. F (1) Are entitled to appoint another arbitrator and to start (4) xxxx xxxx xxxx xxxx” arbitration proceedings de novo G “36. Enforcement. - Where the time for making an application (2) Are not entitled to a second round, the same being in to set aside the arbitral award under section 34 has expired, or contravention of public policy prohibiting forum shopping. such application having been made, it has been refused, the G (3) Are entitled to appoint another arbitrator but the award shall be enforced under the Code of Civil Procedure, 1908 discretion whether to commence the arbitration proceedings (5 of 1908) in the same manner as if it were a decree of the H de novo or from the stage where left by the earlier Court.” arbitrator is of the Arbitrator and not of the parties. 43. A reading of the said provisions would indicate that an award (4) Cannot themselves appoint the second arbitrator and becomes enforceable as a decree when the time for making an application H are required to again approach the Chief Justice for to aside the award under section 34 has expired or in case such an I appointment of another arbitrator. application has been made, it has been refused. The time for making an 45. The Answer Key shows option (1) as the correct answer. application for setting aside an award is three months from the relevant I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 707 708 Indian Law Reports (Delhi) ILR (2012) IV Delhi However, the petitioners contend that the correct answer should be A as required under that procedure, a party may request the Chief Justice option (4). Section 15 of the Arbitration and Conciliation Act, 1996 is or any person or institution designated by him to take the necessary relevant. measure, unless the agreement on the appointment procedure provides other means for securing the appointment. This is provided in section It reads as under: A 11(6) of the said Act. It is, therefore, clear that in the case of an “15. Termination of mandate and substitution of arbitrator. B arbitration with a sole arbitrator the Chief Justice can be called upon for - appointment of the arbitrator when the parties fail to agree or when one party fails to act in accordance with an agreed procedure. Where there (1) In addition to the circumstances referred to in section 13 B is agreement between the parties as to the arbitrator, the question of or section 14, the mandate of an arbitrator shall terminate requiring the Chief justice to appoint the arbitrator does not arise. Thus, - C option (4) is certainly not the right answer. (a) where he withdraws from office for any reason; or 47. A plain reading of sub-sections (3) and (4) of section 15 would (b) by or pursuant to agreement of the parties. C show that if agreed by the parties the arbitration proceedings may be (2) Where the mandate of an arbitrator terminates, a substitute started de novo. Consequently, option (1) is the correct answer. This arbitrator shall be appointed according to the rules that D being as per the Answer Key, no change is required insofar as this were applicable to the appointment of the arbitrator being question is concerned. replaced. D Question No. 177 (3) Unless otherwise agreed by the parties, where an arbitrator is replaced under sub-section (2), any hearings previously 177. A Private Limited Company having registered office at E held may be repeated at the discretion of the arbitral tribunal. Delhi advances monies to another Private Limited Company also at Delhi. Disputes and differences arise relating to the (4) Unless otherwise agreed by the parties, an order or ruling E said transaction and the parties agree to the arbitration at of the arbitral tribunal made prior to the replacement of an Mumbai by a retired Judge of the Bombay High Court arbitrator under this section shall not be invalid solely who both trust. The arbitrator delivers an award at Mumbai. because there has been a change in the composition of the F The Private Limited Company which had advanced monies arbitral tribunal.” F during the pendency of the arbitration proceedings also 46. So, by agreement the parties may terminate the mandate of an shifts its registered office at Mumbai. The award dismisses arbitrator. When that happens, by virtue of section 15(2), a s ubstitute the claims of the said Private Limited Company. The arbitrator shall be appointed ‘according to the rules that were applicable G challenge to the said award can be made: to the appointment of the arbitrator being replaced’. It is obvious that if G (1) Only in the Courts at Mumbai where the arbitration award there is an agreed procedure for appointing the arbitrator, the same was pronounced. would be applicable. However, if there is no agreed procedure, then section 11(5) of the said Act would apply. Section 11(5) stipulates that (2) Only in the Courts at Delhi. in an arbitration with a sole arbitrator, if the parties fail to agree on the H (3) Either in the Court at Mumbai or in the Court at Delhi. arbitrator within thirty days from receipt of a request by one party from H (4) Though challenge can be made in the Court at Mumbai the other party to so agree, the appointment shall be made, upon request also but the Court at Mumbai will return the objection for of a party, by the Chief Justice or any person or institution designated filing in the Court at Delhi, the challenge being to an by him. Even in the case of an agreed procedure, if a party fails to act award of the retired Judge of the Bombay High Court. I I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 709 710 Indian Law Reports (Delhi) ILR (2012) IV Delhi 48. In terms of the Answer Key, option (2) [Only in the Courts at A (a) the defendant, or each of the defendants where there are Delhi] is the correct answer. The petitioners suggest that option (3) A more than one, at the time of the commencement of the [Either in the Court at Mumbai or in the Court at Delhi] would be the suit, actually and voluntarily resides, or carries on business, right answer. or personally works for gain; or 49. Section 34 of the Arbitration and Conciliation Act, 1996 makes B (b) any of the defendants, where there are more than one, at provision for an application for setting aside an arbitral award. The B the time of the commencement of the suit actually and opening words of section 34(1) are – “Recourse to a Court against an voluntarily resides, or carries on business, or personally arbitral award may be made only by an application for setting aside such works for gain, provided that in such case either the leave award...”. Clearly, such an application must be made to a “court”. Which C of the Court is given, or the defendants who do not court? The answer lies in section 2(1)(e) of the said Act which reads as reside, or carry on business, or personally work for gain, follows:“ 2. C as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Definitions. - Explanation.-A corporation shall be deemed to carry on (1) In this Part, unless the context otherwise requires, - D business at its sole or principal office in India or, in xxxx xxxx xxxx xxxx xxxx respect of any cause of action arising at any place where D it has also a subordinate office, at such place.” (e) “Court” means the principal Civil Court of original jurisdiction in a district, and includes the High Court in 51. Now, let us go back to the facts. If we refer to the Private exercise of its ordinary original civil jurisdiction, having E Limited Company which advanced the money and the Private Limited jurisdiction to decide the questions forming the subject- Company which received the money as A and B, respectively, it is matter of the arbitration if the same had been the subject- E apparent that A has a claim against B. The money was advanced in Delhi. matter of a suit, but does not include any civil court of The disputes arose in Delhi. Thus, the entire cause of action arose in a grade inferior to such principal Civil Court, or any Court F Delhi. At that point of time, both A and B carried on business in Delhi. of Small Causes; It is only during the arbitration proceedings that A shifted its registered xxxx xxxx xxxx xxxx xxxx” office to Mumbai. But, that would not alter the place of suing inasmuch F as it is the place of business of the defendant (i.e., B) which is relevant 50. The crucial words are – “having jurisdiction to decide the and not the places of business of the plaintiff (i.e., A). questions forming the subject-matter of the arbitration if the same had G been the subject-matter of a suit”. The question, therefore, is – if there 52. Consequently, Delhi is the only place where a suit could have had been no arbitration clause, where could the suit have been filed? This been filed. Therefore, option (2) [Only in the Courts at Delhi], as indicated takes us to section 20 of the Code of Civil Procedure, 1908, which G in the Answer Key, is the correct answer. would be applicable in the facts of the question at hand. Section 20 of H Question No. 182 the Code reads as under: 182. A time barred debt can be claimed: “20. Other suits to be instituted where defendants reside or cause of action arises. H (1) As a set off. (3) As a fresh suit. Subject to the limitations aforesaid, every suit shall be instituted I (2) As a counter claim. (4) None of the above. in Court within the local limits of whose jurisdiction

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53. According to the petitioners, option (1) [As a set off] is the A the present unless he files a cross-suit of his own. When a plea correct answer. But, the Answer Key shows option (4) [None of the in the nature of equitable setoff is raised it is not done as of right above] to be the correct answer. and the discretion lies with the Court to entertain and allow such plea or not to do so.” 54. There can be a legal set-off and an equitable set-off. The A question does not specify which. Therefore, it must be presumed that it B 55. Once it is clear that there can be two kinds of set-offs and that refers to both kinds of set-off. Order VIII Rule 6 of the Code of Civil the question does not distinguish between either of them, what needs to Procedure, 1908 deals with legal set-off. But, independent of the provisions be seen is whether in either case a time barred claim can be claimed as of the said Code, there also exists the concept of equitable setoff. This B a set-off. A Division Bench of the Calcutta High Court in the case of would be clear from the following observations of the Supreme Court in Peerless General Finance and Investment Co. Ltd v. Jitendra Kumar Union of India v. Karam Chand Thapar & Bros (Coal Sales) Ltd: C Khan: 2004 (4) CHN 255 noted as under: (2004) 3 SCC 504, with reference to the provisions of Order VIII Rule “14. In the case of Ramdhari Singh, reported at 19 CWN 1183, 6 of the said Code:“ C also a Division Bench judgement, it was opined that the right of 17. Sub-rule (1) of Rule 6 of Order 8 of the CPC provides as set-off exists not only in cases of mutual debits and credits but under : D also where cross-demands arise out of the same transaction or are so connected in their nature and circumstances as to make “6. Particulars of set-off to be given in written statement. it inequitable that the plaintiff should recover and the defendant -(1) Where in a suit for the recovery of money the defendant D be driven to a cross-suit. It was also said there that an equitable claims to setoff against the plaintiff’s demand any ascertained set-off is to be permitted in the defendants’ pleadings “more sum of money legally recoverable by him from the plaintiff, not E specially when a fresh suit, may be barred by limitation”. exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff’s (underlining added) suit, the defendant may, at the first hearing of the suit, but not E 56. It was further observed in the said decision as follows:“ afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set- F 18. In the facts of the present case, in our opinion, it would be off.” inequitable to permit the plaintiffs to recover its unliquidated F damages, provided he is able to prove the case at trial, without 18. What the rule deals with is legal setoff. The claim sought to allowing the defendants to setoff the amounts outstanding on an be set-off must be for an ascertained sum of money and legally old debt, provided the existence of the loan and the existence of recoverable by the claimant. What is more significant is that both G still outstanding amounts can be sufficiently proved by the the parties must fill the same character in respect of the two defendants at trial apart from the question of limitation. claims sought to be set-off or adjusted. Apart from the rule G enacted in Rule 6 abovesaid there exists a right to set-off, called 19. We are of the opinion that section 3 of the Limitation Act of equitable, independently of the provisions of the Code. Such 1963 does not relate to equitable setoffs at all. The most important mutual debts and credits or cross-demands, to be available for H distinction between a legal set-off as mentioned in the Code, and extinction by way of equitable setoff, must have arisen out of an equitable set-off as formulated by Judge made law, is that at H the same transaction or ought to be so connected in their nature the end of a suit, a legal set-off might result in a sum of money and circumstances as to make it inequitable for the Court to being paid to the defendants alone without the plaintiff’s being allow the claim before it and leave the defendant high and dry for held to be entitled to any recovery at all; but in the case of an I I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 713 714 Indian Law Reports (Delhi) ILR (2012) IV Delhi equitable set-off, which is time-barred, this can never happen. A 345. On the other hand, the learned counsel for the DHC drew our Such an equitable set-off can only wipe off pro tanto the plaintiffs’ A attention to section 32(3) of the Indian Partnership Act, 1932 and claim. If the plaintiffs claim is not proved at all and if the submitted that a plain reading of the provision would suggest that C defendants’ barred equitable set-off is proved to the full extent, alongwith A, B and X would be liable to Z. Therefore, according to him, even then the defendants cannot claim a decree because the B option (1) has correctly been shown in the Answer Key. whole purpose why he was allowed to plead a barred equitable 58. Lindlay & Banks on Partnership, 18th edition, has dealt with the set-off was that it was inequitable to allow the plaintiff to recover, B subject of ‘incoming and outgoing partners’ in the following manner at leaving the defendants equitable claims out of consideration pages 99-100: altogether. If the plaintiff is recovering nothing, then nothing inequitable is done if the defendants equitable set-off is completely C “..Assume that A and B carry on business under the name X & brushed off.” C Co. Neither A nor B holds himself out as a member of that firm to anyone who does not know of his connection with it. Thus, So, there is judicial precedent that a time barred debt may be claimed by if A retires from the firm but gives no notice thereof, he will way of an equitable set-off. Therefore, option (1) cannot be regarded as remain liable to existing customers who know of that connection a wrong answer. But, at the same time, we must also keep in mind that D and continue to deal with the firm on the assumption that he is some candidates may have had in mind only a legal set-off. This is so still a partner; but A will incur no liability to new customers of because the question does not specify the kind of set-off. So, candidates, D X & Co. who have never heard of him. If, on A’s retirement, who worked out the solution on the understanding that the question dealt C enters into partnership with B, and B and C thereafter carry with legal set-off and the provisions of Order 8 Rule 6 CPC, and, E on business under the name X & Co., even an old customer of consequently, chose option (4), also cannot be faulted. But, as there X & Co., who continues to deal with the firm and has no notice cannot be two correct answers for the same question in the scheme of E of A’s retirement or C’s admission, cannot truly say that A ever the ‘OMR Sheet’ based test, the question would have to be removed held himself out as a partner with C or with both B and C. from consideration so that neither those candidates who chose option (1) Consequently, such an old customer cannot maintain an action nor those who chose option (4) are negatively marked. F against A, B and C jointly for a debt contracted by X & Co. after Question No. 188 A’s retirement. What he may do is either sue A and B, on the F 188. A, B and C are partners in a firm. C retires and X is ground that he dealt with X & Co. relying on the fact that they were both still members of that firm, or sue B and C, on the admitted as a new partner. The firm did not give a public G notice of the change but continued its business in its old ground that they are his real debtors. He must, however, elect firm name. Z, a customer of the firm, deals with the firm between those two options: he may not sue A, B and C on the after the change and the firm becomes indebted to him: G ground that B and C are in truth the partners of X & Co. and that A is stopped from denying that he is a member of that firm. (1) Z cansue A, B, C and X. H This was decided in Scarf v. Jardine.” (2) Z cansue A, B and C. 59. Coming, now, to the question at hand, we have two sets of (3) Z can sue either A, B and C, or, A, B and X. partners of the firm (1) A, B and C and (2) A, B and X. However, no (4) Z can sue A and B only. H public notice of the retirement of C or the admission of X is given and I the business is continued in the old firm name. Thus, Z, who is presumably 57. The petitioners contend that option (3) is the correct answer in an old customer of the firm, cannot say that C held himself out as a view of the decision in the case of Scarf v. Jardine: (1882) 7 App.Cas.

I Gunjan Sinha Jain v. Registrar General High Court of Delhi (Badrar Durrez Ahmad, J.) 715 716 Indian Law Reports (Delhi) ILR (2012) IV Delhi partner with X or with A, B and X. This is so because Z, when he dealt A who deals with the firm without knowing that he was a partner. with the firm subsequent to the retirement of C and admission of X, was (4) Notices under sub-section (3) may be given by the retired not aware of this change at all. There are only two possibilities: either Z partner or by any partner of the reconstituted firm.” knew of the change or Z did not know of the change. If Z did not know A of the change, he would continue to think that the firm comprised of A, 62. The first point to be noted is that the said provision only speaks B and C. If he did not know about the change, he would be aware that B of retirement of a partner and does not deal with a situation of retirement the firm comprised of A, B and X and that C was no longer a partner. and admission of a new partner. Obviously, therefore, the expression “he In either eventuality, there would be no occasion for Z to believe that C and the partners” would refer to the retiring partner and the other partners was a partner with X or with A, B and X. As a result, Z cannot bring B of the firm immediately prior to his retirement (viz. C and A and B in the an action against all (A, B, C and X) jointly. The reason being that C context of the question under consideration). It would exclude reference C never held out to Z that he (C) and X were ever partners at the same to a partner (viz. X) who is subsequently admitted as a partner in the time with A and B. firm. Furthermore, all that this provision says is that if public notice is not given of the retirement of a partner, the retiring partner and the other 60. At the same time, since no public notice was given of the C partners would ‘continue’ to be liable as partners to third parties for any change-over in the partnership, C’s liability to third parties for acts done act done by any of them which would have been an act of the firm if by the firm after his retirement would continue. Therefore, Z has to D done before the retirement. It does not in any way detract from the rule decide as to whether he wants to sue C or not? If he chooses to sue C, in Scarf v. Jardine (supra). Zcansue A, B and C because of section he can only do so in conjunction with A and B but, not in conjunction D 32(3) or, alternatively, A, B and X because they, in fact, are the partners with X. Because C and X were never partners together. To make it clear, in the firm. But, he cannot sue A, B, C and X together because C and Z may either sue A, B and C on the ground that he dealt with the firm E X were never partners. relying on the fact that they were still the partners of the firm or Z may sue A,B and X on the ground that they are his real debtors. The two 63. Consequently, option (3) [Z can sue either A, B and C, or, A, claims are mutually exclusive and it is for this reason that Z has to elect E B and X ] is the correct answer and not option (1). one of the two options available to him. Question No. 191 61. Let us now examine, section 32(3) of the Indian Partnership F 191. If only a part of the consideration or object is unlawful, the Act, 1932. The said provision is as under:“ F contract under Section 24 of the Indian Contract Act, 1872 shall 32. Retirement of a partner be: (1) xxxx xxxx xxxx xxxx (1) Valid to the extent the same are lawful. G (2) Void to the extent the same are unlawful. (2) xxxx xxxx xxxx xxxx G (3) Void as a whole. (3) Notwithstanding the retirement of a partner from a firm, he and the partners continue to be liable as partners to third parties (4) Valid as a whole. for any act done by any of them which would have been an act H 64. The Answer Key shows option (2) [Void to the extent the same of the firm if done before the retirement, until public notice is H are unlawaful] as the correct answer. According to the petitioners, it is given of the retirement: option (3) [Void as a whole] which is the correct answer. The learned PROVIDED that a retired partner is not liable to any third party counsel for the DHC conceded that option (3) is the correct answer and that the mistake in the Answer Key, which shows option (2) as the I I Bimal Bharthwal v. State through CBI & Ors. (M.L. Mehta, J.) 717 718 Indian Law Reports (Delhi) ILR (2012) IV Delhi correct answer, needs to be rectified and the OMR answer sheets need A [Both (1) & (2) above]. Thus, there is agreement that, at least, option to be reevaluated. A (1) is one of the correct answers. This is also straightaway apparent from the first part of section 35 of the Indian Contract Act, 1872, which Question No. 195 is as under: 195. Which of the following is an offer? B “35. When contracts become void, which are contingent on (1) A bid at an auction sale. B happening of specified event within fixed time (2) Banker’s catalogue of charges. Contingent contracts to do or not to do anything, if a specified (3) Menu card at a restaurant. uncertain event happens within a fixed time, become void, if, at C (4) All of the above. the expiration of the time fixed, such event has not happened, or if, before the time fixed, such event becomes impossible. 65. According to the petitioners, the correct answer is option (1) C [A bid at an auction sale]. On the other hand, on behalf of the DHC it xxxx xxxx xxxx xxxx xxxx” was maintained that option (4) [All of the above] has been correctly D Therefore, we have to examine as to whether Option (2) is also shown in the Answer Key as the right answer. correct. If that be so, then, option (4) [Both (1) & (2) above] 66. Undoubtedly, ‘a bid at an auction sale’ is an ‘offer’ or, more D would be the correct answer. However, if option (2) is not a accurately in terms of section 2(a) of The Indian Contract Act, 1872, a correct answer then, option (1) would be the right answer. proposal. But, in view of the Privy Council decision in the case of State E 68. The learned counsel for the DHC drew our attention to section Aided Bank of Travancore v. Dhrit Ram: AIR 1942 PC 6, a banker’s 36 of the Indian Contract Act, 1872 in support of his contention that catalogue of charges is not an offer. Clearly, therefore, option (4) is not E option (2) would also be a correct answer. The said section 36 is as the correct answer. Furthermore, a menu card at a restaurant is also not under:“ an offer. It is only an invitation for offers. Thus, the only correct answer is option (1), as suggested by the petitioners. F 36. Agreements contingent on impossible event void Contingent agreements to do or not to do anything, if an impossible event Question No. 197 happens, are void, whether the impossibility of the event is known F 197. In which of the following cases, a contingent contract or not to the parties to agreement at the time when it is made.” becomes void: G The question as framed mentions a “contingent contract” becoming void. (1) If the contract contemplates the happening of the event But, section 36 does not deal with that at all. It refers to “contingent within a certain time, and event does not happen or its agreements”. A contingent agreement whose performance depends upon happening becomes impossible. G the happening of an ‘already’ impossible event is void in view of section 36. Such a contingent agreement does not even mature into a contract (2) If the performance is made to depend upon an event H which is already impossible. which may subsequently become void. There is no contract but, only a void contingent agreement. We must also point out that by virtue of (3) If the event contemplated does not happen. section 10 of the said Act, all agreements are contracts if they are made (4) Both (1) & (2) above H by the free consent of parties competent to contract, for a lawful 67. According to the petitioners, the correct answer is option (1). I consideration and with a lawful object, and are not expressly declared to Whereas, according to the Answer Key, the correct answer is option (4) be void by the said Act. Since a “contingent agreement” whose

I Bimal Bharthwal v. State through CBI & Ors. (M.L. Mehta, J.) 719 720 Indian Law Reports (Delhi) ILR (2012) IV Delhi performance depends upon the happening of an ‘already’ impossible A (3) Roscoe Pound (4) John Austin event is void, as aforesaid, such an agreement cannot even be regarded 71. This question relates to jurisprudence, which was not part of as a contract. Therefore, section 36 cannot be regarded as one dealing the syllabus. According to the learned counsel for the DHC, it was a with “contingent contracts” which subsequently, become void because A question on general knowledge. We cannot persuade ourselves to agree of certain circumstances. That being the position, option (2) cannot be with this contention. The question by its very nature refers to jurisprudence. a correct answer. B As such, this question has to be removed from the purview of the DJS 69. As a result, the only correct answer to this question is option exam. (1) and not option (4). The Answer Key, which shows option (4) as the B Question No. 112 correct answer, needs to be rectified and the OMR answer sheets need to be re-evaluated. C 112. The SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009 rescinded OUT OF SYLLABUS C (1) SEBI (Substantial Acquisition of Shares and Takeovers) 70. At this point, it would be appropriate to recall that according Regulations, 1997. to the syllabus for the said DJS Exam , the candidates were to be tested (2) SEBI (Disclosure and Investor Protection) Guidelines, 2000 for: D (3) SEBI (Prohibition Of Insider Trading) Regulations, 1992. (1) their general knowledge and aptitude, (4) SEBI (Delisting of Securities) Guidelines, 2003. (2) their power of expression and flair in English, D (3) their knowledge of objective type legal problems and their 72. The SEBI (Issue of Capital and Disclosure Requirements) E solutions covering: Regulations, 2009 is also outside the syllabus. Therefore, this question has to be removed from the purview of the DJS exam. (i) The Constitution of India, E Question No. 150 (ii) Code of Civil Procedure, (iii) Code of Criminal Procedure, 150. The Pure Theory of Law which saw Law as a Norm of F Action was advocated by (iv) Indian Penal Code, F (1) A.V. Dicey (2) Leon Duguit (v) Contract Act, (3) Francois Geny (4) Hans Kelsen (vi) Partnership Act, (vii) Principles governing arbitration law, G 73. This question is also of jurisprudence, which was not part of the syllabus. Consequently, this question has to be removed from the (viii) Evidence Act, G purview of the DJS exam. (ix) The Specific Relief Act and Question No. 187 (x) The Limitation Act. H 187. Upon the coming into force of the Limited Liability Partnership Question No. 105 H Act, 2008: 105. Which one of the following thinkers called jurisprudence (1) The Indian Partnership Act, 1932 stands repealed. as the “Philosophy of Positive Law” ? (2) The provisions of the Indian Partnership Act, 1932 ipso (1) Salmond (2) H.L.A. Hart I I Bimal Bharthwal v. State through CBI & Ors. (M.L. Mehta, J.) 721 722 Indian Law Reports (Delhi) ILR (2012) IV Delhi facto apply to Limited Liability Partnerships (LLPs) also. A A Question Answer as Correct Out of Action (3) Both the Acts co-exist but the provisions of the Indian No. per the Answer(s) Syllabus Partnership Act, 1932 are not applicable to LLPs save as Answer Key otherwise provided. 60 (2) (1) No Correct the (4) The Limited Liability Partnership Act, 2008 is applicable B Answer Key to only metropolitan cities as defined therein and the Indian B Partnership Act, 1932 continues to apply to the rest of the 61 (3) (3), (4) No Remove country. 69 (3) (3) No No change 74. Clearly, this question tests the knowledge of a candidate in C 71 (3) (3) No No change respect of the Limited Liability Partnership Act, 2008 which, admittedly, C 80 (2) none No Remove was not part of the syllabus. Consequently, this question has to be 84 (4) none No Remove deleted for the purposes of the said DJS exam. 90 (2) (2) No No change SUMMARY D 97 (4) (2) No Correct the Answer Key 75. In view of the above discussion, the questions would fall into D three categories. The first being those questions where the answers 99 (2) None No Remove reflected in the Answer Key are correct. This category would include all 100 (2) (1) or (2), No Remove those questions which have not been discussed above (i.e., questions in E debatable respect of which there was no challenge at the hearing) and those 105 —— Yes Remove questions in respect of which the answers shown in the Answer Key E 112 —— Yes Remove have been found to be correct by us. The second category comprises of those questions in respect of which the option shown to be correct in F 140 (4) (3), (4) No Remove the Answer Key is incorrect and instead another option as determined 150 —— Yes Remove above is correct. The third category of questions covers (1) questions 165 (2) (1) No Correct the F out of syllabus; (2) questions in respect of which the answer in the Answer Key Answer Key is debatable; (3) questions in respect of which there are G 166 (1) (1) or (3), No Remove more than one correct option; (4) questions in respect of which none of debatable the options is correct; and (5) questions which are confusing or do not 170 (1) (1) No No change supply complete information for a clear answer. G 172 (3) (3) No No change 76. As regards the first category, no change in the Answer Key is 175 (1) (1) No No change required. The Answer Key in respect of the second category of questions H would have to be corrected and the OMR answer sheets would have to 177 (2) (2) No No change be re-evaluated. Insofar as the third category is concerned, questions 182 (4) (1) or (4) No Remove H falling in this category would have to be removed from the purview of 187 —— Yes Remove the examination. A summary of all the disputed questions is given in I 188 (1) (3) No Correct the tabular form below: Answer Key

I Bimal Bharthwal v. State through CBI & Ors. (M.L. Mehta, J.) 723 724 Indian Law Reports (Delhi) ILR (2012) IV Delhi

191 (2) (3) No Correct the A 80. We now come to the second condition which stipulates that the Answer Key number of candidates to be admitted to the main examination (written) should not be more than ten times the total number of vacancies of each 195 (4) (1) No Correct the category advertised. Let us take the case of general vacancies which Answer Key A were advertised as 23 in number. Ten times 23 would mean that up to 197 (4) (1) No Correct the B 230 general candidates could qualify. But, as mentioned above, 235 general Answer Key candidates have already been declared as qualified for taking the Main Examination (Written). We are, therefore, faced with a problem. If we 77. From the above table, with respect to the questions discussed B strictly follow this condition then there is no scope for any other candidates above, it is evident that 12 questions would have to be removed/ deleted (other than the 235 who have been declared qualified) to qualify. But, from the purview of the said DJS Exam, 7 questions would require C that would be unfair to them as the question paper itself, as we have seen corrections in the Answer Key as indicated above and 7 questions above, was not free from faults. Hypothetically speaking, a candidate (alongwith the 174 other questions not disputed in the course of arguments) C may have left the 12 questions, which are now to be removed, and, require no change in the Answer Key. therefore, he would have scored a zero for those questions. What is 78. Now, the point for consideration at this stage is how is this D worse, he may have answered all those 12 questions wrongly (in terms reevaluation to be done? We must make it clear that the 276 candidates of the Answer Key) and, therefore, he would have received minus (-) 3 who have been declared as qualified for the DJS Main Examination marks because of 25% negative marking. And, all this, for no fault on (Written) are not before us and, therefore, it would not be fair to disturb D his part as the 12 questions ought not to have been there in the question their status as qualified candidates. At the same time, insofar as the paper. Therefore, it would be unfair to shut out such candidates on the others are concerned, we must also keep in mind the following twin E basis of the second condition. criteria of qualification in the said DJS exam: 81. We must harmonize the requirement of the second condition (1) Minimum qualifying marks in the preliminary examination E with the requirement of not disturbing the candidates who have been of 60% for general and 55% for reserved categories (i.e, declared as qualified as also with the requirement of justice, fairness and Scheduled Castes, Scheduled Tribes and Physically F equity insofar as the other candidates are concerned. We feel that this Handicapped [Blind/ low vision], [orthopaedic]); would be possible: (2) The number of candidates to be admitted to the main F (1) by re-evaluating the OMR answer sheets of all the general examination should not be more than ten (10) times the category candidates on the lines summarized in the table total number of vacancies of each category advertised. set out above; G 79. Let us first consider the condition with regard to minimum (2) by selecting the top 230 candidates in order of merit qualifying marks. When there were 200 questions, the maximum possible G subject to the minimum qualifying marks of 112.8; and marks were 200 on the basis of one mark for each correct answer. (3) by adding the names of those candidates, if any, who Consequently, the minimum qualifying marks for general candidates was were earlier declared as qualified but do not find a place 120 (60% of 200) and for reserved candidates it was (55% of 200). H in the top 230 candidates after re-evaluation. Because we have directed that 12 questions be removed from the purview H of consideration for the purposes of re-evaluation, the minimum qualifying In this manner, all persons who could legitimately claim to be in the top marks would also change. It would become 112.8 (60% of 188) for 230 would be included and all those who were earlier declared as having general candidates and 103.4 (55% of 188) for the reserved categories. qualified would also retain their declared status. Although, the final number I I Bimal Bharthwal v. State through CBI & Ors. (M.L. Mehta, J.) 725 726 Indian Law Reports (Delhi) ILR (2012) IV Delhi of qualified candidates may exceed the figure of 230, this is the only A - written on the writing got omitted to be scored of. A way, according to us, to harmonize the rules with the competing claims (3) To prove that the property number was left blank because of the candidates in a just and fair manner. A similar exercise would also ‘A’ told him that he would be exchanging his house on have to be conducted in respect of each of the reserved categories. The the 300 sq. yard plot of land with another house in a entire exercise be completed by the respondents within a period of two B similar colony with his brother and later on the house weeks. Consequently, the Main Examination (Written) would also have number would be filled up. to be re-scheduled and, to give enough time for preparation, we feel that B (4) None of the above. it should not be earlier than the 26.05.2012. 176. ‘A’ has lent monies to ‘B’ under a written agreement Long Questions C containing an arbitration clause. The agreement does not specify 82. At the beginning of this judgment we had stated that though the C the time of repayment. Rather the money was repayable on objection to the length of questions had been taken, we were not required demand by ‘A’. ‘A’ after five years of the date when the loan to examine that aspect insofar as this examination was concerned inasmuch was made demanded money which was not repaid by ‘B’. The as the questions were equally lengthy for all and did not hurt the relative parties could not arrive at a consensus on the appointment of D chances of the candidates. However, for the future we would like to arbitrator also. ‘A’ filed an application under Section 11 of the point out that lengthy questions ought to be avoided considering the fact D Arbitration & Conciliation Act, 1996 before the Chief Justice of that a candidate has only 45 seconds on an average to read, understand the High Court for appointment of an arbitrator. ‘B’ in response and select the right option. By way of illustration we quote two questions to the said application contends that the claim of ‘A’ is stale and (Question Nos. 63 and 176) which clearly fall in the category of lengthy E barred by time and thus arbitrator be not appointed. The Chief questions: Justice: E 63. In a writing containing an acknowledge by ‘A’ that he will (1) Is bound to appoint the arbitrator leaving the plea of sell his house in Kolkata to ‘B’ for a sum of Rs 50,00,000/- or limitation open for decision in arbitration award. F Rs 60,00,000/-and having blank space with respect to the (2) Is bound to dismiss the application for appointment of particulars of the house i.e. the house number, the street number arbitrator since the claim adjudication whereof is sought and the colony not being written, and it not being in dispute that F by arbitration is barred by time. ‘A’ has a house on a plot of land ad-measuring 300 sq. yards (3) Is required to make ‘B’ deposit the money in Court and and another house on a plot of land admeasuring 1000 sq. yards G then appoint the arbitrator and refer the parties to at Kolkata, in a suit filed by ‘B’ against ‘A’, ‘B’ can lead evidence: arbitration. (1) To prove that market rate for land in Kolkata is Rs 18,000/ G (4) Is required to require ‘A’ to furnish security for actual - per sq. yard in the colony where ‘A’s house was situated; costs of arbitration to be incurred by ‘B’ and then appoint to make good the deficiency in the writing by linking the H the arbitrator and refer the parties to arbitration. price of Rs 18,000/-per sq. yard as only applicable to the plot ad-measuring 300 sq. yards and the rest being the 83. Before concluding this judgment, we would also like to observe that, for the future, the respondents should take care in framing questions value of the building. H for such multiple-choice tests. The questions must be clear and provide (2) To prove that unintentionally the house number got omitted I all the necessary information leading to the appropriate answer. Questions to be written and that the writing pertained to the 300 sq. which have doubtful or debatable answers should be excluded. As we yards land and unintentionally the sum of Rs 50,00,000/

I Bimal Bharthwal v. State through CBI & Ors. (M.L. Mehta, J.) 727 728 Indian Law Reports (Delhi) ILR (2012) IV Delhi have seen some of the questions in this examination require detailed A ILR (2012) IV DELHI 728 reasoning and consideration which is not possible in the time frame of W.P. (C) 45 seconds. Such questions are best left for an essay type examination and are not suited to multiple choice tests. In this light, it would be A appropriate to refer to the Supreme Court’s decision in Kanpur University NARENDER KUMAR ….PETITIONER B v. Samir Gupta: (1984) 1 SCC 73, wherein the Supreme Court, in the VERSUS context of ‘multiple choice objective-type test’, inter alia, observed as under:- UNION OF INDIA & ORS. ….RESPONDENTS B “...... Fourthly, in a system of ‘multiple choice objective-type (ANIL KUMAR & SUDERSHAN KUMAR MISRA, JJ.) test’, care must be taken to see that questions having an C ambiguous import are not set in the papers. That kind of system W.P. (C) NO. : 1629/2012 DATE OF DECISION: 10.04.2012 of examination involves merely the tick-marking of the correct answer, it leaves no scope for reasoning or argument. The answer C Constitution of India, 1950—Article 226—Disciplinary is ‘yes’ or ‘no’. That is why the questions have to be clear and proceedings—Misconduct imputed against petitioner unequivocal.” D was unauthorized absenteeism from duty as he 84. We hope that these observations are kept in mind for future repeatedly did not report for duty at the airport in examinations conducted by the respondents. D time—Petitioner submitted reply to the charge memorandum and after considering the same, was 85. With these observations, the writ petitions are allowed to the E awarded punishment of censure—Appeal filed by extent indicated above. In the circumstances, the parties are left to bear petitioner was dismissed—After dismissal of appeal, their own costs. E petitioner filed an application seeking certain documents without disclosing the relevance of the same and without disclosing as to how he would be F prejudiced if the same are not supplied—In reply, the respondents pointed out that under the relevant rule, F there was no provision to supply documents which were not relied upon in the chargesheet—However, later on, same of the documents were supplied to G petitioner—Revision filed by petitioner also dismissed- G Writ petition challenging the punishment and dismissal of appeal and revision-Petitioner contended without imputing any mala fides or perversity that other H members of the staff also go for the call of nature and break fast, etc but no action was taken against them— H Respondents contended that wherever a member of the force leaves for call of nature or other absence, entries are made in registers and explanations I I Narender Kumar v. Union of India & Ors. (Anil Kumar, J.) 729 730 Indian Law Reports (Delhi) ILR (2012) IV Delhi rendered by petitioner were disbelieved by disciplinary A exist as a matter of fact or there should be such authority as well as appellate authority—Held, as A definite inference of likelihood of prejudice flowing regards non-supply of certain documents, petitioner from such default which relates to statutory violations. ought to have established the prejudice as a matter of It will not be permissible to set aside the departmental fact and prejudice cannot be based on apprehension— B enquiries in any of these classes merely on the basis Further held, the totality of circumstances of the case of apprehended prejudice....” do not reflect non-application of mind or B disproportionate punishment. Violations of mandatory statutory rules would tantamount to prejudice. But where the rule is merely directory, element of The petitioner did not claim the copies of any documents C de facto prejudice needs to be pleaded and shown. Where before the Disciplinary Authority and the Appellate Authority the authorities rely upon a large number of documents and he claimed certain documents without disclosing the C majority of which are furnished and an opportunity is granted reasons for the same and without disclosing as to why he to the delinquent to defend himself except some of the could not sought the copies of the same before the documents are not furnished, the onus is on the delinquent Disciplinary and Appellate Authority, by filing applications D the show that non-furnishing of some of the documents had before the Revisional Authority. Copies of three documents resulted in de facto prejudice and he has been put to a D were also supplied to the petitioner. Even in the revision disadvantage as a result thereof. Element of prejudice petition, the petitioner failed to disclose as to how he has should exist as a matter of fact or there should be such been prejudiced in absence of other documents copies of E definite inferences of likelihood of prejudice flowing from which were sought by him and which were not supplied, as such default which relates to statutory violations. he had not given any reason for not demanding them before E Departmental actions cannot be set aside on the basis of the Disciplinary and the Appellate Authority. The petitioner apprehended prejudice. Prejudice normally would be a matter has not even alleged properly as to how he had been of fact and a fact must be pleaded and shown by cogent F prejudiced on account of copies of certain documents not documentation to be true. The petitioner has failed on all given to him. The petitioner ought to have established the counts in this regard. The documents were not demanded prejudice as a matter of fact. The prejudice cannot be F before the Disciplinary Authority, nor any grounds taken in based on apprehension or even a reasonable suspicion, the appeal filed before the Appellate Authority, nor any such nor the disciplinary proceedings can be vitiated on hyper G grounds canvassed before the Appellate Authority. Even technical approach. The punishment awarded to the petitioner before the Revisional Authority it has not been averred as cannot be quashed on the basis of apprehended prejudice. to how the petitioner got prejudiced on account of non- The Supreme Court in para 89 of Alok Kumar Vs Union of G supply of the copies of some of the documents demanded India & ors., (2010) 5 SCC 349 had held as under:- by him out of which, copies of three main documents were H given to him. The respondents had not relied on these “89. The well-established canons controlling the field documents in their Charge Sheet. How the petitioner got of bias in service jurisprudence can reasonably be prejudiced has not been canvassed before the revisional H extended to the element of prejudice as well in such authority. Consequently, on this ground the punishment of matters. Prejudice de facto should not be based on a I ‘censure’ awarded to the petitioner cannot be vitiated. mere apprehension or even on a reasonable suspicion. (Para 19) It is important that the element of prejudice should I Narender Kumar v. Union of India & Ors. (Anil Kumar, J.) 731 732 Indian Law Reports (Delhi) ILR (2012) IV Delhi [Gi Ka] A 2009, the petitioner was posted from 0700 hours to 2000 hours on X Ray machine of terminal 2 and during his period of duty he remained APPEARANCES: absent without permission from any competent officer from 0759 hours FOR THE PETITIONER : Mr. O.P. Agarwal, Advocate to 0833 hours. The third charge imputed against the petitioner was that A FOR THE RESPONDENT : Mr. Ravinder Agarwal, Advocate on 3rd November, 2009 he was posted from 2000 hours to 0700 hours B at X Bis No.5 in SHA of terminal 2. It transpired that the petitioner on CASES REFERRED TO: his own left X Bis No.5 for checking baggages separately which was 1. Alok Kumar vs. Union of India & ors., (2010) 5 SCC checked by Constable A.K.Sharma. B 349. 3. The petitioner submitted a reply dated 17th November, 2009 2. M.V.Bijlani vs. Union of India & Ors. (2006) 5 SCC 88. C contending, inter-alia, that he was posted at NITC for duty prior to his 3. Durga Prashad vs. Chief Controller of Imports and posting for duty at domestic Airport. However, no time was prescribed Exports, AIR 1970 SC 769. for going from NITC to Domestic Airport. Whenever the transport was C provided and he was relieved from NITC, he went from NITC and joined RESULT: Petition dismissed. the duty at domestic terminal. He further contended that he did not close D ANIL KUMAR, J. frisking booth and X BIS/frisking was functioning. He contended that he left for bathroom for 6 minutes after obtaining permission from Assistant CM No.3556/2012 D Commandant. Regarding the first charge that he operated the X Ray Allowed subject to all just exceptions. Application is disposed of. machine slowly, the petitioner alleged that functioning of the machine depends on the type of baggage. He submitted that if any delay took E W.P.(C) No.1629/2012 place it was on account of the factors other than the petitioner deliberately operating the machine slowly. 1. The petitioner has sought quashing of penalty of “censure” E awarded by order dated 9th December, 2009 and dismissal of his appeal 4. Regarding the second charge about his posting on 2nd November, by order dated 15th May, 2010 and rejection of his revision petition by 2009, he contended that all force members go to take breakfast/food order dated 3rd February, 2011. The petitioner has also sought directions F after adjusting duty. He admitted that he had gone after adjusting duty but to the respondents to give the petitioner one more opportunity to appear the time mentioned in the charge was not correct and he had gone for F in LDCE for the post of Assistant Commandant in future, as he was breakfast from 0807 hours to 0830 hours, as about 20-25 minutes are deprived of this opportunity when he had applied on 10th November, spent for breakfast/lunch which can be confirmed from the register or 2009. can be ascertained from other force members. G 2. The petitioner was issued a charge memorandum dated 14th G 5. Regarding the third charge, the petitioner alleged that category of November, 2009 imputing that the petitioner on 20th October, 2009 was bags of passengers are different and the stamp is affixed on bags by SOS posted at Domestic Airport from 0330 hours to 0700 hours, however, and stamp is not affixed by guard/screener, nor there is any such circular he reached his place of duty at 0405 hours instead of 0330 hours and to get the bags stamped by guard. He contended that in absence of clear thereafter, he remained absent from 0520 hours to 0535 hours from his H and specific order, the guard checked bags with negligence which led to frisking duty. He was posted at X Ray machine No.H where he did not H loss of time. The petitioner asserted that he did the work of operating take interest in his duty and intentionally operated X Ray machine slowly. hand machine and bag checking and also got it done from the guards for The other charge imputed against the petitioner was that on 2nd November, which, instead of charging him he should have been appreciated. I I Narender Kumar v. Union of India & Ors. (Anil Kumar, J.) 733 734 Indian Law Reports (Delhi) ILR (2012) IV Delhi

6. The petitioner also referred to his clean record of 16 years and A the petitioner, the Appellate Authority also held that the punishment of that he had got only one chance in the year 2009 of consideration for A “Parninda” (Censure) was appropriate. The Appellate Authority promotion to the next post and any type of sentence will deprive him categorically incorporated in the order that the petitioner has not produced from this chance. and referred to any such fact which would require any interference by the Appellate Authority against the order of the Disciplinary Authority. 7. The pleas and contentions raised by the petitioner were considered B and order dated 9th December, 2009 was passed holding that the reply B 10. After the dismissal of the appeal, the petitioner filed an application of the petitioner was not completely satisfactory. It was held that any dated 15th May, 2010 seeking certain documents. The petitioner did not misconduct and negligence on the part of the petitioner could not be disclose the relevancy of the documents demanded by him, nor disclosed ignored on the ground that he had only one opportunity to be included C any reasons as to why he had not relied on or demanded these documents in AC/LDCE. The Assistant Commandant found that the charges against before the Appellate and Disciplinary Authority. The petitioner also did the petitioner were made out, however, considering the earlier service of C not disclose as to how he would be prejudiced, in case the copies of the petitioner and in order to give an opportunity to the petitioner to documents demanded by him are not supplied to him. The details of the improve himself and taking a lenient view under Schedule I of Rule 32 documents which were sought by the petitioner are as under:- D of the CISF Manual, 2001, the sentence of “Parninda” (Censure) was 1. Domestic ID X ray rotation register. passed against the petitioner. The petitioner was also communicated by D order dated 9th December, 2009 that he could file an appeal within 30 2. Standing order ID XBIS Number H days from the receipt of the order against his punishment. 3. CCTV footage dated 20.10.09 time 0520 to 0535. E 8. Against the order dated 9th December, 2009 the petitioner filed 4. Bathroom (illegible) register an appeal before the Commandant, Central Industrial Security Force dated 28th December, 2009. The petitioner reiterated the pleas raised by E 5. Deployment strength to XBIS number H. him in the reply dated 17th November, 2009 to the chargesheet. Regarding 6. Standing order NITL XBIS number 6 charge No.3, the petitioner contended that it was concocted as there was F no standard as to how much time is to be taken in clearance of one 7. On dated 2.11.2009 GD Extract. baggage, as clearance of the bag depends on the type of bag also. The F 8. Lunch/breakfast system petitioner also asserted that the memorandum of charge against him was on account of conspiracy against him as only he was charged, whereas G 9. Register/paper for outgoing lunch/breakfast. all the force members go for breakfast/food daily and the charge sheet 10. Office order for leaving breakfast/lunch. had not been issued against any other member of the force on this account. G 11. NITC XBIS Number 5 standing order. 9. The appeal filed by the petitioner was, however, dismissed by 12. XBIS number 5 on dated 3.11.09 deployment SOS strength H the Appellate Authority by order dated 15th May, 2010. The Appellate 13. Order to Const./Screener Bagage checking. Authority considered the charges framed against the petitioner, his reply and the order dated 9th December, 2009. The Appellate Authority held 14. CCTV footage on dated 3.11.09. H that it was apparent that the petitioner was unable to comply the 15. If have any complaint of pay/staff. instructions given by senior officers from time to time and he committed I violations repeatedly. Considering the repeated violations committed by 16. On dated 3.11.09 GD Extract.

I Narender Kumar v. Union of India & Ors. (Anil Kumar, J.) 735 736 Indian Law Reports (Delhi) ILR (2012) IV Delhi 17. Detail (illegible) of SI/E D.K.Pandey from XBIS number A Despite the lapse committed by him on 20th October, 2009 he committed 09205 with GD Extract. the same mistake on 2nd November, 2009. His plea that he had left the X Bis Machine for physical checking of bags on 3rd November, 2009 11. The petitioner asserted that since no attention was paid to his on the ground that it could not be left to the constable was not accepted, submissions, therefore, the documents sought by him were necessary. A holding that the constable also has the requisite experience and training The petitioner, however, did not disclose in his application as to why the B and a constable understands his responsibility well. In the circumstances, alleged documents were not sought by him earlier in reply to the charge it was held that not once but repeatedly the petitioner left his appointed memo, in his reply dated 17th November, 2009. The petitioner also did place of duty without any justifiable reason and in the circumstances the not disclose any reason as to how the documents sought by him were B Revisional Authority did not find any illegality or irrationality in the orders relevant for the allegations made by him and how he would be prejudiced of the Disciplinary Authority or the Appellate Authority. in absence of the documents sought by him. In reply to the application C filed by the petitioner, before filing the revision petition it was 14. The Revisional Authority also considered the penalty of ‘censure’ communicated to the petitioner that under Rule 37 of the CISF Manual, awarded to the petitioner as proportional and appropriate for the 2001 there was no provision to make the documents available of any type C misconduct on the part of the petitioner. The plea of the petitioner that along with the chargesheet which were not relied on or the basis of he had an unblemished record was also negated, as, in fact, the petitioner charge sheet. It is pertinent to notice that in the memorandum of charge D had been warned twice for various other acts of indiscipline by the dated 14th November, 2009 no documents were specifically referred to Disciplinary and the Appellate Authority. The Revisional Authority held or relied by the respondents. D that the petitioner has not brought out any new points in the revision petition and has repeated the factual aspects and thus there was no merit 12. Later on, pursuant to the request made by the petitioner, he in the revision petition and thus dismissed the revision petition. was, however, given the copies of NITC X Ray rotation Register; GD E extract dated 2nd November, 2009 and GD extract dated 3rd November, 15. The petitioner has challenged the order of the Disciplinary 2009. The petitioner also sent other applications reiterating the demand E Authority, Appellate Authority and Revisional Authority in the present for other documents, however, none of the applications detailed as to writ petition reiterating the pleas on the facts as had been raised by the why these documents could not be sought by the petitioner prior to the petitioner before the Disciplinary Authority. The petitioner has laid emphasis order of ‘censure’ passed by the Disciplinary Authority. The petitioner F that LDCE scheme which was introduced only for the departmental also did not disclose as to why no grounds were taken by the petitioner candidate and not for the open market personnel and that the penalty of F in the appeal filed by him before the Appellate Authority in respect of the ‘censure’ has restricted his last opportunity as the petitioner has now documents which were sought by the petitioner at the time of filing the become overage. The petitioner also contended that the penalty of ‘censure’ revision petition. The petitioner thereafter, filed the revision petition, could not be a bar in granting promotion to the petitioner, if found fit by G however, no new grounds were raised by the petitioner except reiterating the Departmental Promotion Committee. The petitioner also asserted that the pleas and contentions raised by the petitioner earlier. The petitioner, G the respondents ought to have initiated action against him under Rule 36 however, contended that non supply of documents to him was contrary of the CISF Rules, 2001 which was not done intentionally because no to the fundamental principles of natural justice and that he has been charge would have been proved against the petitioner in that case. The deprived of his right to defend himself. H petitioner also contended that by penalizing him with the penalty of ‘censure’ he has been deliberately deprived of availing an opportunity of 13. The revision petition was also dismissed by the Revisional H competing in LDCE-2009. Authority by order dated 3rd February, 2011 holding that the petitioner had committed the lapses repeatedly. It was held that he committed first 16. This Court has heard the learned counsel for the petitioner and lapse on 20th October, 2009 when he left the frisking duty unattended. Mr.Ravinder Agarwal, Central Government Standing Counsel who has I I Narender Kumar v. Union of India & Ors. (Anil Kumar, J.) 737 738 Indian Law Reports (Delhi) ILR (2012) IV Delhi appeared on advance notice. The learned counsel for the respondents has A Appellate Authority, their orders cannot be faulted on the grounds raised contended that if the petitioner was aggrieved of not considering his A by the petitioner. application for LDCE-2009, then the petitioner ought to have approached 19. The petitioner did not claim the copies of any documents before the authorities or this Court in 2009. Regarding the penalty of ‘censure’, the Disciplinary Authority and the Appellate Authority and he claimed the learned counsel for the respondents contended that the petitioner has B certain documents without disclosing the reasons for the same and without failed to point out any such illegality, irregularity or perversity in the disclosing as to why he could not sought the copies of the same before order of the authorities which will require any interference by this Court. B the Disciplinary and Appellate Authority, by filing applications before the The petitioner has repeated the factual aspects and this Court will not re- Revisional Authority. Copies of three documents were also supplied to appreciate the facts and substitute the decision of the appropriate authorities the petitioner. Even in the revision petition, the petitioner failed to disclose with the different inferences if any, arrived at by this Court. C as to how he has been prejudiced in absence of other documents copies 17. This cannot be disputed that for issuing a writ under Article C of which were sought by him and which were not supplied, as he had 226 of the Constitution of India, it has always been in the discretion of not given any reason for not demanding them before the Disciplinary and the Court to interfere or not depending upon the facts and circumstances the Appellate Authority. The petitioner has not even alleged properly as of each case. The Supreme Court in Durga Prashad v. Chief Controller D to how he had been prejudiced on account of copies of certain documents of Imports and Exports, AIR 1970 SC 769 had held that even where not given to him. The petitioner ought to have established the prejudice there is an allegation of breach of certain rights, the grant of relief is D as a matter of fact. The prejudice cannot be based on apprehension or discretionary and such discretion has to be exercised judiciously and even a reasonable suspicion, nor the disciplinary proceedings can be reasonably. It is also no more res integra that the jurisdiction of the Court E vitiated on hyper technical approach. The punishment awarded to the for judicial review is limited. The Court in exercise of its jurisdiction petitioner cannot be quashed on the basis of apprehended prejudice. The under Article 226 of the Constitution of India does not go into the E Supreme Court in para 89 of Alok Kumar Vs Union of India & ors., correctness and the truth of the charges, nor it can take over the functions (2010) 5 SCC 349 had held as under:- of the disciplinary authority. This Court does not sit in appeal against the “89. The well-established canons controlling the field of bias in findings of the disciplinary authority and assume the role of the appellate F service jurisprudence can reasonably be extended to the element authority. of prejudice as well in such matters. Prejudice de facto should 18. It is also pertinent that no malafides or perversities have even F not be based on a mere apprehension or even on a reasonable been imputed by the petitioner except contending that the other members suspicion. It is important that the element of prejudice should G of the force also go for the call of nature and for breakfast etc. but no exist as a matter of fact or there should be such definite inference action has been taken against them. The respondents have categorically of likelihood of prejudice flowing from such default which relates contended that the entries are made in the register, if any, when member G to statutory violations. It will not be permissible to set aside the of the force leave for the call of nature and for other absence. The departmental enquiries in any of these classes merely on the petitioner gave the explanations which have been considered by the H basis of apprehended prejudice....” Disciplinary Authority and the Appellate Authority and were disbelieved. Violations of mandatory statutory rules would tantamount to prejudice. The petitioner admitted his absence, however, justified the same on the But where the rule is merely directory, element of de facto prejudice ground that other members of the force also do the similar things. This H needs to be pleaded and shown. Where the authorities rely upon a large could not be a valid justification in the facts and circumstances and in I number of documents majority of which are furnished and an opportunity law. The allegation of the petitioner is too vague and cannot be accepted. is granted to the delinquent to defend himself except some of the documents If this plea of the petitioner has been rejected by the Disciplinary and are not furnished, the onus is on the delinquent the show that non- I Narender Kumar v. Union of India & Ors. (Anil Kumar, J.) 739 740 Indian Law Reports (Delhi) ILR (2012) IV Delhi furnishing of some of the documents had resulted in de facto prejudice A total defiance of logic or moral standards. The petitioner has not denied and he has been put to a disadvantage as a result thereof. Element of that he was not absent from the duty as has been alleged by the respondents prejudice should exist as a matter of fact or there should be such definite except contending that this is a normal thing and that the exact timings inferences of likelihood of prejudice flowing from such default which as given by the respondents is not correct. Since the petitioner admitted A relates to statutory violations. Departmental actions cannot be set aside his absence, it was for him to give plausible and justifiable reason and on the basis of apprehended prejudice. Prejudice normally would be a B in the circumstances, if the respondents have held that the charges matter of fact and a fact must be pleaded and shown by cogent against the petitioner had been established, it cannot be held that the documentation to be true. The petitioner has failed on all counts in this decision of the respondents is irrational. The petitioner has been awarded regard. The documents were not demanded before the Disciplinary B the penalty of ‘censure. only which cannot be held to be so disproportionate Authority, nor any grounds taken in the appeal filed before the Appellate as to be considered as outrageous and in total defiance of logic or moral C Authority, nor any such grounds canvassed before the Appellate Authority. standards. The learned counsel for the petitioner has also not been able Even before the Revisional Authority it has not been averred as to how to show any patent error or manifest error in the exercise of power by the petitioner got prejudiced on account of non-supply of the copies of C the respondents. The petitioner’s counsel has failed to show any such some of the documents demanded by him out of which, copies of three relevant factor which will make the decision of the respondents main documents were given to him. The respondents had not relied on D unreasonable or that the respondents have taken into consideration these documents in their Charge Sheet. How the petitioner got prejudiced irrelevant factors. The Supreme Court in (2006) 5 SCC 88, M.V.Bijlani has not been canvassed before the revisional authority. Consequently, on v. Union of India & Ors. had held that the judicial review is of decision this ground the punishment of ‘censure’ awarded to the petitioner cannot D making process and not of reapprecation of evidence. The Supreme be vitiated. Court in para 25 at page 95 had held as under:- E 20. The petitioner has also relied on his service record. The “25. It is true that the jurisdiction of the court in judicial review respondents have rightly contended that the repeated lapses on the part is limited. Disciplinary proceedings, however, being quasi-criminal of the petitioner could not be condoned, as he was repeatedly given E in nature, there should be some evidence to prove the charge. opportunities and the lapse on the part of the petitioner was not solitary Although the charges in a departmental proceeding are not required as he committed the lapse on 20th October, 2009, thereafter on 2nd F to be proved like a criminal trial i.e. beyond all reasonable doubt, November, 2009 and yet again on 3rd November, 2009. we cannot lose sight of the fact that the enquiry officer performs F a quasi-judicial function, who upon analyzing the documents 21. The respondents have also pointed out that the plea of the must arrive at a conclusion that there had been a preponderance petitioner that his record is unblemished is also not correct as in other of probability to prove the charges on the basis of materials on proceedings against him he had been warned by the disciplinary, as well G record. While doing so, he cannot take into consideration any as, the appellate authority which fact has not been denied by the petitioner irrelevant fact. He cannot refuse to consider the relevant facts. in the writ petition. G He cannot shift the burden of proof. He cannot reject the relevant 22. The other grounds on which the action of the respondents testimony of the witnesses only on the basis of surmises and could be challenged by the petitioner was by pointing out illegalities, conjectures. He cannot enquire into the allegations with which irrationalities or procedural improprieties. The learned counsel for the H the delinquent officer had not been charged with.....” petitioner cannot refute that whether the actions of the respondents fall H 23. In the totality of facts and circumstances, it cannot be inferred within any of the categories has to be established and mere assertion in that there is no application of mind on the part of the disciplinary authority this regard is not sufficient. To be “irrational” it has to be held that on and the appellate and revisional authority or that the charges against the material, the decision of the respondents is so outrageous, as to be in I I Atul Kumar Rai v. Koshika Telecom Limited (Sanjay Kishan Kaul, J.) 741 742 Indian Law Reports (Delhi) ILR (2012) IV Delhi petitioner were vague or that the punishment imposed is shocking to the A property (towers) which were hypothecated—Recovery conscience of the Court. None of the grounds which would entail A officer vide order dated 18.12.2007 directed attachment interference by this Court in exercise of its power of review are made and sale of the hypothecated properties—However, out in the facts and circumstances. the Company was wound up vide order dated 02.08.2005 and the Official Liquidator took over charge 24. For the foregoing reasons and in the totality of facts and B of its assets—The hypothecated assets were sold for circumstances there is no such illegality, irregularity or perversity which B a sum of Rs. 12 Crores—IFCI filed an application will require any interference by this Court in exercise of its jurisdiction before the Recovery Officer praying for the proceeds against the order of the respondents. The writ petition, in the facts and realized from sale of assets to be made over to IFCI as circumstances, is without any merit and it is, therefore, dismissed. C the Official Liquidator had received only one claim C which was yet to verified—Official Liquidator opposed the application—It appears that the Official Liquidator had a meeting with Ms. Shalini Soni, AGM (one of the ILR (2012) IV DELHI 741 contemnors) on 19.08.2009 where a decision was taken D CONT. APPEAL. that the sale proceeds of the land will be deposited D with the official liquidator—Official Liquidator filed a compliance/status report No. 281/2009 dated 06.10.2009 ATUL KUMAR RAI ….APPELLANT before learned Company judge and requested for E VERSUS appropriate directions—On 12.10.2010 Official Liquidator filed a report bearing No. 13/2010 for KOSHIKA TELECOM LIMITED & ORS. ….RESPONDENTS E direction to IFCI to deposit the sale proceeds and expenses for advertisement with Official Liquidator- (SANJAY KISHAN KAUL & RAJIV SHAKDHER, JJ.) F IFCI Limited instead of depositing the sale proceeds with Official Liquidator, chose to file application before CONT. APPEAL (C) NO. : DATE OF DECISION: 17.04.2012 Recovery Officer praying that the sale proceeds 6/2012, 8/2012 & 9/2012 F received from the sale of assets of M/s Koshika Telecom Limited be directed to be appropriated by the G Contempt of Courts Acts, 1971—Section 19,11 & 12— IFCI Limited in partial discharge of the Recovery IFCI Limited advanced a loan to M/s Koshika Telecom Certificate—Application allowed by the Recovery Officer Ltd.—Loan was secured by hypothecation of the tower on 22.02.2010 with a direction that IFCI would furnish G and other movable assets—Two of the directors gave and undertaking that in future if any eligible claim in personal guarantees—IFCI filed proceedings before H excess of the amount available with the Official DRT—M/s Koshika Telecom Limited was held liable for Liquidator is received by the Official Liquidator, the sum of Rs. 233,73,92,900.27 along with pendent lite requisite amount will be remitted to the Official and future interest @ 10% per annum from 19.07.2002 H Liquidator within seven days—Official Liquidator being till realization with cost of Rs. 1.5 lakh and recovery aggrieved by the non compliance of the directions of I certificate was issued in terms thereof—IFCI filed the learned Company judge dated 08.10.2008 filed a recovery proceedings—Moved application for sale petition under Sections 11 and 12 of the Contempt of

I Atul Kumar Rai v. Koshika Telecom Limited (Sanjay Kishan Kaul, J.)743 744 Indian Law Reports (Delhi) ILR (2012) IV Delhi Courts Act, 1971 arraying Ms. Shalini Soni alone as a A to issue notices further to the Managing Director of respondent/contemnor for not depositing the sale IFCI by Designation and Recovery Officer ostensibly proceeds with official Liquidator—Official Liquidator to Know whether the Recovery Officer was aware of filed an appeal before the DRT against the order of the orders passed by the learned Company Judge on A the Recovery Officer dated 22.02.2010—Appeal allowed 08.10.2009 when he passed the orders dated partially observing that the Official Liquidator would B 22.02.2010—No notice was issued to Mr. Atul Kumar be entitled to the amount to the extent of value of the Rai in person, but since the affidavits filed on behalf land of the company while IFCI is entitled to the of IFCI were not by the Managing Director, even the amount received from the sale of movable assets— B Managing Director filed his personal affidavit—All the IFCI also preferred an appeal before the DRAT—Appeal there contemnors had tendered unqualified apology C was dismissed by DRAT—IFCI assailed the Order of and the Recovery Officer had stated in so many words DRT and DRAT in WP (C) No. 5014/2010-WP(C) was that he should have been more careful in analyzing allowed on 16.12.2010 IFCI was held entitled to retain C the papers before him—We find that there is no case the amounts both from the sale of movable and whatsoever of contempt made out against Mr. Atul immovable assets of M/s Koshika Telecom Limited D Kumar Rai—The Recovery Officer ought to have subject to the other directions—Though the Official perused the reply filed by the Official Liquidator given Liquidator sought to withdraw the contempt this situation, unqualified apology tendered more than proceedings on 08.03.2011 in view of orders passed D met the requirement as it was not a case of any willful by the division Bench, Learned Single Judge declined contumacious conduct for the court to either proceed the prayer—Issued notice to IFCI through Managing E with conviction or impose sentence and that too such Director (contemnor herein) and the Recovery Officer a harsh one—All the three appeals are liable to be (contemnor herein)—Mr. Atul Kumar Rai is the E allowed—Orders of conviction dated 06.02.2012 and Managing Director of IFCI Limited—No notice was order on sentence dated 19.03.2012 are liable to be issued to him by name but only by designation—In set aside with the acceptance of apology on the part response to the contempt notice, affidavits were filed F of Ms. Shalini Soni and Mr. R.K. Bansal while Mr. Atul by all the three contemnors—They all tendered Kumar Rai is held not to have any role in the matter in F unconditional apology—All the three contemnors were issue. found guilty of contempt—Sentenced to undergo simple imprisonment for a period of one month—IFCI We are of the view that especially taking into consideration G as an institution has been imposed with a fine of Rs. the orders of the Division Bench dated 06.12.2010, the 5 lakh out of which Rs. 3,50,000/- should be deducted G controversy ought to have been put to a rest when the from the salary of Mr. Atul Kumar Rai while the balance Official Liquidator itself wanted to withdraw the contempt amount should be deducted from the salary of Ms. petition on 08.03.2011. The learned single Judge did not even permit that but proceeded to issue notices further to Shalini Soni—Appeals—Held:- We are of the view that H the controversy ought to have been put to a rest the Managing Director of IFCI by designation and Recovery when the Official Liquidator itself wanted to withdraw H Officer ostensibly to know whether the Recovery Officer was the contempt petition on 08.03.2011—The learned aware of the orders passed by the learned Company Judge single Judge did not even permit that but proceeded on 08.10.2009 when he passed the orders dated 22.02.2010. I I Atul Kumar Rai v. Koshika Telecom Limited (Sanjay Kishan Kaul, J.)745 746 Indian Law Reports (Delhi) ILR (2012) IV Delhi No notice was issued to Mr.Atul Kumar Rai in person, but A FOR THE RESPONDENTS : Mr. Rajiv Bahl Advocate for R-1/ since the affidavits filed on behalf of IFCI were not by the A OL. Mr. P.S. Bindra, Advocate for Managing Director, even the Managing Director filed his R-2. personal affidavit. All the three contemnors had tendered CASES REFERRED TO: unqualified apology and the Recovery Officer had stated in B so many words that he should have been more careful in 1. Allahabad Bank vs. Canara Bank & Anr.; 2000(4) SCC analyzing the papers before him. This is of course apart B 406. from the fact that we are of the view that the order dated 2. Central Bank of India vs. Sarojini Kumari; 1999 Cri L.J. 08.10.2009 itself was not free from doubt for the manner in 2130 (RAJ). which it was framed. (Para 34) C 3. Supreme Court Bar Association vs. Union of India & We find that there is no case whatsoever of contempt made C Anr.; (1998) 4 SCC 409. out against Mr.Atul Kumar Rai while Ms.Shalini Soni ought to 4. Shri Baradakanta Mishra vs. The Registrar of Orissa HC have been more careful in first assailing the order dated and Anr. and State of Orissa vs. Shri Baradakanta Mishra 08.10.2009 in appeal before filing an application before the D & Anr; AIR 1974 SC 710. Recovery Officer on which orders were passed on D RESULT: Appeals Allowed. 22.02.2010. Similarly, the Recovery Officer ought to have perused the reply filed by the Official Liquidator. Given this SANJAY KISHAN KAUL, J. situation, unqualified apology tendered more than met the E 1. The contempt jurisdiction has to be exercised with care and requirement as it was not a case of any willful contumacious caution by a court. It is not to be used either with vindictiveness or to conduct for the court to either proceed with conviction or E “teach a lesson”. The civil contempt involves a private injury and ought impose sentence and that too such a harsh one.(Para 35) to be punished when a degree of misconduct is involved and proved. We are, thus, of the unequivocal view that all the three F “The defiance should be willful and intentional as opposed to unintentional, appeals are liable to be allowed, orders of conviction dated accidental, casual or bona fide conduct.” {Central Bank of India Vs. 06.02.2012 and order on sentence dated 19.03.2012 are F Sarojini Kumari; 1999 Cri L.J. 2130 (RAJ)}. There has to be a conscious liable to be set aside with the acceptance of apology on the effort or attempt on the part of the contemnor to willfully disobey the part of Ms.Shalini Soni and Mr.R.K.Bansal while Mr.Atul G orders of a court and the discretion given to the Court, while arming it Kumar Rai is held not to have any role in the matter in issue. with contempt power, has to be exercised to ensure that the dignity of (Para 37) the court and majesty of law is maintained. 2. A contemnor must always be given an opportunity to repent. The repentence on the part of the [Vi Ba] G contemnor and tendering of unqualified apology should be permitted to APPEARANCES: H help him escape from rigorous punishment. The courts cannot be unduly touchy on the issue of contempt where orders have not been implemented FOR THE APPELLANT : Mr. Mukul Rohatgi, Sr. Adv. with forthwith especially when the effect of those very orders is effaced by Mr. Suresh Dobhal, Ms Alapna H pronouncements from appellate courts. We hasten to add that this is not Poddar and Mr. Rahul Tyagi, meant to be a licence for violation of an order till it subsists. It is in this Advocates. I context that it was observed by a Constitution Bench of the Supreme Court in Shri Baradakanta Mishra v. The Registrar of Orissa HC

I Atul Kumar Rai v. Koshika Telecom Limited (Sanjay Kishan Kaul, J.) 747 748 Indian Law Reports (Delhi) ILR (2012) IV Delhi and Anr. and State of Orissa v. Shri Baradakanta Mishra & Anr; A 6. In order to recover its dues, IFCI filed recovery proceedings AIR 1974 SC 710 that “A heavy hand is wasted severity where a lighter which were registered as RC No.43/2006. In those proceedings, IFCI sentence may serve as well.” In the same judgment, it was observed as filed an application for sale of property (towers) mentioned in schedule, under: which were hypothecated with it. The Recovery Officer on 18.12.2007 A directed attachment and sale of the hypothecated properties of M/s Koshika. “We ought never to forget that the power to punish for contempt B However, in view of the appointment of the Official Liquidator, an large as it is, must always be exercised cautionsly, wisely, and application was filed in the company petition by the Official Liquidator with circumspection. Frequent or indiscriminate use of this power aggrieved by the order dated 18.12.2007. In the meantime, some of the in anger or irritation would not help to sustain the dignity or B hypothecated assets were sold by IFCI in its auction and part of the sale status of the court, but may sometimes affect it adversely.” proceeds amounting to Rs. 12 crores came to be deposited with it. The (Special Reference No.1 of 1964; (1965) 1 SCR 413; referred to C application so filed by the Official Liquidator was, however, withdrawn in Baradakanta Mishra) on 05.02.2008 with liberty to file an appeal under Section 30 of The 3. We have set out the parameters and the legal position at the C Recovery Of Debts Due To Banks And Financial Institutions Act, 1993. threshold itself before analyzing the facts of the case. This became (‘the RDDBFI Act’ for short) necessary as we are faced with a situation where despite the opposite D 7. The Official Liquidator thereafter filed an appeal before the DRT party expressing against pursuing the contempt in view of certain against the order dated 18.12.2007 of the Recovery Officer which was subsequent orders, the learned single Judge has taken upon himself to dismissed on 25.07.2008. The DRT relied upon the judgment in Allahabad proceed with the civil contempt, to convict the parties of contumacious D Bank v. Canara Bank & Anr.; 2000(4) SCC 406 where it was held conduct and willful disobedience and thereafter sentence them to heavy that even if a company is in liquidation, the provisions of RDDBFI Act fine and simple imprisonment. E allow the RO to sell the properties of the debtors by giving notice and 4. IFCI limited advanced loans to M/s Koshika Telecom Ltd. for hearing to the OL and that the adjudication, execution and distribution of setting up a telecom business. The loans were secured by hypothecation E the sale proceeds and working out priorities as between banking and of the tower and other movable assets and two of the directors of the financial institutions and other creditors of the company so far as the company gave personal guarantees. The service of the loan became F monies realized under the RDDBFI act are concerned, has to be done by irregular and since there were persistent defaults, IFCI filed proceedings the Tribunal and not by the Company Court. before DRT for recovery of its debts, which was registered as OA F 8. The Official Liquidator thereafter filed an appeal before the DRAT No.148/2002. The financial status of M/s Koshika Telecom Limited, which was disposed of on 05.11.2008 as compromised by the parties however, continued to deteriorate, resulting in a winding up petition and thereafter the Recovery Officer proceeded to sell the remaining bearing No.75/2002 being filed before the company court titled as “Lord G properties in auction. Krishna Bank Ltd. v. Koshika Telecom Limited”. The company was G wound up vide order dated 02.08.2005 and the Official Liquidator took 9. The IFCI filed an application before the Recovery Officer praying over charge of its assets. for the proceeds realized from sale of assets to be made over to IFCI as the Official Liquidator had received only one claim which was yet to 5. The application filed by IFCI before the DRT was disposed of H be verified and no other claim had been received either from the workmen on 20.04.2006 holding M/s Koshika Telecom Limited liable for a sum of H or from secured or unsecured creditors. The total realization from the Rs.233,73,92,900.27 along with pendente lite and future interest @ 10% assets sold by IFCI, being in the range of about 12 crores, a large per annum from 19.07.2002 till realization with costs of Rs.1.5 lakhs and amount of the debt of IFCI remained unsatisfied. This application was, the Recovery Certificate was issued in terms thereof. however, opposed by the Official Liquidator. It appears that that the I I Atul Kumar Rai v. Koshika Telecom Limited (Sanjay Kishan Kaul, J.)749 750 Indian Law Reports (Delhi) ILR (2012) IV Delhi Official Liquidator had a meeting with Ms.Shalini Soni, AGM (one of the A 11. A meeting is stated to have been held again between the Official contemnors) on 19.08.2009 where a decision was taken that the sale A Liquidator and Ms Shalini Soni on 26.10.2009 for deposit of sale proceeds proceeds of the land will be deposited with the Official Liquidator. The and expenses for advertisement and the Official Liquidator filed a report Official Liquidator filed a compliance/status report No.281/2009 dated bearing no.13/2010 on 12.01.2010 for directions to IFCI to deposit the 06.10.2009 before the learned Company Judge and requested for B sale proceeds with the Official Liquidator. appropriate directions to be issued inter alia for publishing the claims 12. The IFCI limited instead of depositing the sale proceeds with once again in newspapers with the expenses to be borne by the IFCI, the B the Official Liquidator, chose to file an application on 09.12.2009 before secured creditor, and for directions to be given to IFCI to deposit the the Recovery Officer praying that the sale proceedings received from the sale proceedings with the Official Liquidator forthwith. On 08.10.2009, sale of assets of M/s Koshika Telecom Limited be directed to be the learned Single Judge took the report on record and issued the following C appropriated by the IFCI Limited in partial discharge of the Recovery order: C Certificate. This application was allowed by the Recovery Officer on “Directions may also issue to IFCI, as prayed for, including a 22.02.2010 with a direction that IFCI would furnish an undertaking by direction to the IFCI to pay for the expenses of the publication an competent officer that in future if any eligible claim in excess of the of the advertisement inviting the claims.” D amount available with the Official Liquidator is received by the Official Liquidator, the requisite amount will be remitted to the Official Liquidator 10. The aforesaid order thus shows that while a specific direction D within seven days. This was apparently so because other than the amount was issued to the IFCI to pay the expenses of the publication of realized from the movable assets, IFCI stands in queue with other unsecured advertisement inviting the claims, no other specific direction was issued. creditors, secured creditors and the workmen’s liability naturally take A specific direction was worded in a manner as if it was “inclusive” E precedence over it. The Recovery Officer also directed that a sum of while the general directions were that all the directions, as prayed for, Rs.1 crore will be kept with the Official Liquidator on provisional basis may be issued to the IFCI. If one was to turn to the report dated E for defraying various expenses. The Official Liquidator was, however, 06.10.2009, there were a number of directions prayed for against IFCI: aggrieved by the non compliance of the directions of the learned Company i) Permission to publish the claims once again in newspapers F Judge dated 08.10.2009 and thus filed a petition under Sections 11 and with costs borne by IFCI. 12 of The Contempt of Courts Act, 1971, which was registered as CCP No.30/2010 in Company Petition No.75/2002 arraying Ms. Shalini Soni ii) IFCI to provide details consisting of date of sale, amount of F alone as a respondent/contemnor for not depositing the sale proceeds sale and date of handing over the possession to the auction G with the Official Liquidator. purchasers. 13. The Official Liquidator also filed an appeal before the DRT iii) IFCI to deposit the sale proceeds with the Official against the order of the Recovery Officer dated 22.02.2010 which was Liquidator forthwith. G allowed by the DRT on 11.06.2010 partially observing that that the iv) IFCI to ensure availability of security guards for protection H Official Liquidator would be entitled to the amount to the extent of value of properties of the M/s Koshika Telecom Limited and to provide of the land of the company while IFCI is entitled to the amount received details of guards along with photographs, details of PF/ESI and from the sale of movable assets including microwave ovens and details of payment made to them, attendance sheet, the attendance H machineries. The IFCI also preferred an appeal being Appeal No.286/ sheet, the salary register and the account form which payment 2010 before the DRAT being aggrieved by the aforesaid order of the I is realized to guards etc. DRT. This appeal was dismissed on 13.07.2010 by the DRAT. 14. The IFCI assailed the order of the DRT and DRAT in WP(C) I Atul Kumar Rai v. Koshika Telecom Limited (Sanjay Kishan Kaul, J.)751 752 Indian Law Reports (Delhi) ILR (2012) IV Delhi No.5014/2010. The Division Bench (of which one of us Sanjay Kishan A advertisements would be borne by the IFCI out of the amount lying in Kaul, J. was a member) issued notice on the writ petition on 28.07.2010 account with IFCI. The Division Bench noted in its order dated 06.12.2010 and stayed the orders of the DRT and DRAT relating to realization of the that the counter affidavit of the Official Liquidator did not enlighten them amounts from the IFCI. any further and it was not disputed that no claims had been received in A pursuance to the first advertisement except one claim, but even the 15. Since the contempt petition filed in the company petition was B particulars of that claim had not been set out nor the same had been pending, Ms Shalini Soni filed reply to the contempt petition pleading that verified. The costs of advertisements were not indicated nor was the IFCI had given all the information called for by the Official Liquidator; Official Liquidator in a position to state so even on the date of hearing. though IFCI was ready to bear the expenses for the advertisement, the B The Division Bench found that the facts of the case were peculiar as the Official Liquidator had not quantified the expenses, and that, the sale money was lying with IFCI, a public financial institution, to the extent proceeds as per the order of the Recovery Officer had been kept by IFCI C of sale realization from the immovable properties in respect of which the in a no-lien interesting bearing account and the rest in FDR with a IFCI was not a secured creditor, but no other claims had been verified nationalized bank. It was stated that when no claims were received by to show that there were other unsecured creditors or claim of workmen the Official Liquidator, the IFCI filed the application for release of the C which was yet to be satisfied. The amount realized from sale of both the entire amount to it and the Recovery Officer had allowed that application movable and immovable assets was not even fraction of the amount except a sum of Rs.1 crore to be kept with the Official Liquidator. The D which was due to the petitioner under the decree. The operative paragraphs DRT had modified the order to the extent that the IFCI will be allowed of the order dated 06.12.2010 are as under: to retain monies received from the sale of movable properties and the D appeal of IFCI before DRAT was dismissed. The matter was pending in “11.The function of the OL is only to ensure that the claims of writ petition before the High Court. secured creditors are satisfied to the extent it can be and unsecured E creditors get the remaining amount pari passu. No such unsecured 16. The WP(C) No.5014/2010 was allowed on 06.12.2010. The creditor has come to light despite an advertisement being issued. Division Bench noticed that the counsel for IFCI on the first date itself E The OL is somehow keen only for the amount to be transmitted had confined the grievance to the direction contained in the order dated to it, the objective of which is not clear to us. If there were 11.06.2010 of the DRT affirmed by the DRAT vide Order dated other claims then naturally the role of OL comes into play and 13.07.2010 to the extent that it directed that realization from sale of F he would have to distribute the amount pari passu. The amount immovable assets should be deposited with the Official Liquidator. The F is secured as it is lying with the petitioner-Corporation, which is order dated 28.07.2010 issuing notice recorded the concession of the a public financial institution, and has been only provisionally learned senior counsel for IFCI that there was no dispute with the appropriated in terms of the orders of the Recovery Officer. proposition that IFCI is not a secured creditor qua the amount realized G from sale of immovable properties and thus the lien of employees would 12. We thus consider it appropriate to modify the impugned have precedence and if there was any other unsecured creditor, whose G orders and permit the petitioner to retain the amount realized claim is verified, the claim of the IFCI would stand alongside such against sale of immovable properties making it clear that the unsecured creditor. However, no such claim had been received despite claims of any unsecured creditors would rank pari passu with an earlier advertisement, but in case any such claim was received in H that of the petitioner-Corporation to that extent and the claim of pursuance to a subsequent advertisement, the same could be dealt with workmen would first have to be satisfied. Insofar as the as recorded in that order especially keeping in mind the undertaking H advertisement costs are concerned, the OL to communicate the already given by the IFCI pursuant to the order of the Recovery Officer costs in writing to the petitioner-Corporation and the petitioner- dated 22.02.2010. Learned counsel conceded that the expenses for future Corporation will make the payment to OL of that amount along I I Atul Kumar Rai v. Koshika Telecom Limited (Sanjay Kishan Kaul, J.) 753 754 Indian Law Reports (Delhi) ILR (2012) IV Delhi with 20 per cent additional amount to defray the incidental A which have already been sketched out hereinabove were set out in the expenses. The petitioner-Corporation will abide by the undertaking A affidavit. The affidavit states that the IFCI was given copies of the given on its behalf before the DRT as well as before us on orders passed by the learned Company Judge on 08.10.2009 for the first 28.07.2010. time on 22.02.2010 as annexures to the reply filed before the Recovery Officer and that in the prior meeting held on 26.10.2009 in the chamber 13. The writ petition is allowed in the aforesaid terms leaving the B of the Official Liquidator, attended by Ms Shalini Soni, AGM, copies of parties to bear their own costs.” B the order dated 08.10.2009 and report no.281/2009 were not supplied. It 17. The effect of the aforesaid order is that IFCI was held entitled is also stated that since the Official Liquidator was aggrieved by the order to retain the amounts both from the sale of movable and immovable passed by the Recover Officer on 22.02.2010, an appeal was filed before assets of M/s Koshika Telecom Limited subject to the other directions C the DRT which was partially allowed on 11.06.2010. The order dated contained as aforesaid. This should have brought an end to the controversy C 11.06.2010 had been challenged by the IFCI before the DRAT which qua the amount i.e. the issue arising as to whether this amount had to challenge was rejected on 13.07.2010 and it is thereafter that WP(C) be deposited by the IFCI with the Official Liquidator. However, this did No.5014/2010 was filed. The Official Liquidator filed a counter affidavit not happen even though the Official Liquidator sought to withdraw the in that writ petition taking all the pleas including that IFCI was in contempt D contempt proceedings on 08.03.2011 before the learned single Judge in of order dated 08.10.2009, but the writ petition was allowed on 06.12.2010. view of the orders passed by the Division bench on 06.12.2010. The D It was also emphasized that the plea of the Official Liquidator seeking learned single Judge in effect declined the prayer for withdrawal of the appropriation of the amount was contrary to the judgment of the Supreme contempt proceedings and wanted to enquire as to whether the Recovery Court in Allahabad Bank v. Canara Bank & Anr.’s case (supra) as Officer was aware of the orders passed by the learned Company Judge E it is the Recovery Office alone who could have prioritized the debt on 08.10.2009 while passing the orders dated 22.02.2010 and consequently amongst banks, financial institutions and other creditors. It appears that the Official Liquidator did not press the withdrawal of the contempt E at the insistence of the learned Single Judge, the Managing Director also proceedings. The learned single Judge proceeded to issue notice for the filed a personal affidavit on 11.08.2011 tendering an unconditional apology first time on 23.05.2011 to IFCI through its Managing Director (contemnor F stating that he had no knowledge of the developments leading to the filing herein) and the Recovery Officer (contemnor herein). The Recovery of the contempt petition nor was he aware of the orders passed on Officer was issued the notice as to why he had passed the order on 08.10.2009. 22.02.2010 contrary to the order of the learned Company Judge dated F 20. The affidavit filed by Ms.Shalini Soni is more or less in the 08.10.2009. It may be added that Mr.Atul Kumar Rai is the Managing G same terms as of Mr.Avinash Kumar. While tendering an unqualified Director of IFCI Limited and the contemnor before us, but no notice was apology, it has been categorically stated that she had attended a meeting issued to him by name, but only by designation. This order was passed called by the Official Liquidator on 26.10.2009 where she had expressed despite the learned single Judge being apprised of the order passed by the G her readiness to fulfil all the requirements for compliance of the orders Division Bench on 06.12.2010 putting the controversy at rest. of the court and to furnish the relevant information. However, the expenses 18. In response to the contempt notice, affidavits were filed by all H were not quantified for inviting the claims and thus IFCI could not have the three contemnors. It would be appropriate now to deal with each of deposited the amount without knowing how much to deposit. The Official these affidavits separately. Liquidator was also a party to the sale proceedings conducted by the H Recovery Officer and was a part of the Assets Sale Committee constituted 19. On behalf of IFCI, initially a reply supported by an affidavit of I for purposes of sale of assets of M/s Koshika Telecom Limited. Sh. Avinash Kumar as Assistant General Manager was filed whereby an unconditional apology was tendered to the Court. The relevant facts 21. The affidavit of Mr.R.K.Bansal, the Recovery Officer, also

I Atul Kumar Rai v. Koshika Telecom Limited (Sanjay Kishan Kaul, J.)755 756 Indian Law Reports (Delhi) ILR (2012) IV Delhi tenders unqualified apology. The factual position has been explained in A Judge dated 06.02.2012 holding him guilty of contempt by filing a special the affidavit stating that the copy of the order dated 08.10.2009 itself did leave petition being SLP No.6394/2010 before the Supreme Court which not indicate that IFCI had been directed to remit the entire sale proceeds was disposed of on 17.02.2012. The Supreme Court noticed that the of the assets of the M/s Koshika Telecom Limited to the Official Liquidator. controversy related to the issue as to whether an appeal would lie under A This aspect became clear only when the order dated 08.10.2009 is read Section 19 of the Contempt of Courts Act, 1971 before the Division with the compliance/status report no. 281/2009 dated 06.10.2009. At the B Bench of the High Court against the order of conviction or whether both time of hearing of the application of IFCI, it is pleaded that true spirit of the order of conviction and sentence have to be assailed only at the stage the order dated 08.10.2009 passed by the learned Company Judge was when the order of sentence is passed i.e. that the order of conviction not brought to the notice of the Recovery Officer by any of the parties B cannot be assailed in appeal. The Supreme Court did not express any during the course of the arguments. He further goes on state in para 10 final opinion on this question in the order dated 17.02.2012 as undisputably C of the affidavit as under: an appeal would be maintainable after pronouncement of punishment/ sentence by the High Court. The special leave petition was accordingly “ 10. That in the hindsight, the Deponent states that he ought to disposed of with a direction that the punishment/sentence imposed upon have read the entire application and the reliefs/directions that had C the petitioner would remain suspended for a period of four weeks to been sought by the Official Liquidator. This as stated, was a enable the petitioner to file an appeal to seek an appropriate order from bona fide oversight and was totally unintentional.” D the appellate court in terms of Section 19(2) of the Contempt of Courts 22. We may notice that all the contemnors had appeared before the Act, 1971. The SLP of Ms.Shalini Soni was, however, listed on 23.02.2012 Court also and submitted to tender an unqualified apology. The learned D which was disposed of on the analogy of SLP(C) No.6394/2012. single Judge, however, in terms of the order dated 06.02.2012 while Mr.R.K.Bansal, however, did not file any SLP. The learned single Judge noticing the apology tendered in the affidavits, has still found them guilty E thereafter heard the parties on 24.02.2012, 01.03.2012 and 06.03.2012 of contempt and stated that the fact of the apology was only a matter before reserving the judgment. It may be noticed that in the meantime an to be considered as a mitigating circumstance on the point of sentence. E application for review had also been filed by Mr.Atul Kumar Rai on The learned single Judge found that the order passed by the Recovery 21.02.2012, on which also arguments were heard. The learned single Officer on 22.02.2010 showed that the order passed on 08.10.2009 by Judge found that adopting the path of pardon for the contemnors was the learned Company Judge was duly communicated to Ms Shalini Soni F yielding disastrous results as far as the sanctity and obedience of judicial which in turn would amount to a communication to IFCI including its orders was concerned and litigants were gathering the impression that F Managing Director. The remedy, as per the opinion of the learned single the moment apology is tendered even while maintaining that no contempt Judge, if IFCI was aggrieved by the order dated 08.10.2009, was to was committed, the Court would melt down and pardon them. The assail it in appeal and merely because the order dated 08.10.2009 ultimately learned single Judge was thus not inclined to show any leniency and G became inoperative on account of orders passed by the Division Bench found it a dangerous trend that the parties obtained relief from the was held not to assist the contemnors. The learned single Judge from G subordinate authorities which stood declined by this Court. All the three observations in para 16 appears to have been weighed down by the fact contemnors were sentenced to undergo simple imprisonment for a period that the IFCI is a public financial institution having a legal department and of one month. IFCI as an institution has been imposed with a fine of Rs. thus should have acted in accordance with law. Similarly, qua the Recovery H 5 lakhs, out of which Rs.3,50,000/- should be deducted from the salary Officer, it has been found that the order dated 08.10.2009 had been of Mr.Atul Kumar Rai while the balance amount should be deducted from placed before him in the record, the defence that this was not specifically H the salary of Ms.Shalini Soni. pointed out to him cannot be accepted. 24. The three contemnors have thus assailed the orders of conviction 23. Mr.Atul Kumar Rai assailed the order of the learned single and sentence before us in these appeals. I I Atul Kumar Rai v. Koshika Telecom Limited (Sanjay Kishan Kaul, J.)757 758 Indian Law Reports (Delhi) ILR (2012) IV Delhi 25. We have heard the learned counsel for the appellants as well as A the debtors by giving notice and hearing to the OL and that the adjudication, the learned counsel for the Official Liquidator. The learned counsel for A execution and distribution of the sale proceeds and working and priorities the Official Liquidator has really nothing to add and in fact stated that the as between banking and financial institutions and other creditors of the Official Liquidator had formed an opinion to withdraw the contempt company so far as the monies realized under the RDDBFI Act are proceedings in view of the subsequent orders of the Division Bench B concerned, has to be done by the Tribunal and not by the Company dated 06.12.2010, but this request was declined by the learned single Court. It was under the belief of such a bona fide view that the proceedings Judge who proceeded to hear the contempt petition on merits. One B were initiated before the Recovery Officer. common thread which permeates the submissions advanced on behalf of 27. One may add that it cannot be disputed that the controversy all the three contemnors is that the counsels accept that the appropriate qua these amounts stood at rest in view of the judgment of the Division remedy against the order dated 08.10.2009 of the learned Company C Bench of this Court on 06.12.2010 and interim protection had been Judge was for IFCI to have approached the appellate court. This was not C granted in those proceedings on 28.07.2010. Thus the view propounded done. It was, however, submitted that the appellants had tendered by IFCI, in fact, prevailed. This order has not been assailed further and unqualified apology and were not motivated by any personal gains. The has become final and binding. Of course, this would not be an answer IFCI was only seeking to recover its dues and the amounts realized were D to the plea that between 08.10.2009 and the orders being passed by the only a fraction of the total amount found due under the Recovery Division Bench, the IFCI was required to comply with the directions of Certificate. The function of the Official Liquidator was to protect the D the learned Company Judge or ought to have assailed the same in appeal monies and assets of the company in liquidation (M/s Koshika Telecom which they failed to do. Limited), to meet liabilities of the creditors, statutory dues, workmen’s dues etc. An advertisement was published by the Official Liquidator in E 28. One cannot but take notice of another fact. On the company various newspapers, but except for one claim no other claims were going into liquidation, reports are filed by the Official Liquidator from lodged. This shows that there were no other secured or unsecured E time to time on which orders/directions are passed by the Company creditors or workmen’s dues. The single claim received had also not Court. These are stated to be in the nature of chamber proceedings been verified. The IFCI is a public sector enterprise and the money was F though we are informed that as per the current practice, the learned as safe with it as with the Official Liquidator. The assets had been sold Judge for convenience sake takes these matters in court. The compliance/ with the Official Liquidator on the Assets Sale Committee and thus there status report no.281/2009 filed by the Official Liquidator on 06.10.2009 was complete transparency in the sale of the assets. The IFCI had F sought various directions which have been set out by us while discussing already given an undertaking that in case any claims were lodged by even this report. The learned Company Judge while passing the order dated G unsecured creditors, they would stand pari passu with such claims or 08.10.2009 did not issue specific directions qua all the prayers made. In workers claims qua the unsecured assets of M/s Koshika Telecom Limited. fact, what was observed was that the directions may also issue to IFCI, “as prayed for”, followed up with the expression “including a direction 26. The learned counsel appearing for Ms.Shalini Soni confessed G to the IFCI to pay for the expenses of the publication of the advertisement that it may have been a case of over-enthusiasm on the part of Ms.Shalini inviting the claims.” Thus, on the one hand, learned Company Judge Soni to secure the amount for IFCI Limited on the basis of a legal H considering one of the directions as an important one, has issued a understanding that there were two separate proceedings and that the specific direction while not issuing such a specific direction qua the issue rights of IFCI were protected in the proceedings before the DRT. This of deposit of the amount by IFCI with the Official Liquidator. If one may was stated to be not a whimsical view of Ms.Shalini Soni, but that the H say so, certainly some ambiguity could arise from the interim directions Supreme Court itself in Allahabad Bank v. Canara Bank & Anr.’s I passed. case (supra) had opined that for a company in liquidation, the proceedings of the RDDBFI Act allow the Recovery Officer to sell the properties of 29. We are of the view that the complete controversy stood examined I Atul Kumar Rai v. Koshika Telecom Limited (Sanjay Kishan Kaul, J.)759 760 Indian Law Reports (Delhi) ILR (2012) IV Delhi in the order passed by the Division Bench on 06.12.2010. We have A transaction or each dispute. The matter pertained to a loan account already reproduced the operative portion of the directions hereinbefore to which had resulted in a Recovery Certificate. It is not as if this aspect indicate the line of reasoning which weighed with the Division Bench. was brought to the notice of the board or the Managing Director at any The function of the Official Liquidator was not to keep monies with itself stage when proceedings were taking place with discussions between A for the sake of it. The Official Liquidator is a custodian for purposes of Ms.Shalini Soni and the Official Liquidator for utilization of the sale meeting the claims of various kinds of creditors, statutory dues and B proceeds. Merely because Mr.Atul Kumar Rai happens to be the Managing workmen’s dues. In the facts of the present case, even the first Director will not fasten him with a vicarious liability especially in the advertisement issued by the Official Liquidator did not result in any nature of such contempt jurisdiction and thus Mr.Atul Kumar Rai cannot claims whatsoever except one claim. This fact had to be balanced with B be faulted at all. Despite this, assuming the overall responsibility as a head the astronomical claim outstanding to IFCI from the company in liquidation of the organization, Mr.Atul Kumar Rai had tendered an unqualified apology C (M/s Koshika Telecom Limited) where only a fraction was realized from while stating that it was the then Chief General Manager of IFCI who sale of assets. IFCI is a public sector enterprise and the monies were was looking to the aspect in question. Mr.Atul Kumar Rai is the CEO and fully secured with it. IFCI had also given an undertaking that it is only C MD of IFCI apart from the additional responsibilities of subsidiaries of qua the hypothecated material that it could appropriate the amounts while IFCI being IFCI Infrastructure Limited, IFCI Factors Limited, IFCI the amounts realized from the remaining assets were available for all D Venture Capital Funds Limited and IFCI Financial Services Limited. The kinds of creditors. Thus whether the amount would lie with the Official organizations work in an established procedure of hierarchy and it is Liquidator or IFCI, it was equally secure especially when there were no informed that IFCI alone has more than 600 cases pending all over the other claims forthcoming which would reduce the entitlement of IFCI to D country, having a lending portfolio in excess of Rs.16,000 crores. appropriate the balance amount. 33. We may usefully refer to the provisions of Section 12 of the E 30. One cannot also lose sight of the fact that, it is not an endeavour Contempt of Courts Act, 1971 in respect of the aforesaid. Section 12(4) by any individual to appropriate the amounts to itself contrary to orders of the said Act reads as under: of the Court. Ms.Shalini Soni was of the bona fide view that the rights E “ (4) Where the person found guilty of contempt of court in of the IFCI to appropriate the amount should be agitated before the respect of any undertaking given to a court is a company, every Recovery Officer on account of the proceedings arising from the Recovery F person who, at the time the contempt was committed, was in Certificate. This view apparently had its basis in the judgment of the charge of, and was responsible to, the company for the conduct Supreme Court in Allahabad Bank v. Canara Bank & Anr.’s case F of business of the company, as well as the company, shall be (supra). The only fault of Ms.Shalini Soni was that once the order was deemed to be guilty of the contempt and the punishment may be passed by the learned Company Judge on 08.10.2009 and the IFCI was enforced, with the leave of the court, by the detention in civil aggrieved by it, before approaching the Recovery Officer, judicial propriety G prison of each such person. demanded that the order dated 08.10.2009 ought to have been assailed G before the appellate court. Provided that nothing contained in this sub section shall render any such person liable to such punishment if he proves that the 31. Similarly, the Recovery Officer ought to have been also more contempt was committed without his knowledge or that he careful (the fact which he admits in its affidavit) before passing the order H exercised all due diligence to prevent its commission.” dated 22.02.2010, to call upon the IFCI to take out the necessary H proceedings to first get the order dated 08.10.2009 stayed. (emphasis supplied) 32. Insofar as Mr.Atul Kumar Rai is concerned, we may note that Thus, the aforesaid makes it clear that merely because a corporate entity it is not as if the head of the institution looks to the nitty gritty of each is alleged to have committed contempt would not be a ground to make I I Atul Kumar Rai v. Koshika Telecom Limited (Sanjay Kishan Kaul, J.)761 762 Indian Law Reports (Delhi) ILR (2012) IV Delhi the CEO/Managing Director or head of the organization liable for contempt A possible making all allowances for errors of judgment and difficulties if he had no knowledge of the same. If in the perspective of this Section, A arising from inveterate practices in courts and tribunals. The punishment the aforesaid facts are analyzed, we find that Mr.Atul Kumar Rai as CEO and that too with such severity would arise only in a case of clear has categorically averred in his affidavit that he was not aware of the contumacious conduct, which has not been explained. It is only in the proceedings which is not unusual considering 600 cases are pending in B case of a deliberate lapse and disregard to one’s duties and in defiance respect of IFCI and the CEO cannot be expected to look to each case of authority that such extreme measures are called for. To take action B unless it is brought to his notice. in a case where the contemnor has unconditionally apologized even though the lapse is not deliberate would “certainly sound the death knell of what 34. We are of the view that especially taking into consideration the Dean Roscoe Pound calls “judicial justice” and the Rule of Law.” (In orders of the Division Bench dated 06.12.2010, the controversy ought to C Re: S.Mulgaonkar (1978) 3 SCC 339) have been put to a rest when the Official Liquidator itself wanted to withdraw the contempt petition on 08.03.2011. The learned single Judge C 37. We are, thus, of the unequivocal view that all the three appeals did not even permit that but proceeded to issue notices further to the are liable to be allowed, orders of conviction dated 06.02.2012 and order Managing Director of IFCI by designation and Recovery Officer ostensibly on sentence dated 19.03.2012 are liable to be set aside with the acceptance to know whether the Recovery Officer was aware of the orders passed D of apology on the part of Ms.Shalini Soni and Mr.R.K.Bansal while by the learned Company Judge on 08.10.2009 when he passed the orders Mr.Atul Kumar Rai is held not to have any role in the matter in issue. D dated 22.02.2010. No notice was issued to Mr.Atul Kumar Rai in person, 38. We may also notice another aspect of the matter arising from but since the affidavits filed on behalf of IFCI were not by the Managing the quantum of fine imposed on the contemnors. Section 12(1) of the Director, even the Managing Director filed his personal affidavit. All the E Contempt of Courts Act, 1971 Act provides for a fine which may extend three contemnors had tendered unqualified apology and the Recovery to Rs.2,000/-, but the fine imposed in the present case is running into Officer had stated in so many words that he should have been more E lakhs. This is contrary to the statutory provisions. Such fine would not careful in analyzing the papers before him. This is of course apart from be sustainable in view of the observations of a Constitution Bench of the the fact that we are of the view that the order dated 08.10.2009 itself F Supreme Court in Supreme Court Bar Association v. Union of India was not free from doubt for the manner in which it was framed. & Anr.; (1998) 4 SCC 409. However, this matter need not detain us any 35. We find that there is no case whatsoever of contempt made out further since we have already held that the present case is not one which F against Mr.Atul Kumar Rai while Ms.Shalini Soni ought to have been should have invited either a conviction or a sentence. 39. The appeals are allowed in the aforesaid terms leaving the parties to bear their own costs. more careful in first assailing the order dated 08.10.2009 in appeal before G filing an application before the Recovery Officer on which orders were CM No.5248/2012 in Cont.Appeal (C) No.06/2012 passed on 22.02.2010. Similarly, the Recovery Officer ought to have perused the reply filed by the Official Liquidator. Given this situation, G CM No.5834/2012 in Cont.Appeal (C) No.08/2012 unqualified apology tendered more than met the requirement as it was not CM No.6108/2012 in Cont.Appeal (C) No.09/2012 a case of any willful contumacious conduct for the court to either H proceed with conviction or impose sentence and that too such a harsh No further directions are called for on these applications in view of one. the disposal of the appeals. 36. The question whether there is contempt of court or not is a H The applications stand disposed of. serious one as the court is both the accuser as well as the judge of the I accusation requiring the court to act with as great circumspection as

I INDIAN LAW REPORTS DELHI SERIES 2012 (Containing cases determined by the High Court of Delhi) GENERAL INDEX VOLUME-4 INDIAN LAW REPORTS EDITOR DELHI SERIES MS. R. KIRAN NATH 2012 (4) REGISTRAR VIGILANCE VOLUME INDEX CO-EDITOR MS. NEENA BANSAL KRISHNA (ADDITIONAL DISTRICT & SESSIONS JUDGE) REPORTERS

MR. CHANDER SHEKHAR MS. ANU BAGAI MR. TALWANT SINGH MR. SANJOY GHOSE MR. GIRISH KATHPALIA MR. K. PARMESHWAR MR. VINAY KUMAR GUPTA (ADVOCATES) MS. SHALINDER KAUR MR. KESHAV K. BHATI MR. V.K. BANSAL JOINT REGISTRAR MR. L.K. GAUR MR. GURDEEP SINGH MS. ADITI CHAUDHARY MR. ARUN BHARDWAJ (ADDITIONAL DISTRICT & SESSIONS JUDGES)

PUBLISHED UNDER THE AUTHORITY OF HIGH COURT OF DELHI, BY THE CONTROLLER OF PUBLICATIONS, DELHI-110054. LIST OF HON’BLE JUDGES OF DELHI HIGH COURT 25. Hon’ble Mr. Justice Sunil Gaur During July-August, 2012 26. Hon’ble Mr. Justice Suresh Kait 27. Hon’ble Mr. Justice Valmiki J. Mehta 1. Hon’ble Mr. Justice A.K. Sikri, Acting Chief Justice 28. Hon’ble Mr. Justice V.K. Jain 2. Hon’ble Mr. Justice Sanjay Kishan Kaul 29. Hon’ble Ms. Justice Indermeet Kaur 3. Hon’ble Mr. Justice Badar Durrez Ahmed 30. Hon’ble Mr. Justice A.K. Pathak 4. Hon’ble Mr. Justice Pradeep Nandrajog 31. Hon’ble Ms. Justice Mukta Gupta 5. Hon’ble Mr. Justice Anil Kumar 32. Hon’ble Mr. Justice G.P. Mittal 6. Hon’ble Ms. Justice Gita Mittal 33. Hon’ble Mr. Justice M.L. Mehta 7. Hon’ble Mr. Justice S. Ravindra Bhat 34. Hon’ble Mr. Justice R.V. Easwar 8. Hon’ble Mr. Justice Sanjiv Khanna 35. Hon’ble Ms. Justice Pratibha Rani 9. Hon’ble Ms. Justice Reva Khetrapal 36. Hon’ble Ms. Justice S.P. Garg 10. Hon’ble Mr. Justice P.K. Bhasin 11. Hon’ble Mr. Justice Kailash Gambhir 12. Hon’ble Mr. Justice G.S. Sistani 13. Hon’ble Dr. Justice S. Muralidhar 14. Hon’ble Ms. Justice Hima Kohli 15. Hon’ble Mr. Justice Vipin Sanghi 16. Hon’ble Mr. Justice Sudershan Kumar Misra 17. Hon’ble Ms. Justice Veena Birbal 18. Hon’ble Mr. Justice Siddharth Mridul 19. Hon’ble Mr. Justice Manmohan 20. Hon’ble Mr. Justice V.K. Shali 21. Hon’ble Mr. Justice Manmohan Singh 22. Hon’ble Mr. Justice Rajiv Sahai Endlaw 23. Hon’ble Mr. Justice J.R. Midha 24. Hon’ble Mr. Justice Rajiv Shakdher LAW REPORTING COUNCIL DELHI HIGH COURT CONTENTS VOLUME-4, PART-II JULY AND AUGUST, 2012 1. Hon’ble Mr. Justice S. Ravindra Bhat Chairman

2. Hon’ble Mr. Justice Sunil Gaur Member Pages 3. Hon’ble Ms. Justice Pratibha Rani Member 1. Comparative Table ...... (i-iv) 4. Mr. V.P. Singh, Senior Advocate Member 3. Nominal Index ...... 1-4 5. Mr. Maninder Singh, Senior Advocate Member 4. Subject Index ...... 1-110 6. Mr. Mukesh Anand, Senior Counsel of Member 5. Case Law...... 1-762 Union Govt. Attached to the High Court

7. Mr. V.P. Vaish, Registrar General Secretary (ii) COMPARATIVE TABLE ILR (DS) 2012 (IV) = OTHER JOURNAL 307 2012 (3) JCC 1569 JULY AND AUGUST 307 2012 (192) DLT 687 234 2012 (3) AD (D) 521 Page No. Journal Name Page No. Journal Name Page No. 234 2012 (2) JCC 1030 87 2012 (187) DLT 158 No Equivalent 418 2012 (5) RAJ 333 186 2012 (189) DLT 299 418 2012 (130) DRJ 383 657 No Equivalent 143 No Equivalent 444 2012 (186) DLT 405 273 2012 (130) DRJ 116 444 2012 (4) AD (D) 198 119 2012 (3) RAJ 568 741 2012 (188) DLT 693 119 2012 (49) PTC 525 652 No Equivalent 151 No Equivalent 441 2012 (2) JCC 1039 78 No Equivalent 570 2012 (187) DLT 184 219 No Equivalent 570 2012 (2) AD (D) 856 345 No Equivalent 513 No Equivalent 290 2012 (130) DRJ 124 676 2012 (188) DLT 627 194 2012 (188) DLT 556 676 2012 (129) DRJ 361 253 No Equivalent 534 2012 (187) DLT 234 359 2012 (3) JCC 81 (Narcotics) 534 2012 (4) AD (D) 407 359 2012 (130) DRJ 598 509 No Equivalent 176 No Equivalent 480 2012 (127) DRJ 503 30 2012 (127) DRJ 510 613 2012 (3) AD (D) 123 30 2012 (27) STR 8 613 2012 (128) DRJ 334 30 2012 (281) ELT 507 527 2012 (187) DLT 264 50 2012 (3) AD (D) 190 527 2012 (5) AD (D) 18 50 2012 (128) DRJ 611 527 2012 (3) JCC 1737 56 No Equivalent 578 No Equivalent 134 2012 (187) DLT 359 728 No Equivalent 134 2012 (5) AD (D) 35 627 No Equivalent 15 No Equivalent 528 No Equivalent 35 2012 (3) RAJ 384 645 2012 (188) DLT 525 35 2012 (2) AD (D) 446 488 2012 (127) DRJ 714 110 2012 (188) DLT 48 488 2012 (188) DLT 661 110 2012 (5) AD (D) 373 671 No Equivalent 22 No Equivalent 464 2012 (2) AD (D) 511 67 No Equivalent 547 No Equivalent 1 2012 (128) DRJ 111 459 No Equivalent 284 No Equivalent 475 No Equivalent 329 2012 (3) JCC 1518 634 2012 (3) AD (D) 733 213 No Equivalent 634 2012 (2) JCC 1012 (i) 634 2012 (130) DRJ 656 (iv) COMPARATIVE TABLE 2012 (3) AD (D) 521 = ILR (DS) 2012 (IV) 234 OTHER JOURNAL = ILR (DS) 2012 (IV) 2012 (2) JCC 1030 = ILR (DS) 2012 (IV) 234 JULY AND AUGUST 2012 (189) DLT 299 = ILR (DS) 2012 (IV) 186 2012 (186) DLT 405 = ILR (DS) 2012 (IV) 444 Journal Name Page No. = ILR (DS) 2012 (IV) Page No. 2012 (4) AD (D) 198 = ILR (DS) 2012 (IV) 444 2012 (187) DLT = ILR (DS) 2012 (IV) 87 2012 (188) DLT 693 = ILR (DS) 2012 (IV) 741 2012 (5) RAJ 333 = ILR (DS) 2012 (IV) 418 2012 (2) JCC 1039 = ILR (DS) 2012 (IV) 441 2012 (130) DRJ 383 = ILR (DS) 2012 (IV) 418 2012 (187) DLT 184 = ILR (DS) 2012 (IV) 570 2012 (130) DRJ 116 = ILR (DS) 2012 (IV) 273 2012 (2) AD (D) 856 = ILR (DS) 2012 (IV) 570 2012 (3) RAJ 568 = ILR (DS) 2012 (IV) 119 2012 (188) DLT 627 = ILR (DS) 2012 (IV) 676 2012 (49) PTC 525 = ILR (DS) 2012 (IV) 119 2012 (129) DRJ 361 = ILR (DS) 2012 (IV) 676 2012 (130) DRJ 124 = ILR (DS) 2012 (IV) 290 2012 (187) DLT 234 = ILR (DS) 2012 (IV) 534 2012 (188) DLT 556 = ILR (DS) 2012 (IV) 194 2012 (4) AD (D) 407 = ILR (DS) 2012 (IV) 534 2012 (3) JCC 81 (Narcotics) = ILR (DS) 2012 (IV) 359 2012 (127) DRJ 503 = ILR (DS) 2012 (IV) 480 2012 (130) DRJ 598 = ILR (DS) 2012 (IV) 359 2012 (3) AD (D) 123 = ILR (DS) 2012 (IV) 613 2012 (127) DRJ 510 = ILR (DS) 2012 (IV) 30 2012 (128) DRJ 334 = ILR (DS) 2012 (IV) 613 2012 (27) STR 8 = ILR (DS) 2012 (IV) 30 2012 (187) DLT 264 = ILR (DS) 2012 (IV) 527 2012 (281) ELT 507 = ILR (DS) 2012 (IV) 30 2012 (5) AD (D) 18 = ILR (DS) 2012 (IV) 527 2012 (3) AD (D) 190 = ILR (DS) 2012 (IV) 50 2012 (3) JCC 1737 = ILR (DS) 2012 (IV) 527 2012 (128) DRJ 611 = ILR (DS) 2012 (IV) 50 2012 (188) DLT 525 = ILR (DS) 2012 (IV) 645 2012 (187) DLT 359 = ILR (DS) 2012 (IV) 134 2012 (127) DRJ 714 = ILR (DS) 2012 (IV) 488 2012 (5) AD (D) 35 = ILR (DS) 2012 (IV) 134 2012 (188) DLT 661 = ILR (DS) 2012 (IV) 488 2012 (3) RAJ 384 = ILR (DS) 2012 (IV) 35 2012 (2) AD (D) 511 = ILR (DS) 2012 (IV) 464 2012 (2) AD (D) 446 = ILR (DS) 2012 (IV) 35 2012 (3) AD (D) 733 = ILR (DS) 2012 (IV) 634 2012 (188) DLT 48 = ILR (DS) 2012 (IV) 110 2012 (2) JCC 1012 = ILR (DS) 2012 (IV) 634 2012 (5) AD (D) 373 = ILR (DS) 2012 (IV) 110 2012 (130) DRJ 656 = ILR (DS) 2012 (IV) 634 2012 (128) DRJ 111 = ILR (DS) 2012 (IV) 1 2012 (3) JCC 1518 = ILR (DS) 2012 (IV) 329 2012 (3) JCC 1569 = ILR (DS) 2012 (IV) 307 2012 (192) DLT 687 = ILR (DS) 2012 (IV) 307

(iiii) 2

NOMINAL-INDEX “G” VOLUME-4, PART-II Gulshan Rai v. Samrendra Bose Secy & Anr...... 513 JULY AND AUGUST, 2012 Pages Gunjan Sinha Jain v. Registrar General High Court of Delhi ...... 676

“A” Gupta Perfumers (P) Ltd. v. Income Tax Settlement Adarsh Kaur Gill v. Mawasi & Ors...... 87 Commission & Ors...... 345

Ansal Housing & Construction Ltd. v. AJB Developers (P) Ltd...... 418 “H”

Anand Bhushan v. R.A. Haritash ...... 657 Hawa Singh v. CBI ...... 290

Airports Authority of India and Ors. v. State of Jammu Hardwari LAl and Anr. v. Land Acquisition & Kashmir & Ors...... 444 Collector/ADM(W) and Anr...... 194 Atul Kumar Rai v. Koshika Telecom Limited & Ors...... 741 “I” Assem Abbas v. Rajghat Samadhi Committee & Anr...... 143 Inder Singh Bist v. State ...... 253 “B” “J” Budhiraja Mining & Constructions Ltd. v. Ircon International James Eazy Franky v. D.R.I...... 359 Ltd. & Anr...... 273 Jugan K. Mehta v. Sham Sunder Gulati & Ors...... 534 “D” “K” D.D.A. v. VIP Marble Emporium & Ors...... 652 Kanak Lata Jain & Ors. v. Sudhir Kumar Jain & Ors...... 176 DCM Shri Ram Consolidated v. Sree Ram Agro Ltd. & Ors...... 119 Kanhaiya Paswan v. State & Ors...... 509 Dalmia Cement (Bharat) Ltd. v. Hansalya Properties Ltd. & Anr...... 151 Kuldeep Kumar Kohli & Ors. v. The Registrar of Companies Devu Samal v. The State ...... 441 for Delhi and Haryana ...... 480 Directorate of Enforcement v. Subhash Muljimal Gandhi ...... 78 Kwality Ice Cream Company and Anr. v. Union of India and Ors...... 30 Directorate of Gurdwara Elections & Others v. Dashmesh Sewa Society (Regd.) & Others...... 219 “M” Maheshwar Dayal (DECED) v. Shanti Devi & Ors...... 613 “F” Man Singh Decd Thr Lrs v. Gaon Sabha Jindpur & Ors...... 50 Federation of Public Schools v. Government of NCT of Delhi...... 570

1 3 4 Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar Chaudhary “S” & Ors...... 527 Sardar Dalip Singh Loyal & Sons v. Jagdish Singh ...... 67 Mukhinder Singh (Deceased) Through LRs. & Ors. v. Gurbux Singh & Ors...... 578 Shyam Singh Yadav v. National Rifle Association of India ...... 1 Shamim @ Bhura v. The State of Delhi ...... 284 “N” Sharvan Aggarwal v. Kailash Rani ...... 459 Narender Kumar v. Union of India & Ors...... 728 State v. Lal Singh & Ors...... 329 National Insurance Company Ltd. v. Ram Rati Devi & Ors...... 627 State v. Praveen Aggarwal ...... 213 Neelam Prashar & Ors. v. Mintoo Thakur & Ors...... 528 State of NCT of Delhi v. ABU Salem Abdul Qayoom Ansari ...... 307 Nutan Kumari v. CBSE ...... 56 Swiss Timing Ltd. v. CBI & Anr...... 234 “O” “T” O.P. Aggarwal & Anr. v. Akshay Lal & Ors...... 645 Teka Singh @ Titu & Ors. v. State & Anr...... 475 Ocean Plastics & fibres (P) Limited v. Delhi Development Authority & Anr...... 134 “U”

Oriental Insurance Company Ltd. v. Rajni Devi & Ors...... 15 Union of India v. COX & Kings (India) Ltd. Anr...... 158

“P” “V”

Parmanand Kansotia v. Seetha Lath & Anr...... 488 Vijaya Laxmi v. Archaeological Survey of India & Ors...... 186

PEC Limited v. Thai Maparn Trading Co. Limited & Anr...... 35 “Y”

Prashant Dutta & Anr. v. National Insurance Co. Ltd. & Ors...... 671 Yahoo India Pvt. Ltd. v. State & Anr...... 634 Punjab National Bank v. Virendra Prakash & Anr...... 110

“R”

Rangnathan Prasad Mandadapu v. Medical Council of India & Anr. ... 464

Roadlines Corporation (P) Ltd. v. Oriental Insurance Co. Ltd. & Anr...... 22

Royal Sundaram Alliance Insurance Co Ltd. v. Master Manmeet Singh & Ors...... 547 6 SUBJECT-INDEX whether the validation by amendment of the Act of the said VOLUME-4, PART-II permission permitted the extension of time for raising the JULY AND AUGUST, 2012 construction—Court Observed—The permission as recommended by EAC and as granted by Director General, ANCIENT MONUMENT ACT, 1958—Second respondent had ASI were not time bound—Such condition of time was added purchased a property in Nizamuddin East—Sought permission by Superintending Archaeologist while communicating the to construct upon it—Local authorities MCD etc. to process permission to the applicant to ensure compliance— the application for sanction of the plan after the Archaeological Observed—Countersigning Authority cannot add to the Survey of India (ASI) accorded the approval—By virtue of conditions attached to the permission by primary authority— notification dated 16.06.1992 of ASI, all construction within Thus, superintending archaeologist as countersigning 100 meters of the protected monuments were prohibited— Authority, had no power to add to the condition attached to The ASI used to consider application for permission within the permission—Appeal dismissed. this area on case-to-case basis—Constituted an expert Committee—The High Court in an earlier LPA held that the Vijaya Laxmi v. Archaeological Survey of India notification constituting the Expert Committee and consequent & Ors...... 186 permission accorded by it, beyond the authority conferred ARBITRATION AND CONCILIATION ACT, 1996—Section upon the ASI by Act—Had a snow boiling effect since ongoing 33—Indian Evidence Act, 1872—Section 114—Dispute arose construction at various stages throughout country qua contract awarded by Respondent to appellant for carrying jeopardized—The executive step-in and issued an ordinance out earth work for railway formation in construction of minor setting up an Authority to oversee implementation of enactment bridges—To settle dispute, Arbitration clause invoked, and at the same time validating subject to certain condition, arbitrator made and published award in favour of appellant, permission granted by expert committee from time to time— amount was to be paid within two months from date of Later on, the ordinance was replaced by an Act which award—Appellant found clerical mistakes in award and thus amended the Ancient Monument Act, 1958—Appellant filed filed application under Section 33 of Act—Application was writ petition against the grant of permission—Contended the sent on 18.06.2002 by UPC addressed to arbitrator and copy permission granted to the second respondent illegal and could of it was sent to Respondent also—Learned Arbitrator was not be implemented—The permissions conditioned upon time not available in Delhi from 18.06.2002 to 28.06.2002 though would be routinely extended and this defeats the very concept his office and residence remained open—Another of prohibited area—ASI contented before Ld. Single Judge in communication was sent by appellant dated 22.07.2002 once view of the amended provision of the Act, the petition had again under UPC making reference to earlier application dated been rendered merit less—Single Judge accepted the 18.06.2002 received by learned Arbitrator—Appellant was arguments that provision validates the permission and not the informed by office of Arbitrator about non receipt of construction already carried out—The question which arose application dated 18.06.2002—Respondent opposed second was whether the said permission was time bound—If so, application of appellant on ground that no application dated 5 18.06.2002 was moved by appellant and subsequent application 7 8 was time barred—However, learned Arbitrator made necessary detailed agreement for transfer of shares never got executed— corrections in award by way of two applications moved by According to petitioner, it came to know that respondent was appellant—Aggrieved by said order, Respondent filed only having 80 acres of clear and developable contiguous land objections—Learned Single judge though sustained plea of as against false representation of having approximately 150 limitation and reached to a conclusion in favour of Respondent acres of clear land—Said fact was deliberately suppressed by but did not examine merits of the claim of appellant seeking respondent company at the time of execution of MOU whereas correction—Thus, aggrieved appellant preferred appeal— petitioner duly acted upon MOU and made various payments According to Respondent application dated 18.06.2002 sent to respondent company from time to time—Subsequently, under UPC could not raise presumption in favour of petitioner company learnt that promoters of respondent appellant—Held:- Sending a communication by UPC is a mode Company were already in process of transferring share holding of service as an acceptable mode of service and a presumption of Company and immovable assets to third party, therefore can be drawn under Section 114 (f) of Indian Evidence Act, they filed petition seeking restraint orders against respondent 1872 in that regard—This, however, does not mean that Company from transferring, mortgaging creating any charge presumption is not rebuttable and must follow in any case since or lien on share holding of Company etc. and also prayed for there may be surrounding circumstances which may create appointment of Indian arbitrator to adjudicate dispute between suspicion or other facts may be brought to notice which parties—However, Respondent challenged jurisdiction of Delhi would belie plea. courts alleging land was situated in Amritsar and MOU executed between parties was essentially agreement for transfer Budhiraja Mining & Constructions Ltd. v. Ircon of said land and purchase of share holding of respondent International Ltd. & Anr...... 273 Company was only a method for transfer of land—Therefore, — Section 9 & 11—Code of Civil Procedure, 1908—Section 16 petition was hit by proviso of Section 16 (d) of Code—On & 20—Petitioner & Respondent entered into MOU/Agreement behalf of petitioner, it was urged that they were not claiming whereby Respondent company agreed to transfer its rights, specific performance of MOU or possession of land—Also, title and interest in contiguous agricultural land measuring 150 respondent Company had its registered office in Delhi— acres to petitioner for total consideration of Rs. 102 Crores— Petitioner was also in New Delhi, agreement was executed in Petitioner Company agreed for a value derived after reducing New Delhi, meetings of two representatives, both pre and post liabilities of Respondent Company—Separated detailed MOU, took place in Delhi and shares of respondent Company agreement covering all aspects of transaction had to be were agreed to be transferred in Delhi; therefore, Delhi Courts executed within 30 days from date of MOU—Land was situated had jurisdiction—Held:- If an agreement is for sale and on By Pass Road, Village Valla & Village Verka, District purchase of immovable property then Delhi Court does not Amritsar, Punjab, approved by Government of Punjab for has jurisdiction and petition will be required to be filed at a development of residential colony—However, due to failure place where land is situated—Whereas, if it was an agreement of respondent Company in giving specific details of complete to sale and purchase of shares, compliance of which can be contiguous land and its revenue records, measurement, interest obtained by personal obedience then Delhi Court has etc. for purpose of ascertaining value of shares, separate jurisdiction—Relief claimed by petitioner does not simply 9 10 involve transfer of shares in books or in office of Registrar expiry of four years terms till 2009—Again election held— of Companies, but it would also involve transfer of possession Re-elected Treasurer of NRAI for four years which would of land in question—Therefore, Delhi Courts lack jurisdiction expire in 2013—Show cause notice issued by NRAI following over subject matter. the Govt. advice dated 24.12.2010 that petitioner as a serving government servant might not continue as treasurer for a Ansal Housing & Construction Ltd. v. AJB Developers period exceeding four years or one term whichever less, as (P) Ltd...... 418 to why governing body should not consider his removal from CARRIERS ACT, 1865—Sections 8 and 9—Section 10— the post of honorary Treasurer—Meeting of governing body Appellant/defendant took upon transportation of packages of held on 28.03.2011—Show cause notice considered—General colour picture tubes from Malanpur to New Delhi—Goods Body passed resolution to remove the petitioner—Petitioner loaded in truck covered under the Marine Insurance Policy— contended that Central Government Circular not applicable to Truck met with an accident—Respondent/plaintiff suffered him ipso-facto—Further contended that petitioner belongs to loss of Rs. 3,03,715—Notice under Section 10 Carriers Act Uttar Pradesh States Service and was not Central Government served vide letter dated 23.04.1999—Claim lodged with the Servant and CCS (Conduct Rules) were not applicable to Insurance company—Surveyor appointed who gave report him—State of U.P. not made any similar rules/instructions— dated 13.04.1999 and 30.04.1999—Claim settled by insurance Per-contra State Government/UT Administration bound by said company—Being subrogated filed the suit—Held—Part of circular in relation to National Sports Federation—National cause of action arose at Delhi—The Court at Delhi has Sports Federation recognized and regulated by Central territorial jurisdiction—Suit decreed—Aggrieved appellant/ Government—Received aid and funds from Central defendant filed the regular first appeal—Held—Truck of the Government—Further contended that in public interest, the transporter appellant/defendant involved in accident—Statutory government servant whether in the Central Government or liability on account of negligence fastened—Part of cause of State Government should not be involved in Sports Federation action arisen in Delhi—Court at Delhi have territorial for an indefinite period in an elected capacity as it was bound jurisdiction—Appeal dismissed. to affect the discharge of their primary responsibilities and duties as government servant—Held—Central Government Roadlines Corporation (P) Ltd. v. Oriental Insurance entitled to lay down guidelines to govern National Sports Co. Ltd. & Anr...... 22 Federation—Such guidelines bound on and enforceable against CENTRAL CIVIL SERVICES (CONDUCT) RULES, 1964— National Sports Federation—A Central Government aided and Government servant holding a elective office in National Sports funded the activity and regulated them—It is true that a senior Federation—Central Government entitled to lay down government servant in the Central Government should be guidelines—The petitioner a government servant, serving available to it to render his services and no activity under Govt. of UP—Claimed special interest in sports of unconnected with his official duties should be allowed to shooting and associated with National Rifle Association—Co- interfere in efficient discharge of such duties; it was equally opted as honorary Treasurer of the Association and continued true for State government servant—Further the decision of till 2005—Contested election for the post and elected till the General Body removing him has not been assailed—Writ 11 12 Petition Dismissed. of action arisen in Delhi—Court at Delhi have territorial jurisdiction—Appeal dismissed. Shyam Singh Yadav v. National Rifle Association of India ...... 1 Roadlines Corporation (P) Ltd. v. Oriental Insurance Co. Ltd. & Anr...... 22 CENTRAL EXCISE ACT, 1944—Section 11A;—Limitation Act, 1963—Section 5—Petition against notices and letter of demand — Section 16 & 20—Petitioner & Respondent entered into MOU/ of interest on duty short paid-No direction on interest in the Agreement whereby Respondent company agreed to transfer order—Whether demand of interest is barred on account of its rights, title and interest in contiguous agricultural land delay and laches—Held—Period of limitation unless otherwise measuring 150 acres to petitioner for total consideration of stipulated by the statute which applies to a claim for the Rs. 102 Crores—Petitioner Company agreed for a value principal amount, should also apply to the claim for interest derived after reducing liabilities of Respondent Company— thereon—Held—In present case period of limitation for demand Separated detailed agreement covering all aspects of for duty would be one year therefore, period of limitation for transaction had to be executed within 30 days from date of demand for interest also would be one year—Demand beyond MOU—Land was situated on By Pass Road, Village Valla & the period of limitation would be hit by principles of Village Verka, District Amritsar, Punjab, approved by limitation—Demand for interest quashed—Petition allowed. Government of Punjab for development of residential colony— However, due to failure of respondent Company in giving Kwality Ice Cream Company and Anr. v. Union of India specific details of complete contiguous land and its revenue and Ors...... 30 records, measurement, interest etc. for purpose of ascertaining CODE OF CIVIL PROCEDURE, 1908—Section 20—Territorial value of shares, separate detailed agreement for transfer of Jurisdiction—Carriers Act, 1865—Sections 8 and 9—Section shares never got executed—According to petitioner, it came 10—Appellant/defendant took upon transportation of packages to know that respondent was only having 80 acres of clear of colour picture tubes from Malanpur to New Delhi—Goods and developable contiguous land as against false representation loaded in truck covered under the Marine Insurance Policy— of having approximately 150 acres of clear land—Said fact Truck met with an accident—Respondent/plaintiff suffered was deliberately suppressed by respondent company at the loss of Rs. 3,03,715—Notice under Section 10 Carriers Act time of execution of MOU whereas petitioner duly acted upon served vide letter dated 23.04.1999—Claim lodged with the MOU and made various payments to respondent company Insurance company—Surveyor appointed who gave report from time to time—Subsequently, petitioner company learnt dated 13.04.1999 and 30.04.1999—Claim settled by insurance that promoters of respondent Company were already in company—Being subrogated filed the suit—Held—Part of process of transferring share holding of Company and cause of action arose at Delhi—The Court at Delhi has immovable assets to third party, therefore they filed petition territorial jurisdiction—Suit decreed—Aggrieved appellant/ seeking restraint orders against respondent Company from defendant filed the regular first appeal—Held—Truck of the transferring, mortgaging creating any charge or lien on share transporter appellant/defendant involved in accident—Statutory holding of Company etc. and also prayed for appointment of liability on account of negligence fastened—P vujuart of cause Indian arbitrator to adjudicate dispute between parties— 13 14 However, Respondent challenged jurisdiction of Delhi courts however the application fails as there was no guarantee in the alleging land was situated in Amritsar and MOU executed contract or L/C that Applicant would be paid in a currency between parties was essentially agreement for transfer of said other than US$. Since there is in international trade a time lag land and purchase of share holding of respondent Company between the transaction and receipt of proceeds, hedging of was only a method for transfer of land—Therefore, petition risks associated with currency exchange fluctuations in not was hit by proviso of Section 16 (d) of Code—On behalf of unknown. Exporters and importers are exposed to and petitioner, it was urged that they were not claiming specific therefore anticipate and account for such risks. Application performance of MOU or possession of land—Also, respondent Dismissed. Company had its registered office in Delhi—Petitioner was also PEC Limited v. Thai Maparn Trading Co. in New Delhi, agreement was executed in New Delhi, meetings Limited & Anr...... 35 of two representatives, both pre and post MOU, took place in Delhi and shares of respondent Company were agreed to — Order 12 Rule 6—Transfer of Property Act, 1882—Section be transferred in Delhi; therefore, Delhi Courts had 106 & 116—Respondent/landlord wrote a letter 28.12.2010 jurisdiction—Held:- If an agreement is for sale and purchase after expiry of tenancy by efflux of time, to vacate the of immovable property then Delhi Court does not has property—Appellant did not vacate; legal notice sent on jurisdiction and petition will be required to be filed at a place 4.2.2011 terminating the tenancy—Appellant failed to vacate— where land is situated—Whereas, if it was an agreement to Appellant bank had account of respondent in their branch— sale and purchase of shares, compliance of which can be Started depositing rent in the account—Claimed by tenant that obtained by personal obedience then Delhi Court has by acceptance of such deposit fresh tenancy came into jurisdiction—Relief claimed by petitioner does not simply existence—Landlord when came to know of surreptitious and involve transfer of shares in books or in office of Registrar unilateral deposit of rent, wrote a letter dated 12.07.2011 that of Companies, but it would also involve transfer of possession deposit of rent was without any instruction on their behalf of land in question—Therefore, Delhi Courts lack jurisdiction and the deposit would be taken without prejudice to their over subject matter. right—Court observed any amount received after the termination of tenancy can surely be taken as charges towards Ansal Housing & Construction Ltd. v. AJB Developers use and occupation because after all the tenant had continued (P) Ltd...... 418 to use and occupy tenanted premises and was liable — Section 144, 151—Application seeking direction to petitioner consequently to pay user charges—Fresh tenancy is a bilateral to pay for loss occurred on account of fluctuation in foreign matter of contract coming into existence—Unless there is currency while remitting the amount payable under Letter of bilateral action and an agreement entered into to create fresh Credit pursuant to order of High Court and in terms of tenancy, mere acceptance of rent after termination of tenancy subsequent order of Supreme Court-Maintainability—Held— cannot create fresh tenancy—Appellant Bank Contended that Applicant could maintain an application u/s 144 for any loss since the appellant disputed all the aspect in the written it may have suffered as a result of the orders of this Court statement, decree could not be passed by Trial Court under which were set aside by the Supreme Court—On merits, Order 12 Rule 6—Held—Contention to be misconceived as 15 16 existence of relationship of landlord and tenant, the factum provisions under law—One fails to understand as to why of premises not having protection of Delhi Rent Control Act, defendants are now challenging jurisdiction on passing off 1958, and fact of tenancy termination by service of a legal when in written statement in cause of action, defendants notice not disputed in the written statement—Fresh tenancy admitted territorial jurisdiction—Registration has been secured also not found to have been created—Appeal dismissed. by defendants which has been although applied prior but, was prosecuted and obtained pursuant to interim orders passed by Punjab National Bank v. Virendra Prakash this court in matter—Registrar of Trade Marks has not cited & Anr...... 110 previously registered trade mark of plaintiff as a matter of — Section 35—Cost—Actual, realistic and proper cost would go conflicting mark in examination report and proceeded to grant a long way to control false pleadings and also unnecessary registration without citing plaintiff’s prior registered mark and adjournments—Dishonest and unnecessary litigation is a strain also perhaps not been informed about interim orders and seisin on judicial system—Cost of Rs. 2 lacs imposed. of dispute by this Court and granted registration contrary to Rule 37 of T M Rules—By ignoring mandatory provisions of Punjab National Bank v. Virendra Prakash & Anr. . 110 Act and granting registration to defendants, it is clear that it — Order 39, Rule I and 2—Trade Marks Act, 1999—Section is done with malafide intention, in order to defeat orders 11, 23, 28, 31 and 134—Copyright Act, 1957—Section 62— passed by court—It is a triable question whether registration Trade Marks Rule, 2002—Rule 37—Plaintiff registered trade of defendants is actually a valid one or is it just entry wrongly mark owner of expression “SHRIRAM” for vast range of remaining on register, depending upon inference which court products since 1960—By interim order, defendants restrained is going to draw by way of impact of subsequent events— from manufacturing or selling any produce by name of Objection qua jurisdiction at this stage can not be sustained “SHRIRAM CARTAP” which is deceptively similar trademark and same is dismissed. of plaintiff—Case of defendants that they have got registration DCM Shri Ram Consolidated v. Sree Ram Agro of trade mark from registry—Date of registration relates back Ltd. & Ors...... 119 to date of application—Plaintiff is entitled to continue with suit for passing off which is still maintainable but defendants are — Order 12 Rule 6—Transfer of Property Act, 1882—Section residing and carrying on their business outside jurisdiction of 106—Registration Act, 1908—Section 49—Delhi Rent control this court—Plaintiff under action of passing off can not take Act, 1958—Suit for possession and mesne profits—Premises advantage of section 134(2) of Act in order to invoke territorial let out to the appellant/respondent vide rent agreement dated jurisdiction—Plaint is liable to be returned because of lack of 01.10.2006 for a period of three years by the husband of territorial jurisdiction—Held—Defendants did not amend respondent/plaintiff—Tenancy terminated vide notice dated written statement after obtaining registration nor defendants 31.03.2010 w.e.f. 30.04.2010—Failed to vacate the premises- have filed any application for return of plaint—Defendants in Suit filed-Suit decreed for possession under order 12 Rule 6 their written statement have not denied existence of territorial vide judgment, dated 14.11.2011—Aggrieved by the judgment jurisdiction of this Court—On date of institution, this court filed the present appeal—Alleged tenancy was for had jurisdiction to entertain and try proceedings on basis of manufacturing purposes—Notice terminating the tenancy 17 18 should have been for a period of six month-Held—Lease deed establishment whereof a foreign judgment can be said to be unregistered—Terms cannot be looked into—Purpose of letting not conclusive are such which can be set up only by a party is not collateral purpose-notice valid—Appeal dismissed. not himself/herself/itself approaching the foreign Court. Here the petitioner who is challenging the judgment, was at the Sharvan Aggarwal v. Kailash Rani ...... 459 relevant time resident for a fairly long time within jurisdiction — Section 13—Criminal Procedure Code, 1973—Section 200, of the foreign Court, did not approach the foreign court under 482—Indian Penal Code, 1860—Section 120-B 494A, 498A— the dictates of the respondent and made out a case before the Petition against order of MM dismissing the complaint of the foreign Court of obtaining the judgment-Petition dismissed. Petitioner—Petitioner after obtaining decree of divorce from Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar foreign Court and after the subsequent marriage of the Chaudhary & Ors...... 527 Respondent, filed criminal complaint of bigamy and cruelty against the Respondent alleging that foreign decree of divorce — Order XXXIX Rule 2A read with Section 151—Suit for was an invalid decree—Held:- under Section 13 of CPC, a partition and rendition of accounts by appellant against her foreign judgment is conclusive as to any matter thereby siblings qua estate of her deceased father—Appellant claimed directly adjudicated upon between the same parties except in that as per the wishes of her father, soon after her marriage, cases specified thereunder. However, the right if any, to she came in occupation and possession of the subject contend that the said foreign judgment is not conclusive can property—Appellant claims to have used the said portion as be only of the party who had himself/herself/itself not initiated the residence till year 1974—Defendants struck a deal of the process of obtaining the said judgment and cannot be of settlement between themselves—In terms of this arrangement, a party at whose instance such foreign judgment has been the parties shifted in different portions of the property and obtained No. litigant can be allowed to abuse the process of leased out the entire basement for commercial use—The the Courts or to approbate and reprobate as per convenience. original defendants No. 1 to 5 are alleged to be in possession The petitioner had deposed that she was in U.K. from 1993 and control of the entire estate except the portion of the to 1999. She has not even whispered, alleged or made out property in occupation of the appellant—Alleged that any case of any of the grounds for the foreign judgment of defendants No. 1 to 6 were threatening to sell the entire dissolution of her marriage with the respondent being not property to defendant no.7, in order to pocket the conclusive. For the said foreign judgment to be not conclusive, consideration including the share of the appellant—In this the petitioner was required to make out a case of the same background, partition is sought of the immovable property and being either pronounced by a Court having no jurisdiction and rendition of accounts of the business apart from recovery of /or having been not given on the merits of the case or being rent realized from the immovable property—Along with the founded on an incorrect view of international law or the suit, an application under Order XXXIX Rule 1 and 2 for proceedings resulting therein being opposed to natural justice interim relief filed seeking a restraint against the defendants or having been obtained by fraud or sustaining a claim founded from creating charge or transferring, selling or alienating the on a breach of any law in force in India. Moreover, all the aforesaid immovable property and from dispossessing the grounds specified in section 13 of the CPC and on appellant from the portion in her possession on the first floor, 19 20 apart from a restraint against removing the account books passed under this Rule—Thus, a restrictive meaning cannot from the business premises—Summons were issued in the suit be given that an appeal would not lie if the application is as also notice in the application on 02.04.2002 and ad interim dismissed—On the other hand, learned Single Judge of the ex-parte orders were granted to the appellant—Application Gauhati High Court in Shri Banamali Dey vs. Shri Satyendra under Order XXXIX Rule 2A read with section 151 of the Chanda & Ors. (1990) 2GLR 408=MANU/GH/0164/1990 has Code filed by the Plaintiff alleging that there has been violation concluded that an order refusing to take action under Rule of the status quo Order dated 02.04.2002—Respondents 2A on the ground that there was no disobedience or breach denied commission of any contempt stating that the ex-parte of injunction cannot be said to be an order under Rule 2A Order granted on 02.04.2002 simply required the parties to and—Thus, no appeal would be maintainable against such an maintain status quo qua the possession and title of the said order under clause (r) of Rule of Order XLIII of the said property and further restrained alienation, transfer or creating Code—Division Bench of this Court in The Bombay Metal third party interest—In view of the Sale Deed, possession is Works (P) Ltd. Vs. Tara Singh & Ors., ILR (2006) I DELHI stated to have already been passed on to the original defendant Has held that appeal would be maintainable from an order No. 7—There was, thus, no restrain order against the dismissing the application under Order XXXIX Rule 2A of demolition of certain walls, which was carried out—This the said Code—Aforesaid two Judgments have not been argument found favour with learned Singe Judge, who discussed in this cases and the perspective expressed by the dismissed the contempt petition—Hence:- Present appeal— Gauhati High Court has also not been examined—The Held:- Defendant should have moved the Court for varying application filed in The Bombay Metal Works (P) Ltd. case the construction even though there was a restrictive injunction (supra) was actually under Sections 2(a), 11 and 12 of the order—However, any additional relief qua these aspects was Contempt of Courts Act, 1971 and the learned Single Judge not granted to the appellant—Defendant is not guilty of willfully absolved the respondents from notice of contempt—An appeal violating the interim orders passed by this Court and the interest was filed under Section 19 of the Contempt of Courts Act, of the appellant are protected—Though styled as CCP as CCP which was pleaded to be by the respondents as not (OS), the petition is under Order XXXIX Rule 2A read with maintainable in view of the settled legal position—Appellants Section 151 of the said Code and even the prayers are made pleaded that the contempt application filed for disobedience accordingly—No dispute as to the maintainability of the appeal of the interim orders purported to have been filed was actually from an order dismissing an application under Order XXXIX under Order XXXIX Rule 2A of the Code and a wrong Rule 2A of the said Code in view of the provisions of Order provision was cited—The appeal was, thus, treated as FAO XLIII Rule 1 of the said Code-However, on examination of (OS) and while discussing this aspect, it was observed that this matter, there appears to be a conflict of view qua this the appeal would be maintainable—It is not appropriate to in issue—A learned Single Judge of the Punjab and Haryana High interfere with the dismissal order of that application for the Court in Rajinder Kaur vs. Sukhbir Singh, 2002 Civil CC 125 reason recorded aforesaid and the rights and obligations of MANU/PH/1830/2001 has held that there is no limitation the parties would be determined in the suit, which has whatsoever in the aforesaid Rule as to the nature of the order unfortunately taken large number of years—The appeal is 21 22 accordingly dismissed leaving the parties to bear their own thus, the existence of the sale deed come to the Knowledge costs. of Sardar Sohan Singh and the plaintiffs—Defendant No. 1/ respondent No. 1 after retiring from Indian Army in about Jugan K. Mehta v. Sham Sunder Gulati & Ors...... 534 1964, came into the possession of the house constructed on — Suit for possession and mesne profit—The predecessor in the suit plot and has been living there since then—On the basis interest late Sardar Sohan Singh, the father of plaintiff Nos. of aforesaid facts, claiming that the cause of action had arisen 1 and 2 as also the defendant Nos. 2 to 5 was a member of either in January, 1964 or on 25.05.1963, the subject suit for a Cooperative Society—On 14.01.1952 Sardar Sohan Singh possession and mesne profits come to be filed—Suit was was allotted the suit plot admeasuring 4132 sq. yds and an contested—Contended that Sardar Sohan Singh after making agreement was entered into by Sardar Sohan Singh with the initial payment of the cost of the plot, was not in a position Society—Pleaded that Sardar Sohan Singh paid the entire to make construction on the plot which was a necessary consideration with respect to the plot—Sardar Sohan Singh requirement of the terms of allotment that construction must was stated to have friendly relations with Sir Sobha Singh, be completed within a specified period of time—On account the father of defendant no.1/respondent no.1—Both of them of inability of Sardar Sohan Singh to complete the were also partners in a partnership firm plans for construction construction there was consequently a threat of cancellation were got sanctioned from appropriate authorities on an of the allotment and forfeiture of the money paid—On account application made on behalf of Sardar Sohan Singh and the task of such threat of cancellation of the allotment and forfeiture of constructing the building was entrusted by Sardar Sohan of the amounts which were paid by Sardar Sohan Singh to Singh to Sir Sobha Singh—Further, pleaded that the the Society, Sardar Sohan Singh agreed to mutation of the construction material from which the residential house on the plot in the name of the defendant no.1/respondent no.1 the suit plot was made was utilized out of the material of the son of Sir Sobha Singh—Sardar Sohan Singh wrote his letter partnership firm—After construction, the property was dated 4.10.1954 to the Society to transfer the membership and entrusted by Sardar Sohan Singh to Sir Sobha Singh for the plot in the name of the defendant no.1/respondent no.1- managing the property—Further pleaded that Sardar Sohan By a resolution number 3-C passed in the meeting held on Singh continued to remain the owner of the plot in the records 13.10.1954, the Society agreed to transfer the suit plot in the of the Society—Further pleaded in the plaint that the Society name of defendant no.1/respondent. No.1 pursuant to the letter wrongly transferred the Suit plot by a sale deed in the name dated 4.10.1954 written by Sardar Sohan Singh to the of defendant no.1/respondent no.1 on account of fraud and Society—Sir Sobha Singh never acted as an attorney or an collusion—Execution of the sale deed in favour of defendant agent of Sardar Sohan Singh and, the fact of the matter was no.1/respondent no.1 was contrary to the rules and regulations that Sir Sobha Singh was acting only for and on behalf of his of the Cooperative Society—When Sardar Sohan Singh son, the defendant no./respondent no. 1 with the Society— approached the Society for executing the sale deed of the suit The written statement also denied the alleged plea of fraud plot in his name, the Society informed Sardar Sohan Singh and collusion as alleged by the plaintiffs in the plaint—It was that the sale deed with respect to the suit plot had already been further pleaded that as the sale deed was executed in the year executed in favour of defendant no.1/respondent no.1 and 1960, and that right from the year 1960 the plaintiffs were 23 24 aware of the sale deed having been executed in the name of was fully competent under such reserved right to transfer the defendant no.1/respondent no.1 and also of the defendant plot Construction of the building on the plot was not made no.1/respondent no.1 being the owner of the suit property, for and on behalf of Sardar Sohan Singh by Sir Sobha Singh the suit filed in the year 1975 was hence, time barred-Suit by using/spending any alleged monies of Sardar Sohan dismissed—Hence, present appeal—Held:- In the present case, Singh—Undisputed position which has come record is that there is admittedly an agreement in writing, dated 14.01.1952 there has not been shown any actual transfer of funds by by which the plot was agreed to be transferred/sold to Sardar Sardar Sohan Singh either to Sir Sobha Singh or to anybody Sohan Singh and which contained the terms of the transfer. else for raising of construction on the suit plot Sardar Sohan Possession of the plot under this agreement was given to Singh in his lifetime never filed any suit to claim any right in Sardar Sohan Singh. Sardar Sohan Singh paid the the Suit property whether by seeking cancellation of the sale consideration as was them payable under this agreement dated deed dated 3.12.1960 or seeking possession of the building 14.01.1952—However the basic requirement of being ready thereon—Sardar Sohan Singh also in his lifetime, never and willing to perform his part of the contract by Sardar Sohan revoked the letter dated 4.10.1954 seeking transfer of the Singh was that he had to make construction on this plot membership and transfer of allotment of the suit plot to the allotted by the Society within the Specific period of time— defendant No.1. Building was constructed during the years The construction on the plot was made by Sir Sobha Singh— 1957 to 1959 and the sale deed was executed on 3.12.1960 Therefore, the requirement of Section 53-A to Transfer of whereas Sardar Sohan Singh expired much later in the year property Act, 1882 of readiness to perform his part of the 1974—Thus, it is only the legal heirs of Sardar Sohan Singh contract was not complied with by Sardar Sohan Singh—No who have suddenly woken up after his death hoping that by benefit can be derived by Sardar Sohan Singh or now his legal speculation in litigation, they may be successful and be able heirs by claiming that Sardar Sohan Singh had effective to get some benefits. ownership rights in the suit plot by virtue of the agreement Mukhinder Singh (Deceased) Through LRs. & Ors. v. Gurbux dated 14.01.1952—Sardar Sohan Singh in addition to the fact Singh & Ors...... 578 that he was not ready and willing to perform his part of contract (a necessary requirement of Section 53A) in fact — Section 96—Appellants/plaintiff purchased the rights in the suit voluntarily gave up his rights in the suit plot and the property by means of Agreement to Sell, Power of Attorney membership of the Society inasmuch as he stated that he and will from previous owner through a chain of similar could not make the construction on the suit plot and therefore, documents—Appellants/plaintiffs filed suit for possession and gave up his rights in favour of the defendant no.1/respondent mesne profit claiming the Respondents to be illegal occupants/ no.1 vide letter dated 4.10.1954-By the specific language of trespassers in suit property-Respondents prayed for dismissal section 53-A, rights which are reserved by the seller under of the suit the ground that the appellants were not owners of the agreement, are not given to the proposed buyer and the the suit property and documents relied upon by appellant cannot Society, having reserved certain rights by requiring confer any ownership rights in suit property-Trial Court constructions to be completed by allottees in a specified time, dismissed the suit holding that they cannot be said to be the 25 26

owners on the basis of the documents which do not confer admitted service of summons, but urged service as not in ownership-Hence, present appeal—Held:- Once documents compliance with Exchange of letters—Accordingly, Learned being original and registered documents, are filed and proved Special Judge issued fresh summons to petitioner as per on record, the onus of proof that such documents are not Exchange of letters which was forwarded by Embassy of India genuine documents, in fact shifts to the opposite party— at Berne to FOJ in Switzerland which further informed Indian Ownership of the original owner cannot be disputed and the Embassy that summons were issued—However, petitioner same is a strong proof of the ownership of the suit property again admitted delivery of fresh summons but disputed validity of the appellants proved by means of chain of the title of service and filed two applications before learned Special documents—All earlier owners are not required to be Judge—Learned Special Judge disposed of applications holding summoned—Original documents filed by Respondents not petitioner duly served and intentionally avoided appearance to proved—Documents such as Agreement to sell, Power of delay trial—Orders challenged by petitioner urging, FOJ at Attorney, Will etc do not strictly confer ownership rights as Berne not competent authority to serve summons on petitioner a sale deed—Such documents create certain rights in an and notification not issued as per Section 105 Cr.P.C.— immovable property entitling the persons who have such Moreover, Letter of Exchange dated 20.02.1989 between India documents to claim possession of the suit property—At least and Switzerland relates only to purpose of investigations— the right to the suit property would stand transferred to the Held:- In case of summons to an accused issued by a court person in whose favour such documents have been in India shall be served or executed at any place in any executed—Ownership rights can be construed as entitling Country or place outside India in respect of which persons who have documents to claim possession of the suit arrangements have been made by the Central Government property inasmuch as at least the right to the suit property with the Government of such Country or place for service would stand transferred to the person in whose favour such or execution of summons or warrants in relation to the documents have been executed—Appeal accepted suit decreed. criminal matters, may be sent in duplicate in such forms, directed to such Court, Judge or Magistrate and sent to such O.P. Aggarwal & Anr. v. Akshay Lal & Ors...... 645 authority for transmission, as the Central Government may CODE OF CRIMINAL PROCEDURE, 1973—Section 105— by notification specify in this behalf—Though serving or Prevention of Corruption Act, 1988—Section 13—Indian execution of summons at a place or country is mandatory, Penal Code, 1860—Section 120B & 420—Petitioner Company however, sending of such summons or warrants to such charge sheeted along with other accused by CBI for alleged court, Judge or Magistrate and to such authority for commission of offences under Section 120-B, read with transmission as may be notified is directory in nature— Section 420 IPC and Section 13 (2) read with Section Exchange of letters dated. 20.02.1989 is a binding treaty 13(1)(d) of Act—Petitioner summoned through its CEO by between India and Switzerland, even applicable for service of diplomatic channels through Ministry of External Affairs, summons to compel the presence of a person who is accused Interpol—Accordingly Embassy of India, Berne sent letter of an offence for trial and for determining whether to place enclosing summons in original informing him about next date such person on trial—Summons served through FOJ, of hearing before Special Judge, Delhi—Petitioner though 27 28

designated agency as per Swiss Federal laws amounted to valid trial of co accused persons against those accused persons only service of summons. and had no occasion to identify appellants and to depose about their role in alleged occurrence—Hence, acquittal of co Swiss Timing Ltd. v. CBI & Anr...... 234 accused is no bar to trial of appellants who had absconded at — Section 299—Charge sheet was laid under Section 302/307/ that time—Held:- Where evidence is inseparable and indivisible 34 IPC against accused persons which also included name and on same set of evidence, co-accused have been acquitted of two appellants as accused persons—However, appellants then remaining accused need not face trial—However, if absconded during trial and were declared proclaimed evidence is separable and divisible and there are specific offenders—Trial of other two co accused persons ended in allegations and accusations against accused who were not their acquittal as none of prosecution witnesses to occurrence there in case at time of trial of co-accused who were acquitted, as well as complainant had supported case of prosecution— then it would be a subject matter of trial. Thereafter, appellants were apprehended and were also sent Inder Singh Bist v. State ...... 253 to face trial under same offences—They pleaded discharge from offences before learned ASJ on ground that as trial of — Section 482—Prevention of Corruption Act, 1988—Section other two accused persons had resulted in acquittal and 27—Petitioner preferred petition seeking discharge in criminal evidence to be produced by prosecution in case two appellants case filed by CBI against him on ground sanction granted to were made to face trial, would remain same and ultimately, prosecute against him, was not valid—He had moved case would result in their acquittal also—However, learned application before learned Special Judge seeking discharge on ASJ turned down their pleas and they were charged for having ground of invalidity of sanction which was dismissed and committed offences punishable under Section 302/307/34 IPC thus, petitioner preferred petition under Section 482 of Code— and were ordered to face trial—Aggrieved by said order, On behalf of CBI, it was urged once charge was framed in appellants preferred petition urging that same witnesses had warrant trial case, instituted either on complaint or on police not identified other accused persons facing trial at that time report, trial court had no power under code to discharge and same would happen during trial of said petitioners also— accused—Trial Court could either acquit or convict accused Thus, they be discharged—On behalf of State, it was urged unless it decided to proceed under Section 325 and 360 of at stage of framing of charge, Court has to consider statement Code, except where prosecution must fail for want of of witnesses recorded under Section 161 of the Code and fundamental defect, such as want of sanction—Also, sanction other material collected by prosecution to prove its case— order was perfectly authenticated and duly authorized, Statements of witnesses recorded during trial of co accused therefore, discharge could not be sought on ground of invalidity persons can at most be treated as under Section 299 of Code and that too, at stage when case was fixed for final against said two appellants and same can be read against them arguments—Held:- Court is not to go into technicalities of only in contingency i.e. witness is not available being dead or sanctioning order—Justice cannot be at beck and call of incapable giving evidence or his personal presence cannot be technical infirmities—Court is only bound to see that procured without an amount of delay, expense or sanctioning authority after careful consideration of material inconvenience—Also, witnesses had mainly deposed during 29 30 that is brought forth, has passed an order that shows Designated Court dismissed application—Aggrieved, State application of mind. preferred petition for setting aside order as well as quashing of framing of charges against Respondent—Held:- Power of Hawa Singh v. CBI ...... 290 seeking withdrawal of prosecution is essentially an executive — Section 321—Maharashtra Control of Organized Crime Act, function and Special Public Prosecutor, unlike a Judge, is 1999—Sections 3(2) & 3(4)—Extradition Act, 1962—Section supposed to receive a request seeking withdrawal of 21—Respondent was named as one of accused in FIR No. prosecution from Executive—It is after receipt of such request 88/2002, under Section 387/506/507/201/120-B IPC and from Executive, Special Public Prosecutor is required to apply Section 3(2), Section 3(4) of MCOCA, read with Section 120B his mind and then decide as to whether case is fit to be IPC—Charge-sheet was laid against five accused persons, out withdrawn from prosecution and leason for withdrawal could of which four were sent to stand trial but Respondent was be social, economic or even political—Withdrawal of shown as absconder—Trial commenced against four accused prosecution must be bonafide for a public purpose and in persons, in the meanwhile, Respondent was located in interest of justice—Further, while undertaking such an Portugal—In pursuance of an existing Interpol notice and Red exercise, Special Public Prosecutor is not required to sift the Corner Notice, extradition proceedings against him were evidence, which has been gathered by prosecution as sought initiated—Government of Portugal granted extradition subject to be produced or is produced before the Court. to specific condition that Respondent would not be visited with State of NCT of Delhi v. ABU Salem Abdul Qayoom punishment of death or imprisonment for a term more than Ansari ...... 307 25 years—Said specific condition was solemnly assured by Government of India and accordingly, extradition of — Section 155—Indian Penal Code, 1860—Section 186, 353, Respondent was granted by Government of Portugal in respect 323, 34—Petitioner/State challenged order of learned of 8 cases against him—Although competent authority granted Additional Session Judge (learned ASJ) whereby learned ASJ sanction under Section 23 (2) of MCOCA to prosecute had set aside order of learned Metropolitan Magistrate (MM) respondent and Supplementary chargesheet was also filed dismissing application of Respondents seeking discharge under against him before the Designated Court—However, after filing Section 155 (2) of Code—According to petitioner, of charge sheet, Government of NCT of Delhi, reconsidered complainant/Labour Inspector visited Mother Dairy Office to case of Respondent in view of extradition condition laid by deliver letter meeting—After delivering letter, when he was Government of Portugal and solemn assurance given by coming back to his office Respondents came there, abused Government of India—Hence, prosecution filed application him and also gave him beatings—On allegations of under Section 321 of Code seeking permission from complainant, complaint was filed on basis of which FIR under Designated Court to withdraw prosecution of Respondent for Section 186/353/34 IPC was registered—After investigation, offences punishable under Section 3 (2) & 3(4) of MCOCA charge sheet was laid—Learned Metropolitan Magistrate after read with Section 120-B IPC as both these offences were not hearing parties on framing of charge, ordered that no offence in line with conditions imposed in Extradition Order—Learned under Section 186/353/34 IPC was made out, however, 31 32 Respondents were held liable to be prosecuted for offence Joshi Vs, State of Haryana Nikhil Merchant vs. CBI and punishable under Section 323/34 IPC—Respondents then filed Manoj Sharma vs. State. These three judgments have been application before learned MM under Section 155 (2) of Code referred to the larger bench vide judgment in case of Gain seeking discharge on ground that Section 323 IPC was non Singh vs. State. However till these are set aside, they hold cognizable offence which could not had been investigated the field—Petition allowed. without prior permission of learned MM—Application Teka Singh @ Titu & Ors. v. State & Anr...... 475 dismissed as not maintainable—Aggrieved Respondents preferred revision petition before learned ASJ which was — Section 482, 468(2); Indian Companies Act, 1956—Section allowed holding that Magistrate should not have converted 63, 628: Petition for quashing of summoning order in complaint case under Section 323 IPC because neither cognizance was u/s 63 and 628—Petitioner contend that complaint beyond taken of that offence initially nor police had alleged any offence period of limitation—Held—Period of limitation in any offence under Section 323/3 IPC was made out—Also, permission commences only upon receipt of knowledge of breach-Period was not sought by police to investigate case of non cognizable of limitation will not begin from the date of filling prospectus offence which is mandatory—Petitioner challenged said order but from date of filing of balance sheet on which the complaint and urged investigation does not stand vitiated warranting is based— Complaint within period of limitation—Petition quashing of FIR in case where initially FIR was registered dismissed. for cognizable offence, however, charge was framed for non Kuldeep Kumar Kohli & Ors. v. The Registrar of Companies cognizable offence—Held:- Even if the Police does not file a for Delhi And Haryana...... 480 charge-sheet for a particular offence, though made out on the facts of the case, nor does the Magistrate take cognizance — Section 200, 482—Indian Penal Code, 1860—Section 120-B thereon, at the stage of framing of the charge, Learned Trial 494A, 498A—Petition against order of MM dismissing the Court is supposed to apply its independent mind and come to complaint of the Petitioner—Petitioner after obtaining decree the conclusion as to what offences are made out from the of divorce from foreign Court and after the subsequent evidence collected by the prosecution. At that stage the Trial marriage of the Respondent, filed criminal complaint of bigamy Court is not bound by the offences invoked in the charge- and cruelty against the Respondent alleging that foreign decree sheet or the offences for which cognizance has been taken— of divorce was an invalid decree—Held:- under Section 13 of In such a situation the charge-sheet has to be treated as a CPC, a foreign judgment is conclusive as to any matter thereby complaint in view of the explanation to Section 2 (d) Cr. P.C. directly adjudicated upon between the same parties except in and the Police Officer filing the charge-sheet as complainant. cases specified thereunder. However, the right if any, to contend that the said foreign judgment is not conclusive can State v. Lal Singh & Ors...... 329 be only of the party who had himself/herself/itself not initiated — Section 320—Indian Penal Code, 1860—Section 323, 324, the process of obtaining the said judgment and cannot be of 354, 34—Offences being not compoundable, can FIR be a party at whose instance such foreign judgment has been quashed on settlement Held—Compounding of non obtained No. litigant can be allowed to abuse the process of compounding offences permissible as per the judgment of B.S the Courts or to approbate and reprobate as per convenience. 33 34

The petitioner had deposed that she was in U.K. from 1993 not valid on date of accident—Investigation Officer not to 1999. She has not even whispered, alleged or made out examined to rebut driver's contention that he had a valid any case of any of the grounds for the foreign judgment of driving license on date of accident which was seized by dissolution of her marriage with the respondent being not Investigating Officer-Mere filing of chargesheet under Section conclusive. For the said foreign judgment to be not conclusive, 3 of Act is not sufficient to hold that driver did not possess the petitioner was required to make out a case of the same a valid driving license at time of accident—Since claimant’s being either pronounced by a Court having no jurisdiction and testimony that deceased was 50 years, was not challenged in /or having been not given on the merits of the case or being cross examination and in view of contradictory documentary founded on an incorrect view of international law or the evidence, age favourable to claimants has to be considered proceedings resulting therein being opposed to natural justice for grant of compensation as provision of Section 166 is a or having been obtained by fraud or sustaining a claim founded piece of social legislation—Compensation enhanced. on a breach of any law in force in India. Moreover, all the National Insurance Company Ltd. v. Ram Rati Devi grounds specified in section 13 of the CPC and on & Ors...... 627 establishment whereof a foreign judgment can be said to be not conclusive are such which can be set up only by a party — Section 204—Petition challenging the order passed by not himself/herself/itself approaching the foreign Court. Here LD.M.M summoning the petitioner—Complaint filed alleging the petitioner who is challenging the judgment, was at the that main social networking websites are knowingly allowing relevant time resident for a fairly long time within jurisdiction contents and material which is dangerous to communal of the foreign Court, did not approach the foreign court under harmony, with common and malafide intentions and have failed the dictates of the respondent and made out a case before the to remove the objectionable content for their wrongful gain- foreign Court of obtaining the judgment-Petition dismissed. Ld. M.M passed the summoning order-Challenged-There is no averment against the petitioner in the complaint-No Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar evidence produced against him-Respondent contends- Chaudhary & Ors...... 527 complainant has missed the opportunity to make proper — Section 173—Cross appeals filed by Insurance Company averments in the complaint and adduce evidence, in that claiming recovery rights against owner of offending vehicle situation he has a right to amend the same and lead the and cross objections filed by claimants for enhancement of evidence thereafter-Held-There is no iota of evidence deposed compensation—Plea taken, driver did not possess a valid qua the petitioner-Nor proved even by the complainant when driving license on date of accident and Insurer was entitled he was examined as PW1—There should have been specific to avoid liability—Per Contra Plea taken, insurer failed to averments about the nature of act or omission and law violated establish breach of policy condition—Deceased was aged 50 and in the absence of the same, summons issued against the years on date of accident—Claims Tribunal erred in taking petitioner are not sustainable in law—There is no provision in deceased's age to be 68 years—Held—No effort was made Code of Criminal Procedure to amend the complaint or by insurer to summon record from RTO with regard to produce the documents after issuing of the summons— renewed license produced by driver to show that license was Magistrate has to carefully scrutinize the evidence brought on 35 36

record and may even put questions to the complainant and Sports Federation recognized and regulated by Central his witnesses to elicit answers to find out the truthfulness of Government—Received aid and funds from Central the allegations or otherwise and then examine if any offence Government—Further contended that in public interest, the is prima-facie committed by all or any of the accused—The government servant whether in the Central Government or corrective measure of amending the complaint, cannot be State Government should not be involved in Sports accepted, being not tenable under law. Federation for an indefinite period in an elected capacity as Yahoo India Pvt. Ltd. v. State & Anr...... 634 it was bound to affect the discharge of their primary responsibilities and duties as government servant—Held— CONSTITUTION OF INDIA, 1950—Article 226—Central Civil Central Government entitled to lay down guidelines to Services (Conduct) Rules, 1964—Government servant holding govern National Sports Federation—Such guidelines bound a elective office in National Sports Federation—Central on and enforceable against National Sports Federation—A Government entitled to lay down guidelines—The petitioner a Central Government aided and funded the activity and government servant, serving under Govt. of UP—Claimed regulated them—It is true that a senior government servant special interest in sports of shooting and associated with in the Central Government should be available to it to render National Rifle Association—Co-opted as honorary Treasurer his services and no activity unconnected with his official of the Association and continued till 2005—Contested election duties should be allowed to interfere in efficient discharge for the post and elected till the expiry of four years terms till of such duties; it was equally true for State government 2009—Again election held—Re-elected Treasurer of NRAI for servant—Further the decision of General Body removing four years which would expire in 2013—Show cause notice him has not been assailed—Writ Petition Dismissed. issued by NRAI following the Govt. advice dated 24.12.2010 Shyam Singh Yadav v. National Rifle Association that petitioner as a serving government servant might not of India ...... 1 continue as treasurer for a period exceeding four years or one term whichever less, as to why governing body should — Article 226—Central Excise Act, 1944—Section 11A; not consider his removal from the post of honorary Limitation Act, 1963—Section 5—Petition against notices Treasurer—Meeting of governing body held on 28.03.2011— and letter of demand of interest on duty short paid-No Show cause notice considered—General Body passed direction on interest in the order—Whether demand of resolution to remove the petitioner—Petitioner contended that interest is barred on account of delay and laches—Held— Central Government Circular not applicable to him ipso- Period of limitation unless otherwise stipulated by the statute facto—Further contended that petitioner belongs to Uttar which applies to a claim for the principal amount, should Pradesh States Service and was not Central Government also apply to the claim for interest thereon—Held—In Servant and CCS (Conduct Rules) were not applicable to present case period of limitation for demand for duty would him—State of U.P. not made any similar rules/instructions— be one year therefore, period of limitation for demand for Per-contra State Government/UT Administration bound by said interest also would be one year—Demand beyond the period circular in relation to National Sports Federation—National of limitation would be hit by principles of limitation— 37 38

Demand for interest quashed—Petition allowed. — Article 226—Writ Petition—Central Board of School Examination—Bye Law 69.2—Date of Birth Correction— Kwality Ice Cream Company and Anr. v. Union of Petitioner stated her date of birth wrongly noted in the record India and Ors...... 30 of respondent/CBSE as 20.02.1986 instead of actual date of — Article 227—Delhi Land Reforms Act, 1954—Bhumidari— birth 12.10.1988—Fact could be verified and enclosed with Delay and lches—Appellant assailed the order of Financial writ petition—CBSE opposed the petition on the ground that Commissioner in Writ Petition—Writ Petition came up for not entitled to relief of change of date of birth so belatedly— hearing in the year 2001—Dismissed in default as none Request could not be considered in view of Bye Law 69.2 appeared—Application made by counsel for restoration on the which provides request to be made within two years of ground that he left practice but could not withdraw from the declaration of result of 10th examination—Passed 10th case due to lack of communication—Restored; came up for examination in the year 2004—Made representation after five hearing on 6th September, 2004—Ld. Single Judge directed to years—Permits such correction only in circumstances arising list the writ petition with connected writ petition in the out of clerical error—Petitioner had to approach CBSE through presence of proxy counsel—Matter taken up on 26th of Head of School—Not impleaded head of school as party— October, 2004—File of the connected case summoned— Herself filled up the date of birth in various documents Transpired that it was dismissed on 23rd July, 2004 for non- submitted by her during school days—Observed, documents prosecution—None appeared on behalf of appellant— placed on record—Discharge slip dated 15.10.1988 issued by Dismissed for non-appearance—Appellant filed CM in 2011 Military Hospital MH Danapur Cant. indicated name of father for recall after delay of seven years—Dismissed by Ld. Single Sh. S.N. Singh Unit 56 APO—Under column of date of birth Judge—Non-explanation of non-appearance—Filed LPA— two dates were shown—One 12.10.1988 and other Contended that earlier counsel was ailing and not appearing 15.10.1988—Other documents was gazette notification dated who expired on 1st June, 2008—Held—No doubt if the 10.12.2009 which was got published by her notifying her date applicant whose writ petition was dismissed for non- of birth as 12.10.1988—In copy of progress report of 1996- prosecution is able to show sufficient cause for non- 1997 of Kendriya Vidhyalaya where she was studying in class appearance and able to explain the delay satisfactorily for 3rd, date of birth shown as 20.02.1986—CBSE filed on record approaching the Court, liberal approach has to be taken— copy of petitioner’s application for admission in Kendriya Normally endeavour of the court should be to deal with the Vidyalaya Baliganj. Applicant to fill up date of words in figure matter on merit—It is also trite litigant have to be vigilant and as well as in words which showed her date of birth as take part in the proceedings with due diligence—Court will 20.02.1986—Same was the case in the transfer certificate— not come to rescue of such applicant if negligence An extract of school register where she was studying in class established—Application dismissed. X showed her date of birth as 20.02.1986—The bye laws provides for request of correction within two years from the Man Singh Decd Thr Lrs v. Gaon Sabha declaration of result of examination—Stand of petitioner Jindpur & Ors...... 50 falsified—Held—It was for the petitioner to place on record 39 40

to establish her stand that right through her school days where objected before LAC that petitioners had got more land during she had taken admission from time to time, had recorded her consolidation proceedings than was due to them at his cost date of birth as 12.10.1988—Further, she had approached the and that land of petitioners belong to Gaon Sabha—Land head of school from where she had taken the class 10th Acquisition Collector, (LAC) disposed of objections finding examination to point out the error—She failed to do so—Writ that there is no merit in objections and there was no prima Petition dismissed. facie dispute of apportionment and directed release of Nutan Kumari v. CBSE ...... 56 compensation in favour of petitioners—AR filed proceedings before Financial Commissioner (FC) seeking implementation — Article 227—Delhi Rent Control Act, 1958—Section 14 (1) of certain documents, which petitioners claimed were (d)—Subletting—Eviction petition filed against tenant on the forged—FC issued direction to Deputy Commissioner (West) ground of subletting to respondent no. 2—Premises comprised to inquire into objections raised by AR qua consolidation and of one room on the second floor—Tenant unauthorizedly directed compensation be not released in favour of any constructed bathroom and latrine—Contended that tenant party—Revenue authorities submitted that documents on basis parted with possession in favour of respondent no.2 in the of which AR had claimed rights, were not genuine and were year 1988 without his consent in writing—Common written based on forged documents—Revision Petition dismissed by statement filed claiming continuously living with family of FC and compensation including principal amount and interest respondent no. 2 and denied premises sublet to sub-tenant— released in favour of petitioners—Writ filed before High Court As per evidence, respondent no.2 was permitted to live with claiming interest in respect of delayed payment—Plea taken, tenant after 1984 riots for which no rent was charged— compensation has not been paid by LAC to petitioners for Documents such as voter I-card, passport, electric connection period of delay when proceedings were pending before FC in the name of tenant—ARC held that no subletting or parting and period when inquiry in pursuance to order of FC, took with possession proved—Appeal before Additional Rent place—If FC has passed a wrong order, petitioners should Control Tribunal endorsed the finding of ARC—Preferred writ not be made to pay for it by sacrificing interest for that period petition—Held, there cannot be subletting unless the lessee of time—Held—LAC did not cause any delay and a decision parted with legal possession—The mere fact that some other was taken promptly on objections of AR that prima facie no person was allowed to use the premises while lessee retained case was established for reference of dispute qua the legal possession, not enough to create a sub-lease—The apportionment—LAC is not a beneficiary of any amount but power of Court under Article 227 limited; unless and until only seeks to distribute amount obtained from beneficiary of manifest illegality or injustice suffered no scope for land—Interest is also paid by beneficiary—LAC was willing interference—Petition Dismissed. to disburse amount after dealing with objections of AR but for interdict by order of FC-LAC is not party which persuaded Sardar Dalip Singh Loyal & Sons v. Jagdish Singh ... 67 court to pass order which was ultimately held unsustainable— — Article 226—Land of petitioners acquired for public purpose LAC was handicapped by reason of interdict of order passed of Rohini Residential Scheme—Petitioners moved application by FC and thus, could not itself deposit amount with seeking release of compensation in their favour—One AR reference court—Petitioners did not assail order of FC and 41 42

thus accepted order—Acceptance of order of FC implies property in Nizamuddin East—Sought permission to construct petitioners were satisfied with arrangement that inquiry should upon it—Local authorities MCD etc. to process the application be made qua claim of AR and amount should not be disbursed for sanction of the plan after the Archaeological Survey of till such inquiry is complete—If petitioners were aggrieved by India (ASI) accorded the approval—By virtue of notification these directions, nothing prevented petitioners from assailing dated 16.06.1992 of ASI, all construction within 100 meters the same in appropriate proceedings—Principle of restitution of the protected monuments were prohibited—The ASI used by LAC would not apply as LAC was not responsible for what to consider application for permission within this area on case- happened—Petitioners have not claimed any relief against AR to-case basis—Constituted an expert Committee—The High nor AR has been impleaded as a respondent in present Court in an earlier LPA held that the notification constituting proceedings. the Expert Committee and consequent permission accorded by it, beyond the authority conferred upon the ASI by Act— Hardwari LAl and Anr. v. Land Acquisition Collector/ADM Had a snow boiling effect since ongoing construction at (W) and Anr...... 194 various stages throughout country jeopardized—The executive — Respondents sought mandamus against appellants step-in and issued an ordinance setting up an Authority to commanding them to immediately complete election process oversee implementation of enactment and at the same time and conduct elections—Learned Single Judge, directed validating subject to certain condition, permission granted by appellants to first complete process of preparation of fresh expert committee from time to time—Later on, the ordinance electoral rolls and process of delimitation of wards/ was replaced by an Act which amended the Ancient Monument constituencies before notifying general elections to post of Act, 1958—Appellant filed writ petition against the grant of members of Respondent Delhi Sikh Gurudwara Management permission—Contended the permission granted to the second Committee (DSGMC)—Aggrieved, appellants preferred appeal respondent illegal and could not be implemented—The urging election process had begun and the court could not permissions conditioned upon time would be routinely extended have interfered with election process—Held:- The word and this defeats the very concept of prohibited area—ASI election cannot be restricted to the electoral process contented before Ld. Single Judge in view of the amended commencing from issuance of notification and has to be provision of the Act, the petition had been rendered merit interpreted to mean every stage from date of notification less—Single Judge accepted the arguments that provision calling for election and the courts cannot interfere in the validates the permission and not the construction already electoral process—Election process had clearly begun by carried out—The question which arose was whether the said publication of schedule of election—Order of Single Judge set permission was time bound—If so, whether the validation by aside. amendment of the Act of the said permission permitted the extension of time for raising the construction—Court Directorate of Gurdwara Elections & Others v. Dashmesh Observed—The permission as recommended by EAC and as Sewa Society (Regd.) & Others ...... 219 granted by Director General, ASI were not time bound—Such — Article 227—Writ Petition—Letters Patent Appeal—Ancient condition of time was added by Superintending Archaeologist Monument Act, 1958—Second respondent had purchased a while communicating the permission to the applicant to ensure 43 44

compliance—Observed—Countersigning Authority cannot add from Gandhian atmosphere created and maintained at to the conditions attached to the permission by primary Samadhi—The Rajghat Samadhi thus, akin to place of authority—Thus, superintending archaeologist as worship—The test for ambit of definition of industry is countersigning Authority, had no power to add to the condition production and/or of distribution of goods and services attached to the permission—Appeal dismissed. calculated to satisfy human wants and wishes—Excludes the activity, spiritual or religious—Appeal dismissed. Vijaya Laxmi v. Archaeological Survey of India & Ors...... 186 Assem Abbas v. Rajghat Samadhi Committee & Anr...... 143 — Article 227—Writ Petition—Letters Patent Appeal—Industrial Dispute Act, 1947—Section 2 (j)—Industry—Rajghat — Article 226—Territorial Jurisdiction Article 12—‘State’— Samadhi Act, 1951—Powers & Duties—The appellants Respondent no.2 Jammu & Kashmir State Financial engaged as security guard by Rajghat Samadhi Committee Corporation Set up by respondent no.1 to promote medium/ (RSC), appointed in September, 1997 and November 1998 large scale Industry in the State of J&K-Primary function of respectively—Services terminated on 8.9.2000 and 12.02.2001 respondent no.2 to extend financial assistance to industrial respectively—Appellants raised industrial dispute—Referred to projects to speed up industrial investment in the State— Central Government Industrial Tribunal (CGIT) to adjudicate Respondent no. 2 invited investments in bonds issued by it; whether termination illegal and/or unjustified—Respondent Guaranteed by respondent no.1-Petitioner subscribed to the took preliminary objection—Reference not maintainable as RSC said bond in Delhi by making payment in Delhi—Respondent not industry—CGIT returned the findings that respondent was no. 2 paid interest on the said bond in Delhi occasionally- industry—Vide common award directed reinstatement of the However, respondent defaulted in payment of half yearly appellants with 25% back wages—RSC filed writ petition installment of interest and in redeeming of bond upon allowed by Single Judge—Petitioner preferred Letters Patent maturity—On communication from petitioner repeatedly sent, Appeal (LPA)—Held—That RSC was constituted under respondent no.2 expressed its inability to make payment on Rajghat Samadhi Act, 1951—Powers and duties of the the ground of shortage of fund-Stated that matter taken up committee defined—The committee empowered to make with State government-Petitioner sent a legal notice— byelaws Inter-alia for appointment of such person as may be Thereafter, received partial payment—Due payments not made necessary—To determine the terms and conditions of services despite further reminder—Petitioner filed writ petition— of such employee—The function of Committee inter-alia Respondent did not deny facts—Pleaded financial stringency— included organizing of special function on 2nd October, and Contended—Respondent located in the Stage of J&K-High 30th January to observe birth and death anniversary of Mahatma Court Delhi had no territorial jurisdiction—Secondly, writ Gandhi—Observed—The Samadhi attracts large number of petition to seek recovery of money not maintainable—Court tourists and other visitors including school children—These observed payment for purchase of bond made in Delhi; one visitors are attracted to the Samadhi out of reverence for payment of interest made in Delhi Substantial part of cause Mahatma Gandhi to pay respect to him and to imbibe the ideals of action arisen in Delhi within the jurisdiction of Delhi High 45 46 Court-Objection of territorial jurisdiction rejected-Regarding petitioner a warranted under the law after reviewing the facts second objection-Observed-The jurisdiction under Court under circumstances—The petitioner thereafter completed rotatory Article 226 unfettered, the only fetters are those which the internship-Appeared in CET-NBE conducted by respondent court have themselves placed on the said jurisdiction-Held- no.2—Result not declared as be he had not been granted firstly, the primary relief to seek-enforcement of a sovereign permanent registration by respondent no.1—Petitioner guarantee of State of J&K-No question of disputed facts- contended-The pendency of the criminal proceedings should Observed in a appropriate case writ petition as against State not be allowed to mar the career prospect of the petitioner— or an instrumentality of State arising out of a contractual Admittedly, the petitioner fully qualified and eligible for grant obligation maintainable-Even though some disputed questions of permanent registration by MCI—Criminal trial may takes of facts arise for consideration, same cannot be ground to years to be completed—Petitioner could not be deprived of refuse to entertain writ petition in all the cases as matter of his right to profess his profession—Respondent MCI Rule-Issued direction to release amount-Writ Petition allowed. contended—Till the criminal case finally decided, petitioner could not be granted permanent registration—Respondent had Airports Authority of India and Ors. v. State of Jammu & no mechanism to track criminal proceedings—Held—Unless Kashmir & Ors...... 444 the petitioner held guilty, cannot be debarred or prevented from — Article 226—Petitioner completed four and half years of pursuing his profession—Even if held guilty, it need medical course; furnished certificate—Issued provisional examination whether he should and if so, for what period, so registration by MCI in 2000—Authenticity of this not certified prevented—MCI directed to grant conditional permanent by Moscow University—Provisional registration withdrawn on registration to the petitioner subject to condition that petitioner 29.05.2001—MCI intimated the police authority—Lodged FIR would give an undertaking to the court that he would keep against petitioner under S. 420/468/471 IPC-Petitioner updating the status of the pending criminal case after every Contended—Misled into believing that diploma could be issued six month-Writ disposed off. by Moscow University—The truth otherwise was the matter Rangnathan Prasad Mandadapu v. Medical Council of India under investigation—He had gone back to Russia and & Anr...... 464 completed the balance course from St. Petersburg State Medical Academy—This institution certified the petitioner — Article 227—Civil Procedure Code, 1908—Section 13— having completed the course-Issued diploma on 23.06.2003— Criminal Procedure Code, 1973—Section 200, 482—Indian Petitioner returned—Attempted Screening test-Become Penal Code, 1860—Section 120-B 494A, 498A—Petition successful-MCI admitted same—Denied registration on the against order of MM dismissing the complaint of the ground of registration of criminal case—In earlier writ petition Petitioner—Petitioner after obtaining decree of divorce from filed by the petitioner, High Court issued direction to the foreign Court and after the subsequent marriage of the respondent to provisionally enroll him and permit his Respondent, filed criminal complaint of bigamy and cruelty completion of compulsory, rotatory internship in India—Open against the Respondent alleging that foreign decree of divorce to MCI to impose condition that in the event of adverse order was an invalid decree—Held:- under Section 13 of CPC, a in criminal proceedings it would take such action against 47 48 foreign judgment is conclusive as to any matter thereby 204—Petition challenging the order passed by LD.M.M directly adjudicated upon between the same parties except in summoning the petitioner—Complaint filed alleging that main cases specified thereunder. However, the right if any, to social networking websites are knowingly allowing contents contend that the said foreign judgment is not conclusive can and material which is dangerous to communal harmony, with be only of the party who had himself/herself/itself not initiated common and malafide intentions and have failed to remove the process of obtaining the said judgment and cannot be of the objectionable content for their wrongful gain-Ld. M.M a party at whose instance such foreign judgment has been passed the summoning order-Challenged-There is no averment obtained No. litigant can be allowed to abuse the process of against the petitioner in the complaint-No evidence produced the Courts or to approbate and reprobate as per convenience. against him-Respondent contends- complainant has missed the The petitioner had deposed that she was in U.K. from 1993 opportunity to make proper averments in the complaint and to 1999. She has not even whispered, alleged or made out adduce evidence, in that situation he has a right to amend the any case of any of the grounds for the foreign judgment of same and lead the evidence thereafter-Held-There is no iota dissolution of her marriage with the respondent being not of evidence deposed qua the petitioner-Nor proved even by conclusive. For the said foreign judgment to be not conclusive, the complainant when he was examined as PW1—There the petitioner was required to make out a case of the same should have been specific averments about the nature of act being either pronounced by a Court having no jurisdiction and or omission and law violated and in the absence of the same, /or having been not given on the merits of the case or being summons issued against the petitioner are not sustainable in founded on an incorrect view of international law or the law—There is no provision in Code of Criminal Procedure to proceedings resulting therein being opposed to natural justice amend the complaint or produce the documents after issuing or having been obtained by fraud or sustaining a claim founded of the summons—Magistrate has to carefully scrutinize the on a breach of any law in force in India. Moreover, all the evidence brought on record and may even put questions to grounds specified in section 13 of the CPC and on the complainant and his witnesses to elicit answers to find establishment whereof a foreign judgment can be said to be out the truthfulness of the allegations or otherwise and then not conclusive are such which can be set up only by a party examine if any offence is prima-facie committed by all or any not himself/herself/itself approaching the foreign Court. Here of the accused—The corrective measure of amending the the petitioner who is challenging the judgment, was at the complaint, cannot be accepted, being not tenable under law. relevant time resident for a fairly long time within jurisdiction Yahoo India Pvt. Ltd. v. State & Anr...... 634 of the foreign Court, did not approach the foreign court under the dictates of the respondent and made out a case before the — Article 226 & 227—Right to Information Act, 2005—Section foreign Court of obtaining the judgment-Petition dismissed. 20(1)—Delhi High Court Act, 1966—Section 10—Central Information Commission (CIC) imposed maximum penalty of Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar Rs. 25,000/- on the respondent under section 20(1) of the Act Chaudhary & Ors...... 527 for the delay of over 100 days in furnishing the information — Article 226, 227—Criminal Procedure Code, 1974—Section to the appellant—Chief Secretary, Govt. of Delhi was directed 49 50 to recover the said amount from the salary of the respondent Govt. of Delhi was directed to recover the said amount from @ Rs. 5,000/- per month-Respondent preferred writ petition— the salary of the respondent @ Rs. 5,000/- per month— Learned Single Judge allowed the writ petition—Reduced the Respondent preferred Writ petition—Learned Single Judge penalty amount to Rs. 2,500/- recoverable from the salary of allowed the writ petition—Reduced the penalty amount to Rs. the respondent in ten equal monthly installments of Rs. 250/ 2,500/- recoverable from the salary of the respondent in ten - per month—Reason—The question of penalty is essentially equal monthly installments of Rs. 250/- per month—Reason— between the Court and the respondent and did not really The question of penalty is essentially between the Court and concern the appellant who has been provided with the respondent and did not really concern the appellant who information—Respondent took the charge of the post 14 days has been provided with information—Respondent took the after the subject RTI application of the appellant had been charge of the post 14 days after the subject RTI application filed—Appellant filed the Intra Court Appeal—Contention— of the appellant had been filed—Appellant filed the Intra Court Use of word 'shall' in section 20(1) is indicative of the Appeal—Contention—Use of word ‘shall’ in section 20(1) is imposition of penalty mandatory—Presence of information indicative of the imposition of penalty mandatory—Presence seeker is essential not only for computing the penalty but also of information seeker is essential not only for computing the for establishing the default of the information officer-Exclusion penalty but also for establishing the default of the information of the information seeker from penalty proceedings would officer-Exclusion of the information seeker from penalty dilute the sprit of the Act—The role of CIC is of an proceedings would dilute the spirit of the Act—No notice of adjudicator—Held—A reading of Section 20 shows that while the petition was given to the appellant before reducing the the opinion, as to a default having been committed by the penalty—The role of the CIC is of an adjudicator—Held—In Information Officer, is to be formed ‘at the time of deciding the context of RTI Act, merely because the CIC, while any complaint or appeal’, the hearing to be given to such deciding the complaints/appeals is required to hear the Information Officer, is to be held after the decision on the complainant/information seeker, would not require the CIC to Complaint or the appeal. The proceedings before the CIC, of hear them while punishing the erring Information Officer, in hearing the Information Officer qua whom opinion of having exercise of its Supervisory Powers—We may reiterate that committed a default has been formed and of imposition of the complainant/information seeker has the remedy of seeking penalty, in the exercise of supervisory powers of CIC and not costs and compensation and thus the argument of ‘being left in the exercise of adjudicatory Powers. remediless’ is misconceived-However, ‘penalty’ is not to be mixed with costs and compensation—The participation of the Anand Bhushan v. R.A. Haritash ...... 657 information seeker in the penalty proceeding has nothing to — Article 226 & 227—Right to Information Act, 2005—Section do with the principal of accountability—Since the information 20(1)—Central Information Commission (CIC) imposed seeker has no right of participation in penalty proceedings, the maximum penalty of Rs. 25,000/- on the respondent under question of right of being heard in opposition to writ petition section 20(1) of the Act for the delay of over 100 days in challenging imposition of penalty dose not arise-Error was furnishing the Information to the appellant-Chief Secretary, committed by the learned Single Judge in reducing the penalty 51 52 without hearing the appellant. used are relative in nature and there may be degrees of, without reasonable cause, malafide, knowing or Anand Bhushan v. R.A. Haritash ...... 657 reasonableness, diligence etc.—The very fact that imposition — Article 226 & 227—Right to Information Act, 2005—Section of penalty is made dependent on such variables is indicative 20(1)—Central Information Commission (CIC) imposed of the direction vested in the authority imposing the maximum penalty of Rs. 25,000/- the respondent under punishment—Once it is held that the quantum of fine is section 20(1) of the Act for delay of over 100 days in discretionary, there can be no challenge to the judicial review furnishing the information to the appellant—Chief Secretary, under Article 226 of the Constitution, of exercise of such Govt. of Delhi was directed to recover the said amount from discretion, of course within the well recognized limits—If this the salary of the respondent @ Rs. 5,000/- per month Court finds discretion to have been not appropriately exercised Respondent preferred writ petition—Learned Single Judge by the CIC, this Court can, in exercise of its power vary the allowed the writ petition—Reduced the penalty amount to Rs. penalty—Appeal dismissed. 2,500/- recoverable from the salary of the respondent in ten Anand Bhushan v. R.A. Haritash ...... 657 equal monthly installments of Rs. 250/- per month—Reason— The question of penalty is essentially between the Court and — Article 226—Writ Petition quashing of notice issued by the the respondent and did not really concern the appellant who High Court of Delhi provisionally short listing candidates on has been provided with information—Respondent took the the basis of performance in the Delhi Judicial Service charge of the post 14 days after the subject RTI application (Preliminary) Examination as there were faults in the question of the appellant had been filed—Appellant filed the Intra Court paper and the answer key seeking re-evaluation after Appeal—Contention—Use of word ‘shall’ in section 20(1) is corrections/ deletions/ amendments to the questions and indicative of the imposition of penalty mandatory—Presence answer keys—Further, seeking restraint on Main examination of information seeker is essential not for computing the penalty till re-evaluation of the Preliminary Examination—HELD:- The but also for establishing the default of the information officer— questions would fall into three categories—The first being Exclusion of the information seeker from penalty proceedings those questions where the answers reflected in the Answer would dilute the sprit of the Act—The role of the CIC is of Key are correct. The second category comprises of those an adjudicator—Held—Though Section 20(1) uses the word questions in respect of which the option shown to be correct ‘shall’, before the words ‘impose a penalty of Rs. Two in the Answer Key is incorrect and instead another option as hundred and fifty rupees but in juxtaposition with the words determined above is correct. The third category of questions ‘without reasonable cause, malafidely of knowingly or covers (1) questions out of syllabus; (2) questions in respect obstructed’—The second proviso thereto further uses the of which the answer in the Answer Key is debatable; (3) words, ‘reasonably and diligently’—The question which arises questions in respect of which there are more than one correct is when the imposition of penalty is dependent on such option; (4) questions in respect of which none of the options variables, can it be said to be mandatory or possible of is correct; and (5) questions which are confusing or do not calculation with mathematical precision—All the expressions supply complete information for a clear answer. As regards the first category, no change in the Answer Key is required. 53 54

The Answer Key in respect of the second category of However, later on, same of the documents were supplied to questions would have to be corrected and the OMR answer petitioner—Revision filed by petitioner also dismissed-Writ sheets would have to be re-evaluated. In case of the third petition challenging the punishment and dismissal of appeal and category and when the table of the disputed questions is taken revision-Petitioner contended without imputing any mala fides into considerations it is inferred that 12 questions need to be or perversity that other members of the staff also go for the removed/delete from the purview of the said Delhi Judicial call of nature and break fast, etc but no action was taken Service Exams and 7 questions need to be corrected—The against them—Respondents contended that wherever a status of the qualified students stands unaffected as it would member of the force leaves for call of nature or other absence, be unfair on behalf of the court to tamper with the status of entries are made in registers and explanations rendered by the student already selected. Coming on to the second petitioner were disbelieved by disciplinary authority as well as condition stipulating that the number of candidates to be appellate authority—Held, as regards non-supply of certain admitted to the main examination (written) should not be more documents, petitioner ought to have established the prejudice than ten times the total number of vacancies of each category as a matter of fact and prejudice cannot be based on advertised This condition proved to be invalid as the general apprehension—Further held, the totality of circumstances of vacancies advertised were 23 and ten times 23 is 230 whereas the case do not reflect non-application of mind or the general candidates which have already been declared as disproportionate punishment. qualified for taking the Main Examination (Written) is 235, Narender Kumar v. Union of India & Ors...... 728 therefore, it would be unfair to shut out such candidates on the basis of the second condition. — Article 227—Stand of the tenant was that the premises in question had been taken on rent by Mohan Lal only for his Gunjan Sinha Jain v. Registrar General High Court of son Anand Parkash and this was with the consent of the Delhi ...... 676 landlord who was living in the same premises and who was — Article 226—Disciplinary proceedings—Misconduct imputed fully aware of the fact that Anand Parkash is carrying on the against petitioner was unauthorized absenteeism from duty as business from the said premises; there was no subletting— he repeatedly did not report for duty at the airport in time— The ARC on the basis of the oral and documentary evidence Petitioner submitted reply to the charge memorandum and after had returned a finding that it was the deceased Mohan Lal considering the same, was awarded punishment of censure— who was the tenant in the premises but since Anand Parkash Appeal filed by petitioner was dismissed—After dismissal of was carrying on business in these premises from the very appeal, petitioner filed an application seeking certain beginning which was also admitted by the landlord, no documents without disclosing the relevance of the same and inference of parting with possession/subletting/assignment by without disclosing as to how he would be prejudiced if the Mohan Lal favour of Anand Parkash could be made;—An same are not supplied—In reply, the respondents pointed out appeal was preferred before the ARCT. The ARCT drew a that under the relevant rule, there was no provision to supply conclusion that the tenant was Mohan Lal; he had parted with documents which were not relied upon in the chargesheet— possession of the premises in favour of his son Anand Parkash 55 56 who was carrying on business in the same premises; ground advantage of section 134(2) of Act in order to invoke territorial of subletting under Section 14(1)(b) stood confirmed in jurisdiction—Plaint is liable to be returned because of lack of favour of the landlord. Mohan Lal had died during the territorial jurisdiction—Held—Defendants did not amend pendency of the eviction proceedings, the premises being written statement after obtaining registration nor defendants commercial premises and Anand Parkash being the son and have filed any application for return of plaint—Defendants in legal heir of deceased Mohan Lal had inherited this tenancy their written statement have not denied existence of territorial from his father;—The Judgment of Gain Devi vs. Jiwan Kaur, jurisdiction of this Court—On date of institution, this court AIR 1985 SC 796 was relied upon to give a finding that such had jurisdiction to entertain and try proceedings on basis of a tenant i.e. Anand Prakash being in possession of the premises provisions under law—One fails to understand as to why in the capacity as legal representative of deceased father defendants are now challenging jurisdiction on passing off Mohan Lal, he could be evicted from the suit premises— when in written statement in cause of action, defendants Petition of the landlord accordingly stood dismissed—It is well admitted territorial jurisdiction—Registration has been secured settled that to make out a case for sub-letting or parting with by defendants which has been although applied prior but, was possession, it means giving of possession to persons other prosecuted and obtained pursuant to interim orders passed by than those to whom the possession had been given by the this court in matter—Registrar of Trade Marks has not cited original lessor and that parting with possession must have been previously registered trade mark of plaintiff as a matter of made by the tenant —Article 66 of the Limitation Act, 1963 conflicting mark in examination report and proceeded to grant was held applicable i.e period of 12 years was available to the registration without citing plaintiff’s prior registered mark and landlord to seek eviction of his tenant-In this factual scenario, also perhaps not been informed about interim orders and seisin the impugned judgment suffers from no infirmity. of dispute by this Court and granted registration contrary to Rule 37 of T M Rules—By ignoring mandatory provisions of Maheshwar Dayal (DECED) v. Shanti Devi Act and granting registration to defendants, it is clear that it & Ors...... 613 is done with malafide intention, in order to defeat orders COPYRIGHT ACT, 1957—Section 62—Trade Marks Rule, passed by court—It is a triable question whether registration 2002—Rule 37—Plaintiff registered trade mark owner of of defendants is actually a valid one or is it just entry wrongly expression “SHRIRAM” for vast range of products since remaining on register, depending upon inference which court 1960—By interim order, defendants restrained from is going to draw by way of impact of subsequent events— manufacturing or selling any produce by name of “SHRIRAM Objection qua jurisdiction at this stage can not be sustained CARTAP” which is deceptively similar trademark of plaintiff— and same is dismissed. Case of defendants that they have got registration of trade mark DCM Shri Ram Consolidated v. Sree Ram Agro from registry—Date of registration relates back to date of Ltd. & Ors...... 119 application—Plaintiff is entitled to continue with suit for passing off which is still maintainable but defendants are CONTEMPT OF COURTS ACTS, 1971—Section 19,11 & 12— residing and carrying on their business outside jurisdiction of IFCI Limited advanced a loan to M/s Koshika Telecom Ltd.— this court—Plaintiff under action of passing off can not take Loan was secured by hypothecation of the tower and other 57 58 movable assets—Two of the directors gave personal with the Official Liquidator is received by the Official guarantees—IFCI filed proceedings before DRT—M/s Koshika Liquidator, the requisite amount will be remitted to the Official Telecom Limited was held liable for sum of Rs. Liquidator within seven days—Official Liquidator being 233,73,92,900.27 along with pendent lite and future interest aggrieved by the non compliance of the directions of the @ 10% per annum from 19.07.2002 till realization with cost learned Company judge dated 08.10.2008 filed a petition under of Rs. 1.5 lakh and recovery certificate was issued in terms Sections 11 and 12 of the Contempt of Courts Act, 1971 thereof—IFCI filed recovery proceedings—Moved application arraying Ms. Shalini Soni alone as a respondent/contemnor for for sale property (towers) which were hypothecated— not depositing the sale proceeds with official Liquidator— Recovery officer vide order dated 18.12.2007 directed Official Liquidator filed an appeal before the DRT against the attachment and sale of the hypothecated properties—However, order of the Recovery Officer dated 22.02.2010—Appeal the Company was wound up vide order dated 02.08.2005 and allowed partially observing that the Official Liquidator would the Official Liquidator took over charge of its assets—The be entitled to the amount to the extent of value of the land of hypothecated assets were sold for a sum of Rs. 12 Crores— the company while IFCI is entitled to the amount received IFCI filed an application before the Recovery Officer praying from the sale of movable assets—IFCI also preferred an appeal for the proceeds realized from sale of assets to be made over before the DRAT—Appeal was dismissed by DRAT—IFCI to IFCI as the Official Liquidator had received only one claim assailed the Order of DRT and DRAT in WP (C) No. 5014/ which was yet to verified—Official Liquidator opposed the 2010-WP(C) was allowed on 16.12.2010 IFCI was held application—It appears that the Official Liquidator had a entitled to retain the amounts both from the sale of movable meeting with Ms. Shalini Soni, AGM (one of the contemnors) and immovable assets of M/s Koshika Telecom Limited subject on 19.08.2009 where a decision was taken that the sale to the other directions—Though the Official Liquidator sought proceeds of the land will be deposited with the official to withdraw the contempt proceedings on 08.03.2011 in view liquidator—Official Liquidator filed a compliance/status report of orders passed by the division Bench, Learned Single Judge No. 281/2009 dated 06.10.2009 before learned Company judge declined the prayer—Issued notice to IFCI through Managing and requested for appropriate directions—On 12.10.2010 Director (contemnor herein) and the Recovery Officer Official Liquidator filed a report bearing No. 13/2010 for (contemnor herein)—Mr. Atul Kumar Rai is the Managing direction to IFCI to deposit the sale proceeds and expenses Director of IFCI Limited—No notice was issued to him by for advertisement with Official Liquidator-IFCI Limited instead name but only by designation—In response to the contempt of depositing the sale proceeds with Official Liquidator, chose notice, affidavits were filed by all the three contemnors—They to file application before Recovery Officer praying that the all tendered unconditional apology—All the three contemnors sale proceeds received from the sale of assets of M/s Koshika were found guilty of contempt—Sentenced to undergo simple Telecom Limited be directed to be appropriated by the IFCI imprisonment for a period of one month—IFCI as an Limited in partial discharge of the Recovery Certificate— institution has been imposed with a fine of Rs. 5 lakh out of Application allowed by the Recovery Officer on 22.02.2010 which Rs. 3,50,000/- should be deducted from the salary of with a direction that IFCI would furnish and undertaking that Mr. Atul Kumar Rai while the balance amount should be in future if any eligible claim in excess of the amount available deducted from the salary of Ms. Shalini Soni—Appeals—Held:- 59 60 We are of the view that the controversy ought to have been pay the ad-valorem court fee on the amount of sale put to a rest when the Official Liquidator itself wanted to consideration of Rs. 24,32,950/-, wherein the petitioner had withdraw the contempt petition on 08.03.2011—The learned filed a suit for perpetual, mandatory injunction and damages single Judge did not even permit that but proceeded to issue impugned—Held:- Wholesome reading of the plaint clearly notices further to the Managing Director of IFCI by shows that what the plaintiff had sought was not a relief of Designation and Recovery Officer ostensibly to Know whether specific performance but it was a direction to the defendant the Recovery Officer was aware of the orders passed by the to execute the formality of the sale deed which he had not learned Company Judge on 08.10.2009 when he passed the cared to do in spite of his obligation under Section 55(1)(d) orders dated 22.02.2010—No notice was issued to Mr. Atul of Transfer of Property Act. It is not in dispute that the Kumar Rai in person, but since the affidavits filed on behalf defendant has received the entire purchase money; and had of IFCI were not by the Managing Director, even the also handed over possession of the flats to the plaintiff; Managing Director filed his personal affidavit—All the there Admittedly, the plaintiffs were in possession of the suit contemnors had tendered unqualified apology and the Recovery property at the time when the suit was filed. In these Officer had stated in so many words that he should have been circumstances, the court fee appended to the plaint which was more careful in analyzing the papers before him—We find that as per the valuation made by the plaintiff suffers from no there is no case whatsoever of contempt made out against infirmity. Mr. Atul Kumar Rai—The Recovery Officer ought to have Dalmia Cement (Bharat) Ltd. v. Hansalya Properties Ltd. perused the reply filed by the Official Liquidator given this & Anr...... 151 situation, unqualified apology tendered more than met the requirement as it was not a case of any willful contumacious DELHI DEVELOPMENT ACT, 1957—Sections 14 & 29 (2)— conduct for the court to either proceed with conviction or Accused persons running marble shop in an area of 500 sq. impose sentence and that too such a harsh one—All the three ft. which as per Master Plan, could be used only for appeals are liable to be allowed—Orders of conviction dated agricultural purposes or water body—Magistrate acquitted 06.02.2012 and order on sentence dated 19.03.2012 are liable accused persons—Held:- Magistrate committed error in to be set aside with the acceptance of apology on the part of appreciating evidence by not believing CW1 Junior Engineer Ms. Shalini Soni and Mr. R.K. Bansal while Mr. Atul Kumar and giving more weightage to testimony of CW2 as compared Rai is held not to have any role in the matter in issue. to DW1 who was a junior officer—CWI testified about conducting inspection and finding marble shop of the accused Atul Kumar Rai v. Koshika Telecom Limited functioning—Testimony of CW1 unshaken-Magistrate wrongly & Ors...... 741 observed that testimony of CW2 Sales Tax Officers should COURT FEES ACT 1870—Whether a suit requiring the defendant be given more weightage as compared to DW1 who was to execute a formal deed is one of specific performance and officer of Junior Rank-Credence to testimony should not be whether court fees is payable on the entire sale consideration based on post, but should be assessed by reading entire or only on the valuation of the suit by the plaintiff—Order testimony—Testimony of CW1 cannot be disbelieved just dated 09.04.2008 of the Trial Court directing the plaintiff to because there was no independent corroboration—Judgment 61 62 acquitting accused persons set aside and they held guilty of DELHI RENT CONTROL ACT, 1958—Section 14 (1) (d)— offence u/s 14 r/w Section 29 (2) of DDA Act—Respondents Subletting—Eviction petition filed against tenant on the ground sentenced to be released after admonition—Accused company of subletting to respondent no. 2—Premises comprised of one fined Rs. 100—Appeal allowed. room on the second floor—Tenant unauthorizedly constructed bathroom and latrine—Contended that tenant parted with D.D.A. v. VIP Marble Emporium & Ors...... 652 possession in favour of respondent no.2 in the year 1988 DELHI LAND REFORMS ACT, 1954—Bhumidari—Delay and without his consent in writing—Common written statement lches—Appellant assailed the order of Financial Commissioner filed claiming continuously living with family of respondent in Writ Petition—Writ Petition came up for hearing in the year no. 2 and denied premises sublet to sub-tenant—As per 2001—Dismissed in default as none appeared—Application evidence, respondent no.2 was permitted to live with tenant made by counsel for restoration on the ground that he left after 1984 riots for which no rent was charged—Documents practice but could not withdraw from the case due to lack of such as voter I-card, passport, electric connection in the name communication—Restored; came up for hearing on 6th of tenant—ARC held that no subletting or parting with September, 2004—Ld. Single Judge directed to list the writ possession proved—Appeal before Additional Rent Control petition with connected writ petition in the presence of proxy Tribunal endorsed the finding of ARC—Preferred writ counsel—Matter taken up on 26th of October, 2004—File of petition—Held, there cannot be subletting unless the lessee the connected case summoned—Transpired that it was parted with legal possession—The mere fact that some other dismissed on 23rd July, 2004 for non-prosecution—None person was allowed to use the premises while lessee retained appeared on behalf of appellant—Dismissed for non- the legal possession, not enough to create a sub-lease—The appearance—Appellant filed CM in 2011 for recall after delay power of Court under Article 227 limited; unless and until of seven years—Dismissed by Ld. Single Judge—Non- manifest illegality or injustice suffered no scope for explanation of non-appearance—Filed LPA—Contended that interference—Petition Dismissed. earlier counsel was ailing and not appearing who expired on 1st June, 2008—Held—No doubt if the applicant whose writ Sardar Dalip Singh Loyal & Sons v. Jagdish Singh ... 67 petition was dismissed for non-prosecution is able to show — Suit for possession and mesne profits—Premises let out to sufficient cause for non-appearance and able to explain the the appellant/respondent vide rent agreement dated 01.10.2006 delay satisfactorily for approaching the Court, liberal approach for a period of three years by the husband of respondent/ has to be taken—Normally endeavour of the court should be plaintiff—Tenancy terminated vide notice dated 31.03.2010 to deal with the matter on merit—It is also trite litigant have w.e.f. 30.04.2010—Failed to vacate the premises-Suit filed- to be vigilant and take part in the proceedings with due Suit decreed for possession under order 12 Rule 6 vide diligence—Court will not come to rescue of such applicant if judgment, dated 14.11.2011—Aggrieved by the judgment filed negligence established—Application dismissed. the present appeal—Alleged tenancy was for manufacturing Man Singh Decd Thr Lrs v. Gaon Sabha purposes—Notice terminating the tenancy should have been Jindpur & Ors...... 50 for a period of six month-Held—Lease deed unregistered— 63 64 Terms cannot be looked into—Purpose of letting is not premises; there was no subletting—The ARC on the basis of collateral purpose-notice valid—Appeal dismissed. the oral and documentary evidence had returned a finding that it was the deceased Mohan Lal who was the tenant in the Sharvan Aggarwal v. Kailash Rani ...... 459 premises but since Anand Parkash was carrying on business in these premises from the very beginning which was also — S.14(1)(e)—Bonafide necessity—Petitioner owner/landlord let admitted by the landlord, no inference of parting with out portion of first floor to the respondent—In remaining possession/subletting/assignment by Mohan Lal favour of portions guest house run by landlord—Stated in eviction Anand Parkash could be made;—An appeal was preferred petition that he needs more space for expansion of business before the ARCT. The ARCT drew a conclusion that the for bonafide need—Application for leave to defend filed by tenant was Mohan Lal; he had parted with possession of the tenant—Contested that premises was property and house run premises in favour of his son Anand Parkash who was by landlord was without permission—Building by laws carrying on business in the same premises; ground of prohibited the landlord from changing nature of heritage site— subletting under Section 14(1)(b) stood confirmed in favour Landlord let out huge place on the ground floor to wine of the landlord. Mohan Lal had died during the pendency of shop—Leave to defend granted since the property was heritage the eviction proceedings, the premises being commercial property and guest house cannot be run without permission premises and Anand Parkash being the son and legal heir of which raises triable issue—Held—Tenant has no locus-standi deceased Mohan Lal had inherited this tenancy from his to challenge the illegality of the landlord in running a guest father;—The Judgment of Gain Devi vs. Jiwan Kaur, AIR house in a portion immediately adjacent to Bengali Club, the 1985 SC 796 was relied upon to give a finding that such a tenanted portion—The building bylaws do not prohibit such tenant i.e. Anand Prakash being in possession of the premises activities—Leave to defend cannot be granted as a matter of in the capacity as legal representative of deceased father routine. If defence raised is moonshine, sham and illusioary— Mohan Lal, he could be evicted from the suit premises— Leave to defend has to be refused—Landlord best judge of Petition of the landlord accordingly stood dismissed—It is well his requirement—It is not open to tenant or court to dictate settled that to make out a case for sub-letting or parting with to the landlord the manner or the style in which he must live— possession, it means giving of possession to persons other Order set aside—Eviction petition decreed. than those to whom the possession had been given by the original lessor and that parting with possession must have been Gulshan Rai v. Samrendra Bose Secy & Anr...... 513 made by the tenant —Article 66 of the Limitation Act, 1963 — Section 14 (1)(b) Constitution of India, 1950—Article 227— was held applicable i.e period of 12 years was available to the Stand of the tenant was that the premises in question had been landlord to seek eviction of his tenant-In this factual scenario, taken on rent by Mohan Lal only for his son Anand Parkash the impugned judgment suffers from no infirmity. and this was with the consent of the landlord who was living Maheshwar Dayal (DECED) v. Shanti Devi in the same premises and who was fully aware of the fact & Ors...... 613 that Anand Parkash is carrying on the business from the said 65 66 EAST PUNJAB HOLDINGS (CONSOLIDATION OF of AR but for interdict by order of FC-LAC is not party which FRAGMENTATION) ACT, 1948—Section 42—Constitution persuaded court to pass order which was ultimately held of India, 1950—Article 226—Land of petitioners acquired for unsustainable—LAC was handicapped by reason of interdict public purpose of Rohini Residential Scheme—Petitioners of order passed by FC and thus, could not itself deposit moved application seeking release of compensation in their amount with reference court—Petitioners did not assail order favour—One AR objected before LAC that petitioners had got of FC and thus accepted order—Acceptance of order of FC more land during consolidation proceedings than was due to implies petitioners were satisfied with arrangement that inquiry them at his cost and that land of petitioners belong to Gaon should be made qua claim of AR and amount should not be Sabha—Land Acquisition Collector, (LAC) disposed of disbursed till such inquiry is complete—If petitioners were objections finding that there is no merit in objections and there aggrieved by these directions, nothing prevented petitioners was no prima facie dispute of apportionment and directed from assailing the same in appropriate proceedings—Principle release of compensation in favour of petitioners—AR filed of restitution by LAC would not apply as LAC was not proceedings before Financial Commissioner (FC) seeking responsible for what happened—Petitioners have not claimed implementation of certain documents, which petitioners any relief against AR nor AR has been impleaded as a claimed were forged—FC issued direction to Deputy respondent in present proceedings. Commissioner (West) to inquire into objections raised by AR qua consolidation and directed compensation be not released Hardwari LAl and Anr. v. Land Acquisition Collector/ADM in favour of any party—Revenue authorities submitted that (W) and Anr...... 194 documents on basis of which AR had claimed rights, were EXTRADITION ACT, 1962—Section 21—Respondent was not genuine and were based on forged documents—Revision named as one of accused in FIR No. 88/2002, under Section Petition dismissed by FC and compensation including principal 387/506/507/201/120-B IPC and Section 3(2), Section 3(4) amount and interest released in favour of petitioners—Writ filed of MCOCA, read with Section 120B IPC—Charge-sheet was before High Court claiming interest in respect of delayed laid against five accused persons, out of which four were sent payment—Plea taken, compensation has not been paid by to stand trial but Respondent was shown as absconder—Trial LAC to petitioners for period of delay when proceedings were commenced against four accused persons, in the meanwhile, pending before FC and period when inquiry in pursuance to Respondent was located in Portugal—In pursuance of an order of FC, took place—If FC has passed a wrong order, existing Interpol notice and Red Corner Notice, extradition petitioners should not be made to pay for it by sacrificing proceedings against him were initiated—Government of interest for that period of time—Held—LAC did not cause any Portugal granted extradition subject to specific condition that delay and a decision was taken promptly on objections of AR Respondent would not be visited with punishment of death that prima facie no case was established for reference of or imprisonment for a term more than 25 years—Said specific dispute qua apportionment—LAC is not a beneficiary of any condition was solemnly assured by Government of India and amount but only seeks to distribute amount obtained from accordingly, extradition of Respondent was granted by beneficiary of land—Interest is also paid by beneficiary—LAC Government of Portugal in respect of 8 cases against him— was willing to disburse amount after dealing with objections 67 68 Although competent authority granted sanction under Section FOREIGN EXCHANGE MANAGEMENT ACT, 1999 23 (2) of MCOCA to prosecute respondent and Supplementary (FEMA)—Section 37 and 38—Challenge in this Intra-Court chargesheet was also filed against him before the Designated Appeal is to the judgment dated 4th May, 2011 of the Learned Court—However, after filing of charge sheet, Government of Single Judge allowing W.P. (C) No. 4542/2010 preferred by NCT of Delhi, reconsidered case of Respondent in view of the respondent and directing the appellant to pay to the extradition condition laid by Government of Portugal and respondent simple interest @ 6% per annum on the sum of solemn assurance given by Government of India—Hence, Rs. 7,75,000/- from the date of seizure i.e. 3rd January, 2003 prosecution filed application under Section 321 of Code till 31st December, 2007 and @ 9% per annum from 1st seeking permission from Designated Court to withdraw January, 2008 till 1st December, 2008—Brief Facts—Writ prosecution of Respondent for offences punishable under petition filed by the respondent pleading that the appellant had Section 3 (2) & 3(4) of MCOCA read with Section 120-B on 3rd January, 2003 seized Rs. 7,75,000/- in Indian currency IPC as both these offences were not in line with conditions and foreign currency equivalent to Rs. 96,000/- from the imposed in Extradition Order—Learned Designated Court custody of the respondent and Proceedings initiated under the dismissed application—Aggrieved, State preferred petition for provisions of FEMA—Adjudicating authority vide order dated setting aside order as well as quashing of framing of charges 28th June, 2004 forfeited the seized currency and also imposed against Respondent—Held:- Power of seeking withdrawal of a penalty of Rs. 5 lacs on the respondent—Respondent filed prosecution is essentially an executive function and Special an appeal before the Appellate Tribunal for Foreign Public Prosecutor, unlike a Judge, is supposed to receive a Exchange—Appeal allowed vide order dated 17th December, request seeking withdrawal of prosecution from Executive— 2007 which order has attained finality but the seized currency It is after receipt of such request from Executive, Special was not returned inspite of repeated request and ultimately the Public Prosecutor is required to apply his mind and then Indian currency was released only on 1st December, 2008 decide as to whether case is fit to be withdrawn from and foreign currency on 02.02.2009—The respondent prosecution and leason for withdrawal could be social, contended that his monies having been wrongfully withheld economic or even political—Withdrawal of prosecution must by the appellant, he was entitled to interest @ 24% per annum be bonafide for a public purpose and in interest of justice— thereon from the date of seizure till return—Also contended Further, while undertaking such an exercise, Special Public that in fact under Rule 8 of the Foreign Exchange Management Prosecutor is not required to sift the evidence, which has been (Encashment of Draft, Cheque, Instrument and Payment of gathered by prosecution as sought to be produced or is Interest) Rules, 2000 the return/refund should have been produced before the Court. accompanied with interest @ 6% per annum. Held—While Rule 8(i) applies to return of seized currency after completion State of NCT of Delhi v. ABU Salem Abdul Qayoom of investigation, Rule 8 (ii) applies to return of seized Ansari ...... 307 currency during adjudication—Again, while Rule 8(i) uses the words “shall be returned...... with interest at the rate of 6% per annum...... ”, Rule 8 (ii) uses the words “may pass such 69 70 order returning ...... together with interest at the rate of and seizure was deemed to be under Section 37 of FEMA— 6% per annum...... ”. The use of different words “shall” and However, FEMA does carve out distinction between Indian “may” in Sub Rules (i) and (ii) respectively indicate that while currency and foreign currency—Rules aforesaid enable it is mandatory to pay interest @6% per annum, when seized adjudicating authority to direct payment of interest @6% per currency is returned on completion of investigation, it is not annum while passing order for return of Indian currency only so when return is pursuant to adjudication and in which case, and did not empower adjudicating authority to direct payment it is in the discretion of adjudicating authority whether interest of any interest while directing return of foreign currency— is to be paid or not—In the present case the Appellate Tribunal Thus, there could be no order for payment of interest on return for Foreign Exchange while allowing the appeal of the of seized foreign currency under Rule 8—Position which thus, respondent did not award any interest to the respondent—No unfolds was that interest at rate of 6% per annum under Rule discussion whatsoever on the aspect of interest—Not even 8 could had been awarded to respondent on seized Indian known whether interest was claimed by the respondent before currency only—Single Judge had however, applying said Rule the Appellate Tribunal—The settled position in Law (see Santa also awarded interest on seized foreign currency which could Sila Devi Vs. Dhirendra Nath Sen AIR 1963 SC 1677) is that not be sustained. Hence, appeal partly allowed and writ petition if the order / judgment is silent on a particular aspect, that of respondent dismissed. relief is deemed to have been declined. It thus, has to be necessarily held that the Appellate Tribunal did not deem it Directorate of Enforcement v. Subhash Muljimal appropriate to award any interest under Rule 8(ii) to the Gandhi ...... 78 respondent—Respondent if was aggrieved by non grant of INCOME TAX ACT, 1961—Section 245—Petitioner challenged interest, the remedy of further appeal under Section 35 of order passed by Settlement Commission whereby it had FEMA to this Court—That right not availed. accepted settlement application of petitioner in part—Also, it Directorate of Enforcement v. Subhash Muljimal observed: “No immunity is granted in respect of income Gandhi ...... 78 contained in the seized papers on the basis of which computation of income has been made in the settlement — Rule 8 was expressly made applicable to seizure under Section application and which has been held not to belong to the 37 of FEMA of Indian currency—Section 37 was omnibus applicant company by us. The department will be free to provision regarding seizure be it for contravention of which initiate penalty and prosecution proceedings, in respect of these so ever provisions—Seizure in present case was admittedly papers in appropriate hands as per law”. According to not by Directorate of Enforcement (DOE) but by Police— petitioner, said observation of Settlement Commission required However, Section 38 of Act provides for empowerment of to be set aside being destructive of very objective, letter and other officers including Police to affect such seizure— spirit behind settlement provisions elucidated in Section 245D Proceedings in present case pursuant to initial seizure by (4) and 245-I of Act—Also, settlement is contrary to law as Police, were admittedly by FEMA—In this view of matter, it order ceases to be conclusive, final and is uncertain—Held:- was irrelevant whether initial seizure was by police or by DOE 71 72 Under Act, Income Tax Officer can and he must, tax right benefits derived by the litigant and harm and deprivation person and right person alone—“Right person” is person who suffered by the rightful person, so as to check frivolous is liable to be taxed according to law with respect to a litigation and prevent the people from reaping a rich harvest particular income, the expression “wrong person” is obviously of illegal acts through the Courts. Despite settled legal used as opposite of expression of right person—Merely positions, the obvious wrong doers, use one after another tier because a “wrong person” is taxed with respect to a particular of judicial review mechanism as a gamble, knowing fully well income, Assessing Officer is not precluded from taking “Right that dice is always loaded in their favour, since even if they person” with respect to that income—Settlement Commission lose, the time gained is the real gain. This situation must be had substantially accepted surrender of income made by redeemed by the Courts. Purchaser’s conduct dishonest-Both petitioner and also granted them immunity from penalty and appeals dismissed with exemplary costs of Rs. 2,00,000/- on prosecution—Computation of taxable income in case of the Purchaser. petitioner does not mean that said papers or seized materials cannot be used if they disclose or relate to income of a third Parmanand Kansotia v. Seetha Lath & Anr...... 488 person. — Section 29—Indian Evidence Act, 1872—Section 91, 92, 114: Gupta Perfumers (P) Ltd. v. Income Tax Agreement to sell—Suit by Purchaser for Specific Settlement Commission & Ors...... 345 performance-Suit by Seller for mandatory injunction and possession-Suits decreed in favour of seller—Appeal filed by INDIAN COMPANIES ACT, 1956—Section 63, 628: Petition Purchaser—Held—Purchaser failed to make payment of for quashing of summoning order in complaint u/s 63 and balance sale consideration—Purchaser’s contention that oral 628—Petitioner contend that complaint beyond period of agreement was entered into at the time of sale agreement which limitation—Held—Period of limitation in any offence provided for deduction of amounts spent on renovation, commences only upon receipt of knowledge of breach-Period furnishing etc. from the sale consideration, is barred under of limitation will not begin from the date of filling prospectus S. 29 of Contract Act and S. 91 and 92 of Evidence Act— but from date of filing of balance sheet on which the complaint Held—S. 114 of Evidence Act enables the Judge to infer one is based— Complaint within period of limitation—Petition fact having regard to the common course of natural events dismissed. or human conduct—In natural course of event the Seller hands over the vacant peaceful possession of the suit property Kuldeep Kumar Kohli & Ors. v. The Registrar of Companies to the Purchaser at a time of receiving the balance sale for Delhi and Haryana ...... 480 consideration and not before that—In exceptional cases possession is handed over where substantial payment has been INDIAN CONTRACT ACT, 1872—Costs: Where Courts find made and there are special circumstance to secure the balance that using Courts as a tool a litigant has perpetuated illegalities sale consideration, such as relationship between the parties. or has perpetuated an illegal possession, the courts must No. such special circumstance in the present case—It is impose costs on such litigant which should be equal to the 73 74 improbable that the seller would have authorized purchaser to of service as an acceptable mode of service and a presumption renovate, furnish without even specifying the amount. Appeal can be drawn under Section 114 (f) of Indian Evidence Act, dismissed. 1872 in that regard—This, however, does not mean that presumption is not rebuttable and must follow in any case since Parmanand Kansotia v. Seetha Lath & Anr...... 488 there may be surrounding circumstances which may create suspicion or other facts may be brought to notice which INDIAN EVIDENCE ACT, 1872—Section 114—Dispute arose would belie plea. qua contract awarded by Respondent to appellant for carrying out earth work for railway formation in construction of minor Budhiraja Mining & Constructions Ltd. v. Ircon bridges—To settle dispute, Arbitration clause invoked, International Ltd. & Anr...... 273 arbitrator made and published award in favour of appellant, amount was to be paid within two months from date of — Section 91, 92, 114: Agreement to sell—Suit by Purchaser award—Appellant found clerical mistakes in award and thus for Specific performance-Suit by Seller for mandatory filed application under Section 33 of Act—Application was injunction and possession-Suits decreed in favour of seller— sent on 18.06.2002 by UPC addressed to arbitrator and copy Appeal filed by Purchaser—Held—Purchaser failed to make of it was sent to Respondent also—Learned Arbitrator was payment of balance sale consideration—Purchaser’s not available in Delhi from 18.06.2002 to 28.06.2002 though contention that oral agreement was entered into at the time his office and residence remained open—Another of sale agreement which provided for deduction of amounts communication was sent by appellant dated 22.07.2002 once spent on renovation, furnishing etc. from the sale again under UPC making reference to earlier application dated consideration, is barred under S. 29 of Contract Act and S. 18.06.2002 received by learned Arbitrator—Appellant was 91 and 92 of Evidence Act—Held—S. 114 of Evidence Act informed by office of Arbitrator about non receipt of enables the Judge to infer one fact having regard to the application dated 18.06.2002—Respondent opposed second common course of natural events or human conduct—In application of appellant on ground that no application dated natural course of event the Seller hands over the vacant 18.06.2002 was moved by appellant and subsequent application peaceful possession of the suit property to the Purchaser at a was time barred—However, learned Arbitrator made necessary time of receiving the balance sale consideration and not before corrections in award by way of two applications moved by that—In exceptional cases possession is handed over where appellant—Aggrieved by said order, Respondent filed substantial payment has been made and there are special objections—Learned Single judge though sustained plea of circumstance to secure the balance sale consideration, such limitation and reached to a conclusion in favour of Respondent as relationship between the parties. No. such special but did not examine merits of the claim of appellant seeking circumstance in the present case—It is improbable that the correction—Thus, aggrieved appellant preferred appeal— seller would have authorized purchaser to renovate, furnish According to Respondent application dated 18.06.2002 sent without even specifying the amount. Appeal dismissed. under UPC could not raise presumption in favour of appellant—Held:- Sending a communication by UPC is a mode Parmanand Kansotia v. Seetha Lath & Anr...... 488 75 76

— Section 115—Appellants/plaintiff are estopped from filing the again admitted delivery of fresh summons but disputed validity subject suit—As per the provision of Section 115 of a person of service and filed two applications before learned Special has a belief that he is the owner of a plot, and such person Judge—Learned Special Judge disposed of applications holding thereafter builds on the plot having the impression that he is petitioner duly served and intentionally avoided appearance to the owner of the plot, and the real owner stands by and allows delay trial—Orders challenged by petitioner urging, FOJ at him to construct on the plot, the real owner is then estopped Berne not competent authority to serve summons on petitioner in law from claiming any rights on the plot once the third and notification not issued as per Section 105 Cr.P.C.— person has made construction on the plot—Sir Sobha Singh Moreover, Letter of Exchange dated 20.02.1989 between India was entitled to have an impression that it was the defendant and Switzerland relates only to purpose of investigations— no.1/respondent no.1 who is the owner of the plot inasmuch Held:- In case of summons to an accused issued by a court as there was a letter dated 4.10.1954 by Sardar Sohan Singh in India shall be served or executed at any place in any to the society for transfer of the plot and membership and Country or place outside India in respect of which which letter was never revoked—Defendant no.1/respondent arrangements have been made by the Central Government no.1 is also the owner of the suit property on the basis of the with the Government of such Country or place for service principal of estoppel enshrined in section 115 of the Evidence or execution of summons or warrants in relation to the Act, 1872. criminal matters, may be sent in duplicate in such forms, directed to such Court, Judge or Magistrate and sent to such Mukhinder Singh (Deceased) Through LRs. & Ors. v. authority for transmission, as the Central Government may Gurbux Singh & Ors...... 578 by notification specify in this behalf—Though serving or execution of summons at a place or country is mandatory, INDIAN PENAL CODE, 1860—Section 120B & 420—Petitioner however, sending of such summons or warrants to such Company charge sheeted along with other accused by CBI court, Judge or Magistrate and to such authority for for alleged commission of offences under Section 120-B, read transmission as may be notified is directory in nature— with Section 420 IPC and Section 13 (2) read with Section Exchange of letters dated. 20.02.1989 is a binding treaty 13(1)(d) of Act—Petitioner summoned through its CEO by between India and Switzerland, even applicable for service of diplomatic channels through Ministry of External Affairs, summons to compel the presence of a person who is accused Interpol—Accordingly Embassy of India, Berne sent letter of an offence for trial and for determining whether to place enclosing summons in original informing him about next date such person on trial—Summons served through FOJ, of hearing before Special Judge, Delhi—Petitioner though designated agency as per Swiss Federal laws amounted to valid admitted service of summons, but urged service as not in service of summons. compliance with Exchange of letters—Accordingly, Learned Special Judge issued fresh summons to petitioner as per Swiss Timing Ltd. v. CBI & Anr...... 234 Exchange of letters which was forwarded by Embassy of India at Berne to FOJ in Switzerland which further informed Indian — Section 186, 353, 323, 34—Petitioner/State challenged order Embassy that summons were issued—However, petitioner of learned Additional Session Judge (learned ASJ) whereby 77 78 learned ASJ had set aside order of learned Metropolitan out from the evidence collected by the prosecution. At that Magistrate (MM) dismissing application of Respondents stage the Trial Court is not bound by the offences invoked in seeking discharge under Section 155 (2) of Code—According the charge-sheet or the offences for which cognizance has to petitioner, complainant/Labour Inspector visited Mother been taken—In such a situation the charge-sheet has to be Dairy Office to deliver letter meeting—After delivering letter, treated as a complaint in view of the explanation to Section 2 when he was coming back to his office Respondents came (d) Cr. P.C. and the Police Officer filing the charge-sheet as there, abused him and also gave him beatings—On allegations complainant. of complainant, complaint was filed on basis of which FIR under Section 186/353/34 IPC was registered—After State v. Lal Singh & Ors...... 329 investigation, charge sheet was laid—Learned Metropolitan Magistrate after hearing parties on framing of charge, ordered — Section 489B—Appellant assailed judgment convicting him that no offence under Section 186/353/34 IPC was made out, under Section 489B of Code—Appellant urged, besides other however, Respondents were held liable to be prosecuted for lacunas in prosecution case, it further failed on ground that offence punishable under Section 323/34 IPC—Respondents no public witness was joined by police inspite of appellant then filed application before learned MM under Section 155 being apprehended from a crowded place, thus, alleged (2) of Code seeking discharge on ground that Section 323 IPC recovery of Indian currency notes was planted on appellant— was non cognizable offence which could not had been Held:- Presumption that a person acts honestly and legally investigated without prior permission of learned MM— applies as much in favour of police officers as of other—It Application dismissed as not maintainable—Aggrieved is not proper and permissible to doubt evidence of police Respondents preferred revision petition before learned ASJ officers if there is no proof of ill-will, rancor or spite against which was allowed holding that Magistrate should not have accused—Judicial approach must not be to distrust and converted case under Section 323 IPC because neither suspect their evidence on oath without good and sufficient cognizance was taken of that offence initially nor police had ground thereof. alleged any offence under Section 323/3 IPC was made out— Shamim @ Bhura v. The State of Delhi ...... 284 Also, permission was not sought by police to investigate case of non cognizable offence which is mandatory—Petitioner — Section 376—As per prosecution appellant, relative of victim’s challenged said order and urged investigation does not stand husband, arranged job for her and husband-On the assurance vitiated warranting quashing of FIR in case where initially FIR that he will take prosecutrix to where her husband was was registered for cognizable offence, however, charge was working, accused took her to his quarter and raped her— framed for non cognizable offence—Held:- Even if the Police Accused took prosecutrix to taxi stand and asked taxi driver does not file a charge-sheet for a particular offence, though to drop prosecutrix to her husband’s place—When made out on the facts of the case, nor does the Magistrate prosecutrix told taxi driver that appellant had committed rape, take cognizance thereon, at the stage of framing of the charge, taxi driver called police on phone—Trial Court convicted Learned Trial Court is supposed to apply its independent mind accused u/s 376 IPC-Held as per examination-in-chief of and come to the conclusion as to what offences are made 79 80 prosecutrix. She was raped when she went to house of of international law or the proceedings resulting therein being accused. However. In cross-examination she deposed that she opposed to natural justice or having been obtained by fraud was raped both at her residence and thereafter, when she went or sustaining a claim founded on a breach of any law in force with the appellant to his quarter—As per FSL report underwear in India. Moreover, all the grounds specified in section 13 of of prosecutrix gave AB group whereas on bedsheet it was B the CPC and on establishment whereof a foreign judgment can Group-In view of contradictory testimony of prosecutrix be said to be not conclusive are such which can be set up which is not supported by FSL report, Conviction set aside- only by a party not himself/herself/itself approaching the Appellant acquitted-Appeal allowed. foreign Court. Here the petitioner who is challenging the judgment, was at the relevant time resident for a fairly long Devu Samal v. The State ...... 441 time within jurisdiction of the foreign Court, did not approach the foreign court under the dictates of the respondent and made — Section 120-B 494A, 498A—Petition against order of MM out a case before the foreign Court of obtaining the judgment- dismissing the complaint of the Petitioner—Petitioner after Petition dismissed. obtaining decree of divorce from foreign Court and after the subsequent marriage of the Respondent, filed criminal Meena Chaudhary @ Meena P.N. Singh v. Basant Kumar complaint of bigamy and cruelty against the Respondent Chaudhary & Ors...... 527 alleging that foreign decree of divorce was an invalid decree— Held:- under Section 13 of CPC, a foreign judgment is — Section 323, 324, 354, 34—Offences being not conclusive as to any matter thereby directly adjudicated upon compoundable, can FIR be quashed on settlement Held— between the same parties except in cases specified thereunder. Compounding of non compounding offences permissible as However, the right if any, to contend that the said foreign per the judgment of B.S Joshi Vs, State of Haryana Nikhil judgment is not conclusive can be only of the party who had Merchant vs. CBI and Manoj Sharma vs. State. These three himself/herself/itself not initiated the process of obtaining the judgments have been referred to the larger bench vide judgment said judgment and cannot be of a party at whose instance such in case of Gain Singh vs. State. However till these are set foreign judgment has been obtained No. litigant can be allowed aside, they hold the field—Petition allowed. to abuse the process of the Courts or to approbate and reprobate as per convenience. The petitioner had deposed that Teka Singh @ Titu & Ors. v. State & Anr...... 475 she was in U.K. from 1993 to 1999. She has not even INDUSTRIAL DISPUTE ACT, 1947—Section 2 (j)—Industry— whispered, alleged or made out any case of any of the grounds Rajghat Samadhi Act, 1951—Powers & Duties—The for the foreign judgment of dissolution of her marriage with appellants engaged as security guard by Rajghat Samadhi the respondent being not conclusive. For the said foreign Committee (RSC), appointed in September, 1997 and judgment to be not conclusive, the petitioner was required to November 1998 respectively—Services terminated on 8.9.2000 make out a case of the same being either pronounced by a and 12.02.2001 respectively—Appellants raised industrial Court having no jurisdiction and /or having been not given on dispute—Referred to Central Government Industrial Tribunal the merits of the case or being founded on an incorrect view 81 82

(CGIT) to adjudicate whether termination illegal and/or One AR objected before LAC that petitioners had got more unjustified—Respondent took preliminary objection— land during consolidation proceedings than was due to them Reference not maintainable as RSC not industry—CGIT at his cost and that land of petitioners belong to Gaon Sabha— returned the findings that respondent was industry—Vide Land Acquisition Collector, (LAC) disposed of objections common award directed reinstatement of the appellants with finding that there is no merit in objections and there was no 25% back wages—RSC filed writ petition allowed by Single prima facie dispute of apportionment and directed release of Judge—Petitioner preferred Letters Patent Appeal (LPA)— compensation in favour of petitioners—AR filed proceedings Held—That RSC was constituted under Rajghat Samadhi Act, before Financial Commissioner (FC) seeking implementation 1951—Powers and duties of the committee defined—The of certain documents, which petitioners claimed were committee empowered to make byelaws Inter-alia for forged—FC issued direction to Deputy Commissioner (West) appointment of such person as may be necessary—To to inquire into objections raised by AR qua consolidation and determine the terms and conditions of services of such directed compensation be not released in favour of any employee—The function of Committee inter-alia included party—Revenue authorities submitted that documents on basis organizing of special function on 2nd October, and 30th January of which AR had claimed rights, were not genuine and were to observe birth and death anniversary of Mahatma Gandhi— based on forged documents—Revision Petition dismissed by Observed—The Samadhi attracts large number of tourists and FC and compensation including principal amount and interest other visitors including school children—These visitors are released in favour of petitioners—Writ filed before High Court attracted to the Samadhi out of reverence for Mahatma Gandhi claiming interest in respect of delayed payment—Plea taken, to pay respect to him and to imbibe the ideals from Gandhian compensation has not been paid by LAC to petitioners for atmosphere created and maintained at Samadhi—The Rajghat period of delay when proceedings were pending before FC Samadhi thus, akin to place of worship—The test for ambit and period when inquiry in pursuance to order of FC, took of definition of industry is production and/or of distribution place—If FC has passed a wrong order, petitioners should of goods and services calculated to satisfy human wants and not be made to pay for it by sacrificing interest for that period wishes—Excludes the activity, spiritual or religious—Appeal of time—Held—LAC did not cause any delay and a decision dismissed. was taken promptly on objections of AR that prima facie no case was established for reference of dispute qua Assem Abbas v. Rajghat Samadhi Committee apportionment—LAC is not a beneficiary of any amount but & Anr...... 143 only seeks to distribute amount obtained from beneficiary of land—Interest is also paid by beneficiary—LAC was willing LAND ACQUISITION ACT, 1894—Section 4, 6, 16, 18, 30, to disburse amount after dealing with objections of AR but 31, 34—East Punjab Holdings (Consolidation of for interdict by order of FC-LAC is not party which persuaded Fragmentation) Act, 1948—Section 42—Constitution of India, court to pass order which was ultimately held unsustainable— 1950—Article 226—Land of petitioners acquired for public LAC was handicapped by reason of interdict of order passed purpose of Rohini Residential Scheme—Petitioners moved by FC and thus, could not itself deposit amount with application seeking release of compensation in their favour— 83 84

reference court—Petitioners did not assail order of FC and and 2/plaintiffs for partition of the suit property belonging to thus accepted order—Acceptance of order of FC implies the mother of the parties, R—The trial Court passed a petitioners were satisfied with arrangement that inquiry should preliminary decree declaring all the legal heirs of R, including be made qua claim of AR and amount should not be disbursed the plaintiffs, to be 1/8th co-owners in the suit property— till such inquiry is complete—If petitioners were aggrieved by Defendants/Appellants contend that suit property was used as these directions, nothing prevented petitioners from assailing a godown by a partnership business of the parties and the same in appropriate proceedings—Principle of restitution therefore, had in any event, acquired rights by adverse by LAC would not apply as LAC was not responsible for what possession and the suit was barred by time—Held:- A civil happened—Petitioners have not claimed any relief against AR case is decided on balance of probabilities. Once the appellants nor AR has been impleaded as a respondent in present failed to prove that there was any Will of the mother-R and proceedings. also failed to prove the plea of adverse possession, which in any case is looked at with dis-favour by the Courts, the trial Hardwari LAl and Anr. v. Land Acquisition Collector/ADM Court was justified in arriving at a finding decreeing the suit (W) and Anr...... 194 for partition—Also held that there was no clinching proof of claim of ownership by defendant—A party claiming adverse LIMITATION ACT, 1963—Section 5—Petition against notices possession must prove that his possession is “nec vi, nec clam, and letter of demand of interest on duty short paid-No direction nec precario”, that is, peaceful, open and continuous. The on interest in the order—Whether demand of interest is barred possession must be adequate in continuity, in publicity and in on account of delay and laches—Held—Period of limitation extent to show that their possession is adverse to the true unless otherwise stipulated by the statute which applies to a owner. claim for the principal amount, should also apply to the claim for interest thereon—Held—In present case period of limitation Kanak Lata Jain & Ors. v. Sudhir Kumar Jain for demand for duty would be one year therefore, period of & Ors...... 176 limitation for demand for interest also would be one year— Demand beyond the period of limitation would be hit by — Section 27—As per Section 27 once the limitation for claiming principles of limitation—Demand for interest quashed—Petition a relief/right with respect to an immovable property expired, allowed. the right in the property itself is lost—This provision of Section 27 of the Limitation Act, 1963 is a departure from the normal Kwality Ice Cream Company and Anr. v. Union of India law of limitation, and as per which normal law of limitation and Ors...... 30 on expiry of limitation, right is not lost but only the entitlement to approach the Court is lost—Once it was clear to the — Partition Suit—Partition suit by heirs of R-defendants set up plaintiff/appellants that from the year 1960 ownership in the an alleged will that bequeathed the suit property to her suit property was being claimed by defendant no.1/respondent daughter-in law-Will disbelieved by trial court passed order no.1 the period of 12 years for the appellants/plaintiffs to have dated 31.01.2011 decreeing the suit of the respondent Nos. 1 filed a suit for possession with respect to this property under 85 86

Article 65 commenced in 1960 itself—Once the limitation of charge sheet, Government of NCT of Delhi, reconsidered commenced in the year 1960, by the year 1972, the right to case of Respondent in view of extradition condition laid by approach the Court by means of a suit for possession Government of Portugal and solemn assurance given by governed by Article 65 of the Limitation Act, 1963 was lost— Government of India—Hence, prosecution filed application Once the right is lost in the year 1972, the subject suit having under Section 321 of Code seeking permission from been filed in the year 1975, the ownership of the defendant Designated Court to withdraw prosecution of Respondent for no.1/respondent no.1 becomes absolute by virtue of law of offences punishable under Section 3 (2) & 3(4) of MCOCA prescription contained in Section 27 of the Limitation Act, read with Section 120-B IPC as both these offences were not 1963—In view of the above, no. merit in the appeal, which in line with conditions imposed in Extradition Order—Learned is accordingly dismissed. Designated Court dismissed application—Aggrieved, State preferred petition for setting aside order as well as quashing Mukhinder Singh (Deceased) Through LRs. & Ors. v. Gurbux of framing of charges against Respondent—Held:- Power of Singh & Ors...... 578 seeking withdrawal of prosecution is essentially an executive function and Special Public Prosecutor, unlike a Judge, is MAHARASHTRA CONTROL OF ORGANIZED CRIME supposed to receive a request seeking withdrawal of ACT, 1999—Sections 3(2) & 3(4)—Extradition Act, 1962— prosecution from Executive—It is after receipt of such request Section 21—Respondent was named as one of accused in FIR from Executive, Special Public Prosecutor is required to apply No. 88/2002, under Section 387/506/507/201/120-B IPC and his mind and then decide as to whether case is fit to be Section 3(2), Section 3(4) of MCOCA, read with Section 120B withdrawn from prosecution and leason for withdrawal could IPC—Charge-sheet was laid against five accused persons, out be social, economic or even political—Withdrawal of of which four were sent to stand trial but Respondent was prosecution must be bonafide for a public purpose and in shown as absconder—Trial commenced against four accused interest of justice—Further, while undertaking such an persons, in the meanwhile, Respondent was located in exercise, Special Public Prosecutor is not required to sift the Portugal—In pursuance of an existing Interpol notice and Red evidence, which has been gathered by prosecution as sought Corner Notice, extradition proceedings against him were to be produced or is produced before the Court. initiated—Government of Portugal granted extradition subject to specific condition that Respondent would not be visited with State of NCT of Delhi v. ABU Salem Abdul Qayoom punishment of death or imprisonment for a term more than Ansari ...... 307 25 years—Said specific condition was solemnly assured by Government of India and accordingly, extradition of MOTOR VEHICLES ACT, 1988—Compensation granted by Respondent was granted by Government of Portugal in respect MACT challenged before High Court—Plea taken, there should of 8 cases against him—Although competent authority granted have been deduction of 50% as against 1/3rd taken by Tribunal sanction under Section 23 (2) of MCOCA to prosecute as deceased left behind only a widow—In absence of evidence respondent and Supplementary chargesheet was also filed led by claimants with regards to future prospects, 50% against him before the Designated Court—However, after filing increase could not have been given in minimum wages adopted 87 88

by Tribunal—Compensation awarded towards conventional Esteem bearing Registration No. DL-2CAC-5813 and reduction heads is excessive—Per Contra plea taken, 50% of deduction of the amount of compensation awarded by the Motor is made in case of a bachelor—In case of a married person Accident Claims Tribunal (the Tribunal)—It is urged for the minimum deduction is one third—Held:- deceased died Insurer that in order to prove negligence the Claimants issueless—He did not leave behind his parents—Widow was examined PW- Dushyant Vasudev and PW-4 Ashish Aggarwal. only dependent—Deduction towards personal and living The accident took place at about 6.30 AM. Both PW-2 & PW- expenses has to be one half and not one third—Deceased 4 were working in separate offices (though in the same would spend not less than 50% on himself—Tribunal erred vicinity) & their office would start at 9/ 9.30 AM. Thus, their in making deduction of only 1/3rd towards personal living presence at the time of the accident was highly improbable. expenses of deceased—Increase in minimum wages is not on If the testimony of these two witnesses is taken off the account of promotion of a unskilled worker or on account of record, there is nothing to establish the negligence on the part advancement in his career but same is due to increase in price of the driver of Maruti Esteem Car No.DL-2CAC-5813. It is index and cost of living—Minimum wages are revised not only well settled that in a claim petition negligence is required to to meet inflation but also to improve standard of living of be proved only on the test of preponderance of probabilities, lowest workers and to give benefit of growth in GDP—Where The FIR in this case was registered on the basis of the full compensation for loss of dependency is granted, only a statement of PW-2. The offending vehicle was seized from notional sum is awarded towards non pecuniary damages i.e. the spot. The driver of the Esteem car No. DL. 2CAC-5813 loss of love and affection, loss of consortium and loss was not produced by the Insurer to rebut the testimony of estate—There has to be uniformity in award under these heads PW-2 and PW-4-Pw-2 gave an explanation that he was called irrespective of status of deceased of claimants— in the office because some guests were scheduled to come. Compensation reduced. In the absence of examination of the driver to rebut PW-2 and PW-4’s testimonies, their presence at the spot at the time Oriental Insurance Company Ltd. v. of accident cannot be doubted merely on the assumption that Rajni Devi & Ors...... 15 they could not have proceeded for the office early and that too, in the same vehicle. On the test of preponderance of — By these two cross Appeals, the parties impugn the judgment probabilities, PW-2 and PW-4’s testimonies that, the accident dated 19.01.2010 whereby a compensation of Rs. was caused on account of rash and negligent driving by the 1,03,68,744/- was awarded for the death of Atul Prashar, aged driver of Car No. DL 2CAC 5813, has to be accepted. It is 37 years, who died in a motor accident, which took place on held that the finding of fact reached by the Tribunal on this 18.01.2008, The MAC APP. No. 179/2010 has been filed by count cannot be faulted—It is well settled that for the legal representatives of the deceased i.e Neelam Prashar determination of loss of dependency, the amount paid to the and others (hereinafter referred to as the “Claimants”) whereas deceased by his employer by way of perks should be included MAC. APP. No. 313/2010 has been preferred by the National in the monthly income—The Tribunal fell into error in ignoring Insurance Co. Ltd. (hereinafter referred to as “insurer”) this amount of Rs. 1,250/- deduction towards income tax is disputing the negligence on the part of the driver of Maruti 89 90

liable to be made as the net income of the deceased is the 4,10,000/- awarded—Aggrieved claimants/appellant preferred starting point for calculation of loss of dependency. appeal—Held:- No evidence of earnings or qualification-taken to be a non matriculate—Multiplier of 15 applicable—Overall Neelam Prashar & Ors. v. Mintoo Thakur & Ors. ... 528 compensation comes toRs.9,63,575/-—Appeal allowed- Compensation enhanced. — Section 163A and 168—Second Schedule Clause 6(b)— Compensation—Accident took place on 04.11.2009—Parents — MAC. APP. No. 772/2011 of the claimants/respondent no. 1 to 3 died in the accident- Mother was a non-matriculate, Aged about 34 years Rendering — Death of a lady-left behind her husband, four sons and a gratuitous service to Husband and three children—Tribunal daughter—Tribunal valued gratuitous services @ Rs. 3000/- assessed the value of gratuitous service rendered by the per month—Awarded compensation of Rs.6,41,00/- Aggrieved deceased mother at Rs. 6000/- per month—Awarded claimants/App. Preferred the appeal—Held:- No evidence of compensation of Rs. 8,50,000/- Aggrieved, appellant/ her educational qualification—Taken to be a non matriculate- respondent Insurance Company preferred appeal seeking Age of deceased taken to be between 35 to 40 years-Multiplier reduction of Compensation—Alleged assessment for gratuitous of 15 applicable—Total compensation comes to Rs. services @ Rs. 6000/- per month arbitrary—Held:- Addition 13,56,250/-—Appeal allowed—Compensation enhanced. of 25% in the salary of non matriculate, multiplier of 16 applicable, Total compensation Works out to be Rs. 9,95,040/ — MAC. APP. No. 857/2011 -—No cross appeal—Compensation is less that what works out on the principles laid down—Appeal dismissed. — Death of lady aged about 40 years—Died on 19.05.2010— Left behind husband and five children out of which three were — MAC. APP. 563/2010 minors—Compensation of Rs. 4,68,300/- awarded by the Tribunal—Aggrieved claimants/app. Preferred appeal seeking — Death of lady aged about 31 years—Taking care of five enhancement of compensation—No cross appeal by Insurance children—Doing tailoring work-value of gratuitous service Company—No evidence as to educational qualification—Held:- taken @ Rs. 6000/- per month—Multiplier of 15 applied- Taken to be a non matriculate—Multiplier of 15 applicable— compensation of Rs. 11,65,000/- awarded—Respondent/ Over all compensation comes to Rs. 13,56,250/-—Appeal Insurance Company preferred appeal—Held-no evidence of allowed-Compensation enhanced. educational qualification;—Taken to be a non matriculate; multiplier of 16 applicable—Total compensation reduced to — MAC. APP. No. 289/2010 Rs.10,35,040/-—Appeal disposed of with directions. — Accident took place on 17.11.2007—Death of a lady aged 31 — MAC. APP. No. 753/2011 years-Claimed to be working as computer editor earning Rs. 4600/- per month—Held:- Taken to be housewife-Gratuitous — Death of a lady about 40 years—Claimed to be earning services rendered valued at Rs. 3000/- per month—Multiplier Rs.4000/- per month from sewing work-compensation of Rs. of 16 applied—Awarded compensation of Rs. 11,97,000/- 91 92

Aggrieved Insurance Company preferred appeal seeking — The accident dated 4th June, 2006 resulted in death of Om reduction of compensation—Held:- Educational qualification Prakash. The deceased was survived by his widow, mother considered to be as a matriculate—Aged 31 years—Multiplier and four children who filed the claim petition before the Claim of 16 applicable—Overall compensation Rs. 9,80,320/-— Tribunal-The deceased was aged 27 years at the time of the Appeal Allowed—compensation reduced. accident and was working as a conductor on the offending bus bearing No. Dl-IP-5998. The claims Tribunal took the Royal Sundaram Alliance Insurance Co Ltd. v. Master minimum wages of Rs. 3,271/- into consideration, deducted Manmeet Singh & Ors...... 547 1/4th towards personal expenses, applied the multiplier of 18, added Rs. 60,00/- towards loss of love and affection and Rs. — Section 3, 5, 149 (2) (a) (ii), 166 and 181—Code of Criminal 20,000/- towards funeral expenses. The total compensation Procedure, 1973—Section 173—Cross appeals filed by awarded is Rs. 6,09,902/- The Claims Tribunal exonerated the Insurance Company claiming recovery rights against owner insurance company and held the driver and owner liable to of offending vehicle and cross objections filed by claimants pay the award amount—The appellants are the owner and for enhancement of compensation—Plea taken, driver did not driver of the offending vehicle and have challenged the possess a valid driving license on date of accident and Insurer impugned award on the limited ground that the offending was entitled to avoid liability—Per Contra Plea taken, insurer vehicle was validly insured and, therefore, respondent No.1 failed to establish breach of policy condition—Deceased was alone is liable to pay the entire award amount to the claimants— aged 50 years on date of accident—Claims Tribunal erred in Learned counsel for the appellants submit that the deceased, taking deceased's age to be 68 years—Held—No effort was employed as a conductor, was validly covered under the made by insurer to summon record from RTO with regard insurance policy and therefore, respondent No.1 alone is to renewed license produced by driver to show that license responsible to pay the insurance amount—The liability of the was not valid on date of accident—Investigation Officer not insurance company in respect of the Workmen’s examined to rebut driver's contention that he had a valid Compensation in respect of the driver and conductor of the driving license on date of accident which was seized by offending vehicle under Section 147(1) of the Motor Vehicles Investigating Officer-Mere filing of chargesheet under Section Act is statutory and therefore, respondent No.1 would be liable 3 of Act is not sufficient to hold that driver did not possess to pay the Workmen’s Compensation. The insurance policy a valid driving license at time of accident—Since claimant’s of the offending vehicle has been placed on record as testimony that deceased was 50 years, was not challenged in Annexure-F (colly.) with the appeal in which respondent No.1 cross examination and in view of contradictory documentary has charged the premium for Workmen’s Compensation to evidence, age favourable to claimants has to be considered the employee. Under Section 147(1) of the Motor Vehicle Act, for grant of compensation as provision of Section 166 is a 1988, the insurance company is required to compulsorily piece of social legislation—Compensation enhanced. cover the liability in respect of the death or bodily injury of National Insurance Company Ltd. v. Ram Rati Devi the driver and conductor in the case of public service vehicle. & Ors...... 627 The contention of Respondent No. 1 that they have charged 93 94

for premium for one employee is untenable in view of the stringent punishment for offence committed thereunder and statutory requirement of Section 147 (1) of the Motor Vehicle as such, casts a heavy duty upon Courts to ensure that there Act to cover the driver and the conductor. Even if the remains no possibility of an innocent getting convicted, contention of respondent NO.1 that the policy covered one officers concerned with investigation of offences under Act employee is accepted, the policy should be construed to cover must produce best and unimpeachable evidence to satisfy the deceased. In that view of the matter, this Court is of the Courts that accused is guilty because no chance can be taken view that respondent No.1 is liable to pay Workmen’s with liberty of a person—No doubt that drug tracking is a Compensation in respect of death of the deceased and the serious matter but investigations into such offences also have remaining amount of compensation is liable to be paid by the to be serious and not perfunctory. appellants.-The appeal is partly allowed to the extent that out of the award amount of Rs. 6,09,902/-, respondent No.1 shall James Eazy Franky v. D.R.I...... 359 be liable to pay Rs. 3,49,294/- along with interest @ 7.5% per annum from the date of filling of the claim petition till PREVENTION OF CORRUPTION ACT, 1988—Section 13— realization to respondent Nos. 2 to 7. The remaining amount Petitioner/State assailed judgment of acquittal passed by of Rs. 2,60,608/- (Rs. 6,09,902/- Rs. 3,49,294) along with learned Special Judge whereby learned Special Judge had set interest @ 7.5% per annum for the date of filing of the claim aside judgment and order on sentence passed by learned petition till realization shall be paid by the appellants. ACMM-II, New Delhi—Petitioner urged, learned ASJ had completely ignored report of CFL as well as report of public Prashant Dutta & Anr. v. National Insurance Co. Ltd. & analyst which were not contradictory in any manner and minor Ors...... 671 variation of two reports was not fatal to prosecution— According to Respondents once Director of CFL had examined NARCOTICS AND PSYCHOTROPIC DRUGS ACT, 1985— sample and gave certificate then said certificate is final and Section 21—Appellant assailed his conviction under Section conclusive evidence of facts—Held:- Presumption attached to 21 (C) of Act on various grounds—According to appellant, certificates issued by Directorate of CFL is only in regard to learned Special Judge glossed over various irregularities what is stated in it, as to contents of sample actually examined carried out by Department in effecting alleged recovery of by Director and nothing more—Even after this certificate, it contraband from possession of appellant—Prosecution failed is open to accused to show that sample sent for analysis could to prove conscious possession of contraband by appellant as not have been taken to be representative sample of article of entire process of recovery was jeopardized in absence of food from which it was taken. authentic witness to alleged recovery of contraband from possession of appellant—On other hand, it was urged on behalf State v. Praveen Aggarwal...... 213 of DRI, prosecution has proved recovery and seizure of 4.244 kg. of heroin having purity percentage 65.9% to 87.1% from — Section 13—Indian Penal Code, 1860—Section 120B & possession of accused, therefore, he was appropriately 420—Petitioner Company charge sheeted along with other convicted and sentenced—Held:- Though, Act lays down accused by CBI for alleged commission of offences under 95 96

Section 120-B, read with Section 420 IPC and Section 13 (2) Exchange of letters dated. 20.02.1989 is a binding treaty read with Section 13(1)(d) of Act—Petitioner summoned between India and Switzerland, even applicable for service of through its CEO by diplomatic channels through Ministry of summons to compel the presence of a person who is accused External Affairs, Interpol—Accordingly Embassy of India, of an offence for trial and for determining whether to place Berne sent letter enclosing summons in original informing him such person on trial—Summons served through FOJ, about next date of hearing before Special Judge, Delhi— designated agency as per Swiss Federal laws amounted to valid Petitioner though admitted service of summons, but urged service of summons. service as not in compliance with Exchange of letters— Accordingly, Learned Special Judge issued fresh summons to Swiss Timing Ltd. v. CBI & Anr...... 234 petitioner as per Exchange of letters which was forwarded by Embassy of India at Berne to FOJ in Switzerland which — Section 27—Petitioner preferred petition seeking discharge in further informed Indian Embassy that summons were issued— criminal case filed by CBI against him on ground sanction However, petitioner again admitted delivery of fresh summons granted to prosecute against him, was not valid—He had but disputed validity of service and filed two applications moved application before learned Special Judge seeking before learned Special Judge—Learned Special Judge disposed discharge on ground of invalidity of sanction which was of applications holding petitioner duly served and intentionally dismissed and thus, petitioner preferred petition under Section avoided appearance to delay trial—Orders challenged by 482 of Code—On behalf of CBI, it was urged once charge petitioner urging, FOJ at Berne not competent authority to was framed in warrant trial case, instituted either on complaint serve summons on petitioner and notification not issued as or on police report, trial court had no power under code to per Section 105 Cr.P.C.—Moreover, Letter of Exchange dated discharge accused—Trial Court could either acquit or convict 20.02.1989 between India and Switzerland relates only to accused unless it decided to proceed under Section 325 and purpose of investigations—Held:- In case of summons to an 360 of Code, except where prosecution must fail for want of accused issued by a court in India shall be served or executed fundamental defect, such as want of sanction—Also, sanction at any place in any Country or place outside India in respect order was perfectly authenticated and duly authorized, of which arrangements have been made by the Central therefore, discharge could not be sought on ground of invalidity Government with the Government of such Country or place and that too, at stage when case was fixed for final for service or execution of summons or warrants in relation arguments—Held:- Court is not to go into technicalities of to the criminal matters, may be sent in duplicate in such sanctioning order—Justice cannot be at beck and call of forms, directed to such Court, Judge or Magistrate and sent technical infirmities—Court is only bound to see that to such authority for transmission, as the Central Government sanctioning authority after careful consideration of material may by notification specify in this behalf—Though serving that is brought forth, has passed an order that shows or execution of summons at a place or country is mandatory, application of mind. however, sending of such summons or warrants to such Hawa Singh v. CBI ...... 290 court, Judge or Magistrate and to such authority for transmission as may be notified is directory in nature— 97 98 PUBLIC PREMISES (EVICTION OF UNAUTHORIZED allegations of the DDA on the basis of which the determination OCCUPANTS) ACT, 1971 (PP ACT)—Section 4—Whether of the lease has been effected is to be decided by the Authority a writ impugning the order of determination of perpetual lease under the PP Act—It was further observed that whether the is not maintainable for the reason of it being open to the lessee had committed breach of terms of the lease deed or affected person to impugn such determination in proceedings not and whether the determination of the lease was legal or under the Public Premises (Eviction of Unauthorized not are matters to be adjudicated by the concerned authority Occupants) Act, 1971 (PP Act)—Brief Facts—Petitioner was under the PP Act and cannot be gone into in exercise of writ granted perpetual lease of plot of land—Respondent DDA vide jurisdiction—Disputed questions of fact viz whether notices notice dated 10th May, 2000 to the petitioner averred, that were served on the petitioner or not, whether the petitioner the building over the said plot of land was being used for has used the premises as a Banquet Hall or not and whether commercial purpose as Anukumpa banquet Hall—Construction the petitioner committed other breaches or not, cannot be was not as per the sanctioned plan—Mezzanine floor had been adjudicated in writ jurisdiction—Petitioner has alternative converted into a working hall-all this was in breach of the suitable remedy before the Estate Officer—The petition thus, terms and conditions of the perpetual lease deed—Petitioner fails and is dismissed. asked to stop and remove the breaches—Petitioner vide its reply dated 25th May, 2000 denied that any banquet hall was Ocean Plastics & fibres (P) Limited v. Delhi Development functioning on the property and stated that the electricity Authority & Anr...... 134 supply to the property had been disconnected because of the REGISTRATION ACT, 1908—Section 49—Delhi Rent control Central Pollution Control Board and the basement was lying Act, 1958—Suit for possession and mesne profits—Premises closed on account of water seepage; the violations in the let out to the appellant/respondent vide rent agreement dated setbacks were stated to have been removed—DDA vide the 01.10.2006 for a period of three years by the husband of said notice dated 21st November, 2005 determined the respondent/plaintiff—Tenancy terminated vide notice dated perpetual lease deed—Called upon the petitioner to remove 31.03.2010 w.e.f. 30.04.2010—Failed to vacate the premises- itself from the plot of land and deliver possession thereof— Suit filed-Suit decreed for possession under order 12 Rule 6 Petitioner sent a representation denying any breach of the vide judgment, dated 14.11.2011—Aggrieved by the judgment perpetual lease deed conditions—DDA was requested to filed the present appeal—Alleged tenancy was for withdraw the notice of determination of lease—The Estate manufacturing purposes—Notice terminating the tenancy Officer of the respondent DDA issued the notice dated 5th should have been for a period of six month-Held—Lease deed May, 2006 under Section 4 of the PP Act and whereafter this unregistered—Terms cannot be looked into—Purpose of letting writ petition was filed—DDA in its counter affidavit reiterated is not collateral purpose-notice valid—Appeal dismissed. its case of banquet hall being run on the property in contravention of the perpetual lease conditions—Held—The Sharvan Aggarwal v. Kailash Rani...... 459 Division Bench of this Court in Ambitious Gold Nib undoubtedly held that the correctness or otherwise of the 99 100 REGULAR FIRST APPEAL (RFA)—Filed against judgment of Airport Authority of India and not of defendant No. 1/ the trial Court dated 23.05.2003 dismissing the suit for respondent No. 1. recovery of 4,46,027.65/- filed by the appellant/plaintiff against respondent No.1/defendant No.1. Respondent No.2/Oriental Union of India v. COX & Kings (India) Ltd. Anr.... 158 Insurance Company Limited/defendant No.2 was a proforma RIGHT OF CHILDREN TO FREE AND COMPULSORY party—Held—The trial Court was fully justified in holding that EDUCATION ACT, 2009—Petitioner impugned Rule 10(3) there was no negligence of defendant No. 1/respondent No. Delhi RTE Rules and alternatively claimed that the Court should 1 in having lost any of the packages which were given to the frame guidelines for exercise of powers under Rule 10(3) for defendant No. 1/respondent no.1. The package which was extending the limits of “neighbourhood” as defined under the given to it was of 47 kilograms (kgs.) as per Indian Airlines Act and the Rules—Although the Act uses the term Consignment Note C/No: 09635970 dated 9.12.1986 and it is “neighbourhood”, but does not define the same-However, the this consignment of 47 Kgs. as stated in Airlines Consignment definition is found in the Rules, which prescribe the limits of Note C/No.: 09635970 which was delivered to the appellant/ neighbourhood in respect of children of Classes-I to V as plaintiff at Calcutta. Surely, if only 47 Kgs. were delivered to within walking distance of 1Km and in respect of Children of defendant No. 1/respondent No.1 there does not arise any Classes-IV to VIII as within 3km—Private unaided schools question of any loss being caused by it of the difference of are required to admit children belonging to EWS and 100 Kgs. and 47 Kgs. At best, the liability of defendant No.1/ disadvantaged groups in Class-I to the extent of 25% of respondent No. 1 would be for taking short delivery, however, strength and resident of within the limits of neighbourhood— even that liability would not be there because to the knowledge While admitting general category children, the private unaided of the appellant/plaintiff the main package had been broken schools do not follow the prescribed limits of open as is clear from the letter dated 6.10.1986 written to Sh. neighbourhood—However, the respondent issued order Mago at the Airport Cargo Terminal and at best the negligence directing that all schools shall ensure that no child under EWS of defendant No.1/ respondent No.1 would be of taking short and disadvantaged groups is denied admission on delivery. However, that negligence in itself cannot fasten the neighbourhood basis, so long as the locality of the child's defendant No.1/respondent No. 1 with liability because it is residence falls within the distance criteria devised by the not as if the appellant/plaintiff was not aware within the schools for the general category—Challenged—Held, Petitioner limitation period that it was the International Airport Authority has no cause of action as it should not matter to the School of India which had given short delivery and therefore, the suit whether the children of EWS and disadvantaged groups are could well have been filed against the International Airport residing within 1km or more and the grievance, if any should Authority of India within the limitation period for the loss be of the children for inability of government to provide caused during the period the consignment was in the custody schools within the neighbourhood—Further held, the of the International Airport Authority of India. The liability, paramount purpose is to provide access to education and therefore, for having lost the goods, was of the International distance to be travelled by the child is secondary—Directed, admission shall first be offered to eligible students of EWS 101 102 and disadvantaged groups residing within 1Km; in case any complaint or appeal’, the hearing to be given to such vacancies remain unfilled, students residing within 3km shall Information Officer, is to be held after the decision on the be admitted; if still vacancies remain, students residing within Complaint or the appeal. The proceedings before the CIC, of 6km shall be admitted; and even thereafter if vacancies remain, hearing the Information Officer qua whom opinion of having students residing beyond 6km shall be considered. committed a default has been formed and of imposition of penalty, in the exercise of supervisory powers of CIC and not Federation of Public Schools v. Government of NCT of in the exercise of adjudicatory Powers. Delhi ...... 570 Anand Bhushan v. R.A. Haritash ...... 657 RIGHT TO INFORMATION ACT, 2005—Section 20(1)—Delhi High Court Act, 1966—Section 10—Central Information — Section 20(1)—Central Information Commission (CIC) Commission (CIC) imposed maximum penalty of Rs. 25,000/ imposed maximum penalty of Rs. 25,000/- the respondent - on the respondent under section 20(1) of the Act for the under section 20(1) of the Act for delay of over 100 days in delay of over 100 days in furnishing the information to the furnishing the information to the appellant—Chief Secretary, appellant—Chief Secretary, Govt. of Delhi was directed to Govt. of Delhi was directed to recover the said amount from recover the said amount from the salary of the respondent @ the salary of the respondent @ Rs. 5,000/- per month Rs. 5,000/- per month-Respondent preferred writ petition— Respondent preferred writ petition—Learned Single Judge Learned Single Judge allowed the writ petition—Reduced the allowed the writ petition—Reduced the penalty amount to Rs. penalty amount to Rs. 2,500/- recoverable from the salary of 2,500/- recoverable from the salary of the respondent in ten the respondent in ten equal monthly installments of Rs. 250/ equal monthly installments of Rs. 250/- per month—Reason— - per month—Reason—The question of penalty is essentially The question of penalty is essentially between the Court and between the Court and the respondent and did not really the respondent and did not really concern the appellant who concern the appellant who has been provided with has been provided with information—Respondent took the information—Respondent took the charge of the post 14 days charge of the post 14 days after the subject RTI application after the subject RTI application of the appellant had been of the appellant had been filed—Appellant filed the Intra Court filed—Appellant filed the Intra Court Appeal—Contention— Appeal—Contention—Use of word ‘shall’ in section 20(1) is Use of word 'shall' in section 20(1) is indicative of the indicative of the imposition of penalty mandatory—Presence imposition of penalty mandatory—Presence of information of information seeker is essential not for computing the penalty seeker is essential not only for computing the penalty but also but also for establishing the default of the information officer— for establishing the default of the information officer-Exclusion Exclusion of the information seeker from penalty proceedings of the information seeker from penalty proceedings would would dilute the sprit of the Act—The role of the CIC is of dilute the sprit of the Act—The role of CIC is of an an adjudicator—Held—Though Section 20(1) uses the word adjudicator—Held—A reading of Section 20 shows that while ‘shall’, before the words ‘impose a penalty of Rs. Two the opinion, as to a default having been committed by the hundred and fifty rupees but in juxtaposition with the words Information Officer, is to be formed ‘at the time of deciding ‘without reasonable cause, malafidely of knowingly or 103 104 obstructed’—The second proviso thereto further uses the SPECIFIC RELIEF ACT, 1963—Section 22—Amendment of words, ‘reasonably and diligently’—The question which arises relief claimed in the plaint and decree—Decree Holders filed is when the imposition of penalty is dependent on such suit seeking relief for specific performance of agreement to variables, can it be said to be mandatory or possible of sell dated 2.05.1988 against five judgment debtors including calculation with mathematical precision—All the expressions one Satbir and Vijaypal—Judgment debtors proceeded ex- used are relative in nature and there may be degrees of, parte—Suit decreed in favour of decree holders—In terms of without reasonable cause, malafide, knowing or the judgment and decree, sale deed dated 22.10.1991 was reasonableness, diligence etc.—The very fact that imposition executed by the Registrar in favour of decree holders— of penalty is made dependent on such variables is indicative Application filed by Satbir and Vijaypal for setting aside ex- of the direction vested in the authority imposing the parte judgment and decree, dismissed—Appeal preferred by punishment—Once it is held that the quantum of fine is them before Division Bench—Division Bench directed discretionary, there can be no challenge to the judicial review judgment debtors to not to transfer, alienate, part with or create under Article 226 of the Constitution, of exercise of such any third party interest in the property pending appeal—By discretion, of course within the well recognized limits—If this order dated 16.08.2011 appeal dismissed by Division Bench— Court finds discretion to have been not appropriately exercised Review petition filed after the dismissal of the appeal, was also by the CIC, this Court can, in exercise of its power vary the dismissed—Decree holders filed application under Order XXI penalty—Appeal dismissed. Rule 11(2) for execution of decree dated 15.11.1990—Prayer also made for the amendment of the plaint and decree by Anand Bhushan v. R.A. Haritash ...... 657 abundant caution as it was incumbant on judgment debtors anyway to put the decree holders in possession after the SCHEDULE CAST & SCHEDULE TRIBES (PREVENTION OF decree of specific performance—Submitted on behalf of the ATROCITIES) ACT, 1989—Section 3(1) (X)—Petition judgment debtors Satbir and Vijaypal inter-alia that it would Against non framing of charges by the L.d ASJ—Accused amount to denovo trial—Held, it may not always be necessary must have knowledge or awareness that the victim belongs for the plaintiff to specifically claim possession over the to Scheduled Caste or Scheduled Tribe in order to constitution property as it is inherent in the relief of specific performance offence under S. 3.(1)(x) ‘Public view’ in S.3(1)(x) implied of the contract of sale—Words “at any stage of proceedings” within view of group of people of the place/locality/village not in proviso to sub Section 2 of Section 22 includes execution linked with the Complaint through kingship, business, proceedings—Relief for delivery of possession is just a commercial or any other vested interest—Public view means formality—Executing Court is empowered to grant such relief presence of one or more persons who are neutral or impartial, even though no such prayer had been made in plaint or even though he may be known to the complainant to attract mentioned in decree—To meet, however, the objections raised ingredients of offence. Petition dismissed. by the judgment debtors, and cover conflicting views expressed by Courts, amendment allowed to include claim for Kanhaiya Paswan v. State & Ors...... 509 105 106

possession, under proviso to sub Section 2 of Section 22 of registration without citing plaintiff’s prior registered mark and the Act. also perhaps not been informed about interim orders and seisin of dispute by this Court and granted registration contrary to Adarsh Kaur Gill v. Mawasi & Ors...... 87 Rule 37 of T M Rules—By ignoring mandatory provisions of Act and granting registration to defendants, it is clear that it TRADE MARKS ACT, 1999—Section 11, 23, 28, 31 and 134— is done with malafide intention, in order to defeat orders Copyright Act, 1957—Section 62—Trade Marks Rule, 2002— passed by court—It is a triable question whether registration Rule 37—Plaintiff registered trade mark owner of expression of defendants is actually a valid one or is it just entry wrongly “SHRIRAM” for vast range of products since 1960—By remaining on register, depending upon inference which court interim order, defendants restrained from manufacturing or is going to draw by way of impact of subsequent events— selling any produce by name of “SHRIRAM CARTAP” which Objection qua jurisdiction at this stage can not be sustained is deceptively similar trademark of plaintiff—Case of and same is dismissed. defendants that they have got registration of trade mark from registry—Date of registration relates back to date of DCM Shri Ram Consolidated v. Sree Ram Agro application—Plaintiff is entitled to continue with suit for Ltd. & Ors...... 119 passing off which is still maintainable but defendants are residing and carrying on their business outside jurisdiction of TRADE MARKS RULE, 2002—Rule 37—Plaintiff registered this court—Plaintiff under action of passing off can not take trade mark owner of expression “SHRIRAM” for vast range advantage of section 134(2) of Act in order to invoke territorial of products since 1960—By interim order, defendants jurisdiction—Plaint is liable to be returned because of lack of restrained from manufacturing or selling any produce by name territorial jurisdiction—Held—Defendants did not amend of “SHRIRAM CARTAP” which is deceptively similar written statement after obtaining registration nor defendants trademark of plaintiff—Case of defendants that they have got have filed any application for return of plaint—Defendants in registration of trade mark from registry—Date of registration their written statement have not denied existence of territorial relates back to date of application—Plaintiff is entitled to jurisdiction of this Court—On date of institution, this court continue with suit for passing off which is still maintainable had jurisdiction to entertain and try proceedings on basis of but defendants are residing and carrying on their business provisions under law—One fails to understand as to why outside jurisdiction of this court—Plaintiff under action of defendants are now challenging jurisdiction on passing off passing off can not take advantage of section 134(2) of Act when in written statement in cause of action, defendants in order to invoke territorial jurisdiction—Plaint is liable to be admitted territorial jurisdiction—Registration has been secured returned because of lack of territorial jurisdiction—Held— by defendants which has been although applied prior but, was Defendants did not amend written statement after obtaining prosecuted and obtained pursuant to interim orders passed by registration nor defendants have filed any application for return this court in matter—Registrar of Trade Marks has not cited of plaint—Defendants in their written statement have not previously registered trade mark of plaintiff as a matter of denied existence of territorial jurisdiction of this Court—On conflicting mark in examination report and proceeded to grant 107 108 date of institution, this court had jurisdiction to entertain and came to know of surreptitious and unilateral deposit of rent, try proceedings on basis of provisions under law—One fails wrote a letter dated 12.07.2011 that deposit of rent was to understand as to why defendants are now challenging without any instruction on their behalf and the deposit would jurisdiction on passing off when in written statement in cause be taken without prejudice to their right—Court observed any of action, defendants admitted territorial jurisdiction— amount received after the termination of tenancy can surely Registration has been secured by defendants which has been be taken as charges towards use and occupation because after although applied prior but, was prosecuted and obtained all the tenant had continued to use and occupy tenanted pursuant to interim orders passed by this court in matter— premises and was liable consequently to pay user charges— Registrar of Trade Marks has not cited previously registered Fresh tenancy is a bilateral matter of contract coming into trade mark of plaintiff as a matter of conflicting mark in existence—Unless there is bilateral action and an agreement examination report and proceeded to grant registration without entered into to create fresh tenancy, mere acceptance of rent citing plaintiff’s prior registered mark and also perhaps not after termination of tenancy cannot create fresh tenancy— been informed about interim orders and seisin of dispute by Appellant Bank Contended that since the appellant disputed all this Court and granted registration contrary to Rule 37 of T the aspect in the written statement, decree could not be passed M Rules—By ignoring mandatory provisions of Act and by Trial Court under Order 12 Rule 6—Held—Contention to granting registration to defendants, it is clear that it is done be misconceived as existence of relationship of landlord and with malafide intention, in order to defeat orders passed by tenant, the factum of premises not having protection of Delhi court—It is a triable question whether registration of Rent Control Act, 1958, and fact of tenancy termination by defendants is actually a valid one or is it just entry wrongly service of a legal notice not disputed in the written statement— remaining on register, depending upon inference which court Fresh tenancy also not found to have been created—Appeal is going to draw by way of impact of subsequent events— dismissed. Objection qua jurisdiction at this stage can not be sustained and same is dismissed. Punjab National Bank v. Virendra Prakash & Anr...... 110 DCM Shri Ram Consolidated v. Sree Ram Agro Ltd. & Ors...... 119 — Section 54—An ownership of a property is transferred by means of a registered sale deed as per Section 54—Every sale TRANSFER OF PROPERTY ACT, 1882—Section 106 & 116— deed has an effect of divesting the transferor of the ownership Respondent/landlord wrote a letter 28.12.2010 after expiry of of the property and the vesting of the ownership in the tenancy by efflux of time, to vacate the property—Appellant transferee—A Sale deed by which the ownership rights in an did not vacate; legal notice sent on 4.2.2011 terminating the immovable property are transferred can be ignored only under tenancy—Appellant failed to vacate—Appellant bank had two circumstances—First, it the sale deed is a nominal account of respondent in their branch—Started depositing rent transaction or a paper transaction because the parties intended in the account—Claimed by tenant that by acceptance of such it to be so or secondly, if the document being the sale deed is deposit fresh tenancy came into existence—Landlord when void ab initio. It is in these two circumstances that it is not 109 110

necessary to have the sale deed set aside inasmuch as the sale of respondent/plaintiff—Tenancy terminated vide notice dated cannot have he effect of transferring ownership—However, 31.03.2010 w.e.f. 30.04.2010—Failed to vacate the premises- in all other cases where it is pleaded that deed is a voidable Suit filed-Suit decreed for possession under order 12 Rule 6 document because it ought not to have been executed or there vide judgment, dated 14.11.2011—Aggrieved by the judgment is a fraudulent transfer of title by means of the particular sale filed the present appeal—Alleged tenancy was for deed or for any reason which makes the transfer voidable (and manufacturing purposes—Notice terminating the tenancy not void), it is necessary that a suit has to be filed for should have been for a period of six month-Held—Lease deed cancellation of such a sale deed within a period of three of unregistered—Terms cannot be looked into—Purpose of letting years from the date a person comes to know of execution is not collateral purpose-notice valid—Appeal dismissed. and existence of the sale deed which goes against the interest of such person-This is the mandate of Article 59 of the Sharvan Aggarwal v. Kailash Rani...... 459 Limitation Act, 1963—In the facts of the present case, the Knowledge of the appellants/plaintiff and their predecessor in interest, Sardar Sohan Singh of the existence of the sale deed dated 03.12.1950, is actually from 1960 itself-On registration of the sale deed dated 3.12.1960, the appellants/plaintiffs and Sardar Sohan Singh in accordance with Section 3 of Transfer of property Act, 1882 were deemed to have notice of the fact that the sale deed was actually executed—Suit of the appellants/ plaintiffs, even if the present suit was one for cancellation of the sale deed dated 3.12.1960, would have become barred by 1963, or at best 1965/1966 even if we take the knowledge from the year 1963, as pleaded by the appellants/plaintiff. Once, there cannot be cancellation of the sale deed, the ownership of the defendant no.1/respondent no.1 become final and also the disentitlement of the appellants/plaintiff to the reliefs claimed in the suit of possession and mesne profits.

Mukhinder Singh (Deceased) Through LRs. & Ors. v. Gurbux Singh & Ors...... 578

— Section 106—Registration Act, 1908—Section 49—Delhi Rent control Act, 1958—Suit for possession and mesne profits— Premises let out to the appellant/respondent vide rent agreement dated 01.10.2006 for a period of three years by the husband